Attorney fees incurred during litigation
The Belgian Code of Civil Procedure provides for a system of varying flat fees as a contribution to attorney fees and costs incurred by the successful party and to be paid by the unsuccessful party (art. 1022 BCCP). These flat fees are determined by Royal Decree and are amended from time to time. There are three levels of flat fees: basic amount, minimum amount and maximum amount. The Court normally applies the basic amount. If it does not apply this amount, it has to substantiate its decision. However the Court should always respect the minimum and the maximum amounts.
The following fees, applicable as from 1 March 2011, are given by way of example:
- Claims below € 250: minimum amount € 82.50, basic amount € 165 and maximum amount € 330 etc.
- Claims between € 100,000 and € 250,000: minimum amount € 1,100, basic amount € 5,500 and
maximum amount € 11,000;
- Claims between € 250,000 and € 500,000: minimum amount € 1,100, basic amount € 7,700 and
maximum amount € 15,400;
- Claims between € 500,000 and € 1,000,000: minimum amount € 1,100, basic amount € 11,000 and
maximum amount € 22,000;
- Claims exceeding € 1,000,000.10: minimum amount € 1,100, basic amount € 16,500 and maximum
amount € 33,000;
- Claims which cannot be expressed in monetary terms: minimum amount € 82,50, basic amount €
1,320 and maximum amount € 11,000.
Different (lower) contributions apply in cases heard by the Courts of Employment.
Attorney fees incurred before litigation
Extrajudicial fees and costs should be clearly distinguished from attorney fees and other costs in relation to litigation. A party may be liable for extrajudicial fees and costs if the creditor can prove that these are as damage the direct result of a breach of contract by the other party, were necessarily made in order to recover the claim and are also reasonable. This is difficult, if not impossible to prove for the successful party. For transactions which result in the issuing of an invoice, creditors normally include a liquidated damages clause in their general terms and conditions, which provides for instance for compensation of 10% of the claim, without prejudice to the creditor’s right to prove the real losses exceeding this 10%. The Court may however reduce the amount of the
liquidated damages depending on the circumstances.
A liquidated damages clause is considered to include compensation for attorney fees incurred during the stage before litigation is initiated; this compensation should therefore be distinguished from the recovery of attorney fees under the Belgian Code of Civil Procedure.
In our example a creditor can thus claim 10% on the principal sum for extrajudicial costs and in the event of litigation also compensation in accordance with the minimum, maximum and basic amounts as outlined above.
Recovery of attorney fees in intellectual property cases
Article 14 of EU Directive 2004/48 on the enforcement of intellectual property rights states “Member States shall ensure that reasonable and proportionate legal costs and expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.” The Antwerp Court of Appeal recently (26 January 2015) submitted a request for a preliminary ruling to the European Court of Justice on whether the Belgian system of varying flat rates in respect of the recovery of attorney fees is in conformity with the directive (Case C-57/15: United Video Properties Inc. vs. Telenet NV). The European Court is likely to give its ruling during the course of 2016. This ruling may have an impact on the Belgian system of flat fees as a whole.