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Fieldfisher questions Belgian legislation on the recoverability of fees




A preliminary question has been referred to the EU Court of Justice after a Fieldfisher team argued that some Belgian legislation contradicts an EU Directive.

The Antwerp Court of Appeal has referred a preliminary question to the European Union Court of Justice after a team led by Fieldfisher partners Stijn Debaene and Hakim Haouideg argued that Belgian legislation relating to the recoverability of lawyers' fees contradicts an EU Directive.

Intellectual Property specialists Stijn and Hakim, who are based in Fieldfisher's Brussels office, led a team representing telecommunications services company Telenet in litigation against US-based United Video Properties regarding an alleged patent infringement. Telenet ultimately won the case, but incurred legal costs which exceeded those recoverable under Belgian law. The Belgian Act of 21 April 2007 and a Royal Decree of 26 October 2007 provide only for the recovery of relatively low flat rates from the losing party as compensation for fees.

The Fieldfisher team argued that this legislation contradicts Article 14 of EU Directive 2004/48 which states that "Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this."

In a judgment of 26 January, the Antwerp Court of Appeal posed a preliminary question to the European Court of Justice on whether or not the Belgian legislation complies with European law. A judgment on this matter can be expected within 18 to 24 months.

The rest of the Fieldfisher team for the proceedings comprised Associates Hanne Snoeks and Matthias Machtelinckx and Assistant Pieter Van de Ponseele.                                               

Stijn Debaene and Hakim Haouideg commented:

 "We are very pleased with the decision of the Antwerp Court of Appeal. This is an important issue and the impact of the case could be Europe-wide; there are several EU Member States which have similar systems for the recovery of fees in litigation."

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