A first step to amend the legal framework and to develop a specific provision on appeal possibilities for interested third parties took place on 12 January 2023 as a result of a decision by the Belgian Constitutional Court. Until that date, interested third parties could not appeal decisions of the Litigation Chamber of the BDPA that affected them. The Constitutional Court agreed that the lack of remedies for interested third parties against decisions of the Litigation Chamber of the BDPA was not in line with the constitutional principle of equality.
The legislator has now gone one step further by giving appeal as well as intervention possibilities to interested third parties.
1. More opportunities to intervene in proceedings
Interested third parties now have more opportunities to intervene in various types of proceedings before the Litigation Chamber, such as appeals against provisional measures, appeals against seizure measures and ordinary proceedings on the merits. Interested third parties may intervene in such proceedings before the Litigation Chamber if they can show that their interests may be adversely affected by these proceedings.
2. Access to a 30-day appeal to the Market Court
Any interested third party may appeal a decision of the Litigation Chamber to the Market Court within 30 days of the publication of the decision on the BDPA's website. The party must demonstrate that its interests have been adversely affected by the decision.
The legislative amendment clearly defines an interested third party as a person who was not a party to the proceedings before the Litigation Chamber, but who suffers personal, direct, certain, present, and legitimate damage from a decision of the Litigation Chamber and has a legitimate interest in appealing against it.
Conclusion
As decisions and proceedings before the Litigation Chamber often have a negative impact on third parties, it is expected that many will take advantage of these new opportunities.
Next steps
The law amendment is currently being submitted to the King for ratification and will soon be published in the Belgian Official Gazette and enter into force.