Remedies and enforcement

AuthorOuhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
6.1 Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2)
Directive 2000/78)
a) Engaging in proceedings on behalf of victims of discrimination (representing them)
In Belgium, certain associations or organisations and representative unions are entitled,
under both federal and regional Anti-Discrimination legislations, to act on behalf of victims
of discrimination under certain conditions.
Federal level
In criminal procedures, it has long been realised in the field of anti-discrimination law that
combined action by the public prosecutor (who has the authority to prosecute criminal
offences) and by the individual victim (who may seek damages by lodging a civil action
claiming reparation, but also file a complaint to the public prosecutor or the investigating
judge), may not suffice. The Act of 30 July 1981 criminalising certain acts inspired by
racism and xenophobia, therefore provided, rather exceptionally in Belgian procedural
law,329 that certain associations and representative unions, which statutorily pursue
missions of combating racism and discrimination, could claim damages on behalf of the
victim as a result of a violation of the provisions of this legislation (Article 32 of the current
Racial Equality Federal Act). Later, Unia, which was set up by the Act of 15 February 1993
as an independent body, received similar powers under criminal statutory law.
In civil procedures, the General Anti-Discrimination Federal Act (Articles 29 and 30) and
the Racial Equality Federal Act (Articles 31 and 32) provide for the legal standing of Unia,
of certain organisations and of representative unions.
Regional level
The Flemish Decree of 8 May 2002 (Article 16), the German Community ET Decree (Article
13), the Cocof Vocational Training ET Decree (Article 14) and the Cocof ET Decree (Article
28) have solutions similar to that of the Anti-Discrimination Federal Acts of 10 May 2007.
This is also true of the Flemish Framework Decree (Article 41), the Walloon ET Decree
(Article 31), the French Community ET Decree (Article 39),330 the Brussels ET Ordinance
(Article 16), the Brussels Local Civil Service ET Ordinance and the Brussels ET Employment
At both federal and regional level, associations willing to claim damages on behalf or in
support of claimants, for a violation of the anti-discrimination legislation, must have had a
legal personality for at least three years331 and a legal interest in the protection of human
rights or in combating discrimination. This uniform system is provided by Article 32(1) of
the Racial Equality Federal Act, Article 30 of the General Anti-Discrimination Federal Act,
Article 16 of the Flemish Decree of 2002, Article 13 of the German Community ET Decree,
329 The principle is that the so-called ‘collective interest’ asserted by an association which seeks to base its right
to file a legal action on the basis of the mission defined in its internal statutes, will not suffice, if the rights
of the association (to the protection of its property, its honour or reputation) are not violated as such.
According to the Court of Cassation, if another solution were to prevail, citizens forming an association could
impose on the authorities an obligation to prosecute, even in cases where the public prosecutor would find it
not opportune to do so (Cour de Cassation, 24 November 1982, Pasicrisie, 1983, I, p. 361). The Court of
Cassation confirmed its position on a number of later cases (e.g., Cour de Cassation, 19 September 1996,
Revue critique de jurisprudence belge, 1997, p. 105). However, the Act of 31 July 1981 provides for
exceptions to this rule, allowing unions and associations under certain conditions to pursue damages on
behalf of the victim in the collective interest.
330 French Community ET Decree, Article 38 provides that the IECO and the Institute for the Equality of Women
and Men are competent to file a suit on the basis of the decree.
331 In the procedure it had launched against Belgium, the European Commission took the view that the
requirement of being established for a minimum of five years was too burdensome. The choice to lower the
requirement to three years’ existence is a response to this concern.

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