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  • Last updated: 26-03-2020

The Covid-19 outbreak has given rise to many legal issues. The following issues are particularly relevant in the area of public and regulatory law. 

State of emergency
 

  • The Belgian Constitution does not contain as such a provision allowing the government to declare a state of emergency should the pandemic worsen. In contrast, some neighbouring countries have a specific constitutional provision on states of emergency, such as Article 16 of the French Constitution.

    However, the Civil Security Act of 2007 and the Royal Decrees of 31 January 2003 and 22 May 2019, on national and local emergency plans provide a statutory basis for measures at the local level (by the municipal mayors and provincial governors) and grant ample power to the federal government to issue binding directives. 

    The Civil Security Act of 2007 provides a legal basis to requisition e.g. of mouth masques. Article 181 of the said Civil Security Act gives Government and the mayor the competence to requisition the objects (and persons) which they deem necessary, given the unavailability of public services and a lack of means, for instance in the context of urgent medical assistance.

    On 12 March 2020, the federal government announced the adoption of such measures, with far-reaching effect, including the closure of schools, bars and restaurants until 3 April 2020 (excluding grocery shops and pharmacies). From 18 March 2020 at 12:00 these measures have been intensified in order to flatten the infection curve, and extended to 5 April 2020. The additional measures contain a.o. generalised social distancing rules, closing of shops (also during the week, but upholding the aforementioned exceptions for pharmacies and grocery shops) and a ban on public meetings, with the possibility to impose fines and penalties (see article 187 of the Civil Security Act 2007, and the Ministerial Decree of 18 March 2020 concerning urgent measures to limit the spread of the coronavirus COVID-19).

Police powers
 

  • In the event of heightened public health concerns, the municipal authorities may issue police or-ders restricting access to public spaces, such as schools, daycare centres, rest homes, closed sports facilities and municipal buildings.
  • The access restrictions may go so far as to bar anyone who has returned from a personal or busi-ness trip to a high-risk area from entering such areas (see e.g. the decision issued on 1 March 2020 by the mayor of Sint-Lambrechts-Woluwe/ Woluwé-Saint-Lambert and its modification on 5 March 2020 (FR/NL), the measures adopted by the town of Leuven (update on 13 March 2020) and of the decision of 12 March 2020 by the mayor of Maaseik (Limburg), forbidding inter alia the holding of cultural events).
  • Municipal police orders are administrative acts against which cancellation proceedings can be brought before the administrative division of the Council of State within a period of 60 days from knowledge of the order.
  • It is, however, unlikely that the abovementioned municipal police order will be set aside given the extraordinary circumstances on which it is based.

Civil liability of public authorities
 

  • Public health measures against the coronavirus could give rise to governmental civil liability under Article 1382 of the Civil Code.
  • Public authorities, when adopting measures to fight Covid-19, can indeed incur civil liability.
  • Citizens could be erroneously quarantined, for instance, in which case they could bring proceedings before the courts in order to obtain damages from the public authority.
  • Public authorities have a general duty of care to provide correct information in a timely manner. If they fail to do so in the context of the coronavirus outbreak, they could incur civil liability if they are unable to show that they acted as expected of a reasonably prudent public authority under the circumstances.  

Public procurement
 

  • Given the extraordinary circumstances engendered by the coronavirus, public authorities have the possibility to call for tenders using the negotiated procedure without prior publication.
  • Article 42 of the Public Procurement Act 2016 (FR/NL) allows this more flexible procedure to be used, when strictly necessary, if the requirements of the open or restricted procedure or the competitive procedure with negotiation cannot be met due to urgency following unforeseen events.
  • Contracting authorities could use the negotiated procedure without prior publication to tender for public health personnel, for example.
  • On 6 March 2020, the Council of Ministers adopted "10 measures for the support the industry", one of which is "flexibility in the performance of federal procurement contracts". This measure (most likely) implies that no immediate fines, sanctions or penalties will be applied when an economic operator can demonstrate that it encountered difficulties in the performance of the con-tract attributable to coronavirus or related actions.

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