p.5 |
Inleiding op het themanummer STORME, M.; SAGAERT; V. |
11 |
Het ontwerp van de Commissie tot herziening van het aansprakelijkheidsrecht. Een overzicht in context BOCKEN, H. |
31 |
Foutaansprakelijkheid: algemene beginselen - aansprakelijkheid minderjarigen en geesteszieken JOCQUE, G. |
47 |
Aansprakelijkheid van rechtspersonen in het ontwerp buitencontractuele aansprakelijkheid
DELVOIE, J. |
65 |
De buitencontractuele aansprakelijkheid voor minderjarigen, rechtssubjecten onder toezicht, zaken en dieren: een blik op een mogelijke toekomst VANSWEEVELT, T. |
87 |
Bedenkingen omtrent het foutbegrip in het hervormingsproject: discussies waar ik graag bij was geweest AUVRAY, F. |
115 |
Aansprakelijkheid voor personen en zaken in de hervorming van het aansprakelijkheidsrecht Vergelijking met Nederland HARTLIEF, T. |
151 |
Samenloop in het ontwerp buitencontractuele aansprakelijkheid BOCKEN, H. |
177 |
Toerekening aan rechtspersonen en aansprakelijkheid van uitvoeringsagenten in het ontwerp buitencontractuele aansprakelijkheid
VANANROYE, J. m.m.v. ROODHOOFT, O. |
215 |
Samenloop: principiële keuzes en praktische uitwerkingen WISSINK, M. |
233 |
Het oorzakelijk verband in het ontwerp van de Commissie tot hervorming van het aansprakelijkheidsrecht BOCKEN, H. |
269 |
Een kritische analyse van het concept causaliteit in het ontwerp van de Commissie tot hervorming van het aansprakelijkheidsrecht KRUITHOF, M. |
323 |
Causaliteit en medeaansprakelijkheid: een reflectie op het Nederlandse aansprakelijkheids- en schadevergoedingsrecht en het Belgische ontwerp RIJNHOUT, R. |
361 |
Schade, causaliteit en objectieve aansprakelijkheden COLLE, P. |
379 |
Schade en gevolgen van aansprakelijkheid JOCQUE, G. |
409 |
Een nieuw Belgisch schadevergoedingsrecht vanuit Nederlands perspectief LINDENBERGH, S. |
425 |
Anticipatie op de hervorming van het Burgerlijk Wetboek. Mogelijkheden en grenzen inzake het buitencontractuele aansprakelijkheidsrecht Vergelijking met Nederland BORUCKI, C., SAMOY, I. |
493 |
Ten Geleide STORME, M. |
495 |
Fraude in het betaalverkeer: waarom het slachtoffer in de kou kan blijven staan De Redactie Privaat STEENNOT, R. |
509 |
De ambtshalve toepassing van bewijsregels, een taak voor de actieve rechter. Een algemene, bijzondere en rechtsvergelijkende analyse van de taakverdeling tussen rechter en partijen in het licht van de cassatierechtspraak en het nieuwe bewijsrecht HENDRICKX, A.Application ex officio of rules of evidence: a task for a proactive court?
The task allocation as between the courts and the parties in adversarial civil proceedings is governed by the “party sovereignty” principle on the one hand, and the general rule on supplementary legal grounds on the other hand. Where it is incumbent on the parties to present the facts to the court, the latter is bound to examine and assess these facts, and to apply the correct legal rules accordingly. In so doing, the court (a) may not raise any objection which the parties had excluded in their submissions (b) may not change the subject-matter of the action, (c) must base its decision on such facts as have been lawfully presented to it and (d) must also respect the parties’ procedural rights. Although the court has broad powers to raise legal rules ex officio – albeit within the limits referred to above – it is only under an obligation to do so where to apply them is required by those facts which have been specifically presented by the parties in support of their claims.
Traditionally, this task allocation has been interpreted strictly. In recent times, however, it has become accepted that the role of the courts is in no way a passive one. Moreover, the parties are also expected to act as responsibly as is required. Thus the parties determine the limits of the dispute by presenting their facts; in addition; however, they are also bound to co-operate in good faith when it comes to such issues as the production of evidence. For its part, the court is obliged not only to examine and assess the facts presented by the parties, but also to apply the correct legal rules accordingly. In addition, the court must direct the conduct of the trial in a proactive manner. Moreover, this trend to require a more pro-active role on the part of the courts can also be identified in the French and Dutch legal systems.
It is also – and maybe even especially – in the field of evidence that the task allocation between the courts and the parties has a significant part to play. It is certainly incumbent on the parties to provide and substantiate their evidence, as well as to co-operate in good faith when it comes to producing all the available evidence. The court, on the other hand, has the power to order investigations into various aspects of the case, is obliged to assess the evidence provided and, under the new rules on evidence, even has the power to reverse the burden of proof. Therefore, the court no longer has a passive role when it comes to assessing the evidence.
Even though, as a result of the case law of the Supreme Court, the general principles governing the task allocation between the courts and the parties have now become clearly formulated, legal scholars are currently divided on the question whether these very principles governing the courts’ power to present additional legal grounds also entail that the courts are also empowered to apply ex officio the relevant substantive as well as procedural rules of evidence. The decisions of the Supreme Court on this subject are subject to widely differing interpretations in the available legal literature.
Starting from the traditional approach towards the role of the courts, and based on the case law developed by the Supreme Court, some authors cleave to the view that the Supreme Court decisions regarding this general principle are inconsistent with the prevailing rules on evidence. In their view, it is for the party on whom the burden of proof rests, and therefore not for the court, to substantiate the evidence submitted by them. Against this approach there is a more updated one which holds that the general principle regarding the provision of additional legal grounds also applies when it comes to evidence – subject, however, to the court observing the relevant procedural rights of defence and to the condition that the issues relating to the evidence had already been featured in the legal proceedings to date.
In the light of the general principles governing the task allocation between the court and the parties, it is this updated approach which, for a variety of reasons, should be adopted. In the first instance, there is no valid reason why the general principles regarding additional legal grounds should not be applied to the rules of evidence also. The latter are also legal rules – the fact that they are permissive law is irrelevant. Moreover, the court being empowered, even ex officio, to apply rules of evidence can be justified – albeit to a large extent implicitly – by the existing case law of the Supreme Court (1). Secondly, the party sovereignty principle does not prevent the court from applying the relevant rules of evidence – given that these rules can be applied regardless of the parties’ freedom to act (2). In addition, the legal system of France and of the Netherlands, which are closely related to those of Belgium, apply similar principles and have the same approach as regards the task allocation between the courts and the parties (3), the ex officio application of the rules on evidence by the courts is consistent not only with the object of these rules per se (4) but also, in a broader perspective, with the expectations which society currently has of the role of the courts (5). Finally, the new rules on evidence also tend to favour a more pro-active role on the part of the courts (6) – a role which at least entails that the courts are actually empowered to apply the relevant legal rules, including those governing evidence. Close Summary |
589 |
De bebloede hand erft toch! Vergeving van de onwaardige erfgenaam VANDENBOGAERDE, J.The forfeiture rule no longer applies! Forgiveness of the undeserving heir
A criminal act does not necessarily produce consequences under criminal law. The possibility of heir forfeiture confirms that a criminal conviction can impact succession as well. The key idea behind this extension is that criminal acts should not yield any advantage. However, lately, the notion that the undeserving heir should forfeit any succession right lost its categoricalness. For some time now, laws of succession in Italy, France, the Netherlands and Germany bestow the testator the right to lift this forfeiture. This right of the testator confirms the trend whereby the law of succession is increasingly becoming an area that the testator governs by independent decisions rather than one which needs to be directed entirely by the public authorities. Since the enactment of the Law of 10 December 2012, the Belgian succession law has joined this trend.
A remarkable feature of this (legal) current, found in the relevant legislation or other sources of law, is its reference to the concept of forgiveness. This concept is the vehicle that allows the testator to cancel the heir’s forfeiture. However, not all the legal orders in question approach the right to such cancellation in the same manner. There are at least two different approaches to be considered – the formal and the informal.
The Belgian rule, laid down in Article 728 of the (previous) Civil Code (Article 4.7 of the new Belgian Civil Code), is marked by a high degree of formality. Any forgiveness must meet several conditions as to form – i.e. such forgiveness must be contained in any one of the three formats a last will can take – and must be given in writing. Under Belgian law, forgiveness is a legal act that has strong similarities with the formation of a will. This approach is advantageous because it has the potential to rule out any scope for discussion. At this level, accordingly, the Belgian system is undoubtedly conducive to legal certainty. However, it also enables forgiveness to be used for estate planning. The Dutch system, on the other hand, is less formal. Here, forgiveness does not take the form of a legal transaction. It treats forgiveness as a fact to which the relevant legislation attaches legal consequences. In the Netherlands, the specific facts and circumstances help determine whether forgiveness has taken place. Under this approach, legal forgiveness closely dovetails with actual forgiveness. In the Netherlands, the testator is not obliged to take any further steps – whether legal or not – to ensure that his forgiveness benefits the undeserving heir. On the other hand, forgiveness may become hard to discern from associated concepts such as justification, reconciliation and forgetting.
The formal and informal systems each have their advantages and disadvantages. The varying methods to establish forgiveness within each system do not imply that insight gained from one approach cannot be of benefit to the other. Although the relevant Belgian law legally corsets the entire issue, it will remain necessary to use facts and circumstances of each case when interpreting the unilateral legal act of forgiveness. The Dutch case law on this subject, and the Belgian and Dutch case law on reconciliation in divorce law (which has, in Belgium, lost its importance due to the legal reforms of 2007), provide useful pointers to identify forgiveness.
In addition, the abundant literature concerning forgiveness also plays a significant part. Philosophical insights on this subject enable us to define and refine this concept even further.
Although forgiveness in the law of succession appears, at first glance, to be merely a private affair, it also has a broader social function. By excluding attempts to particular criminal offences from forgiveness’ ambit, the Belgian legislation delineated the, at least in the legal sense of the term unforgivable. Not only unforgiveability in a personal sense but also in principal sense is defined. Some particular actions are so improper that they exclude the undeserving heir to benefit from the succession, even if the testator is not personally impaired to forgive them.
The relevant Dutch law, on the other hand, has refrained from restricting the scope for forgiveness. It even recognises the possibility of anticipative forgiveness, which can help overcome the personal impossibility to forgive. The future testator can forgive a future heir for particular future actions. For instance, the testator who wishes assistance when terminating his own life can anticipatively provide the heir with the necessary protection under the law of succession. This possibility nuances the presumption of wrongdoing which is firmly associated with forgiveness. Here too, forgiveness transcends the purely private sphere, since the other heirs, the public authorities, and, even in a broader sense, society as a whole, will be compelled to accept the authorisation given by the testator as actual forgiveness.
Moreover, the impact of forgiveness on third parties is not restricted to cases where it is anticipative. As forgiveness can free heirs of their forfeiture status, it changes the norms of interaction between the victim and the perpetrator and the perpetrator and the wider community. Due to the testator’s forgiveness the comunity can no longer deny the perpetrator’s status as heir. Furthermore, forgiveness given in the context of forfeiture may also modify the outcome of the criminal proceedings which attend the offence. The introduction of forgiveness in the rules governing forfeiture allows it to exert influence on the individual and the societal level. Close Summary |
681 |
Een toekomst voor het subjectief plechtig contract? Het "model-De Decker" getoetst aan het verbod op wetsontduiking VAN DAMME, N., VAN DEN ABEELE, F.What kind of future for the subjective formal contract? The “De Decker Model” assessed in the light of the ban on fraudulent evasion of legal rules
In principle, a contract of sale is created by the mere meeting of minds between the parties regarding the item sold and the price (Art. 1583 Old Civil Code). However, where the item in question is real estate, such immediacy is not invariably desirable. By using the De Decker model, conveyancing practitioners have attempted to mitigate the practical drawbacks of this rule. This model makes provision for three stages. Under the first, there are consecutive options which give the parties involved the time definitely to commit themselves so as to enable them to discover the necessary information. Once this option has been exercised, a sui generis agreement is created whereby the parties commit themselves to buying/selling the real estate in question. Contrary to what happens with an ordinary purchase option, in the case of real estate the sale will not be created with the exercising of the option. This is because the De Decker model contains a subjective formal agreement clause, by which the sale is created only where the formal requirement has been met, in this case the execution of a notarial deed.
The use of this model has given rise to a number of questions as to its operation and validity. In this paper, the author examines the various stages of the model, and assesses it in the light of the ban on fraudulent evasion of legal rules. Given that this prohibition does not exist as a legal concept in its own right, it is used here as a general term covering a type of issue – to wit whether it is lawful or not to circumvent the drawbacks attached to an ordinary sale with a suspensive condition by using a clause requiring a subjective formal contract.
The inclusion of a formal requirement is nothing new. It is perfectly possible to postulate that the creation of an agreement will only be considered – and that the meeting of minds between the parties will only deemed to have taken place at that moment – with the fulfilment of such a requirement. Under the De Decker model, the parties, by exercising the option, make it known that they already have a fully- fledged agreement as to the purchase/sale (i.e. the legal requirements have been met) but that they only envisage its completion once the conveyancer (Notary Public) has succeeded in fully informing the parties, and is in a position to state that there are no legal objections to it. However, where the parties have already committed themselves to the purchase/sale when exercising the option, and intervention by the Notary Public becomes a formality requirement or a suspensive condition, it is certain that a truly subjective formal agreement will not have taken place, which will, inter alia, have implications for the extent to which the parties are bound by the arrangement. Where the parties fail to meet the registration requirement which results from the existence of the agreement – even if it is an invalid one – they evade this requirement.
Depending on the parties’ objectives, therefore, the following distinction must be made. Either they already wish to be committed to the purchase when exercising their option (which can itself be modified), or they are merely stating that they will only agree to the lawful parts of the sale when exercising their option, but only wish to express their will immediately after having informed the Notary Public – and therefore when signing the notarial deed. In so doing, the parties merely need to meet the general due diligence requirement. Close Summary |
727 |
Overzicht van rechtspraak. Vervoersrecht (2013-2020) POELMANS, A.; HUYGHE, G.; RUBENS, P.; DE WIT, R.; WILLEMS, E.; VERBERCK, B.; STEVENS, F.; WOUTERS, M.; SLEECK, A.; BERNAUW, K.; PRECKLER, G. |
1467 |
Boekbesprekingen J.-W. Verbeke; D. Wei, J.P. Nehf en C.-L. Marques (eds.); R. Palmans en W. Verrijdt (eds.); F. Vandendriessche (ed.); A.-C. Van Gysel, F. Lalière en J. Sauvage; A.-L. Verbeke en B. Verdickt (eds.); S. Deryckere; P. Gillaerts; M. Van Der Haegen; N. Bernard; V. Nossek; V. Sagaert en P. Lecocq; V. Sagaert, J. Baeck, N. Carette, P. Lecocq, M. Muylle en A. Wylleman
(eds.); E.C.A. Vermeulen; J. De Bruyne en C. Vanleenhove (eds.); D.M. Katz, R. Dolin en M.J. Bommarito (eds.); J. Keustermans en P. Blomme; A.M. Mennens; H. Sims, R. Lai, N. Levy, S. Ramel, H. Doyle, J. Hannant en S. Parsons; F. Buyssens en A.-L. Verbeke (eds.); S. Seyns en D. Clarysse (eds.); J. Vananroye en D. Van Gerven (eds.); E. Brems, P. Cannoot en L. Stevens (eds.); G. Verschelden; M. Löhnig (ed.); H. Braeckmans en R. Houben; B. Tilleman en N. Van Damme; M. Bussani en A.J. Sebok (eds.); I. Claeys en T. Tanghe; K. De La Durantaye; B. Tilleman en A.-L. Verbeke (eds.); R. Barbaix en N. Carette
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1541 |
Privaatrecht bij actuele uitdagingen Ten Geleide STORME, M. |
1543 |
De zakenrechtelijke motoren van een circulaire vastgoedeconomie: een SWOT-analyse De Redactie Privaat SAGAERT, V. |
1559 |
Eindelijk naar een directe beroepsrisicoverzekering in Nederland? FAURE, M.Is a system of direct professional risk insurance in sight in the Netherlands?
In the Netherlands, the rules governing compensation for the victims of occupational illness are different from those applying in Belgium. Whereas in the latter such compensation is provided via an insurance fund, and compensation for accidents at work is provided on the basis of insurance which the employer is compelled to contract, the victims of occupational illness in The Netherlands are to a large extent obliged to rely on the law of torts if they are to obtain compensation for the loss they have incurred. However, several bodies in the Netherlands have proposed that the employer be required to contract insurance for occupational illness as well, for the benefit of the workers thus affected. It is a model that tallies with that which applies in Belgium for accidents at work. In The Netherlands, a commission of inquiry, led by Ton Heerts, has, in the course of the past 12 months, concluded that the settlement of occupational illness claims could be simplified, and that the recovery of loss resulting from an occupational illness through the law of torts is difficult to obtain. In this contribution, the issue of compensating loss related to occupational illness in the Netherlands is subjected to critical examination, various alternative solutions are discussed, and, more particularly, attention is given to the possibility of introducing a system of direct insurance for occupational illness (based on the Belgian model for accidents at work insurance). The author examines a number of issues in this regard, as well as certain questions which could arise if such a system of direct insurance were to be introduced, but concludes that, compared to the current model involving the parties concerned – but in particular the employees affected – such a system presents many advantages. Close Summary |
1617 |
De laatsten zullen de eersten zijn: over prioriteiten bij herstructurering DE LEO, F., LANDUYT, S.Thus the last shall be the first – Priority ranking in the event of a company restructuring
The question whether the ex ante ranking order enjoyed by the various rightful claimants to the assets of a company should be respected where the latter has been restructured is an issue which has hardly ever been tackled in the Belgian – and European – legal literature. In Belgium, however, the position has assumed relatively extreme proportions. Where a company has been re-organised by court order as a result of a collective agreement, the disfavoured shareholders can, almost structurally, retain their position in the company capital, whereas the unsecured creditors are invariably subjected to reductions. The systematic failure to observe a previously-agreed ranking order in the event of a company restructuring is not only anomalous in the strictly legal sense, but also has far-reaching financial implications. It is extremely doubtful whether a set of insolvency rules that enables the shareholder – or any other rightful claimant – to bypass the ex ante ranking order by starting a re-organisation procedure can be regarded as the ultimate in effectiveness.
In this regard, the US courts and legal literature have enjoyed a much longer tradition which can be traced back to the mid-19th century. When a number of large railway companies became insolvent during this period, the secured creditors and shareholders joined forces against the unsecured creditors. When a restructuring took place, the latter found themselves, as it were, booted off the liabilities side of the balance sheet, whilst the secured creditors and the shareholders split the value resulting from the re-organisation amongst themselves. These practices were, however, halted by the Supreme Court in a number of renowned decisions. At first, this was done on a somewhat pragmatic basis – where all the rightful claimants had been treated in a reasonably “honest” and “fair” manner, the Supreme Court allowed the ranking order to be disregarded. This “doctrine” was later described in the legal literature as an extrapolation of the “relative priority” rule (RPR). In its Los Angeles Lumber decision (1939), the Supreme Court changed tack and introduced a strict application of the “absolute priority” rule (APR) – no longer was it permissible to depart from a pre-existing ranking order where a re-organisation had occurred. Thus any dissenting creditor whose claim was not entirely met was able to scupper a re-organisation plan if a party that came lower down in the priority ranking – e.g. a shareholder – retained a share in the assets under the plan. As the years went by, this application of the APR was made more flexible by the courts and the legal literature. At present, no single creditor may, on his own, (where the category to which he belongs votes in favour of the plan) veto an entire re-organisation plan by enforcing the APR. In addition, the US courts accept that, in the event that not every creditor is paid, the shareholders – for example – retain their claim if they make a new contribution, or where they receive these claims from creditors placed higher in the ranking order. Another alternative, in certain cases, is for the company in to meet the claims of creditors of lower rank during the restructuring procedure if to do so plays a useful part in keeping the company alive. Finally, on a more structural level, the APR may be departed from in the case of certain smaller businesses, where the shareholders frequently play a crucial part.
When contemplating the manner in which the APR has developed in the US, one notes that the applicable rules have become increasingly sophisticated. In this regard it becomes clear that the US version of the APR in its current form complies to a large extent with the financial model which we have outlined in this paper. To put it briefly, a sound and effective system of rules governing company re-organisation respects the previously-agreed ranking orders, except where the parties involved have agreed to depart from it in certain specific and well-defined cases. Where the relevant insolvency rules fail to do so, the company will – in most cases imperceptibly – experience a rise in its capital costs as a whole, and a number of profitable projects will be abandoned.
When considering the Belgian rules on judicial re-organisation by collective agreement (JRCA), it is clear that these are out of kilter with existing financial models. Moreover, the JRCA system could be described as remaining impaled on a point which had already been passed by the US in 1864, given that the JRCA enables the shareholders and a group of creditors – mostly secured – to connive in compelling another category of creditors – mostly unsecured – to incur sizeable reductions without the shareholders contributing a single penny. It is difficult to imagine a more frontal assault on ex ante agreements (known as the “creditors’ bargain”).
This anomalous Belgian system of granting structural advantage to the shareholders will change once the Belgian parliament implements the EU Restructuring Directive. This provides the opportunity to opt for the introduction of some form of RPR or APR. Although in principle we favour a relatively strict, but qualified, APR even the introduction of a European RPR will represent a considerable advance for the relevant Belgian law. This is because the European RPR, however vague and ineffectively worded, prevents the disproportionate dispossession of the higher ranked categories by those lower down the order.
Nevertheless, subject to empirically-tested evidence to the contrary or in the absence of abstract arguments which are hard to refute, we believe that APR should be the fundamental rule. This is because it ensures that, in the event of a cross-class “cram down”, each category may claim its share in the restructuring value. However, in full consistency with our economic approach, we can also consider a number of “effective” qualifications of the APR.
In the first instance, secured creditors only have a preferential claim on the liquidation value of their security (valued on the basis of a sale in “piecemeal liquidation” or in “going concern”) and not on the restructuring value (i.e. valued if the agreement is concluded, e.g. using a “discounted cash flow” method). This is because no security interest can be placed on the earning capacity of the business, i.e. the “going concern surplus”. In this allocation we can therefore identify a bifurcation: on the one hand there is the allocation of the liquidation value (on which the secured creditor has a preferential claim); on the other hand there is the allocation of the “going concern surplus” (on which the secured creditor has, in principle, a concurrent claim in relation to his share which is in negative equity).
Secondly, the shareholders can retain their interest (or part of it) where, in exchange, they contribute a new value to the business. Although this is known as the “new value exception”, it does not in fact represent an exception – the shareholders retain their interest in exchange for fresh financing. Crucial shareholders may also retain an interest, even without making a financial contribution which is valued by the market. We are dealing here with a contribution in kind, more particularly one made by shareholders without whom the continuity of the business is imperilled. Similar considerations apply when it comes to certain strategic creditors. Here also, there is no question of an exception to the APR: the restructuring value which is protected by the APR represents the value of the business without any further involvement by the “insiders” (strategic creditors). This is because the latter cannot be compelled to remain involved in the business against their will and without receiving adequate compensation. Here, accordingly, the shareholders retain their share interest, precisely because they remain involved in the business through their contribution in kind. The practice of “gifting” is no exception to the APR either – in this case also each of the parties receives the share in the restructuring value to which they are entitled in accordance with the statutory or contractually-agreed ranking order.
Thirdly, the “20 per cent rule” which currently applies under Belgian law amounts, in fact, to no more than a system of allocation which departs significantly from the statutory or contractually-agreed ranking order. (APR) and collides with our approach to law and economics, which includes the “creditors’ bargain” theory. The continuation of the 20 per cent rule can only be justified where the need is felt to increase the recovery potential of unsecured creditors and to reduce that of the secured creditors. Although this may be a noble objective, it is out view that allocation of value is an issue which is best dealt with outside the scope of insolvency law. The question arises, moreover, whether in fact that 20 per cent rule cannot be replaced by something better. A “carve-out” or “prescribed part” system – as it applies in the United Kingdom – produces an entirely different effect. Close Summary |
1729 |
De beoordeling van de wetgevende kaders in Europa, China en de Verenigde Staten rond het gebruik van persoonsgegevens ter bestrijding van globale gezondheidscrisissen. Lessen uit de COVID-19-pandemie WILLEMS, A.-F.Assessing the legislative frameworks in Europe, China and the US concerning the use of personal data in combating global health crises. What lessons can be drawn from the COVID-19 pandemic?
Because of the far-reaching digitalisation of our lives, personal data are having an increasingly important role in society. During the Covid-19 crisis, it has emerged that personal data can be used effectively in combating a global health crisis. It is expected that, in future, the use of personal data will have a crucial role in managing health crises such as this one. This increasingly creates a field of tension between free movement and the use of personal data on the one hand, and the protection of such data on the other hand. This paper attempts to formulate a response to the question whether the law-making frameworks that currently apply in Europe, China and the US provide adequate protection for personal data during a global health crisis, and whether the currently applicable legislation does not obstruct the effective use of such data. In this contribution, the proportionality principle is used as a criterion for assessing the balance between the right to the protection of personal data on the one hand, and the right to life and health on the other, where personal data are used in combating a global health crisis.
Under the legislations in question, personal data are subject to a sliding scale of protection from weak to strong. With its GDPR, Europe can be found at one extreme end of the scale, providing as it does a high level of protection for personal data. However, this does render more problematic the effective use of personal data in combating a global health crisis. The People’s Republic of China (PRC) finds itself at the other end of the scale, given the weak protection it gives to personal data. However, it does enable the effective use of such personal data. The position of Hong Kong, on the other hand, has shifted towards European standards – influenced by English law, Hong Kong definitely has provided stronger protection of its citizens’ personal data. However, where emergencies arise the PRC can impose its legislation on Hong Kong, and thus nullify such protection. On the said scale, the US finds itself between China and Hong Kong, with its fragmented and incoherent federal legislation on data protection on the one hand, and the ever-stronger rule-making powers wielded by the state authorities on the other.
From an examination of the relevant legislative frameworks, and the use of personal data via contacttracing-apps, one can conclude that the circumstance that the existing legislation was not designed for use in crisis times represents the biggest problem for the effective use and re-use of these personal data during a global health crisis. To be able, in future, to make proportional use of personal data in combating a global health crisis, whilst at the same time protecting such data as strongly as possible, there is a need for national legislation specifically regulating the use of or personal data during a global health crisis. In order to avoid yet another patchwork of legislation on the subject, the author takes the view that international guidelines should be adopted and/or an international organisation be created that allows the various national databases to be accessed quickly and effectively, or that enables data to be analysed quickly and efficiently using a specific database at the supranational level during a global health crisis. In addition, the individuals affected should be given the opportunity, acting within the constraints of the law, to relinquish their data in the public interest. Close Summary |
1831 |
Boekbesprekingen M.C. Bauche, N. Bernard, C. De Ruyt, A. Despret, S. Lebeau, A. Lerouge, B. Louveaux, O. Rossillon; P. De Page, I. De Stefani; M. Muylle, K. Swinnen; O. O. Cherednychenko, M. Andenas; D. Scheers, P. Thiriar; R. Timmermans, J. Wyatt, D. De Bot; B. Wessels
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