p.5 |
Ten Geleide STORME, M.E. |
9 |
Anderlecht, het Grondwettelijk Hof en het ontslagrecht De redactie privaat RAUWS, W. |
21 |
De rol van de rechtsvergelijking in de rechtspraak van het Hof van Cassatie [in de periode 2002-2017] DIRIX, E.The role of comparative law
in the rulings of the Belgian Court of cassation
In a small jurisdiction such as ours, comparative law has an important part to play. Although this is taken for granted in the fields of law teaching, legal research and legislation, there are many who regard this as a problematic factor when it comes to the courts and their rulings. Is it legitimate to impose on our litigants solutions inspired by information gleaned from foreign jurisdictions? Nevertheless, it does appear that, in Europe, the higher courts are increasingly taking account of the rulings made by their counterparts. In this contribution, the author seeks an explanation for this development. He also examines the case law of the Belgian Hof van Cassatie for evidence thereof. On the basis of the Court’s case law during the 2002-2017 period, he also attempts to provide a picture of the legal areas, the types of cases, and the legal systems involved in this development, and assesses the significance that this represents for legal scholarship. This contribution has also been incorporated into the Court’s Annual Report for 2018.
From this analysis, it appears that the Court does not insulate itself from legal information which foreign legal systems are capable of providing. In practice, however, arguments based on foreign law only appear in a handful of its decisions. This is because the majority of legal issues which arise before the Court are perfectly capable of being solved without the need to resort to foreign legal sources. In addition, most of the Court’s members tend to be hesitant about venturing into foreign legal systems – they are clearly no champions of “legal tourism”.
Viewed against the total number of decisions made, the part played by comparative law is a minor one. Where, however, account is taken only of those decisions in which the Court has a creative part to play, the number of cases thus affected is a respectable 3.66 per cent. In practice, however, it would appear that this tally is actually a few percentage points higher, given that any consultation of foreign sources by the members of the Court does not invariably reveal itself openly.
It also would seem that the Court only involves foreign legal sources in its decision-making where this is justified. From the Advocate-Generals’ submissions, it appears that the Court does so for certain types of legal issues – types which can also be found in the decisions of other higher courts. The cases in question concern mainly (1) issues relating to legal rules which are common to other jurisdictions, (2) issues where the court enjoys a considerable degree of discretion and/or which are not purely legal, but are also subject to underlying social and moral considerations, and (3) issues which are highly technical in legal terms and for which a harmonised solution is appropriate.
As for the legal systems opted for, the comparisons made are mainly with sources from similar rule-making systems. It will therefore cause no surprise to learn that pride of place is given to French law, followed by that of The Netherlands. The cases in question relate mainly to the private law, although no legal area is excluded.
Where the Court does take account of foreign precedents, these only have a persuasive or inspiring effect – so in so doing, the Court is not imposing such precedents on the litigant. In many of the cases mentioned above, moreover, these precedents were not actually followed. The influence exercised by foreign precedents on the outcome of the case is at its most pronounced in relation to legal issues which concern the interpretation of common legal rules, such as those contained in treaties, and where it is indeed appropriate to seek harmonised solutions. This influence is less pronounced where we are dealing with issues over which the court enjoys a substantial measure of discretion, or which are decided on the basis of social and moral considerations. In such cases, the part played by foreign precedents is that of adding new areas to the legal imagination. The added value here is that a broader range of potential solutions and arguments is made available. This wider range of arguments and counter-arguments invites a stronger basis for justifying the solution opted for - which is, however, vindicated exclusively within the parameters of the national law. Close Summary |
63 |
Eigendom van data? 'Reculer pour mieux sauter' [in onder meer Nederland en België] SWINNEN, K.Data Ownership? reculer pour mieux sauter
In this contribution, the author makes five recommendations with regard to future research on the “ownership” of data.
The first three of these recommendations relate to the central planks of this research, to wit the notions of “ownership” and “data”. In the course of his analysis, the author starts from the conclusion that, frequently, the scope of these notions has not been staked out – or if it has been, only in a limited way – in relation to (closely) related, but not identical, concepts. The author then proceeds to demonstrate that it is definitely necessary to demarcate (a) the first of these notions in relation to the various rights and powers which are frequently referred to in legal literature as “ownership” or “property”, and (b) the concept of “data” in relation to information, digital data, databases and data carriers, given that the answer to the question whether “data” are capable of “ownership” can differ depending on their actual meaning. This is why the author’s first and third recommendations are that it is necessary to be very precise when it comes to defining the exact scope of the notion of “ownership”, and as to what exactly can be regarded as subject-matter of “ownership”. As regards the latter, the second recommendation advocates close co-operation with information technology specialists.
The fourth and fifth recommendations concern the approach and focus to be adopted when researching the “ownership” of data. An examination of the legal literature on this issue reveals that the notion of “data ownership” – and more particularly its possible implications – is approached from an economic angle, and that, when it comes to charting the scope of these implications, the focus is invariably on the industrial players (on the data market), on the buyers of digital products, and on data subjects. However, as the author states in the fourth recommendation made in this paper, the law, including the law of property, must also be taken into consideration and be a relevant factor in this debate. The law of property itself can also feature arguments for and against the introduction of the notion of “data ownership” – such as the fact that the law of property provides a “complete package” for the regulation of data control. The author continues to pursue this legal angle in his fifth recommendation, which calls for consideration to be given to creditors to whom data owners are debtors, as an additional category of interested parties in the debate. In support of this argument, the author examines the question of liens relating to data, and of the possibility of their attachment (seizure) – and more particularly the difficulties and imperfections in this regard presented by the law in its current form. He shows that recognition of data ownership would improve this state of affairs – if only partially. Close Summary |
107 |
Toekomst van de circulaire vastgoedeconomie [in Belgisch en Nederlands recht] VERHEYE, B.The circular real estate economy into the future
The circular economy is currently one of the most promising pathways for rendering our economy more sustainable. One of its effects is known as the “service model” – rather than selling goods to the consumer, the producer offers the consumer the possibility of using them without any transfer of ownership taking place. In the field of real estate, an increasing number of circular initiatives are being developed; however, such attempts come up against certain obstacles presented by the existing law on real estate. This is the case both in Belgium and in the Netherlands.
First of all there is the law on accession in real estate, which is the result of the notion of “componenting”, which in turn is an application of the unity principle. This forms an obstacle to the renting of moveable objects (goods or items) which are incorporated into real estate. In principle, the lessor of such moveable property will lose his right of ownership to the object in question to the real estate owner as a result of real estate accession. However, this contribution shows how this problem can be overcome by means of a broader interpretation of the old-established exception to real estate accession, i.e. the rules on building rights. Such a broader interpretation is necessary because, under its current interpretation, the buildings in question must display a certain degree of individual separateness (separateness requirement), whereas in a circular economy the idea is precisely to be able to accommodate all the components of a real estate in the hire in question. Actually, this broader interpretation of the rules on building rights amounts to a less strict and more modern interpretation of the unity principle which is justified because in a circular economy, the rationes underlying that principle, i.e. legal certainty and value protection, are pursued more effectively using a different method than by imposing restrictions on the property that is the subject-matter of the building right. This article extensively elaborates such a solution under Belgian and Dutch law.
The second consideration here is the question whether the various parties involved in the renting of moveable objects which are not incorporated into the real estate are sufficiently protected against the various risks with which they are faced, such as a lessor who then sells, the other party’s insolvency, etc. For these risks as well this contribution elaborates a number of solutions.
Thus it is that the author of this article hopes to have contributed towards the future development of the Belgian and Dutch law governing the circular real estate economy. Close Summary |
197 |
Omgaan met omgaan. Een kwalitatief empirisch onderzoek naar de omkeringen in de cassatierechtspraak VAN DER HAEGEN, M.Managing overruling a qualitative empirical study of the
reversals in the case law of the Belgian Supreme Court
(Cour de Cassation)
The reversals experienced by the case law of the Belgian Supreme Court are a well-known but rarely studied phenomenon. On the basis of qualitative empirical research, this contribution brings a different perspective to the existing theories regarding this phenomenon. Twenty judgments, issued in the period between 2002 and 2017, and which, according to the Court’s annual report, constitute a change in its case law, are examined. The emphasis of the analysis is placed on the manner in which these changes were announced and on their given or underlying reasons.
This analysis shows that the Court relies to a large extent on the by-products of its decisions in order to make it known that they have been overruled, such as the annual report, a footnote to the judgment as published, or the opinion of the Advocate General. The annotations in legal journals are, in practice, likely to constitute the most important source of information here. Only twice did the Court expressly announce the overruling of a decision. The grounds for the reversal are only rarely discussed by the Court. If we bring together several sources, it would seem that the overruling of a decision is often the result of external events, such as a judgment of the Constitutional Court. Other justifications include the absence of judicial peace, a change in the social context or the correction of an earlier error.
This method of announcement is flawed because the overruling of a decision is being publicized through a non-authentic source, and often with considerable delay. Openly admitting the reversal in the judgement itself constitutes a better modus operandi. The European Court of Human Rights requires that reversals in case law be explicitly reasoned and announced. The French and Dutch Supreme Courts have set an example here. In both countries, the Court reverses its case law through ample reasoning and references to the earlier decision(s) that it abandons. Customizing the retroactivity of the reversal is not unusual in this context. The difference between the practice developed by these countries and Belgium must be viewed within a broader context of the overt recognition of the law-making effect of the Supreme Court’s case law. The examples set by its neighbouring countries are a point of reference for Belgium and should be followed. However, as long as the Belgian Supreme Court continues to portray, in its judgments, the fiction that all that has occurred is a mere application of the law, a change in the way the Court reverses its case law cannot be expected any time soon. Close Summary |
303 |
Partijautonomie in het Nederlandse goederenrecht BARTELS, S.The principle of party autonomy in the law of property of the
Netherland
The law of property is normally regarded as a legal area which is almost exclusively subject to rules of mandatory law and leaves very little scope for party autonomy. It takes but little encouragement for the law of property and the law of contracts to appear as polar opposites. This paper goes a long way towards putting this picture into some perspective – at least in relation to the law of the Netherlands. It is true that the law of property and the law of contracts are kept strictly separate (Decision of the Netherlands Supreme Court of 3/3/1905). However, this is not to deny that the courts are given the necessary scope – of which they have availed themselves in key decisions – to accept solutions in cases involving the law of property which may not be rooted in the relevant legislation in so many words, but are fully capable of insertion in the relevant legislation and fully consistent with decisions which are fully in compliance with this legislation (Decision of the Netherlands Supreme Court of 30/1/1959). The Netherlands law of property is not insensitive to the demands which the law makes of our society, or to the part it plays in it, and has frequently displayed its flexibility in this regard.
It is almost feels like pushing at an open door to stress that party autonomy occupies a prominent position in the Netherlands law of property. Although the starting point still is that the law of property is governed by mandatory law, there is no reason to minimise party autonomy when it comes to any area of property law. Thus it is generally accepted that, within the closed system of property rights in the Netherlands, the contracting parties enjoy a considerable degree of freedom when it comes to determining the substance of restricted proprietary rights. Not only does the Netherlands civil code provide considerable scope for arrangements which depart from the norm – it is, in addition, generally accepted that transactions which are not are not explicitly regulated by the statute law may be arranged between the parties themselves and be enforceable against third parties, provided that there is a sufficient link between the relevant arrangements and the definition of the relevant restrictive property right. Rules which makes no provision for the possibility of concluding varying agreements are, in property law terms, mandatory. They nevertheless leave the parties concerned the freedom to determine their legal relations by varying stipulations agreed by contract – and therefore without being enforceable against third parties – unless such varying clauses are rendered null and void by law. In joint ownership arrangements party autonomy also has an important part to play. By using the management opportunities provided by Article 3:168 of the Civil Code, the joint owners are given ample opportunity to conclude arrangements between themselves regarding their (exclusive) powers, including their enforceability against third parties.
Party autonomy can also play a part outside the context of determining the substance of property rights. Given that property rights do not, in principle, have a scope which is exclusive, or excludes each other or any alternatives from the law of obligations, the parties are able to choose which legal mechanism they will use in order to regulate their legal relations. Thus agreeing to building and planting rights can constitute an alternative to conversion into a condominium of flats, and an overhang situation can be legalised in a variety of ways. Thus the choice made by the parties of whatever legal mechanism they favour helps to define the property law relationships between all the parties concerned.
There are also aspects of the law of property where party autonomy appears to have a more limited scope. Concluding agreements which are also binding on third parties regarding the (exclusive) right of disposal held by a non-title holder is viewed with a certain degree of reticence. The influence brought to bear by the parties when applying rules such as those governing accession or conversion appears to be minimal. However, there is a knock at this particular door as well, taking into account the demands made by the circular economy. Close Summary |
337 |
Wilsautonomie in het Belgische goederenrecht SAGAERT, V.Party autonomy in the belgian law of property
This contribution examines the limits of party autonomy when it comes to the law of property. The traditional theory is that property law is governed by public policy, whereas the law of obligations constitutes permissive law. On the basis of this analysis, the author concludes that the law of property and the law of obligations are drawing nearer to each other, and are doing so at several levels.
The traditional justifications for the closed nature of property law (the so-called numerus clausus principle), i.e. historical developments and the economics of the law, are open to criticism. At the very least they lead to a more nuanced perception of the traditional split between personal and property rights. The historical explanation for the closed system, namely that it represented a reaction against the Ancien Régime, should, on closer examination, be subject to considerable qualification. The reasons advanced to justify the numerus clausus principle which are based on legal economics can to a considerable extent be countered by the introduction of an effective system of open access and scrutiny of property rights.
However, in relation to the party autonomy principle, certain differences exist as between the various property rights themselves. More particularly, there is a difference in party autonomy between the rules governing the rights of use and enjoyment of property on the one hand, and those governing security interests on the other hand. As regards the rights to use, there is a great deal of overlap not only between the property rights to use among themselves, but also between property and personal rights. By varying the terms of the contracts in question, a lessee can, under certain circumstances, acquire more leverage than a usufructuary, or holder of a long lease right or building right. Moreover, lease agreements are frequently effective against bona fide third parties without requiring publicity in the land register, which is not the case in relation to property rights of use. The exclusivity principle merely plays a very minor part when it comes to defining the limits of property rights and of any party autonomy involved. Both personal and property rights are capable of conferring rights of exclusivity. At the same time, however, the extent of such exclusivity is capable of variation. The author draws up an external and internal exclusivity matrix on the one hand, and an objective and subjective exclusivity matrix on the other hand. The result, however, is a finding that the summa divisio between property and personal rights is at best one of degree and not one of substance.
In relation to security interests, the parties are confined to a more restrictive straitjacket, for here, consideration needs to be given to the circumstance that exceptions to the principle of creditor equality are subject to strict interpretation. However, even when it comes to security interests, it is possible to see an opening – as witness the increasingly positive approach taken in relation to the fiduciary ownership of security interests as a result of, inter alia, certain changes made in the statute law.
The Draft Law Amending the Law of Property, which aims to rewrite Book II of the Civil Code, reflects this development. This Draft Law continues to apply the Typenzwang principle at its strictest, but restricts the essential features of those property rights which are not capable of contractual variation.
Instead of a centrifugal model, under which the relevant restrictions are imposed when it comes to the splitting up of property rights, we would advocate a centripetal model under which the areas which have been split off are reintegrated into the law of property at the point where they in danger of causing economic harm. In other words, the author advocates a less rigid approach when it comes to creating property rights. However, where it would no longer be possible to justify the creation of these property rights from an economic point of view, this splitting off of ownership rights should, logically, be done away with. The reintegration of full ownership rights should be facilitated. In other words – the ex ante approach should be replaced by an ex post approach. Close Summary |
415 |
Verslag derde ICAV-congres op 7 december 2018 te Leuven BORUCKI, C., GILLAERTS, P. [Interuniversitair Centrum voor Aansprakelijkheids- en Verzekeringsrecht] |
423 |
Boekbesprekingen Carette, N. & Weyts, B. (eds.); Micklitz, H. & Saumier, G. (eds.); Dekkers, R., Casman, H., Verbeke, A.L. & Alofs, E.; Van den Meutter, J.; Boularbah, H. & van Drooghenbroeck, J.F. (eds.); George, F.; De Marez, D. & Stragier, C.; Dirix, E.; Masschelein, M.-A.; Baeck, J. (ed.); De Rey, S. & Tilleman, B. (eds.)
|
449 |
Ten Geleide STORME, M.E. |
451 |
[Nederland] Massaschaderecht in ontwikkeling De redactie privaat HARTLIEF, T. |
477 |
In Memoriam Herman Schoordijk (1926-2018): een opgewekte dwarsligger VRANKEN, J.B.M. |
493 |
Verscheurd tussen koper en eigenaar - de kunst om de kloof in het goederenrecht te dichten DEMARSIN, B.Torn between buyer and owner –
the art to close the gap in the law of property
The owner who has had an item stolen and subsequently succeeds in relocating it will normally not find it in the hands of the thief. In most cases, the stolen item will be held by a buyer who had acquired it unsuspectingly. Can the theft victim expect such an innocent buyer to return the item without demur, in spite of the price the latter himself paid for it? Returning the item is difficult for the buyer to stomach, given that it is normally impossible for the latter subsequently to recover the price he paid for the item from the person who sold it to him. This is because thieves and receivers of stolen goods are mostly insolvent at the time, or simply vanish into thin air as soon as they have done their deed. Restitution, therefore, does not solve the issues resulting from theft – all it does is to transfer the problem from the theft victim to the bona fide buyer. It is precisely for this reason that the conflict between the theft victim and the bona fide buyer of stolen moveable property is described as a true legal dilemma in the available literature. Neither of these parties did anything wrong, and therefore it would appear that both the theft victim and the buyer may lay claim to the item in question. In order to examine the complexities of this dilemma fully and in depth, the author of this paper provides in the first instance a thorough analysis of the solution advanced by the Belgian law of property. From this analysis it emerges that in most cases the interests of the bona fide buyer tend to take precedence – indeed, under the relevant Belgian law the original owner will, more often than not, find it impossible to recover the item from the bona fide buyer.
Given that the conflict between theft victims and bona fide buyers is classed as a legal dilemma, there is little prospect that the solution advanced by the relevant Belgian law will enjoy total and universal support and approval. This is why the author has analysed this problem from a comparative perspective. We can thus align the results of this comparative analysis and note that, among the western systems of property law, there is a chasm between those which tend to favour the interests of the bona fide buyer, and those which give precedence to protecting the original owner. These comparative data also indicate that this difference of preference coincides with the divide between the so-called civil law and common law jurisdictions.
Having thus examined and explained the buyer/owner dilemma under the ordinary law of property from a comparative perspective, this contribution pays particular attention to the specific situation where the stolen property qualifies as an item of cultural heritage. This prompts the question whether this fact alters the conclusions drawn from the author’s analysis of the ordinary law of property on this subject. This is because cultural goods differ to a certain extent from other types of personalty in view of their uniqueness, their frequently irreplaceable nature, and the special significance they present not only for their owner, but also for society at large. This is one of the reasons why it would appear that, in the course of the past few decades, quite a few countries have included in their laws on moveable property provisions imposing far-reaching obligations to effect restitution in relation to objets d’art and cultural goods. Accordingly, the balance struck between the victim of theft and the bona fide buyer, which this contribution describes in general terms, will frequently assume a different form when it comes to stolen objets d’art and cultural goods. The author accordingly argues that the gap in the law of property between the Continental-European and the Anglo-American jurisdictions regarding the return of stolen cultural goods is much less significant than is the case for other types of moveable property.
In support of this contention, the author draws attention to four developments in the law relating to property of cultural value. In the first instance, he explains that the free movement of the most valuable cultural goods has, in several ContinentalEuropean jurisdictions, been restricted as a result of national measures adopted for the protection of objects of cultural heritage. Thus, all the civil law countries examined in this contribution have placed limits on the ways in which protected goods can be taken out of the country’s territory. In addition, the law relating to cultural goods is also subject to private law restrictions on movement in several Continental-European jurisdictions. Specific laws on cultural property confer on objets d’art a status that renders them incapable of prescription and/or even of commercialisation. As a result, the ordinary rules of property law regarding a non domino acquisition or acquisition by prescription will not apply to their fullest extent, which considerably weakens the buyer’s position.
The laws on state property, which in many Continental-European countries govern public assets, affect the ordinary rules of property when it comes to solving the buyer/ owner dilemma. This is because they protect the public authority which has been the victim of theft against restitution – at the bona fide buyer’s expense. Given that a considerable number of cultural goods have been purloined from publicly-owed collections, the prevailing law on state property spectacularly enhances the chances of successful claim for the restitution of stolen cultural items. Thus it is that the law on state property reduces the gap, described above, in the law of property when it comes to solving the buyer/owner dilemma.
Various initiatives aimed at restitution, based on considerations of human rights, have drawn the solutions proffered by the civil law and common law jurisdictions even more closely together. International agreements concerning cultural goods plundered during the Holocaust have, in several jurisdictions, been translated into additional means of obtaining restitution. These mechanisms, based on alternative dispute resolution, concerning cultural goods plundered during the Holocaust have – once again mainly in the civil law countries – proved to be significant for the purpose of solving the buyer/owner dilemma. This prompts the conclusion that these measures have also served to close the gap even more between the owner-friendly common law and the buyer-friendly civil law jurisdictions.
Finally, this contribution highlights the impact produced by a number of international and supranational rules on cultural goods, such as the European rules on restitution based on the combined effect of the so-called Cultural Goods Regulation and the Restitution Directive. The latter ensures that valuable cultural objects from an EU member state enjoy a special status in the law of property within the EU. Where a buyer/owner dilemma arises in respect of this type of cultural objects, the latter will in most cases need to be returned, which once again weakens the position of the bona fide buyer and causes the continental-European jurisdictions to continue to gain traction against the prevailing Anglo-American models.
In essence, the 1970 UNESCO Convention seeks to achieve the same level of international enforceability of national rules relating to cultural objects, albeit on a global scale, in order thus to strengthen the campaign against the illegal trade in works of art. In countries such as Switzerland, The Netherlands, Italy, Germany and Austria, which have already proceeded to ratify and, accordingly, to implement the UNESCO Convention, there now applies an effective obligation to return such cultural goods as circulate illegally in contravention of the UNESCO Convention. Thus the aforementioned Continental-European countries once again serve to undermine the protection of the buyer – which is so characteristic of their ordinary law of property.
Although Belgium also ratified the 1970 UNESCO Convention in 2009, it has yet to take any practical steps to incorporate it in its law of property. The author accordingly – makes a plea to that effect, not only so that this country can comply with the international commitment it has made, but also, and especially, on the basis of his conviction that this will provide a further spur towards finding common law and civil law solutions to the buyer/owner dilemma. Close Summary |
607 |
Billikheid en ongeregverdigde verryking DU PLESSIS, J.Equity and unjustified enrichment
In the civilian tradition reference is at times made to fairness or equity in determining whether a person who has been enriched at the expense of another should be obliged to return the enrichment. The aim here is to examine the relationship between the concepts of enrichment and fairness more closely. The focus is especially on the South African law of unjustified enrichment, which essentially consists of a variety of uncodified civil-law actions aimed at returning enrichment. To aid an understanding of the role of fairness in awarding these actions, historical and comparative perspectives are adopted, which hopefully may be of interest to a broader private-law audience.
The choice of topic is partly motivated by recent debates on the foundations of unjustified enrichment as a source of duties of restitution and on the role that fairness play could in this context. South African law has not traditionally paid much attention to these questions, but it has been argued more recently that fairness deserves greater recognition in our law of unjustified enrichment. The role of fairness in awarding restitution is also relevant in the context of other legal systems, because uncertainty about this role could possibly support arguments that the notion of unjustified or unjust enrichment is too vague to warrant recognition as an independent branch of law or source of obligations. Finally, in some systems, such as Dutch law, significant concern exists that courts sometimes treat a general enrichment action as an equitable action and that they do not properly limit its field of application.
Unfortunately, the basis for and consequences of views on the role of fairness in imposing duties of restitution, especially in the context of the law of unjustified enrichment, are often not articulated clearly. Fairness has indeed often featured in the civilian tradition when awarding remedies which are aimed at restitution and in some systems are brought home under enrichment law. The argument here is that if this practice is viewed more closely, it becomes apparent that references to fairness only fulfil a limited number of functions.
First, fairness was never the basis for a general judicial discretion to order restitution according to the facts of the case. Such a drastic discretion may be warranted in other areas of the law in exceptional cases where awarding a remedy is so complex and unpredictable that it is not susceptible to regulation by way of specific rules. However, this justification does not apply to the modern South African law of unjustified enrichment, which contains detailed provisions on the giving up of gains. At best, there are specific exceptional cases where courts enjoy a limited discretion to award restitution, for example when transfers made in fulfilment of illegal agreements are reclaimed, or where enrichment is imposed on another. But such limited, defined discretions are found across the legal system.
Secondly, fairness traditionally fulfils the function of catalyst for the development of new rules. However, while references to the demands of fairness may historically have been useful to promote legal development, they are of secondary importance in modern South African law. To justify a legal development it appears to be much more important to identify and weigh up relevant policy considerations, than to refer to vague and contradictory notions of fairness, or to other values like Ubuntu or good faith.
Finally, references to fairness in the law of unjustified enrichment could simply serve to explain or justify why the law at times requires that a benefit must be returned. It has been appreciated since Roman times that in certain cases it would be unfair for a person to be enriched at the expense of another. However, these references to fairness do not shed much light on why only some cases of enrichment at the expense of another give rise to a duty of restitution. The law of unjustified enrichment is not more based on fairness than other areas of law such as the law of contract or the law of delict or tort. Ultimately, the explanation or justification that the law of unjustified enrichment promotes corrective justice may be more illuminating, especially when it is necessary to delineate its boundaries with other fields of law. Close Summary |
661 |
De openbare orde als ruggengraat van de juridische methode? Enkele bedenkingen bij Ludo Cornelis' openbare orde PEERAER, F. |
705 |
[Aspecten van Nederlands, Schots, Engels, Zuid-Afrikaans, Frans, Canadees, Duits, Noors en Belgisch recht] Congres Contract and Property with an environmental perspective. Leuven 5 september 2019 DEGROOTE, M. |
717 |
Boekbesprekingen Kruithof, M. (ed.); Van Schoubroeck, C. & Samoy, I. (eds.); Kugler, T. & Rücker, D.; Bensoussan, A. (ed.); Dekkers, R., Casman, H., Verbeke, A.L. & Alofs, E.; Swennen, F.; Dauw, P.; Meert, K. & van Stiphout, T.; Frémat, V., De Sauvage, G., Goffin, J-F. & Breg, S.; Finch, V. & Milman, D.; Feldman, Y.; Gossens, J. & Verslype, K.; Giles, J., Pin, A. & Ravitch, F.S. (eds.); Milner Davis, J. & Roach Anleu, S. (eds.)
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749 |
Ten Geleide STORME, M.E. |
753 |
Motivering na rechterlijke rechtsvorming: de mogelijke impact van psychologische inzichten en verschillende motiveringsstijlen De Redactie Privaat GIESEN, I. |
767 |
Ceci n'est pas un dualisme? Over het nieuwe duale bestuursmodel in de NV De Redactie Privaat DELVOIE, J. |
779 |
Consumentenbescherming bij servitisation (Een Nederlandse focus op de trend waarbij aanbieders steeds vaker diensten aanbieden naast of in de plaats van producten) MAK, V.Consumer protection under servitisation
Servitisation is the trend whereby traders are increasingly offering services in addition to, or instead of, products. In recent years, the various consumer markets have witnessed a clear increase in such services – for example, with cycling-exchange firms such as the Dutch, and in the field of home accessories such as washing and coffee machines. This consultation paper examines the question as to what servitisation means in terms of protecting the consumer in his/her contractual relations with service providers. Here, the emphasis is on traditional consumer contracts, i.e. agreements where the offeror acts on behalf of a business or profession, whereas the buyer (i.e. the consumer) does not act in this capacity. In addition, the author examines the protection enjoyed by consumers in relation to a number of issues – more particularly in the law of contracts and torts – where they conclude services contracts with other private parties via an online platform.
The author concludes that there are certain aspects of consumer protection which will continue to suffer inadequate guarantees if the trend towards the provision of services and away from purchasing is to continue. Thus, for example, the transparency of contractual terms and conditions is, in the case of servitisation, frequently less satisfactory than is the case under contracts of sale because, inter alia, services contracts are much more diversified. In addition, this sector is not covered by objective quality standards as is the case with contracts of sale, and is subject to considerable uncertainty as regards the availability of remedies. More generally, it has been noted that servitisation is capable of increasing social inequalities. Whereas articulate, well-informed and wealthy consumers are able to enjoy the benefits of servitisation, including those offered by the online economy, this trend could make the economic position of the less wealthy and more vulnerable consumers even weaker. These conclusions call for a reappraisal of consumer protection as it is regulated under the current rules of private law.
Close Summary |
817 |
Consumentenbescherming bij servitisation en product-dienst-systemen (PDS) KEIRSBILCK, B., TERRYN, E., VAN GOOL, E.Consumer protection, Servitisation and product-service-systems
(PSS) agreements
Servitisation – the process whereby value is created by added services to products – is currently very much in the ascendant. Various product-service-systems (PSS) have entered the marketplace, not only in the B2B area but also increasingly in the B2C field. This paper examines whether Belgian law provides the consumer with adequate protection against servitisation and PSS agreements.
In the introduction, the authors examine the three essential types of PSS agreements – those that are product-oriented, use-oriented and result-oriented – and seek economic, legal and policy-based explanations for the breakthrough achieved by servitisation and PSS agreements. These new business models definitely provide opportunities for businesses and customers, even though they present a number of obstacles in terms of behavioural economics. Servitisation and PSS agreements can also be seen as part of a transition towards a more circular economy. However, servitisation and PSS agreements are not by themselves more environmentally friendly than the traditional model based on the single sale of products.
An analysis of the current Belgian legislative framework for the three different types of PSS agreements – product-oriented, use-oriented and result-oriented – constitutes the core of this paper. Both the contractual aspect and the application of the general rules of obligations and consumer law are dealt with. The thread running through this paper is that, under PSS agreements, the consumer enjoys less protection than is the case under a traditional contract of sale on the basis of which he becomes the owner of the item sold.
The Belgian law of contracts provides a considerably lower level of protection in the case of services (hire and contracting for work) when compared with the protection enjoyed under consumer contracts. Thus servitisation in its sharpest form creates a more favourable legal context for the PSS supplier, one in which the relevant law one in which the relevant law is almost entirely of an auxiliary and non-binding nature. Accordingly, the role played by the ordinary rules of consumer law as a counterweight becomes all the more important.
When PSS contracts are entered into, the consumer is, at least in theory, protected by the many existing information requirements which result from the ordinary rules of consumer law. However, the high degree of complexity presented by price setting mechanisms, as well as the considerable degree of variation that exists between the various rights and obligations of the consumer in such agreements, make it difficult to provide the consumer with adequate information in the absence of a uniform and mandatory set of rules. Also, in many cases the “green” nature of PSS agreements is not communicated effectively. Consumer credit law appears to provide little by way of protection when it comes to PSS contracts.
Once a PSS agreement has been entered into, consumer protection comes mainly from the Unfair Contract Terms Directive and its implementing legislation. However, this remains essentially a negative protection mechanism, which prohibits and renders void unfairly weighted terms and conditions, but fails to guarantee minimum levels of rights and remedies for the benefit of the PSS consumer.
When examining the rules governing use under use and result-oriented PSS agreements on the basis of additional contractual rules on hire and contracting for work, we learn that the consumer finds himself in a much less solid position than would be the case if he buys the product and thus becomes its owner.
This paper also examines a number of aspects which relate to the law of property as well as the rules relating to security rights and to the right to suspend performance. In the case of product-oriented PSS agreements, the consumer finds himself in the traditional and strong legal position as owner and holder of the product. However, the supplier will be able to strengthen his position by the insertion of a retention of title clause. Possessory liens could also act as a corrective factor of which only the supplier is capable of availing himself. Both parties could rely on a plea of non-performance. On the other hand, under use-oriented and result-oriented PSS contracts the consumer enjoys but a weak fundamental position as a retainer who does not enjoy the advantages of possession protection or acquisitive prescription. As matters stand at present, these agreements also lack any minimal level of social protection benefiting the consumer who, using this type of agreement, will purchase a considerable quantity of goods which could be crucial to his daily existence and which can be reclaimed by the supplier on termination. However, awarding a right of use without transfer of ownership also creates risks for the supplier, because he loses physical control over his property. Both the plea of non-performance and the right to possessory lien will, for this type of servitisation model, be to the consumer’s advantage. Much appears to depend on the actual type of PSS agreement and on its possible terms and conditions, which once again emphasises the importance of the general rules of consumer law.
An examination of the differences between contracts of sale and contracts for services, in terms of conformity and quality, confirms the lower level of consumer protection which prevails here. There is as yet no uniform and mandatory set of minimal rights relating to services and remedies where PSS suppliers fail to meet their obligations. It is true that the restricted Belgian rules on hire and contracting for work give us some points of reference in addition to the general law of obligations, but provides but little protection and is, moreover, not invariably adjusted to take account of PSS agreements.
This paper concludes with an overview of various possible solutions, including standardising services, standard agreements and new auxiliary or mandatory rules of contract law for PSS agreements.
It appears that the current state of the private law, including consumer law, has been built around ownership and contracts of sale. This paper further demonstrates that, in many respects, the consumer’s position under B2C PSS agreements is weaker than is the case for consumer sales agreements. However, this paper also shows that there are several possible ways of responding to these consequences of servitisation. Regarding the most desirable way of achieving this, and on the question whether this should be done at the national or at the European level, there will be differences of opinion. This is why the most compelling issue to arise here is that a start should be made with serious reflection and debate on this issue.
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Faillissement en lopende overeenkomsten. Een rechtsvergelijkende analyse van artikel XX.139 WER BAEYENS, S.Bankruptcy proceedings and executory contracts -
Article XX.139 of the Business Law Code (BLC) comparatively
examined
In principle, when bankruptcy proceedings are opened, this does not in any way affect any executory contracts to which the bankrupt in question is a party. Executory contracts can be defined as those (a) which have yet to be completed in their entirety, both by the bankrupt and by any other party to the agreement at the time when the bankruptcy proceedings were commenced, and (b) under which the bankrupt in question is obliged to meet his/her obligations in order to be able to claim performance of such obligations as have yet to be performed by the other contracting party. The usefulness of this definition, however, only comes into its own when the Bankruptcy Trustee assumes the obligations under this agreement. Where this is not the case, it is of no relevance whether the agreement in question remains executory. This is because the Bankrupty Trustee will need to reach a decision in relation to all the obligations which had yet to be performed in their entirety by the bankrupt. It is in this respect that it is preferable, from the point of view of precision, to use the term “existing obligations” rather than “executory contracts”.
First of all, the Bankruptcy Trustee may prefer to assume the executory contract, as a result of which the obligations resulting from it will be regarded as administrative expenses. However, any decision by the Bankruptcy Trustee to assume the executory contract will not invariably be one that achieves effective results. Any individual creditor will be able to seek termination of an executory contract based on the debtor’s failure to perform prior to the opening of the bankruptcy proceedings. In this respect, those upholding both the Belgian and American law on this subject steadfastly adhere to the ordinary laws of property and contract. However, under the laws of France, the Netherlands and Germany, any decision made by the Bankruptcy Trustee will, to a certain extent, be protected against the individual creditor’s right of termination. On the other hand, the Bankruptcy Trustee may decide to reject an executory contract. Any such decision is incapable of producing consequences other than defective performance on the bankrupt’s part before bankruptcy proceedings are commenced. In this respect, the law on bankruptcy does not depart from the ordinary laws of property and contract. However, bankruptcy proceedings will increase the risk that such failure of performance will occur because the individual creditor has no right to claim performance in kind from the Bankruptcy Trustee.
The Bankruptcy Trustee’s power to assume or reject is restricted in two ways. First of all, any opening of bankruptcy proceedings results in the termination of any agreements entered into on a personal basis in relation to the bankrupt. The author is of the view that the way in which this rule is formulated is too broad. It finds no support even from a comparative perspective. The only exception to this objection could be in relation to those agreements based on personal considerations in the strict sense of the term, i.e. those that make it impossible for the receiver to render the bankrupt’s obligations incapable of performance. Secondly, agreements concluded between individual creditors and bankrupts may contain a clause which determines that the agreement in question shall terminate at the time at which bankruptcy proceedings are commenced. Such clauses are lawful and enforceable under Belgian law. However, when we consider this issue comparatively we discover a tendency towards prohibiting such termination clauses.
Two decisions by the Belgian Supreme Court, made in 2004 and 2008, have slightly extended the range of options available to the Bankruptcy Trustee. The latter now has the right to terminate the relevant agreement where it is necessary to do so for the purpose of liquidating the bankruptcy estate. This right of termination has now been incorporated in Article XX.139(1) of the BLC. This gives the Bankruptcy Trustee the option to (1) frustrate such obligations as are immune to a non-performance order, (2) free an asset from any personal rights which are capable of being raised against the estate in question, and (3) enhance the financial position of the bankruptcy estate. This unilateral right to terminate is an application of the paritas creditorum principle. It also – just as is the case with the provisions with respect to transaction avoidance – extends the recovery rights at the disposal of the joint creditors. In comparative terms, this kind of solution can only be found in the relevant French law. Under the other legal systems examined, the Bankruptcy Trustee has no rights of termination that depart from the ordinary rules relating to bankruptcy. Under German law, however, the Bankruptcy Trustee may achieve this outcome by deciding to reject the bankrupt party’s existing obligations. There are also US court decisions which support this theory. However, many American authors deny the Bankruptcy Trustee the right to terminate obligations unilaterally – and the Supreme Court has applied this doctrine. The Dutch law on this subject not only lacks such unilateral termination rights, but, in addition, restricts the effectiveness of any decision to reject in relation to passive obligations.
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Impact van de B2B-wet op de wilsautonomie en de rechtszekerheid: een rechtsvergelijkende analyse GEIREGAT, S., STEENNOT, R.The impact of the new B2B legislation on freedom of contract and
legal certainty - a comparative analysis
Belgium’s law of obligations is based on the principle of contractual freedom. This principle guarantees the freedom on the part of the parties to determine the terms of their agreements themselves. The traditional justification for this principle has been that each party is placed on an equal footing and is therefore capable of protecting its own interests. However, where one of the parties to an agreement appears to be in a weaker bargaining position than the other, corrections are desirable. In such cases, legislation can be adopted that seeks to create a level playing field for all parties – more particularly by means of rules which protect the contracting parties against boilerplate terms and conditions. For the first time in Belgium, the Act of 4/4/2019 has laid down rules aimed at protecting businesses against unfair contractual terms in business-to-business (B2B) transactions. These new rules complement existing legislation on unfair terms in business-to-consumer (B2C) agreements, but depart from its substance. The lawmaker has justified the extension of B2C protection rules to B2B situations, arguing that unequal bargaining positions also arise where the parties act as part of their professional activity, so that they too require protection. This paper examines the areas in which the new B2B legislation is capable of restricting freedom of action, and to what extent the additional protection provided undermines legal certainty. In so doing, the authors examine the legislation’s rationales, and analytically compare Belgian law to the law in Germany, France, the Netherlands and Italy.
The first striking aspect of the new Belgian legislation, is that its potential for restricting freedom of action is greater than is the case in the neighbouring countries. This results from the broader scope, in personal and material terms, of the Belgian rules, as they cover virtually every type of contractual term, be it individually negotiated or not (except for key terms to the extent that they are clear and comprehensible), in all types of agreement (excluding financial service agreements) and between all categories of businesses – big or small.
In particular, the promulgation of a “grey list” of terms and conditions that are rebuttably deemed to be unlawful, may well lead to a far-reaching restriction of the parties’ freedom to determine the terms of their agreement. That list covers a number of contractual terms which frequently arise in practice, including disclaimer clauses and clauses on unilateral changes. Moreover, the list also includes two provisions construed so broadly that they essentially introduce additional fairness tests with general scopes of applications. One of these two provisions targets clauses that “inappropriately restrict” the rights of the other party in the event of contractual default. The other targets clauses by which a party “transfers an economic risk” without consideration. Neither of these grey-list restrictions apply as such to B2B agreements in the analysed foreign legal orders.
The introduction of the grey list will leave businesses with difficult strategic choices. Either they opt for legal certainty and refrain from using clauses that may correspond to one of the provisions in the grey list, or they do not refrain from doing so. In the latter case, they risk that courts will subsequently rule that these clauses are void, in lack of sound arguments to rebut the presumed unfairness. Pending the first relevant court decisions relating to this legislation, businesses’ choices will determine the actual scale of impact the new legislation will have on private parties’ freedom of action. More businesses opting for legal certainty, will mean a more significant impact. If, by contrast, businesses are prepared to take the risk, the resulting impact will be rather limited in the short term. In any case, businesses will inevitably always run the risk that their terms, other than key clauses, are found unlawful because they create a significant imbalance between the parties’ rights and obligations.
In the longer term, the judiciary’s approach will be decisive for the impact that these rules will have on private parties’ freedom of action. This is true for the impact of both the grey list as the general prohibition on unfair terms. During the parliamentary stages leading to this new piece of legislation, the drafters frequently stressed that the new B2B Act was not intended to undermine the principle of contractual freedom (intended term: freedom of action). However, any legislation regulating unfair terms will as such restrict the freedom to determine the terms of agreements. Hence, probably the repeated reference to the principle of contractual freedom is to be read as a plea for courts to exercise restraint when applying the new B2B rules. Yet, it remains to be seen whether courts will indeed look for guidance in the travaux préparatoires when interpreting the new legislation. Such an approach is definitely not to be expected in instances where the actual wording of the B2B Act is not reflecting the statements made during the parliamentary stages, which is often the case.
Legal uncertainty is not the only potential consequence the new B2B Act will produce. Indeed, the new act also leaves a lot of questions unanswered with regard to the private-law remedies to unfair terms. Thus, businesses will face an additional issue when they face the aforementioned choice between legal certainty and freedom of action: they will be unable to assess the probable impact when a court upholds the unfairness of one of their terms. If, on the one hand, courts have the power to limit or convert unfair terms so that they are no longer unfair, finding clauses unfair will have relatively limited consequences. Yet if courts, by contrast, may not limit or adapt terms, then they will be compelled to declare all unfair terms null and void. In the latter scenario, the private-law remedy will have a considerably greater impact for a lot of types of contractual terms. In short, if the new B2B Act’s remedy allows courts to limit or convert unfair terms into legitimate clauses, then businesses will probably be more inclined to take the risk of using “edgy” clauses. Hence, if courts have the power to limit and convert terms, the result will probably be more legal certainty and less erosion of the contractual freedom of action.
Save if the new B2B Act is modified or if courts adopt an extremely restrained approach when the legislation enters into effect, the new B2B legislation will cause a great deal of legal uncertainty and will significantly undermine private parties’ freedom of action. What is more, the scope of the new rules is construed so broadly that, in the end, the common law of contracts will no longer fully apply to agreements between businesses. This is highly remarkable, as B2B agreements make out the largest share of agreements concluded on a daily basis. All of this means that the mandatory rules in the Economic Law Code will largely replace a number of fundamental rules laid down in the 1804 Civil Code and in the proposals for a New Civil Code. None of the examined foreign legal order go as far the Belgian legislator in their search for protection of weak contracting parties. Hence, it is very doubtful whether the aim of protecting businesses in weaker bargaining positions, i.e. new B2B Act’s rationale, can indeed justify the Act’s consequences.
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De onderschatte rol van wilsautonomie in het huidige en in het nieuwe goederenrecht: kwalitatieve verbintenissen als proefstuk DEMEYERE, S.The underestimated role of the freedom to contract under the
current and future law of property: real obligations as a test case
The finding that property law has many gaps which can be rectified by means of the law of contracts forms the basis of this article. This is illustrated by means of several issues concerning real obligations, or obligations related to property rights, such as the maintenance of property subject to an easement and the periodic payments owed by the holder of a building right.
The first part of this article analyses several deficiencies in the law of property which are rarely debated in Belgian legal circles, but in respect of which Dutch law is at a more developed stage. The regulation of property rights is discussed, in particular the question if and to what extent rights, obligations and powers agreed upon by parties which create a right relating to a property come within the scope of the law of property and thus become part of the relevant property rights. In addition, the legal effects of the transfer and forfeiture of a property right are not adequately regulated by legislation. It is, for instance, unclear if and to what extent the transferor of a property right remains liable for the obligations connected to the property right after the transfer has been effected. Dutch legislation contains statutory provisions for specific property rights and the Belgian Reform of Property Law introduces provisions aimed at determining the effects of both the transfer and forfeiture of a property right.
The second part of the article concerns the question of how parties creating or transferring a property right can as effectively and comprehensively as possible regulate their legal position, bearing in mind the deficiencies mention above. Even where statutory regulation applies, the parties may wish to depart from it, in which case the permissive or mandatory nature of the statutory regulation must be checked. This article demonstrates that the parties have many opportunities to regulate property law by means of one or more contracts. In some cases, this contractual regulation can even confer quasi-proprietary status on merely personal provisions, such as a perpetual clause and a restriction of the power to dispose of the property and/or property right.
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De niet-rivale goederen, onderzocht aan de hand van de verkrijgende functie van het bezit bij de intellectuele eigendomsrechten VAN DE VOORDE, J.Non-rivalrous property in the light of the acquisitive effect of
possession of intellectual property rights
Intellectual property rights have the particular characteristic that they are non-rivalrous items of property, which means that they are capable of being used simultaneously in the same manner by more than one person. Thus many persons can read or print the same book, several firms are capable of using the same brand name, more than one entrepreneur can apply the same industrial process. This particular characteristic has prompted many legal authors and courts to conclude that acquisitive prescription of intellectual property rights is impossible to achieve, more particularly because any such prescription would at all times be ambiguous. This paper seeks to establish whether in fact this supposition is correct, as it could give rise to doubt.
This starting point makes it possible to examine how the non-rivalrous nature of goods could influence the law of property. This is because the latter is based on the assumption that goods are, in principle, rivalrous – in that all material goods, and many non-material ones, are rivalrous. As a result, acquisitive prescription appears to be a highly suitable vehicle for this characteristic, based as it is, to a large extent, on a factual situation, i.e. possession, which is perfectly capable of adjustment (more particularly in the shape of dual possession, under which two equal rights can apply at the same time) and not being dependent on such instruments as public records which could be capable of diminishing the non-rivalrous nature of intellectual property rights.
It would seem that, in principle, there is nothing to prevent acquisitive prescription from applying here. The current law does not prohibit acquisitive prescription of intellectual property rights – except in relation to immaterial rights, which, however, have no impact on property rights. Non-material property is capable of possession. Moreover, the non-rivalrous nature of intellectual property rights has an impact only where there is a case of dual possession, which can only apply where there is more than one possessor. Accordingly, the argument that the possession of intellectual property rights is an ambiguous proposition has no validity whatsoever.
The non-rivalrous nature of intellectual property rights is not by itself insurmountable either. It would appear that, in several respects, the law has taken this into account and provides ways of weakening the exclusive nature of intellectual property rights. It therefore requires no leap of the imagination for the same considerations to apply in relation to acquisitive prescription where there is dual possession and, therefore, two parties are in possession of the same intellectual property rights – without them being joint owners or possessors.
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De privaatrechtelijke positie van transgender personen in België VERSCHELDEN, G.The position at private law of transgender people in Belgium
Since 2007, Belgian law includes legislation enabling transsexuals to change their sex registered in the Civil Status Registry (CSR), before the relevant CSR official. Until 1/1/2018, this was only possible under strict medical conditions, which included evidence of sterilisation. The Law of 25/6/2017 has vastly improved the legal position of transgender persons. The Belgian Government considered that its obligations under international human rights law impelled it to introduce a system based on the principle of self-determination. The Law of 18/6/2018 modernised and digitalised the CSR, as a result of which the specific civil certificates changing registered sex, renewing a change of registered sex, and annulling a change of registered sex are no longer drafted on paper and kept in traditional files, but are drawn up and kept in an electronic databank.
In Belgium, legal gender recognition is effected by means of a procedure that takes place before the CSR official and is conducted over two stages, including a compulsory waiting period. The interested party shall, in the first instance, make a submission in writing that, for some considerable time, they have been convinced that the sex registered in their birth certificate no longer conforms to their lived gender identity, and that they desire the legal consequences of a change of their registered sex. During the applicant’s first appearance in person, the relevant CSR official draws their attention to the irrevocable nature, in principle, of such change, gives them an information brochure, and provides them with details of transgender organisations. The Public Prosecutor’s Office may issue a negative opinion regarding the desired change of registered sex as being contrary to public order – which will be based almost exclusively on fraud (including identity fraud). Where the Public Prosecutor’s Office issues such a negative opinion, the CSR official must refuse to effect the relevant change of registered sex. In order to reduce injudicious applications, there is a compulsory waiting period, from three to six months, between the applicant’s first and second appearances, during which the latter must submit a written statement affirming their initial intention and proving their awareness of the consequences thereof. Only once this has been completed the change of registered sex may be formally adjusted.
Where the CSR official refuses to effect the change, the applicant may appeal to the Family Court. When it comes to minors, the applicant must be aged 16 or over and requires confirmation by a child-and-youth psychiatrist that the minor in question has sufficient powers of discernment for their continued conviction that their sex registered at birth does not conform to their lived gender identity. In so doing, the minor must be assisted by both parents or a legal representative. Where such parents or legal representative refuse to provide the required assistance, the minor in question may request authorisation from the Family Court to make the relevant application, assisted by an ad-hoc guardian.
Where the application is contrary to public order, the Public Prosecutor’s Office is obliged to apply for annulment of the change in question.
In principle, any change of registered sex is irrevocable. However, the relevant legislation makes it possible to ‘return’ to the sex registered at birth via a procedure conducted before the Family Court, on production of evidence of exceptional circumstances, which, in light of the preparatory Parliamentary proceedings and the information brochure, are open to the widest possible interpretation. Any change in the transgender applicant’s first name(s) is also effected by the CSR official by means of a statement made in good faith which is attached to the application, no medical conditions being required. Transgender persons have the right to amend their first names in return for a concessionary fee, amounting to a maximum of 10 per cent of the municipal charge which may, but is not compulsory, be levied. Minors may apply for a first-name change from the age of 12 onwards.
Belgian law has specific rules governing the filiation of transgender persons. Transmen who bear children become mothers. The filiation of transwomen who, by natural childbirth or medical intervention, have created children is determined by applying the rules governing paternity by analogy, but on condition that the transwoman in question is mentioned as co-mother. In all other cases it is the new gender that shall be determinative.
Belgian law also makes provision for specific rules which protect transgender privacy, by restricting the category of persons having the right to obtain copies of the relevant entries, and by restricted access to certificate changing registered sex through the electronic database of the CSR.
In spite of all these progressive changes, the Belgian Constitutional Court has annulled a number of sections of the Law of 25/6/2017, following a request by three LGBT interest groups. This was effected by its judgment of 19/6/2019, at a time when the contents of the annulled provisions had already been incorporated into other Articles – as yet unchallenged – of the Civil Code (CC). The basic provision, which is the former Article 62bis CC (now Article 135(1) thereof) has been annulled in that this provision contains a lacuna, to the extent that it makes it impossible for persons having a non-binary identity to change their registered sex in light of their actual gender identity. The Court also annulled (a) the irrevocable nature – in principle – of the change of registered sex, (b) the judicial “return procedure” before the Family Court, and (c) the rule that first-name change subject to a concessionary fee and motivated by gender incongruence, may only be granted once.
Out of respect for the fundamental rights of gender fluid persons, the author advocates that not only the annulled contents of the relevant Civil Code provisions be deleted, but also that measures be adopted which go further than such amending legislation – in that it adds one or more gender categories to the binary categories currently in existence, both for the purposes of gender registration at birth and in the context of any subsequent change. This should be followed by the final step – the removal of any sex or gender identity from one’s personal civil status.
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Bereiken deontologie, tuchtrecht en tuchtrechtspraak van de advocatuur hun doel? STEVENS, J. |
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Boekbesprekingen B. DUBUISSON (ed.); M. CAPRONI en S. DE SMEDT; G.-L. BALLON, H. DE DECKER, V. SAGAERT, E. TERRYN, B. TILLEMAN, A. L. VERBEKE (eds.); A. VAN OEVELEN; A. BEKA; V. BOILLET, M. ROCA I ESCODA en E. DE LUZE (EDS.); L. DE VRIESE; M. HAENTJENS en B. WESSELS (eds.); A. MIGLIONICO; B. VERBELEN en K. HENDRICKX; R. TIMMERMANS; S. DE POURCQ; J. CHUAH en E. VACCARI (ed.); C. OP DEN KAMP en D. HUNTER (eds.); E. VERJANS; O. MORÉTEAU, A. MASFERRER en K.A. MODÉER (eds.); B. WAUTERS en M. DE BENITO; D. SZOSTEK; D. KRAUS, T. OBRIST en O. HARI (eds.); U. MATTEI en A. QUARTA
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