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Act of 31 May 2017
Law on compulsory ten-year civil liability insurance for contractors, architects and other service providers in the construction sector of works in real estate and amending the law of 20 February 1939 on the protection of the title and profession of architect
31 MAY 2017.- Law on compulsory ten-year civil liability insurance for contractors, architects and other service providers in the construction sector of works in real estate and amending the law of 20 February 1939 on the protection of the title and profession of architect (1 )
Article 1. This Act regulates a matter as referred to in Article 74 of the Constitution.
Chapter 2. - Scope
Art. 2. For the purposes of this Act:
1° contractor: any natural or legal person who undertakes, for the account of another and against direct or indirect remuneration, in full independence but without the power to represent, to carry out specific real estate work on homes located in Belgium for which the intervention of an architect is required under Article 4 of the law of 20 February 1939 on the protection of the title and profession of an architect;
2° architect: any natural or legal person authorized to practice the profession of architect in accordance with article 2 of the law of 20 February 1939 on the protection of the title and profession of architect when his intervention is legally required under article 4 of the same law and insofar as his or her activity relates to works carried out and services rendered in Belgium;
3° other service providers in the construction sector: any natural or legal person, other than construction promoters, who, on behalf of a third party and subject to direct or indirect remuneration, undertakes, in complete independence but without power of representation, to perform intangible services relating to a certain real estate works on homes located in Belgium. These are real estate works for which the intervention of the architect is mandatory pursuant to Article 4 of the Law of 20 February 1939 on the protection of the title and profession of an architect;
4° dwelling: building intended for habitation;
This is understood to mean a building or part of a building, in particular a single-family house or an apartment, which, from the start of the immovable works, is by its nature exclusively or mainly intended for habitation by a family or by a single person, and where the various family activities are practiced.
Are not dwellings within the meaning of this description: the rooms in communal buildings, ie the buildings of which at least one residence or a sanitary room is used by several persons who do not have a family relationship with each other.
The King may exclude specific forms of habitation from the concept of dwelling.
5° insurance company: the insurer as defined by Article 5, 1°, of the Law of 4 April 2014 on insurance.
Art. 3. For the purposes of this law, ten-year civil liability insurance means the insurance covering the civil liability referred to in Articles 1792 and 2270 of the Civil Code, for a period of ten years after acceptance of the works, limited to the soundness, stability and watertightness of the closed structural work, if the latter endangers the soundness or stability of the house, with the exclusion of:
1° damage due to radioactivity;
2° the damage resulting from physical injuries as a result of exposure to legally prohibited products;
3° damage of an aesthetic nature;
4° the pure immaterial damage;
5° the visible damage or damage known to the insured at the time of provisional delivery or which directly follows from errors, defects or non-performance known by him at the time of the aforementioned delivery;
6° damage resulting from non-accidental pollution;
7° the additional costs resulting from the changes and/or improvements to the home after a claim;
8° material and immaterial damage less than 2,500 euros.
This amount is linked to the ABEX index, with the base index of the first half of 2007 and the index to be retained for indexation, being that at the time of the claim being declared.
The exclusions stipulated in the law of 4 April 2014 on insurance also apply.
Art. 4. The insured person is considered to be any natural person or legal entity exercising the profession of architect, contractor or other service provider in the construction sector and who is mentioned in the insurance contract, as well as his employees and subcontractors.
The staff, trainees, apprentices and other employees of a natural or legal person who exercise the profession of architect, contractor or other service provider in the construction sector are considered to be his employees when they act on his behalf.
Are also covered in the case of a legal person, the directors, business managers, members of the executive committee and all other bodies of the legal person charged with the management or administration of the legal person, whatever the title of their position is, when they acting on behalf of the legal person in the context of the exercise of the profession of architect, contractor or other service provider in the construction sector.
Chapter 3. - Obligation to insurance
Art. 5. Every architect, contractor or other service provider in the construction sector whose ten-year civil liability may be jeopardized as a result of actions he performs professionally at homes located in Belgium or actions of his employees, is compulsorily covered by an insurance as referred to in Article 3. .
Art. 6. In the insurance contract, the coverage of the liability referred to in Article 3, per claim, for the total of the material and immaterial damage, may not be less than:
1° 500,000 euros, if the value of the reconstruction of the residential building exceeds 500,000 euros;
2° the value of the reconstruction of the house, if the value of the reconstruction of the building intended for habitation is less than 500,000 euros. The amounts referred to in the first paragraph are linked to the ABEX index, with the base index of the first half of 2007 and to retain the index for the indexation, being that at the time of the declaration of the claim.
Art. 7. The guarantee of the insurance referred to in Article 3 covers the damage incurred during the period of ten years following the acceptance of the works and which is the result of the liability of the person liable for insurance.
Art. 8. The insurances referred to in this law and covering the liability of contractors, architects and other service providers in the construction sector may be taken out either in the form of an annual policy or in the form of a policy per project.
These insurance policies can be part of a global insurance contract taken out for the account of all parties obliged to take out insurance who must act on a specific site. In this case, the policyholder is always insured, unless stipulated otherwise.
In the event that a global insurance policy is taken out for a project, all parties involved, who are covered by this global insurance policy, will be exempt from individual insurance for that project.
Art. 9. By way of derogation from Article 5, the contractor, architect or other service provider in the construction sector, when exercising his activity as a civil servant with the State, a Region, a Community or the Buildings Agency, must not be covered by insurance provided that his liability, including the ten-year civil liability, is covered by the State, the Region, the Community or the Buildings Agency.
In the absence of insurance, the State, the Regions, the Communities and the Buildings Agency are liable to the injured parties under the same conditions as the insurer, in accordance with the limits of the guarantee as determined by the law of 4 April 2014 on insurance; they are subject to the detailed insurance rules and conditions laid down by the King in implementation of this law.
Chapter 4. - Rates Office
Art. 10. § 1. With a view to insuring cover for the risks referred to in this law, the King may set up a Rates Bureau, the task of which is to determine the premium and the conditions under which an insurance company covers a person who is obliged to insurance obligation under this law, and which is not covered on the regular market.
The Tariferingsbureau is not considered an insurance intermediary within the meaning of Article 5, 20°, of the Law of 4 April 2014 on insurance. § 2. Any person subject to the obligation to take out insurance under this law may submit an application to the Tariferingsbureau if at least three insurance companies to which the person has turned have refused to grant him cover.
The King may lay down additional conditions for acceptance of the insurance application and modulate them for certain risk categories that He determines.
The Tariferingsbureau determines the premium taking into account the risk presented by the policyholder. § 3. The Tariferingsbureau consists of five members representing insurance companies, two members representing architects, two members representing contractors and one member representing consumers. The members are appointed by the King for a term of six years.
They are chosen from a double list proposed by the professional associations of insurance companies, the associations representing the architects, the associations representing the contractors and the associations representing the interests of consumers.
The King appoints, for a term of six years, a chairman who is not part of the previous categories.
The King determines the remunerations to which the chairman and the members of the Tariferingsbureau are entitled.
The King also appoints a deputy for each member. The deputy members are elected in the same way as the effective members.
The Tariferingsbureau may be assisted by experts who do not have the right to vote.
The Minister responsible for Insurance may delegate an observer to the Tariferingsbureau. § 4. The Tariferingsbureau reports annually on its operation.
This report also contains an analysis of the tariff conditions applied by the insurers. This is immediately forwarded to the House of Representatives.
Chapter 5. - Evidence
Art. 11. § 1. By 31 March of each year at the latest, the insurance company shall make available to the Council of the Order of Architects an electronic list of the architects who have concluded an insurance contract with it, stating the company number and name of the architect, the number of the insurance policy and the start and end date of the insurance cover.
The insurance company or the architect cannot cancel an insurance contract without having notified the competent Council of the Architectural Order by registered letter, at the latest 15 days before the cancellation takes effect, of which he also communicates the date.
The insurance company informs the Council of the Order of Architects quarterly via an electronic list of the insurance contracts that have been canceled or suspended, or whose cover has been suspended. § 2. Insurers that have their registered office in another member state of the European Economic Area provide the Order of Architects with a certificate showing that the cover is equivalent or essentially comparable to an insurance policy that is in accordance with this law and its implementing decrees. An additional guarantee may be required, if necessary, if the insurance cover is found not to be in accordance with this law.
The insurance company or the architect cannot dissolve an insurance contract without having notified the competent Council of the Architectural Association by registered letter, at the latest 15 days before the cancellation takes effect, the date of which he also communicates at the same time.
The insurance company informs the Council of the Order of Architects quarterly via a list of the insurance contracts that have been canceled or suspended, or whose cover has been suspended. § 3. The architectural contract mentions the name of the architect's insurance company, its policy number as well as the contact details of the Council of the Order of Architects that can be consulted with a view to compliance with the insurance obligation.
Art. 12. § 1. Before commencing any real estate work, contractors and other service providers in the construction sector must submit an insurance certificate:
1° to the client and;
2° to the architect. If necessary, he demands the certificate.
A copy of the certificate must be handed over at the first request of the official referred to in Article 14.
If the rights in rem are transferred before the ten-year civil liability coverage period has expired, the notary will ensure that the holder of the right in rem hands over the insurance certificate to the transferee.
The insurance certificate is also submitted to the National Social Security Office by the contractor charged with registering notifications of works referred to in Article 30bis, § 7, of the Law of 27 June 1969 on social security for blue-collar workers, in accordance with the procedure set out in this Article and its implementing decrees.
When the immovable work is financed by means of a credit agreement as referred to in Book VII of the Code of Economic Law, the lender checks whether the architects, contractors and other service providers in the construction sector involved on the site have fulfilled the insurance obligation. The client hands over the insurance certificates to the lender. § 2. Contrary to paragraph 1, first paragraph, when all service providers in the construction sector are covered by a global insurance policy, a global certificate is issued to the architect and/or client, if they are not the policyholders. § 3. On site, every contractor or other service provider in the construction sector must be able to hand over a copy of the certificate referred to in paragraph 1 on first request. § 4. The insurer confirms, by issuing a certificate, that the insurance guarantees comply with this law and its implementing decrees.
The King may determine the form and further rules of this certificate.
Chapter 6. - Guarantee
Art. 13. By way of derogation from Article 5, the contractor, the architect or the other service provider in the construction sector may provide a surety, the conditions and detailed rules of deposit and release being determined by the King. This guarantee meets the same guarantee requirements as the mandatory ten-year civil liability insurance.
The provisions of Article 12 apply to the guarantee certificate issued by the institution granting the guarantee.
Chapter 7. Detection, determination and suppression of infringements committed by the contractor and other service providers in the construction sector
Art. 14. § 1. Without prejudice to the powers of the police officers of the local and federal police, the officials appointed by the King are authorized to supervise the application of this law. § 2. A warning can be addressed by these officials to any natural or legal person who does not comply with the provisions of this law or its implementing decrees.
The warning states:
1° the offenses charged and the provisions violated;
2° the follow-up given to the warning and the period within which this is done;
3° that, if the warning is not followed, either the public prosecutor will be informed or the transaction procedure referred to in paragraph 4 will be applied. The warning states the chosen action. § 3. The official report drawn up by these officials has evidential value until proven otherwise.
A copy of the official report will be sent to the offender by registered mail within fifteen days after the infringement has been established. § 4. On the basis of the official report referred to in paragraph 3, the officials appointed by the King may propose a sum, the voluntary payment of which by the offender will cause the criminal proceedings to lapse.
The rates as well as the payment and collection methods of this transaction are set by the King.
The sum of money referred to in the second paragraph may not exceed the maximum amount of the criminal fine that can be imposed for the established infringement, increased by the surcharges.
In the case of application of the first paragraph, the official report will only be sent to the public prosecutor if the offender has not accepted the proposed transaction or has not paid the proposed sum of money within the specified period.
The payment made within the specified period cancels the criminal proceedings, unless a complaint has previously been made to the public prosecutor, the examining magistrate has been requested to conduct an investigation or if the offense has been brought before a court. In these cases, the amounts paid will be refunded to the offender. § 5. Violations by the contractor and other service providers in the construction sector of this law and its implementing decrees are punishable by a criminal fine of 26 to 10,000 euros.
Chapter 8. - Detection, determination and suppression of infringements committed by the architect
Art. 15. The architect's infringements of this law and its implementing decrees are punishable by a criminal fine of 26 to 10,000 euros.
Art. 16. § 1. Without prejudice to the powers of the police officers of the local and federal police, the officers appointed by the Minister responsible for the Economy are authorized to detect and to establish. § 2. The official reports drawn up by these officials have evidential value until proven otherwise.
A copy of the official report will be served on or handed over to the offender by registered mail with acknowledgment of receipt within thirty days after the infringement has been established. The minutes may also be communicated by fax or electronic mail. If there is no response to the communication by fax or electronic mail, it will be sent by registered mail with acknowledgment of receipt. § 3. In the exercise of their duties, the officials referred to in paragraph 1 may request the assistance of the police services. § 4. Without prejudice to their subordination to their superiors in the administration, the authorized officials exercise the powers conferred on them by this article under the supervision of the Prosecutor General with regard to the tasks of detecting and establishing the violations specified in this law. § 5. In the case of application of Article 18, the official reports referred to in paragraph 2 are only sent to the Crown Prosecutor if the offender has not accepted the transaction. § 6. The detection and determination of the infringements, referred to in this law, take place in accordance with the relevant provisions, referred to in Title 1, Chapter 1, of Book XV of the Code of Economic Law.
Art. 17. When they establish an infringement of Articles 5 and 12, § 1, first paragraph, 2°, the officials referred to in Article 16, § 1, may issue a warning to the offender urging him to stop the act, in accordance with Article XV.31 of the Code of Economic Law.
Art. 18. The officials appointed by the Minister responsible for Economy can propose a transaction to the architect, in accordance with Article XV.61 of the Code of Economic Law.
Art. 19. Shall be punished with a fine of level 1, in accordance with Article XV.70 of the Code of Economic Law, any infringement committed by the architect on Articles 5 and 12, § 1, first paragraph, 2°.
Chapter 9. - Amendments to the law of February 20, 1939 on the protection of the title and profession of architect
Art. 20. § 1. In the law of 20 February 1939 on the protection of the title and profession of architect, the following are abolished:
1° article 9;
2° Article 11, fourth paragraph.
§ 2. In Article 2, § 4, of the same law, amended by the laws of February 15, 2006, July 20, 2006, November 21, 2008 and December 22, 2008, the words "Article 9" are replaced by the words "the law of xxxx concerning the mandatory ten-year civil liability insurance of contractors, architects and other service providers in the construction sector of works in real estate and amending the law of 20 February 1939 on the protection of the title and profession of architect".
Chapter 10. - Final Provisions
Art. 21. The provisions of this law and its implementing decrees apply to insurance contracts taken out from the entry into force of this law and its implementing decrees.
Insurance companies formally adapt insurance contracts and other insurance documents to the provisions of this law and its implementing decrees at the latest on the date of amendment, renewal, extension or conversion of current contracts.
It applies to works in immovable condition for which the final urban planning permit was issued after the entry into force of this law.
Art. 22. With the exception of Article 10, which enters into force on December 1, 2017, this law enters into force on July 1, 2018.
Promulgate this law, order that it be affixed with the seal of the country and published in the Belgian Official Gazette.
Given in Brussels, May 31, 2017.
FILIP Van Koningswege : The Minister of Work, Economy and Consumers, K. PEETERS The Minister of the Self-Employed, the Self-Employed and SMEs W. BORSUS Sealed with the seal of the country : The Minister of Justice, K. Geens _______ Note (1) Chamber of Representatives : (www.dekamer.be) Documents : 54-2412 (2016/2017) Integral Report : 11 May 2017.