belgiquelex.be - Carrefour Bank of Legislation

20 JUNE 2012. - An Act to amend various military status provisions (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er
This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Provision of compensation in the event of an accident or illness as part of the participation in foreign missions of assistance or operational engagement
Art. 2
For the purposes of this chapter and its enforcement orders, the following means:
1st victim: the person referred to in Article 3, § 1^erParagraph 1^er, and § 2;
2° joint:
(a) the person married to the victim;
(b) the person with whom the victim cohabits within the meaning of articles 1475 to 1479 of the Civil Code;
(c) the unrelated person with whom the victim has lived permanently and effectively for at least one year at the time of death, proved by the registration of the population register or the register of aliens;
3° child: a child whose filiation against the victim is established, if any after the victim's death, adopted or whose adoption procedure is concluded positively after the victim's death;
4° accident: any sudden event involving a bodily injury whose cause or cause is outside the body of the victim, and which is determined with certainty by a qualified physician or specialist who is authorized to practise his art;
5° disease: any impairment of the health condition having another cause than an accident and which is determined with certainty by a recognized doctor or specialist and authorized to practice his art, and whose diagnosis is based on objectively observable symptoms;
6° permanent bodily incapacity: bodily incapacity due to an illness contracted or an accident occurring during participation in an operation or mission referred to in Article 3, having as a result:
(a) for the member and the military candidate, as the case may be, the establishment of a pension or termination of the undertaking or re-engagement as a result of final physical incapacity following a decision of the military suitability and reform commission or the military suitability and appeal reform commission;
(b) for the member of the statutory civil personnel referred to in Article 3, § 1^erthe decision to make an early pension following the decision of the administrative health service attached to the Federal Public Service Public Health;
(c) for the contractual personnel referred to in Article 3, § 1^erthe termination of the contract for cause of force majeure under the conditions referred to in article 34 of the Act of 3 July 1978 on contracts of employment;
(d) for persons not referred to in (a) to (c), the existence of a condition of disability that is, therefore, unable to practise their profession, as determined by the competent medical authority;
7° domicile: the place, in Belgium, where the victim is registered as principal in the registers of the population;
8° residence: the place, in Belgium or abroad, where the victim who has no domicile in Belgium or who is on duty abroad resides.
Art. 3
§ 1^er. An allowance shall be awarded by the Minister of Defence, at the rates and conditions set out in this Act, to the following persons who, in peacetime, are victims of an accident or illness contracted during an operation or mission referred to in section 4, resulting in the death or permanent bodily incapacity:
1° military and military candidates;
2° Civil personnel of the Ministry of Defence;
3° the Minister of Defence and the members of his office;
4° members of federal public services, including members of the Judicial Order and members of the federal police;
5° the staff of the parastatals of the Ministry of Defence.
Military personnel are obligatoryly subjected to medical checks, prior to the mission, which allows them to know the health of the victim before the departure.
When death or permanent bodily disability is caused by a disease, the right to compensation is excluded if, before departure, persons referred to in paragraph 1^er, 2° to 5°, did not undergo a medical check organized by the Minister of Defense.
§ 2. In the event of the victim's death, the allowance is payable to his or her eligible persons, in accordance with section 7.
Art. 4
The accident must occur, or the disease must be contracted, when participating abroad:
1° is an operation in one of the following forms of operational engagement:
(a) the commitment to observation;
(b) commitment to protection;
(c) passive armed engagement;
(d) active armed engagement;
2° is a assistance mission carried out by the armed forces to relieve the needs of the population.
Any accident occurred and any illness incurred during the execution of any activity related to the operation or mission, without limitation in time or geographical limitation, from the day of the start of the mission and to the day of the mission's end, including, as the case may be, the journeys from the home or residence and the journeys made to reach them, regardless of the means of transport used. By activity related to the operation or mission, both operational activities in controlled service, and logistical and leisure activities during rest or leave periods are targeted.
However, are not taken into consideration except in the context of suicide or attempted suicide:
1° the accident or illness attributable to a heavy fault or intentional act of the victim;
2° intentional self-mutilation;
3° the accident or illness caused by the use of alcohol or narcotics by the victim, provided that the narcotics concerned were not prescribed by a doctor;
4° the accident or illness having for immediate and direct cause an intentional crime or offence of which the victim is a perpetrator or co-author and of which she has been able to predict the consequences.
Art. 5
The amount of compensation referred to in section 3 shall be determined to:
1° in case of death: 95,000 euros;
2° in case of permanent bodily incapacity: 171,000 euros.
In addition, in the event of death, and without prejudice to the award of compensation referred to in paragraph 1^er, 1°, to the persons entitled to the victim, a supplementary allowance equal to 15 percent of the amount set out in paragraph 1^er1°, to any child of the victim who is:
1° or minor of age;
2° is major, beneficiary of family allowances.
Art. 6
§ 1^er. In the event of the death of the victim, an advance on compensation, known as "immediate assistance", in the amount of 7,000 euros, is granted, upon request, within fifteen days of receipt of the application, to the victim's spouse. In the absence of a spouse, the advance is divided equally among the children of the victim and is paid, for unemancipated minors, to the person who provides their education.
The amount of the advance shall be deducted from the amount of the allowance referred to in section 5, paragraph 1^er1°.
The request for immediate assistance must be submitted by the recipient or his legal representative.
§ 2. The Minister of Defence requires immediate assistance to be refunded when it is shown that the person who received it could not claim it.
Art. 7
In the event of the death of the victim, the persons entitled, referred to in Article 3, § 2, are, in priority order:
1° his spouse;
2° his children and their descendants by representation;
3° persons designated by the victim before departure.
The designation referred to in paragraph 1^er3°, is found in a written act of which the Minister of National Defence determines the form and place of conservation.
Art. 8
If there is only one eligible person, the person shall be entitled to the full allowance set out in section 5, paragraph 1^er1°. When there are several equal rights holders, the allowance is assigned by equal shares to each of them.
However, compensation under section 5, paragraph 1^er, 1°, is not granted when the victim dies after receiving the compensation set out in article 5, paragraph 1^erTwo.
Art. 9
Where an allowance or a portion of compensation, excluding the immediate assistance referred to in Article 6, § 1^er, is granted to a minor of age, the amount is paid to an account in an open bank on behalf of the minor, and may, during his minority, be disposed of in accordance with the provisions of the Civil Code only with the authorization of the justice of the peace.
Art. 10
The causal link between the accident or illness and permanent death or incapacity may no longer be invoked for the benefit of this Act if the death occurs or the injury occurs after ten years from the day the accident occurred or the day the disease was contracted. If this day cannot be determined, the ten-year period begins on the day after the mission ends.
In addition, the procedure leading to recognition of permanent bodily incapacity must be initiated during the 10-year period referred to in paragraph 1^er.
Art. 11
Any claim for compensation or compensation, including the immediate assistance referred to in Article 6, § 1^er, shall, under penalty of non-receivability, be sent by the beneficiary or by his legal representative, by registered mail to the Minister of Defence within the following time:
1° for the victim, spouse or child: within 5 years of permanent incapacity or death;
2° for other persons entitled: within one year of the day the victim died.
Art. 12
§ 1^er. The Minister of Defence decides to award compensation on the advice of the Director General Human Resources and the Director General Legal Support and Mediation.
§ 2. The Director General Human Resources issues a reasoned opinion on the merits of the claim for compensation.
It may carry out any relevant investigations.
He may charge the military suitability and reform commission or the military suitability and appeal reform commission to conduct or conduct the necessary medical examinations. He may designate other experts and hear witnesses.
The result of these investigations is exclusively intended for the examination of the application and remains covered by professional secrecy.
§ 3. The Director General Legal Support and Mediation makes a notice of compliance.
Art. 13
The award of the allowances referred to in this Act excludes, as far as their amount, the award for the same damages to the State's dependants. The State is subrogated, up to the amount of compensation paid, in the rights of the beneficiary against third parties responsible for the harmful act.
Art. 14
Compensation awarded under this chapter may be accumulated for the same damage to:
1° the special compensation in the event of physical injury suffered by members of the police and rescue services, referred to in the law of 1^er August 1985 on tax and other measures, chapter III, section III;
2° compensation under the Act of 12 January 1970 relating to the granting of a special allowance in the event of an aeronautical accident in peacetime;
3° benefits granted under the legislation on compensation pensions;
4° the benefits granted under the Act of 3 July 1967 on the prevention or repair of damage caused by accidents at work, accidents at work and occupational diseases in the public sector;
5° benefits granted under the Labour Accidents Act of 10 April 1971;
6° the benefits granted under the laws relating to the prevention of occupational diseases and the repair of damage resulting from them, coordinated on 3 June 1970.
Art. 15
The amounts referred to in sections 5 and 6 are related to the mobility regime applicable to the salaries of federal public service personnel. They are linked to the pevot index 138,01.
CHAPTER 3. - Amendment of the Act of 13 July 1976 on the staffing of officers and the statutes of the personnel of the armed forces
Art. 16
In section 53quater of the Act of 13 July 1976 on the staffing of officers and the statutes of the personnel of the armed forces, inserted by the Act of 22 March 2001, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. Upon the death or hospitalization of the mother during the period of maternity leave referred to in section 50, the person referred to in paragraph 2 shall, at his or her request, be granted paternity leave with a view to ensuring the reception of the child.
The right to paternity leave is vested in the active member who:
1° is the father of the child;
2° is married to the mother;
3° legally cohabits with the mother in which the child has his principal residence, and that they are not united by a kinship resulting in a prohibition of marriage from which they cannot be dispensed by the King;
4° since an uninterrupted period of three years prior to birth, permanently and emotionally cohabits with the mother in which the child has his or her primary residence, and that they are not united by a parentage link resulting in a marriage prohibition from which they cannot be dispensed by the King.
The proof of cohabitation and main residence is provided by an extract from the register of the population or the register of foreigners.
Only one member is entitled to paternity leave on the occasion of the birth of the same child. Military personnel who open the right to paternity leave under 1°, 2°, 3° or 4° of paragraph 2, have successively priority over each other."
2° in paragraph 3 the words "the father" are replaced by the words "the person referred to in paragraph 1^erParagraph 2."
Art. 17
In section 53quinquies, § 2, of the same law, inserted by the law of 27 March 2003 and replaced by the law of 23 April 2010, the following amendments are made:
1° a paragraph is inserted between paragraphs 3 and 4:
"When the child is physically or mentally incapacitated at least 66% or a condition that has the effect that at least 4 points are recognized in pillar I of the medical-social scale within the meaning of the family allowance regulations, leave may be taken until the child reaches his or her twenty-first birthday";
2° in former paragraph 4, becoming paragraph 5, the words "or twenty-first" are inserted between the words "of the twelfth" and the words "anotherhood must be satisfied".
CHAPTER 4. - Amendment of the Act of 16 July 2005 establishing the transfer of certain military personnel to a public employer
Art. 18
Section 5 of the Act of 16 July 2005 establishing the transfer of certain military personnel to a public employer, as amended by the Act of 20 July 2006, is supplemented by two paragraphs as follows:
"The duration of a year referred to in paragraph 1^er may be extended by three months in the event of failure in the training, with the authorization of the Minister of Defence.
If the person concerned can demonstrate exceptionally motivated cases, however, the Minister of Defence may waive the time limit. »
CHAPTER 5. - Amendment of the Act of 28 February 2007 establishing the status of military personnel in the armed forces
Art. 19
In section 272 of the Act of 28 February 2007 establishing the status of military personnel in the active framework of the armed forces, as amended by the Act of 29 December 2010, the words " 1^er July 2012 is replaced by the words "December 31, 2013".
CHAPTER 6. - Entry into force
Art. 20
This Act comes into force on the tenth day after its publication to the Belgian Monitor, except Chapter 2, which comes into force on the date fixed by the King and no later than December 31, 2012, and Chapter 5 which comes into force on June 30, 2012.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 20 June 2012.
ALBERT
By the King:
Minister of Defence,
P. DE CREM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
House of Representatives:
Parliamentary documents: Bill No. 53-2190/1. Report No. 53-2190/2. Text adopted by Commission No. 53-2190/3. Text adopted by the House and transmitted to the Senate No. 53-2190/4.
Annales parlementaire : texte adopté en séance plénière le 7 juin 2012.
Senate:
Parliamentary documents: Bill passed by the House, No. 5-1662/1. Not mentioned.