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13 NOVEMBER 2011. - Compensation for tangible and moral damages resulting from a technological accident (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. - Definitions and scope
Art. 2. For the purposes of this Act:
1° "technological accident": the accident caused by a human failure or a technical cause occurring in buildings, works or facilities operated or owned by any natural or legal person, public or private, whether or not the premises are accessible to the public;
2° "large-scale technological disaster": a technological accident causing at least five physical persons of bodily injury as they result in the death of the victim, his immediate and uninterrupted hospitalization of at least fifteen days or repeated hospital stays over a period of six months;
3° "exceptional disaster": the large-scale technological disaster declared exceptional by the Committee of the Wise who finds the existence of a problem of determining liability that may be invoked, in whole or in part, with respect to the risks referred to in branch 13 of Annex I^re of the Royal Decree of 22 February 1991 on the General Regulation respecting the control of insurance companies;
4° » Funds » : the King's Joint Automobile Guarantee Fund based on Article 19bis-2 of the Act of November 21, 1989 on the compulsory liability insurance for self-propelled vehicles;
5° "Committee of Wise": the Committee referred to in Article 4;
6° "insurance companies": insurance companies authorized to practise in Belgium branch 13 referred to in Appendix I^re of the Royal Decree of 22 February 1991 on the General Regulation respecting the control of insurance companies;
7° "Cash of Calmity": the National Fund of Public Calmity, which was opened to the National Fund of Calmities by section 36 of the Act of 12 July 1976 on the repair of certain damage caused to private property by natural calamities;
8° "BNB": the National Bank of Belgium referred to in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
The King may specify the conditions under which the bodily injury referred to in paragraph 1^er, 2°, must respond to be taken into account to determine whether the technological accident is a major disaster. It may also provide that bodily injury other than that referred to in paragraph 1^er, 2°, are taken into account for this purpose.
Art. 3. § 1^er. The purpose of this Act is to repair, under the conditions and limits set out below, the damage of victims and their beneficiaries resulting from bodily injury, when the large-scale technological disaster is declared exceptional by the Committee of the Wise, without having to wait for the responsibilities to be determined.
§ 2. It does not prejudice the right of the victim or his beneficiaries to claim, in accordance with the rules of common law, compensation for his damage before the courts and tribunals.
The procedure it initiates is an amicable, optional, free procedure conducted in front of the Fund and regardless of any liability action.
§ 3. Excluded from the scope of this Act:
1° damage resulting from acts of terrorism, natural disasters or nuclear disasters;
2° damage resulting from acts of war;
3° damage arising from the failure of a product covered by the Act of 25 February 1991 relating to liability for faulty products;
4° damages arising from civil liability for self-propelled vehicles subject to the insurance obligation under the Act of 21 November 1989 on the compulsory insurance of liability for self-propelled vehicles;
5° damage arising from the civil liability of air vehicles and the civil liability of marine, lake and river vehicles;
6° damage compensation under the Act of 30 July 1979 on the prevention of fires and explosions and the compulsory insurance of civil liability under these same circumstances;
7° damage resulting from health care covered by the Act of March 31, 2010 on compensation for damages resulting from health care.
§ 4. This Act applies only to exceptional claims that occur in Belgium and cause bodily injury in Belgium, even if the damage resulting from them is incurred abroad.
Art. 4. § 1^er. It is created a Committee of the Wise which consists of:
- a representative of the Minister with Justice in his or her powers;
- a representative of the Minister with the Insurance in his or her powers;
- a representative of the Minister with Finance in his or her duties;
- a representative of the Minister with Health in his duties;
- a representative of insurance companies;
- a representative of consumer associations;
- a representative of the Fund and a representative of the BNB who each have a consultative voice.
Members are appointed by the King for a renewable period of 6 years. They are subject to the obligation to respect professional secrecy.
The Committee of Wise is chaired by the representative of the Fund.
§ 2. The Committee of the Wise establishes an internal regulation which is approved by the King. If this Committee fails to establish such a regulation, it is arrested by the King. The rules of procedure include the rules applicable in the event of a parity of voice.
§ 3. The Committee of Wise shall meet at the headquarters of the Fund. Its operating costs are borne by it.
Art. 5. § 1^er. When a large-scale technological disaster occurs, the Committee of the Wise shall determine at the request of the Minister of Justice whether the event in question constitutes an exceptional disaster within the meaning of Article 2.
§ 2. The decisions of the Committee of the Wise are made by a simple majority within the month following the request of the Minister of Justice.
§ 3. The recognition of the large-scale technological catastrophe as an exceptional disaster within the meaning of this law is the subject of a royal decree which is published without delay to the Belgian Monitor.
CHAPTER 3. - Fund Compensation Conditions
Art. 6. As soon as a large-scale technological disaster occurs, the Minister of Justice is responsible for the prosecution of the disaster site to establish a shelter for the reception and support of the victims.
The cell compiles and maintains a list of victims of bodily injury, their rightful persons and their lawyers.
Art. 7. The Minister of Justice is responsible for the reception and victim support unit to communicate to the Fund a first list of victims, their rightful persons and their lawyers, in the month of the publication to the Belgian Monitor of the royal decree referred to in Article 5, § 3.
Art. 8. Any victim of an exceptional claim, or his or her rightful persons, may, by registered letter, appear with the host and accompanying cell within six months of the publication of the Royal Decree referred to in Article 5, § 3, or directly with the Fund.
Art. 9. § 1^er. Any natural person who has suffered damage resulting from injury caused by an exceptional claim or his or her eligible claimants may receive compensation payable by the Fund.
The Fund only compensates for damage resulting from bodily injury.
§ 2. shall not be entitled to compensation by the Fund, natural or legal persons, institutions or organizations that, after their intervention with respect to the person referred to in § 1^er or its rightful persons, may act under a legal or conventional subrogatory right, or a right of lawsuit for reimbursement against the civilly responsible or the liability insurer.
However, these individuals, institutions and organizations are required to inform the Fund of their intervention or any compensation they have awarded.
§ 3. The compensation referred to in this Act shall be limited to the portion of the damage that is not covered by a person referred to in § 2.
§ 4. The Fund is subrogated, up to the compensation it has granted, in the rights and actions of the person compensated against the civilly responsible and the liability insurer. It has a right of appeal against any person referred to in § 2 for the part of the damage that should have been taken over by that person. The Fund is authorized to apply for reimbursement of its management fees as well as other costs incurred and fees paid by the Fund.
Subrogation of the Fund shall not affect the rights to full compensation of any person referred to in § 1^er of this article, which may exercise its rights in respect of what is left to it by preference to any person referred to in § 2.
Art. 10. The Fund shall compensate the victim or his or her beneficiaries in accordance with the rules of common law, taking into account the exceptional nature of the damage.
In case of disagreement with the Fund's decisions, the person referred to in Article 9, § 1^er, or its beneficiaries, may cite the Fund in Belgium, either before the judge where the exceptional claim occurred, or before the judge of his or her domicile or before the judge of the head office of the Fund.
CHAPTER 4. - Procedure
Art. 11. § 1^er. The Fund shall immediately contact all victims, their rightful persons and their lawyers who have manifested themselves directly with him or whose identity has been communicated to him by the host and accompanying cell referred to in section 6, to propose to them to process their case and to render a notice on the possibility of obtaining compensation under this Act.
Except where the victim or his or her eligible beneficiaries decline this proposal, the Fund gathers all information relevant to the processing of his or her case.
The Fund shall also contact any person referred to in Article 9, § 2, and any third party liable to compensation for damages resulting from the exceptional claim provided that the identity of such persons has been communicated to it.
The Fund informs the judges in charge of the information or instruction of the repressive file.
§ 2. As part of the processing of each file, the Fund may request the victim or his or her beneficiaries, or any other person, to provide all necessary additional documents and information.
The refusal to disclose these documents and information, the deliberately misleading or misleading disclosure, or the absence of a response within three months to the Fund's requests, presumption that the victim or his or her eligible claimants waive their claim for compensation for the Fund.
Art. 12. The Fund is authorized to process health data in accordance with section 7 of the Privacy Protection Act of 8 December 1992 with respect to personal data processing and section 25 of the Royal Decree of 13 February 2001 enforcing this Act.
In accordance with the provisions of the Patient Rights Act of 22 August 2002, the doctor designated by the Fund is authorized to consult the medical records of the victim referred to in article 9, § 1^er.
Members of the Fund's staff are required to respect the confidentiality of the data entrusted to them in the course of their mission or relating to the exercise of their mission, except in respect of judges responsible for the information or instruction of the claim.
Art. 13. Within three months of the receipt of the list of victims or the recommended letter referred to in section 8, the Fund shall indicate, by reason of notice, whether the Fund considers the damage to be indemnified on the basis of this Act.
Art. 14. § 1^er. If the Fund concludes that compensation is required and the damage can be quantified, it makes a final compensation offer.
§ 2. If the damage cannot be fully quantified, the Fund proposes the payment of a provisional compensation taking into account the costs already incurred, the nature of the injury, the pain sustained and the damage resulting from the periods of disability and disability already elapsed.
The victim submits a supplementary request to the Fund when the damage can be fully quantified or when the damage has changed significantly.
§ 3. When the damage is not fully measurable, the Fund offers the victim amicable medical expertise.
The doctor designated by the Fund and the doctor designated by the victim establish a convention of expertise that determines the schedule and conditions of implementation in accordance with the rules of common law.
The expertise is opposable to the author, the civilly responsible, the liability insurer, the Caisse nationale des calamités and any third party.
§ 4. The Fund may, on its own, make a supplementary offer or within three months of the request that the person be compensated. It takes into account the damage incurred as long as the medical expertise is not terminated by a final report.
Within six months of the issuance of the final medical report to the Fund, the Fund makes a final offer of compensation. The victim has a period of three months to accept this offer and may, before taking a position, make observations to which the Fund is required to respond, by registered letter, within one month. He may, on this occasion, adapt the amount of his offer.
If the victim does not respond to the Fund's offer within three months of receiving the Fund or in the month of receiving the appropriate offer, the Fund shall send a reminder by registered letter. ÷ lack of response from the victim, in the month following this recall, the offer is presumed refused.
The acceptance of the offer made definitively by the Fund is a transaction. The amount of compensation is paid within fifteen days of receipt of acceptance to the account indicated by the compensation person.
Upon receipt of the amount of the final compensation, the compensation person waives any pending or future action against the civilly responsible and the liability insurer for the same damage.
§ 5. The deadlines to be met by the Fund may be extended by the King due to exceptional circumstances.
§ 6. The Fund is authorized to accept medical reserves or to grant tax reserves. It remains competent to manage and compensate the damage until such reserves are exhausted.
Art. 15. The decisions of the Fund and the offers of compensation accepted are enforceable against the person responsible for the large-scale technological disaster, its civil liability insurer, the National Calmity Fund, the persons referred to in Article 9, § 2, and any third party.
CHAPTER 5. - Funding
Art. 16. § 1^er. Upon the issuance to the Belgian Monitor of the decision of the Committee of the Wise that the large-scale technological catastrophe constitutes an exceptional disaster, the Fund makes an estimate of the damage taking into account the information received and initiates appeals from the insurance companies covered by this Act.
§ 2. Insurance companies, whose list is communicated to the Fund by the BNB, are required to respond to the Fund's call for funds under this Act.
§ 3. In order to respond to the appeal of funds referred to in § 2, they may constitute, as soon as this Act is published, claims provisions which are technical provisions within the meaning of Article 16, § 1^er, of the Act of 9 July 1975 relating to the control of insurance companies and whose ceiling is fixed annually by the King.
The King determines the conditions and limits of the tax exemption of these provisions.
§ 4. Insurance companies respond to the appeal of funds referred to in § 2 based on their market share.
The market share is determined on the basis of cash in Belgium during the previous year in branch 13 of Appendix I^re of the Royal Decree of 22 February 1991 concerning the general regulation of the control of insurance companies. For international programmes, only cash related to Belgian risks must be considered.
The encumberment consists of the total gross premiums, excluding taxes and miscellaneous contributions, from this branch in Belgium, reduced fees and acquisition fees.
The cash in Belgium during a calendar year in branch 13 must be certified by an External Auditor or Auditor and communicated to the Fund by these companies before 1^er August of each year.
§ 5. All insurance companies are required to respond to the appeal of funds referred to in § 2 up to a maximum of 50 million euros per calendar year. This amount may be amended by Royal Decree, deliberated by the Council of Ministers, for the following fiscal year.
§ 6. In the event of a bankruptcy of an insurance company, other insurance companies respond, in accordance with § 3, to the appeal of funds referred to in § 2 instead of the insurance company declared bankrupt.
Art. 17. The Fund shall collect from the person responsible for the exceptional claim and, where appropriate, from the persons, institutions or organizations referred to in Article 9 § 2, the allowances, increased by the legal interests, as well as all costs and fees paid and the costs associated with the management of the records.
Art. 18. In the absence of an official, or if it is not possible to recover from the official all or part of the amounts referred to in section 17, the Fund is directed to the Caisse Nationale des calamités to obtain the refund.
Art. 19. The Fund transfers to insurance companies, based on their market share taken into account for fund calls, the amounts recovered in accordance with sections 17 and 18.
Art. 20. If, at the end of the judicial process to determine the responsibilities, there is no official, the Caisse nationale des calamités supports the full financial burden of the exceptional claim that the Fund was unable to recover.
If it appears at the end of the above-mentioned judicial proceedings that the recovery of compensation from the official is impossible, the Caisse nationale des calamités bears half of the financial burden of the large-scale exceptional claim that the Fund was unable to recover.
Art. 21. Article 45, § 1^er, 3°, of the Financial Sector Supervision and Financial Services Act of 2 August 2002, it is added a point h, which reads as follows:
"(h) Article 16, § 2, of the Act of 13 November 2011 on compensation for bodily and moral damage resulting from a technological accident; "
CHAPTER 6. - Final provision
Art. 22. This Act comes into force on the first day of the ninth month following that of its publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 13 November 2011.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
The Secretary of State for Modernization of the Federal Public Service Finance,
B. CLERFAYT
Seal of the state seal:
The Minister of Justice,
S. DE CLERCK
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Note
(1) 2010-2011 session.
House of Representatives.
Documents. - Proposal by Ms. Marghem, 53-1286, No. 1. - Addenda, 53-1286, n^bones 2 to 4. - Amendments, 53-1286, n^bones 5 and 6. - Addendum, 53-1286, no. 7. - Amendments, 53-1286, n^bones 8 to 10. - Report, 53-1286, No. 11. - Text adopted by the Commission, 53-1286, No. 12. - Text adopted in plenary and transmitted to the Senate, 53-1286, No. 13.
Full report. - 7 July 2011.
Session 2011-2012.
Senate.
Documents. - Project not referred to by the Senate, 5-1160 - No. 1.