Posted the: 2012-02-24 Numac: 2012011010 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES average and energy 13 November 2011. -Law on compensation for physical and moral damage resulting from a technological accident (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1.
-Available general Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER 2. -Definitions and scope article
2. for the purposes of this Act, shall mean: 1 ° 'technological accident': the accident due to human or technical cause, failure occurring in buildings, structures, or facilities operated or owned by any public or private, natural or legal person that places are accessible to the public;
2 ° "technology of large-scale disaster": a technological accident at least five individuals from bodily harm such that they lead to the death of the victim, his hospitalization immediate and uninterrupted at least fifteen days or stays repeated hospital over a period of six months;
3 ° "exceptional claim": the technological disaster large-scale declared sinister exceptional by the Committee of wise men which notes the existence of a problem of determination of liability may be invoked, in whole or in part, in respect of the risks covered by the branch 13 of annex Ire of the royal decree of 22 February 1991 on the general regulation on the control of insurance undertakings;
4 °"Fund": the joint motor guarantee fund approved by the King on the basis of article 19A-2 of the Act of 21 November 1989 on compulsory insurance of liability for motor vehicles;
5 ° 'Committee of wise men': the Committee referred to in article 4;
6 ° "insurance companies": insurance companies authorized to practise in Belgium Branch 13 referred to in annex Ire of the royal decree of 22 February 1991 on the general regulation on the control of insurance undertakings;
7 ° "Calamity Fund": the national fund of the public calamities opened with the National Fund for calamity by article 36 of the law of July 12, 1976 on to repair some damage to the private property by natural disasters;
8 ° "NBB": the National Bank of Belgium referred to in the law of 22 February 1998 establishing the Organic Statute of the National Bank of Belgium.
The King may lay down the conditions to which the bodily injury referred to in paragraph 1, 2 °, must meet to be taken into account to determine whether the technological accident is a catastrophe of major proportions. It can also predict that bodily harm other than those referred to in paragraph 1, 2 °, are taken into account for this purpose art. 3 § 1. This Act is designed to repair the damage of the victims and their successors arising from bodily injury, where the technological disaster of great magnitude is declared disaster under the conditions and limitations prescribed hereinafter, exceptional by the Committee of wise men, without having to wait that responsibilities have been determined.
§ 2. It does not prejudice the right of the victim or those entitled to claim, in accordance with the rules of the common law, compensation for his damage before the courts.
The procedure it establishes is a friendly, optional, free, procedure conducted before the said funds, regardless of any liability action.
§ 3. Are excluded from the scope of this Act: 1 ° the damage resulting from acts of terrorism, natural disasters or nuclear disasters;
2 ° the damage resulting from acts of war;
3 ° damages arising from the failure of a product covered by the Act of 25 February 1991 concerning the liability for defective products;
4 ° damages arising from civil liability for motor vehicles subject to compulsory insurance under the Act of 21 November 1989 on compulsory insurance of liability for motor vehicles;
5 ° damages arising from the civil liability of aerial vehicles and marine, lacustrine and fluvial vehicles liability;
6 ° damages compensated under the law of 30 July 1979 relating to the prevention of fire and explosions as well as compulsory insurance of civil liability in these circumstances;
7 ° damage resulting from health care covered by the Act of March 31, 2010 on compensation of damage resulting from health care.
§ 4. This Act applies only to exceptional losses that occur in Belgium and causing bodily harm in Belgium, even if the damage resulting from these is undergone abroad.
S. 4 § 1.
It is created a Committee of wise men composed:-a representative of the Minister having Justice in his or her attributions;
-of a representative of the Minister having insurance in charge;
-of a representative of the Minister having finance in his/her attributions.
-of a representative of the Minister having health in its attributions;
-from a representative of insurance undertakings;
-from a representative of consumer associations;
-of a representative of the Fund and a representative of the NBB which have each only a consultative voice.
Members are appointed by the King for a renewable period of 6 years. They are subject to the obligation of compliance with professional secrecy.
The Committee of wise men is chaired by the representative of the Fund.
§ 2. The Committee of wise men established a rules of procedure approved by the King. If not for this Committee to establish such a regulation, it is stopped by the King. The rules of procedure including fixed the rules applicable in the event of parity of votes.
§ 3. The Committee of wise men shall meet at the headquarters of the Fund. Its operating costs are supported by it.
S. 5 § 1.
When a large-scale technological disaster occurs, the Committee of wise men has for mission to determine at the request of the Minister of Justice, if the event in question constitutes an exceptional loss within the meaning of article 2.
§ 2. The decisions of the Committee of wise men are taken by a simple majority within one month following the request of the Minister of Justice.
§ 3. Recognition of the technological disaster of great magnitude as exceptional sinister within the meaning of this Act is the subject of a royal decree which is published without delay in the Moniteur belge.
-Conditions of compensation by the Art Fund. 6. as soon as occurs a technological catastrophe of major proportions, the Minister of Justice charge parquet of the place of the disaster in his breast constitute a cell reception and accompaniment of the victims.
The cell draws up and maintains a list of victims of bodily injury, survivors and their lawyers.
7. the Minister of Justice charge the cell reception and accompaniment of the victims fund, provide a first list of victims, survivors and their lawyers, within one month of the publication in the Moniteur belge of the royal decree referred to in article 5, § 3.
S. 8. any victim of an exceptional claim, or his successors may occur, by registered letter, with the cell reception and accompaniment within a period of six months from the publication of the royal decree referred to in article 5, § 3, or directly from the Fund.
S. 9 § 1. Any natural person who has suffered damages resulting from bodily injury caused by an exceptional disaster or his successors may benefit from the compensation payable by the Fund.
The Fund compensates that damage resulting from bodily injury.
§ 2. Do not qualify for compensation from the Fund, the physical or legal persons, institutions or organizations which, after their intervention to the person in the § 1 or his successors may act under a legal or conventional subrogation right, or an own right of hot pursuit in reimbursement against the liable the liability insurer.
However, these persons, institutions and organizations are required to inform their intervention or any compensation fund they have granted.
§ 3. The compensation referred to in this Act deals only part of the damage which the support is not a person referred to in paragraph 2.
§ 4. The Fund is subrogated, to competition from compensation that he gave in the rights and actions of the person indemnified against the liable as well as the liability insurer. It has a right of recourse against any person referred to in paragraph 2 for the portion of the damage which should be supported by this person. The Fund is entitled to request repayment of its management fees and other costs that it has incurred and of fees paid.
Subrogation of the Fund cannot be no infringement rights to full indemnification of any person in the § 1 of this article, which may exercise its rights to what is due him in preference to any person referred to in paragraph 2.
10. the Fund shall compensate the victim or his beneficiaries in accordance with the rules of ordinary law, taking into account the exceptional nature of the damage.
In case of disagreement with the decisions of the Fund, the person in article 9, § 1, or his successors in title, can cite the
Fund in Belgium, or the Court where the exceptional loss, either before the judge of his or their home, or the Court of the registered office of the Fund occurred.
CHAPTER 4. -Procedure art.
11 § 1. The Fund shall immediately contact all of the victims, survivors and their lawyers, who came directly from him or whose identity has been communicated to him by the cell docking and support referred to in article 6, to propose to treat their file and to render an opinion on the possibility of obtaining compensation under this Act.
Except when the victim or his beneficiaries declined this proposal, the Fund brings together all information useful for the handling of his case.
Fund contacts also any person referred to in article 9, § 2, and any third party liable to compensate for damage resulting from the exceptional loss as far as the identity of these individuals has been communicated to him.
Informed its magistrates intervention fund supports information and education for the repressive folder.
§ 2. In the context of the treatment of each case, the Fund may ask the victim or his successors, or to any other person, to provide all necessary additional information and documents.
The refusal to provide these documents and information, the provision of deliberately false or misleading information, or the lack of response in the three months to the Fund solicitations result in the presumption that the victim or his beneficiaries waive its claim against the Fund.
S. 12. the Fund is authorized to deal with health data in compliance with article 7 of the law of 8 December 1992 on the protection of privacy with regard to the processing of personal data and article 25 of the royal decree of 13 February 2001 on the implementation of this law.
In accordance with the provisions of the law of 22 August 2002 on the rights of the patient, the physician designated by the Fund is authorized to consult the medical record of the victim referred to in article 9, § 1.
The Fund's staff members are required to respect the confidentiality of the data that their assigned in the exercise of their mission or to the exercise thereof, except in respect of the judges responsible for the information or the statement of loss.
S. 13. within three months of receipt of the list of victims or the registered letter referred to in article 8, the Fund says, by reasoned opinion, if he considers that the damage is likely to be compensated on the basis of this Act.
S. 14 § 1.
If the Fund finds that there are compensable and that the damage can be quantified, he made an offer of compensation to outright.
§ 2. If the damage cannot be fully quantified, the Fund offers the provisional compensation taking account of costs already incurred, of the nature of the injuries, endured pain and the harm of periods of disability and disability already passed.
The victim addressed to fund a divisional application when its damage can be fully quantified, or when it has evolved significantly.
§ 3. When the damage is not fully quantified, the Fund offers the victim to arrange an amicable medical expertise.
The doctor appointed by the Fund and that means the victim establish a convention of expertise which determines the agenda and the conditions in accordance with the rules of ordinary law.
Expertise is opposable to the author at the civilly liable, the liability insurer, to the National Fund for calamity and to any third party.
§ 4. The Fund may make offer in advance additional or within three months of the application that sends the person to be indemnified. It takes into account, to do this, also incurred damage long medical expertise is not closed by a final report.
Within six months of delivery of the final medical report to the Fund, it made an offer of compensation to definitively.
The victim has a period of three months to accept this offer and may, before taking a position, make observations, to which the background is required to respond, by registered letter, within a period of one month. On this occasion, it can adjust the amount of its offer.
If the victim does not respond to the offer of the Fund within three months of receipt thereof or within one month of the receipt of the appropriate offer, the Fund shall send a reminder by registered letter. ÷ lack of reaction on the part of the victim, in the month following this reminder, the offer is presumed to be refused.
The acceptance of the offer outright by the Fund worth transaction. The amount of the compensation is paid within fifteen days of the receipt of the acceptance to the account indicated by the indemnified person.
Upon receipt of the amount of the claim outright, the indemnified person waives any pending or future action against the liable and the insurer's liability for the same damage.
§ 5. The deadlines to be met by the Fund can be elongated by the King due to exceptional circumstances.
§ 6. The Fund is authorized to accept medical supplies or provide tax reserves. It remains competent to manage and compensate the damage until such reserves are exhausted.
S. 15. the decisions of the Fund and accepted compensation offers are binding on the head of the technological catastrophe of major proportions, with its insurer of liability, to the National Fund for calamity, on the persons referred to in article 9, paragraph 2, and to any third party.
CHAPTER 5. -Financing of funds art.
16 § 1. Upon publication to monitor belgede the decision of the Committee of wise men declaring that the technological disaster of great magnitude is an exceptional claim, the Fund made an estimate of damages taking into account information to be received and launches calls for fund companies of insurance covered by this Act.
§ 2. Insurance companies, which list shall be communicated to the Fund by the NBB, are required to respond to the appeal for funds by the Fund under this Act.
§ 3. In response to the call for funds referred to in § 2, they can establish, upon the publication of this Act, provisions for outstanding claims, which are technical provisions within the meaning of article 16, § 1, of the law of 9 July 1975 relating to control of insurance companies and whose ceiling is fixed annually by the King.
The King determines the conditions and limitations of the tax-exempt status of those provisions.
§ 4. Insurance companies respond to the call for funds referred to in paragraph 2 on the basis of their market share.
Market share is determined on the basis of the collection made in Belgium in the previous year in class 13 of annex Ire of the royal decree of 22 February 1991 on the general regulation on the control of insurance undertakings. For international programs, only collection pertaining to the Belgian risks must be taken into account.
Collection consists of the total gross premiums, excluding taxes and contributions, from this branch in Belgium, reduced commissions and acquisition costs.
Collection conducted in Belgium in a calendar year in branch 13 must be certified by an auditor or an auditor external and communicated to the Fund by these companies before 1 August of each year.
§ 5. All insurance undertakings are required to respond to the call for funds referred to in § 2 up to a maximum amount of EUR 50 million per calendar year. This amount can be modified by royal decree, deliberate in Council of Ministers, for the following year.
§ 6. In the event of bankruptcy of an insurance undertaking, the other insurance companies respond in accordance with § 3, to the call for funds referred to in § 2 in lieu of insurance company declared bankrupt.
S. 17. the bottom retrieves from the head of the exceptional loss and, where appropriate, to persons, institutions or organizations referred to in article 9 § 2, benefits, plus statutory interest, together with exposed and honorary expenses paid and the costs associated with the management of records.
S. 18. in the absence of responsible, or if it is not possible to recover from the person responsible for all or part of the sums referred to in article 17, the Fund is aimed at the National Fund disasters for the refund.
S. 19. the Fund surrender to insurance companies, based on their market share taken into account for fund-raising, the sums recovered in accordance with articles 17 and 18.
S. 20. If it appears, at the end of the judicial procedure to determine responsibilities, that there is no Manager, the National Fund for disasters bear the financial burden of the exceptional loss that the Fund was unable to recover.
If it appears at the end of the above judicial procedure compensation from the person responsible for recovery is impossible, the national calamity Fund supports half of the financial burden of exceptional loss of great magnitude that the Fund was unable to recover.
S. 21A article 45, § 1, 3 °, of the Act of 2 August 2002 on the supervision of the financial sector and financial services, is added a point h, worded as follows: 'h) article 16, § 2, of the Act 13.
November 2011 on compensation for physical and moral damage resulting from a technological accident;
CHAPTER 6. -Disposition final art. 22. this Act comes into force the first day of the ninth month following that of its publication in the Moniteur belge.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given in Brussels, November 13, 2011.
ALBERT by the King: the Deputy Prime Minister and Minister of finance, D. REYNDERS. the Secretary of State for the modernization of the federal public Service Finance, B. CLERFAYT sealed with the seal of the State: the Minister of Justice, S. DE CLERCK _ Note (1) Session 2010-2011.
House of representatives.
Documents. -Proposal of Act, Ms. Marghem, 53-1286, no. 1. -Addendum, 53-1286, our 2-4. -Amendments, 53-1286, Nos. 5 and 6. -Addendum, 53-1286, no. 7. -Amendments, 53-1286, our 8 to 10. -Report, 53-1286, no. 11. -Text adopted by the commission, 53-1286, no. 12. -Text adopted in plenary meeting and transmitted to the Senate, 53-1286, no. 13.
Compte rendu intégral. -7 July 2011.
-Project not mentioned by the Senate, 5-1160 - No. 1.