With two recent acts, the Belgian legislator has profoundly modified the obligation for construction professionals to insure against professional liability claims. In a decision dated 25 February 2021, the Constitutional Court rejected the annulment proceeding filed by the Belgian Architects’ Association against the latest act, thereby confirming the current legal framework.
Since the entry into force of the act of 11 May 2017 (see our analysis), all construction professionals (contractors, architects, engineers, etc.) must take out insurance cover for their decennial liability (articles 1792 and 2270 of the Civil Code) for:
- works on buildings intended for residential use;
- for which the intervention of an architect is required; and
- provided that the services are performed in relation to the structure of the building.
There is no obligation to obtain insurance cover for works on other types of buildings (industrial facilities, offices, infrastructure works, etc.). In principle, real estate developers are also exempted (but the contractors they work with are not).
This obligation has since been supplemented by the act of 9 May 2019 on compulsory insurance for architects and other “intellectual” service providers in the construction sector (see our analysis). The new act requires providers of such intellectual services (architects, engineers, geometric experts, security and health coordinators, etc.) to take out insurance cover in respect of:
- all of their professional liability, to the exclusion of their decennial liability;
- for all types of works.
Here again, real estate developers are exempted from any obligation to take out insurance cover. More importantly, this second act does not apply to contractors. Contractors therefore still only have an obligation to obtain decennial liability insurance, for works performed on buildings intended for residential use.
The Belgian Architects’ Association has criticised what it considers to be an unjustified difference in treatment between architects and contractors. It therefore attempted to obtain annulment of the act of 9 May 2019 before the Constitutional Court. In a decision dated 25 February 2021, the Constitutional Court held that contractors and architects do form comparable categories of actors. The Court found, however, that the difference in treatment between these two categories “relies on a pertinent and objective criterion”. It therefore confirmed the constitutionality of the act of 9 May 2019 with regard to the fact that it does not apply to contractors.