Tijdschrift voor Privaatrecht

Together with Aube Wirtgen’s paper featured elsewhere in this issue, this contribution represents the Belgian preliminary report for the annual meeting of the Association for Belgian/Dutch Comparative Law Research (Vereniging voor de Vergelijkende Studie van het Recht in België en Nederland) on the subject of public interest actions brought before the civil courts.

In the first instance, the author examines the notion of “interest”, which occupies a central position, both in the doctrine which could form the basis of a public interest action, and in the doctrine on the admissibility of such actions before the civil courts. It is in the light of this approach that the notions of collective and public interest are defined in this paper.

Here, it is emphasised that there is an essential difference between a public interest and the public interest. This is because the latter does not constitute an interest, but represents the outcome of the weighing of various interests, a criterion which, where conflicting interests are involved, enables one to decide which of these deserves precedence. Accordingly, the substantive law on that subject can be regarded as a reflection of the way in which the relevant authority – implicitly or explicitly – substantiates the public interest.

This means that public interest actions as such can cover two fields.

On the one hand, there are public interest actions in the broad sense of the term. Here, we are dealing with actions which are brought for the protection of a particular public interest. This action seeks to obtain that the court protects the public interest the claimant seeks to defend in a way that can be justified on the basis of the existing substantive law, i.e. to the extent that, given the prevailing circumstances, the intervention sought serves the public interest as determined and made operational under the existing law. The main difference between these public interest actions and “ordinary” actions is the relationship between the claimant and the interest for which protection is sought. Whereas under an “ordinary” action the claimant only

seeks to protect his own interest or that of the person he represents, the claimant bringing this type of public interest action seeks to defend an interest common to all. The crucial question surrounding such actions is whether, and to what extent, this particular claimant is entitled – has standing – to bring this action, and thus to influence other people’s – and even everyone’s – interests.

On the other hand there are the public interest actions in the strict sense of the term. Here, the claimant seeks to obtain protection of a particular public interest which, in the prevailing circumstances, has yet to be provided by the substantive law which expresses the manner in which the public interest in general is approached and interpreted. Essentially, this means that the claimant disagrees with the outcome of a weighing up of interests which is implicitly contained in a certain rule or a decision by the authorities. With this type of action, therefore, the courts are requested to compel the relevant public authority to approach the public interest – in the legal sense – differently, i.e. in the manner sought by the claimant. For this type of public interest action there arises – in addition to the question which applies to all public interest actions in the broad sense – the delicate question as to whether the courts, whilst remaining within the terms of the constitutional order, are entitled to make the choices that are necessary in order to adjudicate in this type of action.

As for the said constitutional issues surrounding public interest actions, these are dealt with in the preliminary report on the public law aspects of this issue by Aube Wirtgen, which is contained elsewhere in this issue. The contribution featured here examines de most fundamental private law issues or obstacles surrounding public interest actions from a doctrinal point of view.

In the first instance, the author examines whether the infringement of a collective or public interest causes loss, in such a way that an action can be brought based on the law of torts.

The second issue concerns the basis which the substantive law provides for public interest actions which seek an outcome other than reparation of the loss caused. On the basis of an analysis of the currently prevailing doctrine, assessed in the light of the existing case law, the author examines whether the existing law provides for the possibility of a court order prohibiting a person – e.g. the authorities – from taking certain measures purely on the basis that these are wrongful in the prevailing circumstances, or which orders a person to take certain measures purely on the basis that they are reasonable in the prevailing circumstances.

The third question examined in this paper concerns who is entitled to bring a public interest action. To answer this question, the author examines who has the procedural capacity and interest required in order to bring this type of action.

The citizen is increasingly inclined to challenge politically motivated decisions by the authorities before the civil courts – as witness the many civil actions brought against the so-called Covid measures. The absence of any action by the public authorities in sensitive social areas such as climate change also increasingly calls for attention by the civil courts. Where, in such cases, the courts conclude that the authorities had acted unlawfully or negligently, and in so doing order reparation, they are somewhat gratuitously dismissed as “activist”. In legal terms, this would imply that the courts in such cases are blatantly infringing the separation of powers principle, which represents one of the basic foundations of our legal system.

The central issue underlying this contribution is the question whether this separation of powers principle prompts a degree of reluctance on the part of the courts when required to pronounce judgment on the actions performed by the authorities and, where they do so, to what extent. The object of this contribution is to obtain a clear picture as to how the courts have hitherto approached the separation of powers principle – i.e. which forms of judicial control are exercised over the law-making and executive authority, how far-reaching is such control, and to what extent is judicial control allowed to intervene in the public authorities’ actions? To what extent does judicial control comply with the separation of powers principle? Are the civil courts giving themselves too much power and are they undermining the separation of powers principle? Alternatively, could the courts be expected to go further in its invigilation, thus providing the citizen with greater levels of protection?

To be able to give the civil courts their appropriate role as part of the trias politica, this contribution first of all outlines the manner in which the separation of powers principle is approached under the Belgian constitutional system. The author subsequently examines which forms of judicial control are exercised over the other constitutional authorities. In so doing, the author also describes the way in which this issue has developed in the existing case law, and to what extent this complies with the separation of powers principle. Closely related to this, the author examines how far-reaching is the judicial control exercised over the other constitutional authorities, and what are the limits the civil courts, in compliance with the separation of powers principle, should observe when passing judgment on action taken by the public authorities.

In 1986, the Supreme Court (Hoge Raad) recognised the public interest action as part of the Dutch private law. Less than a decade later this type of action was codified in the Civil Code. The public interest action has in the meantime become a permanent fixture in Dutch law. The recent Urgenda decision, in which the court ordered the State to be more active when it came to reducing CO2 emissions, as well as a recent judgment in which the Hague Court issued Shell with a similar order, are telling examples of this.

Public interest actions have an interest which is not only social, but also scientific. These actions represent a break with the traditional allocation of roles between the citizen and the authorities in a democratic state governed by the rule of law, and blurs the age-old dividing line between the public and the private law. Public interest actions provide legal persons governed by the private law the opportunity to award themselves, through their internal constitutions, the right to defend the public interest before the civil courts without having any democratic sanction or statutorily conferred powers, and regardless of whether their own rights – economic or other – are thereby affected. Moreover, having their action awarded is also capable of directly affecting their fellow citizens’ legal position.

At the same time, public interest actions meet an understandable social need. Legal rules are only capable of exercising their regulatory function if they are observed. For many years this objective was guaranteed by civil actions brought by individuals. In our view there are at least two interrelated reasons for this. Firstly, the law now protects a much broader range of interests as a result of, inter alia, recently-acquired scientific knowledge of various dangers. In addition, following World War II the interests of minorities have attracted increasing attention, and the realisation has dawned that the authorities should endeavour to improve their lot. Both these developments prompted an increase in rules, the violation of which does not invariably involve the infringement of the rights of individuals. Secondly, these rules frequently have long-term objectives. It is precisely such rules that confront the directly-elected, democratically-legitimised, public offices with challenges at a time when the latter frequently seek short-term solutions. Public interest actions provide a means by which compliance with these rules by the authorities can be improved. Our conclusion is that public interest actions contribute towards maintaining the prevailing legal order, that they provide an additions layer of checks and balances among the institutions of the state, and they represent an effective modus operandi.

Nevertheless we take the view that there is some scope for enabling public interest actions to sit more comfortably with some of the principles governing the democratic state governed by the rule of law.

In the first instance, public interest actions carry the danger of creating layer upon layer of similar actions. The fact that anyone is free to create a legal person attracting some kind of public interest, the number of defendants capable of being faced with a public interest action brought by any legal person for whatever reason is in principle unlimited. This is why we feel that peace in the legal order would be best maintained by enabling similar public interest actions brought against the same defendant to be bundled, so that the latter merely has to defend himself once. It should subsequently only be under the rarest of circumstances that a new action could be brought on the same issue. In our view, current legislation provides us with sufficient openings to draw up rules which take this notion further.

Secondly, the procedural law that applies to public interest actions is insufficiently tuned to dealing with such actions, the consequences of which frequently affect society as a whole. This is because such actions are conducted in accordance with the ordinary laws of civil procedure, a central feature of which is two-party proceedings. It is our view that to introduce an amicus curiae procedure to public interest actions could provide a solution to this problem. A broad interpretation of the scope covered by the current amicus curiae legislation could be the appropriate remedy here.

Thirdly, we are of the opinion that assessing the merits of a public interest action requires a certain degree of navigational skill on the part of the courts. The latter should not only ensure that the authorities observe the law, but also be aware that in so doing they should avoid unnecessarily encroaching on the territory occupied by the political offices. The extent to which the currently applicable law contains adequate opportunities for awarding such actions is an important factor here. We take the view that the courts will find an adequate compromise between these two positions by making it their guiding rule to award public interest actions which are based on sufficiently clear and concrete legal rules – unless the defendants rely on a rule which gives them the required freedom of action. What this entails is, inter alia, that the courts should be extremely reluctant to award actions which are based on openly-stated duties of care where their fulfilment is subject to a considerable degree of social division.

Finally, the wording of any court order in this field also requires a good deal of navigational skill on the part of the courts. In so doing, the courts will need to respect such freedom of action and judgment as the defendant is entitled to. Where the defendant is a public authority such reluctance will also find justification in the separation of powers principle. Such reluctance should also be desirable when deciding the amount of any financial penalty which the court may attach to its order – at least where the public authorities are concerned. It is not only the Civil Code, but also the existing public law which compels this. This is because one of the basic principles of a system based on the rule of law is that the citizen should, by exercising his right to vote, have some control over the way in which public money is spent. Awarding astronomical amounts by way of financial penalties could render such control – and with it this fundamental principle – merely illusory.

Due to climate change, which is causing in a rise in sea levels, it is not unlikely that that in the coming decades floating accommodation will no longer be a luxury, but will instead become a dire necessity. In addition, the existing building space is becoming gradually saturated as a result of a vast increase in population growth. Multiple use of the available space in the shape of floating homes, apartment blocks and even cities could become a new and sustainable project. However, the question arises as to the extent to which this issue can be given an appropriate legal framework – in other words, accommodated in the legal architecture – under the current Belgian and Dutch law.

In the first instance, the question whether floating homes are to be regarded as movable or immovable property is a crucial one when it comes to defining their legal nature. Unlike the prevailing Dutch law, under which the courts qualify water-based homes as movable objects, Belgian law seems to make it possible to regard floating homes as real property through incorporation. The subjective requirement for incorporation is sufficiently broad to accommodate water-based homes, in spite of their fluctuating nature.

In addition, given the uniformity between the criteria for incorporation on the one hand, and those for accession on the other hand, in relation to real property, floating homes are deemed to be part of the underlying soil by accession. Both the rules on immovables by incorporation and on accession represent under Belgian law an application of component formation (‘bestanddeelvorming) and, in a broader sense, of the principle of unity. Under Dutch law, on the other hand, there is some doubt as to the applicability of the uniform incorporation requirement – and therefore also as to the applicability of or accession and component formation principles to water-based homes.

However, both the accession and component formation principles could give rise to problems, given that, under both Belgian and Dutch law, the underlying bottom area is part of the public domain. This would mean that the public authorities would acquire ownership of all floating constructions attached to the ground, which is not a desirable outcome. In order to avoid this, it is necessary to split ownership between the floating home and the water section along horizontal lines. In this contribution, the author examines the possibility of effecting such a split by applying the rules on building rights, apartment rights and volume ownership (as yet to be introduced). Under Belgian law, attributing building rights to a water-based home could provide a possible solution. If the conditions for the applicability of such rules were met, this could even create a permanent system of split ownership. Under Dutch law it would also appear possible to attribute permanent building rights to floating homes, in addition to creating an extended form of tri-dimensional ownership.

It would therefore appear that, subject to a broad interpretation of the incorporation requirement, the Belgian law of property is sufficiently flexible to create this type of “legal architecture”. Under Dutch law, on the other hand, in spite of the many proposals made by a number of authors, and given that the courts qualify floating homes as movables, there has yet to appear a coherent legal framework under the law of property for floating homes. The reformed Belgian law of property provides a more solid legal basis for water-based homes. With this paper, the author hopes to be able to contribute towards a set of legal and practical solutions to the issues under discussion here.

In deze bijdrage wordt verslag gedaan van het rechtsvergelijkende colloquium over de executie van zekerheidsrechten dat op 17 september 2021 plaatsvond in Nijmegen. De lezingen van de acht sprekers, allen als promovendus aan een universiteit in Nederland of Vlaanderen verbonden, worden uitvoerig besproken. Aan bod komen onder andere het recht van parate executie, partijautonomie, arbitrage, debt for equity swaps, noodwetgeving, online executie, internationaal privaatrecht en de aantasting van executie. Het verslag wordt afgesloten met een korte samenvatting, waarin de grote lijnen van het colloquium worden weergegeven.

Given the theory that the consensualist principle entails that agreements are created when there is a meeting of intentions between the parties, Belgian law is frequently said to be based on a corrected form of consensualism. This view sees the binding force of an agreement as based on the true intention of the parties to be bound by the agreement. In exceptional cases this is corrected by the trust theory, which protects legitimately-held trust. This is more particularly the case where one of the parties makes a statement without actually intending to do so.

Given the crucial part played by the parties’ true intention, it seems perfectly logical to protect it by applying the contractual concept of mistake. Where one of the parties concluded an agreement based on a mistaken apprehension of the truth, his/her true intention needs to be protected. However, closer scrutiny of the notion of “mistake” indicates that this notion attaches but scant importance to the true intention of the party making the mistake. This should not cause any major surprise – the subjective apprehension on the part of a contracting party cannot constitute a suitable legal basis, given that it cannot be known to either the other party or to the court. Moreover, the travaux préparatoires to the Civil Code of 1804 do not appear to provide many indications of support given to the true intention of a contracting party. In addition, any reference to the notion of “true intention” has an extremely contrived ring to it, given that it is corrected only where it is actually relevant, i.e. where there is a discrepancy between intention and statement. It is therefore legitimate trust, rather than actual intention, which will be the decisive factor here. This does not detract from the principle of consensualism, given that its implication is that no formal requirements are needed of a statement of intent, rather than that a subjective meeting of intentions suffices.

The findings above provide us with a simpler way of removing a number of uncertainties regarding the notion of “mistake”. It would seem that the notion of “mistake” protects the mistaken party’s legitimate trust rather than that party’s true intention. Accordingly, the decisive factor here is not that which the mistaken party desires, but whether that party had legitimately trusted a different representation of the truth, and therefore committed an excusable mistake. This also makes it clear that the question whether or not a mistake – as a factor affecting consent – has occurred should not be assessed exclusively at the subjective level of a party’s true intention. Mistake will also apply where the meaning of a statement of intent has been falsely represented.

Moreover, by according a more central role to protecting legitimate trust, our law of obligations is in a better position to face a number of present-day challenges. Thus it would be difficult to describe the current rules concerning the acceptance of general terms and conditions as an application of the consensualist principle, albeit a corrected one. Where the question arises as to whether the general terms and conditions of an agreement have been accepted, Belgian law does not require the accepting party to have actual knowledge of these terms and conditions, and therefore to have actually intended to comply with them. On the other hand, it suffices that these terms and conditions were reasonably accessible, which would make it acceptable to the party stipulating these terms and conditions that the accepting party truly intended to agree to them. Seen in this light, it is much more natural to acknowledge that this amounts to a type of protection of legitimately-held trust.

The same considerations apply where autonomous processes are involved. Artificial intelligence can induce from computerised systems results which are unforeseeable by humans using this system. Where a contracting party operates such a mechanism in order to conclude an agreement, the resulting agreement could be regarded as unforeseeable. In order to assert that the user of the system truly intended to conclude the resulting agreement, the “general intention” theory is sometimes advanced – whereby the user had “truly” intended to agree to all such results of applying the system as were reasonably foreseeable. Here too, linking this to the true intention of the user comes across as contrived. In this context also it is appropriate to give pride of place to the protection of legitimate trust. In these conditions, logic dictates that the user is bound by the statements of intent which emanate from the mechanism in question, provided that third parties legitimately believed that the user intended to make that statement.

Since the entry into effect of the 2006 Law on Filiation, the Constitutional Court has ruled that a number of provisions contained in our paternity legislation are unconstitutional. In so doing, the Court clearly has abandoned the abstract notion of legislative balance and introduced a new concrete-based approach. This contribution examines the existing key issues and attempts to formulate a how these issues can be tackled by means of a reformed paternity law.

To this end, Part One provides an overview of the current law governing paternity. Following a brief introduction setting out the object and purpose of this branch of the law, as well as a short aperçu regarding awareness of biological derivation, the author analyses the rules concerning confirmation and contestation of paternity as they currently stand, representing as they do a complex interaction between the relevant legislation and the case law of the Constitutional Court. This serves to bring to light the main issues involved – i.e. possession of status and the time limit for the child’s claim.

The author concludes that, in the light of the case law of the Constitutional Court, more scope should be given to a concrete-based assessment of paternity issues, rather than merely applying the abstract rules contained in the relevant legislation, and that greater importance should be given to the interests of the child. All this points to an increasingly individualised approach, whereby the general and abstract interests, as worded in the relevant legislation, increasingly yield to a judicial approach based on considerations of context and interests. Thus the law of paternity becomes increasingly “customised”.

In order to integrate this recent development into the framework of proposed legislative reform, it is vital to take sufficient account of a number of substantive and procedural guarantees – which represent the subject-matter of Part Two of this contribution. These guarantees are crucial, both for the law-making authority and for the courts.

In Part Three, the author makes a number of concrete proposals in order to tackle the issues highlighted in Part One, taking into account the conclusions reached under Part Two.

In the first instance, the author highlights the importance of achieving a balance between biological and affective reality – giving priority to neither. Given the desirability of stable bonds of filiation, and of responsibility for procreation, the author advocates adhering to the principle that the bond of paternity should coincide with biological reality. In order to protect existing bonds of socially-related bonding in the event of a paternity-challenging legal action, the author also advocates that the existing notion of possession of status be abandoned. Instead, the emphasis should be on integrating those factors which, when weighing up the interest involved, fundamentally indicate the existence of a socially-based bonding relationship. This makes it possible to assess biological and socially-based bonding against each other. It is also proposed to introduce the new option of an action, unlimited in time, for the determination of biological filiation. Thus both the child and the person who procreated him/her will be in a position to discover his/her identity without undermining any of the existing filiation relationships.

Next, this paper examines the interests of the child, which, for new legislation, is an important factor when weighing up the relevant interests in the event of an action in confirmation or contestation. The better to formulate the substance of such legislation, the author proposes a checklist featuring the most important issues involved.

When it comes to the relevant time limits, it is proposed, in the interests of legal certainty, largely to retain the existing legislation – given a few exceptions when it comes to the child’s interests. For the latter, the time limit will only start to apply as from the moment at which its biological authenticity becomes established. In the light of the judicial decisions on the constitutional invalidity of various provisions, preference is given to enabling the courts exceptionally to waive inadmissibility on grounds exceeding the time limit, and to introduce the possibility of an action, unlimited in time, aimed at establishing his or her biological filiation.

Finally, this contribution makes a number of proposals for modernising the law relating to paternity, mainly in the child’s interest. Here, the author draws inspiration from the Dutch and German proposals on a number of issues. Thus it is proposed that the incest prohibition and the plea of rape be abandoned and that application of the paternity rule be further extended. The author also proposes the administrative removal of the automatic assumption of paternity, coupled with acknowledgement by a third party, as well as enabling a child having reached the age of majority to contest, in certain exceptional cases, to contest his or her legally-established paternity.

In this article has as its central theme the question of how many parents a child may have, is capable of having, or wishes to have. In the first instance, the question arises as to how many parents a child may have in the eyes of the law. In so doing, the author briefly examines the current position under Belgian and Dutch law, as well as the proposals on multiple parentage currently on the table in The Netherlands. However, the questions which currently surround the issue of new types of family formation and artificial reproduction merely scratch the surface of the complex issues arising from artificial reproduction which await us. As matters stand at present, it is already possible, in relation to serious genetic diseases which are only transmissible via the mother, to effect nuclear transfers, whereby the nucleus from the mother’s ovum is transferred to a donor’s ovum having a healthy mitochondrial DNA, from which the nucleus has been removed. This gives rise to questions concerning the significance of the donor’s DNA, and whether this should have any consequences – e.g. whether a child has the right to know the identity of the person involved. This technique has yet to be applied in Belgium or The Netherlands, but it has been in England. A little further into the future one can anticipate the birth of the first child from an artificial womb – however, any such development already compels us to give fresh consideration to the central plank of our current rules on filiation, to wit birth to a woman. Further still in the future we may have to deal with children born as a result of in-vitro gametogenesis (IVG). This technique enables skin cells to be reprogrammed in reproduction cells (ova and sperm cells). Research performed thus far by experimenting with mice indicates that men and women are capable of acquiring both types of reproduction cells from their skin cells. This creates opportunities not only for two men to acquire a child through an artificial womb, but also for four prospective parents to have a child that is genetically related to all four. The question arises as to how we will manage such new techniques. As matters stand at present they are not allowable, but is this situation tenable? And should we not adopt a proactive approach towards the implications this has for the law? What lessons can we learn from science fiction literature regarding these future developments? In most cases this medium deals with dystopia, but that is not to deny that the issues it raises are capable of providing food for discussion. We could regard these stories as thought experiments which can teach us about the future – not as predictions of the future, but as a space for reflection on the implications of future developments. Regarding the question as to how many parents a child wishes to have, we should refer in the first instance to the Convention on the Rights of the Child, and what this treaty requires from legislators when issuing new legislation. Naturally this involves a thorough analysis, from the perspective of children’s rights, of any proposed legislation, and listening to children. However, it also means putting ourselves in the our (future) children’s position. To this end, thought experiments such as science fiction, as well as Rawls’s veil of ignorance, can be of considerable assistance to us.

Rights and powers can be exercised in such a way as to be harmful to others. Thus the law of property finds its limit in the rights of others. The notion of abuse of rights can serve to limit the rights and powers conferred by national lawmakers more restrictively. It can also serve as an instrument for shaping a less individualistic and socially concerned society. Abuse of rights as a notion is capable of converting moral rules into positive law. Both the courts and the legal authors can play an important part here.

Under Belgian law, abuse of rights is only held to apply where someone acted with a view to harming another. This was subsequently given a more objective basis in the shape of a requirement that the person acted without a reasonable interest. This criterion was subsequently in turn broadened towards the requirement of a disproportionate balance of interests. In most cases, the courts have applied this criterion. A key decision made in 1971 provided a general formulation of abuse of rights – the latter consists in the exercising of a right which clearly exceeds the way a diligent and careful person would normally have exercised it. This rule has been applied not only under the law of property; since 1983 it has also found application in the law of contracts, based on the moderating effect of the bona fide principle. The general formulation of abuse of rights as a concept was incorporated in the Civil Code in 2022. For the purpose of giving further substance to this general and generic criterion, several specific criteria are available. These to a large extent hark back to those which had already been developed before 1971. Abuse of process can cover both the fact of bringing proceedings and the manner in which they are brought. Traditionally, abuse of process has been regarded as a key application of the abuse of rights principle, although it has been argued that it constitutes a separate type of abuse of rights, given that there are other interests at stake than those of the parties involved in the proceedings only. Abuse of process applies where one of the parties involved in the action starts it without a reasonable or conclusive interest on the one hand, or in a way which clearly exceeds the limits of the manner in which a diligent and careful person would normally have exercised it on the other hand. Where abuse of process is established, not only compensation, but also a fine may be imposed in order to penalise those who disrupt the proper functioning of this public service.

In the Netherlands, at first bringing proceedings without a reasonable interest also represented the applicable criterion for abuse of rights. Later the relevant criterion became the exclusive intention to cause harm to others, and later still – in line with the Meijers philosophy – a considerable degree of inequality between the interests of those who bring proceedings and those of other persons to whom harm has been caused. The criteria developed by the courts were incorporated in the Civil Code of 1992 – here, however, bringing proceedings without a reasonable interest was not included as a separate criterion. Those criteria which have been developed in the field of the law of property are not being applied to the law of contracts because of the limited part played by the principles of reasonableness and fairness in that field. Abuse of process can be established where not only the right to bring court proceedings, but also the relevant procedural remedies in the narrow sense are being abused. According to the prevailing legal literature, we are dealing here not only with the three types of abuse of rights specified in Article 3:13 of the Civil Code, but also with the absence of a reasonable interest, the circumstance where the plaintiff bases his action on (a) facts and circumstances of which he knew, or should have known, (b) the fact that they were wrong, and (c) where the action is based on grounds which should have been understood beforehand as having no chance of success. In practice, the Supreme Court (Hoge Raad) decision of 29/6/2007 appears to provide the leading guidance here, and prompts the conclusion that abuse of process can only be established where, in view of its obvious inadmissibility given the other party’s relevant interests, the proceedings in question should never have been commenced. This can be the case where the plaintiff bases his action on facts and circumstances which he knew to be wrong – or of which he should have been aware to be wrong – or on claims of which he should have known that they had no chance of succeeding. However, the normally relevant criteria are, in practice, but seldom applied.

The association of joint owners (AJO) is responsible for the management of a specific apartment building, or group of buildings, the ownership of which is held its members – i.e., the joint owners. Thus they manage third-party property, and in addition represent the joint owners in this context. For the avoidance of abuses, the legislation in question has restricted the AJO’s objectives “exclusively (to) […] the maintenance and management of the building or group of buildings”. Restrictions are also placed on its assets, which are namely confined to such moveable property as is necessary for the achievement of this objective. The last-named rule is intended to avoid a situation under which the AJO could become a civil real estate company, whereby the joint owners would cede their property rights to the AJO.

Some types of joint ownership, however, have specific needs. For example, there may be a desire to provide the joint owners, users or certain third parties (e.g., parking facilities or promotion events in a shopping centre, restoration and security services in assisted residential living spaces, neighbourhood parties, or the renting of a room in a co-housing community …). Other types of joint ownership can also, in the light of the trend towards servitisation, and the transition towards a circular real estate economy, give rise to the need for other types of service – e.g., car-sharing, energy audits, sponsoring events for renovation, repairs to privately-owned property, etc.). Nevertheless, the existing law relating to apartments does not invariably provide adequate levels of legal certainty or flexibility in order to meet the specific needs of a particular property in joint ownership. More particularly there is uncertainty concerning the acceptability of services which benefit the joint owners and users rather than the actual properties that form part of the building. Whilst the traditional literature on this subject has raised no objections to this, recent court decisions and legal writing have challenged the acceptability of such services by reference to the restricted objectives set by the AJO legislation.

Two recent legislative reforms outside the law governing apartments have served to increase doubts concerning the limits to which the AJO’s activities are subject. In the first instance, the distinction between civil and commercial acts was abolished, and the enterprise principle replaced the trader principle. So, what are now the implications of the circumstance that the AJO can no longer become a “civil” real estate company? Secondly, the specialism principle governing the status of the ordinary association was given a new scope in the Companies and Associations Code. The former prohibition of any profit motive has been replaced by the prohibition of any profit payment motive. Given that, traditionally, AJOs were banned from having a profit motive, the same reaction now arises in relation to the prohibition of any profit payment motive.

The provision of services can be organised in three possible ways – by integration (in the form of a public utility, or of self-management within the AJO), by contract (via a service provider outside the AJO) or through membership of an associated legal person (which is a variant of the previous regime). This paper examines each of these methods more closely.

Especially the integration method has given rise to legal uncertainty. However, the fact that the legislation in question has assigned specific tasks to a legal person does not mean that its statutorily-determined objectives need to be regarded as strictly circumscribed – on the contrary, this paper highlights that the AJO’s objectives are broad in scope. Moreover, it is clear from the legislation governing apartments that the AJO’s powers transcend the distinction between the privately-owned properties and the common areas. Accordingly, a more suitable test resides in maintaining a balance between the joint owners’ individual and common interests as seen from the point of view of the purpose of the building. From a thorough analysis of the AJO’s distinguishing features, and from a comparative study of the relevant law in other countries, it emerges that the provision of services to the joint owners, users and third parties within certain limits is perfectly compatible with the AJO’s objectives. However, the factor that creates legal uncertainty is the absence of legislation that expressly regulates the allocation of the cost – or profits – resulting from the provision of services in a jointly-owned property.

Based on precedents established under French law, the question also arises in a Belgian context whether the integration model does not give rise to some awkward conflicts of interest issues in relation to the joint property’s managers, and whether the services in question should not therefore be exclusively provided contractually by outside providers. The author of this contribution argues that less far-reaching measures than the prohibition of integrated service provision can be perfectly adequate for the purpose of giving suitable protection to the owners’ and users’ interests. Moreover, this enables the General Meeting to retain the right to choose the method of organising the provision of services.

In order to resolve the prevailing uncertainty on this issue, the current legal literature proposes the creation of a separate legal person, membership of which could be open to the joint owners, as well as to any users or third parties. Such membership could, whether mandatorily or by choice, be linked to the status of joint owner or the holder of a usership. Although this organisational method definitely has its advantages, it is also subject to certain limitations imposed by the law of property, the law of obligations and the right not to be a member of an association. Particularly the last-named principle appears to be an insurmountable obstacle when it comes to the ordinary association with legal personality, because the law relating to apartments provides no legal basis which meets the requirements of the legality principle.

Viewed from a broader perspective, the provision of services in a jointly-owned property comes with certain opportunities and risks. The close proximity of this provision to the property is particularly suitable for the realisation of economies of scale, risk spreading and the local sharing economy. This enables joint owner communities to apply, for example, certain technological innovations in a fast-developing economy. However, the value of the property could be reduced where the costs involved are so high that they could cause the building to become unsaleable. However, a more significant factor here is the extent to which the collective added value can be leveraged. Joint ownership influences the broader economic, social and political environment of a country – but the reverse also applies. Added value can only flourish by opening up the law relating to apartments and by creating of a framework in which the public law and the private law are tuned to each other. This is why the author concludes by pinpointing various opportunities for the law governing apartments to grow as derived from a comparative study on the subject.

Prior to the 19th century codifications, the law of both the Netherlands and Italy made provision for the compensation of immaterial damages. This represented a departure from the Roman law principle that the body of a free citizen could not be valued in money terms. In Italy, this rule appears to have more weight on the eve of the codification era. Both the Netherlands (following independence in 1838) and Italy (in 1865, following unification) had their law codified based on the French Code civil, containing broadly worded provisions regarding tort liability. However, the Code civil contained no provisions regulating compensation for immaterial damages. The 1865 Italian Codice Civile provided no basis for immaterial damages, whereas the Burgerlijk Wetboek of the Netherlands only contained rules providing a right to compensation for immaterial damages in the event of (intentional) defamation. Although the issue of providing compensation for immaterial damages was initially a controversial one in the Netherlands, and prompted mutually contradictory solutions by the courts, it would seem that the Italian courts decidedly leaned towards the victims’ cause, whereas in the Netherlands matters only changed in this regard during the Second World War when the Supreme Court (Hoge Raad) made a ruling in favour of compensation for pain and loss of quality of life. This decision was in line with the traditional law which had previously governed the country, and was also based on, inter alia, comparisons with other countries (including France and Belgium). There appeared to be no issue with placing immaterial damages within the scope of the term “harm” as featured in Article 1401 et seq of the Civil Code. Subsequently, the notion of “moral harm”, derived from the French legal literature, was introduced in the Italian legal literature, for which compensation had initially been awarded in 19th century court decisions. Thereafter, however, stricter criteria were applied by both the courts and the legal literature, whereby compensation was only awarded for harm which resulted from a criminal act. In this regard, only the indirect financial loss (indirect moral harm) suffered by the victim was capable of compensation, which in practice led to differential levels of compensation for equal levels of harm.

Both countries subsequently were given a new Code – Italy in 1942 and the Netherlands in 1992. The Italian version codified the existing legal literature and case law, drawing a distinction between economic harm (il danno patrimoniale) and immaterial damages (il danno non patrimoniale). This distinction is comparable to that which is made between property harm and “other loss” in the Netherlands (Article 6:95 Civil Code). Under both systems governing compensation, the second category is only eligible for compensation where the law so allows. In Italy it was the medical/legal literature and the courts, rather than the legislators, which gave a prominent place to personality rights during the second half of the 20th century. Here, qualifying health as a constitutionally protected subjective right played a major part, health being deemed to include not only physical injury but also its psychological implications. However, the notion of danno biologico, originally a constitutional right to health, subsequently became a general clause capable of accommodating various types of claims. Over and above this, an additional opportunity is created to bring a claim in the event that the victim’s everyday life deteriorates (danno esistenziale). Pain and suffering came to fall within the scope of a separate form of immaterial damages, i.e. moral harm.

In the Netherlands, compared to the Italian legislation, compensation for harm to property is capable of accommodating more compensatable expenses, such as travelling costs and expenses related to replacement household help. Article 6:106 of the Civil Code also provides more opportunities for the compensation of immaterial damages than was initially the case in Italy, because of the criminal act requirement. Although the Italian system sets standards for compensation in the shape of tables, in the Netherlands standardisation is attempted through case-by-case comparisons. By using this method, the Italian system promotes equality of treatment. However, as time passed personal circumstances surrounding the case were also taken into account, which served to weaken equality of treatment created by the tabling method. However, in so doing the Italian system comes closer to that of the Netherlands.