Belgium: What Does Book 6 of the New Civil Code Mean for the Worker’s Liability?

On 1 February 2024, the House of Representatives approved a new bill relating to Book 6, “Extra-contractual liability” of the Civil Code. This reform significantly altered the rules governing the liability of auxiliaries and the concurrence of contractual and extra-contractual liabilities. It will be effective 6 months after its publication in the Belgian Official Gazette (which has not yet occurred).

The reform has important implications regarding the former quasi-immunity of the executing agent.

This affects the situation where there are three parties, i.e., the contracting authority (principal creditor) (A), a prime contractor (principal debtor) (B), and a subcontractor or an executing agent (C). Hence, there is a contractual link between the principal creditor (A) and the principal debtor (B) and between the principal debtor (B) and the subcontractor (C). There is no contractual link between the principal creditor (A) and the subcontractor (C).

Before the reform, the principal creditor (A) cannot sue the subcontractor (C) in cases of non-performance or improper performance of the subcontractor’s obligations (C) outlined in the contract between the principal debtor (B) and the subcontractor (C). This was derived from:

• Article 1165 of the old Civil Code (principle of relativity of contracts) established that the contracting authority (principal creditor) (A) and the subcontractor (C) are considered to be third parties to each other, which excludes any direct contractual action by the former against the latter.
• The “Arrimeur” (also referred to as “Stuwadoor”) ruling by the Court of Cassation on 7 December 1973 established that an auxiliary (C) may only be held liable in extra-contractual terms under two conditions: (i) the fault must represent a violation of the general duty of care applicable to all, distinct from any contractual obligations, and (ii) this fault must have resulted in damages beyond those arising from the inadequate performance of the contract ( Cass., 7 December 1973, n° F-19731207-2).

If the two aforementioned conditions are satisfied, the theory of cumulative liability is applicable, i.e., a contractual action from the principal creditor (A) against the principal debtor (B) and an extra-contractual action against the subcontractor (C). The quasi-immunity of subcontractors (C) thus appears to be a corollary of the theory of cumulative contractual and extracontractual liabilities, as when these conditions are not fulfilled, the subcontractor (C) cannot be held liable.

On 1 February 2024, the bill concerning Book 6, Extra-contractual Liability, of the Civil Code was adopted, thereby reforming this existing system. Under this new system, an injured party (the principal creditor) (A) will be able to sue the principal debtor (the prime contractor) (B) on a contractual basis and the subcontractor (auxiliary) (C) on an extra-contractual basis, regardless of whether the damage arises from improper performance of the contract between the prime contractor (B) and the auxiliary (C). However, Article 6.3, §2 of the new Civil Code allows the subcontractor (C) to use the same defense mechanisms against the principal creditor (A) available to the prime contractor (B).

Since a worker can be considered an auxiliary (C) in relation to the prime contractor (B) (Parl. Doc., House, 55 3213/001, p. 32), this implies examining the influence of the reform on her/his liability:

• Article 18 of the Employment Contracts Act: generally, a worker’s contractual and extra-contractual obligations are regulated by the (old and new) Civil Code. However, Article 18 of the Employment Contracts Act diverges from the (old and new) Civil Code’s regulations by reducing the worker’s liability not only towards the employer but also towards third parties. According to Article 18, workers are solely liable for cases involving fraud, gross negligence, or habitual minor negligence. Article 18 is a mandatory provision which in principle, cannot be derogated from. Article 18, §3 nevertheless provides for the possibility of derogation by a collective bargaining agreement enforced by Royal Decree and only against employers (not against third parties).
• Liability exclusion clauses (Art. 5.89, New Civil Code): the liability of the auxiliary (C) may be limited by a liability exclusion clause inserted in the main contract [i.e. between the principal creditor (A) and the principal debtor (B)]. Such a clause allows the debtor to be exonerated from gross negligence on his part or on the part of a person for whom he is responsible. However, excluded from exclusion are intentional fault on the part of the debtor or a person for whom he is responsible, fault—even unintentional fault—where it affects the life or physical integrity of another person, and a clause that removes the contract’s content. The auxiliary (C) may invoke this exclusion clause against the principal creditor (A).

The reform of the Civil Code raises the question of its impact on the liability regime set out in Article 18 of the Employment Contracts Act. Under this article, employees are liable for fraud, gross negligence, and habitual minor negligence. The new Civil Code also allows for the exoneration of gross negligence, thus both of the aforementioned last faults, providing notably that it does not remove the content of the contract.

In practice, the employer will not necessarily be inclined to reduce the employee’s liability in the contract of employment but could provide for an exoneration of his gross negligence from his worker (auxiliary) in his contract with the principal creditor (A), which the employee could invoke in the event of action against him by the principal creditor (A). In light of the extra-contractual liability of the principal (B), i.e., the employer, for damage caused to third parties by his agent (the worker) (C) (art. 6.14 of the new Civil Code), it is mainly in the relationship between the contracting authority (A) and the employer (B) that the exoneration of the worker’s gross negligence (C) will be of interest.