Second GPN Global Webinar "COVID-19. SUPERNATIONAL, NATIONAL AND REGIONAL RESPONSES. BUILDING RESILIENCE THROUGH COMPARISON OF EXPERIENCES" - March 5th 2021 Professor Matteo Fermeglia and Professor Steven Van Garsse "Covid19 response in Belgium" GPN: https://www.globalpandemicnetwork.org/ Official GPN webinar web page:https://www.globalpandemicnetwork.org/news_events/webinar-5th-march-2021/

1. Covid-19 Supranational National and Regional Responses
BUILDING RESILIENCE THROUGH COMPARISON OF EXPERIENCES
COVID-19 response in Belgium
University of Hasselt
Prof. Dr. Steven Van Garsse Prof. Dr. Matteo Fermeglia
Att-at-Law, Brussels Bar
Zoom platform, March 5, 2021

2. www.globalpandemicnetwork.org
Overview:
• The context
• The measures
• Case Law
• The problems

3. www.globalpandemicnetwork.org
The context
Federal State  foreign affairs; national defence;
justice; financial affairs; social security; health and
domestic affairs
vs. Regions  Health; Employment; Agriculture;
Town/Country Planning; Supervision of Provinces,
Municipalities
vs. Provinces Local matters (under Regions’
supervision)

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The context
”Federal phase”
The Federal Government took the lead.
No specific legal grounds for Pandemic-like events Civil Safety Act 2007’ (‘Wet
Civiele Veiligheid 2007’, art. 181-182)
BE Security Council declared state of emergency on March 13, 2020
responsibility of the federal government to coordinate the corona crisis
legal basis for taking several ministerial decisions (Ministerial Decrees), most
of them by the minister of interior affairs

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The context
Local and regional Covid-19 (corona) measures were also taken
Local governments (especially a mayor) remain responsible for maintaining public order, albeit within the
territory of their municipality
In Belgium, ‘public order’ is a broad concept that also involves the protection of public health. This justifies
the adoption more restrictive measures at local level because of a higher degree of contamination
Legal basis: Public order enforcement powers can be found in the ‘New Municipality Act’ (‘Nieuwe
Gemeentewet’)
But, because of the proclamation of the ‘federal phase’: municipalities (mayor) must in principle first
consult with the higher competent authorities (art. 28 KB 22 mei 2019) before taking measures
Example
Deinze: mayor ordered use of face masks in his municipality/ measure annulled by governor as mayor did
not consult higher authorities

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The measures (restricting)
Closing restaurants, bars,…
Closing or restricting (non-essential) shops,…
Closing or restricting music and theather halls, museums,…
Closing or restricting fitness centers, sports infrastructures, swimming pools, wellness centers,…
Closing or restricting campsites, amusement parks, …
Prohibiting or restricting markets and fairs
Compliance with (hand) hygiene rules
Compliance with social distancing rules
Mandatory working from home
Prohibition of worship
Prohibition or restriction of cultural, sports,… activities
Prohibition of (certain) gatherings
Obligation to wear a face mask
Prohibition of (non-essential) travelling from and to Belgium (travel ban)
(Overnight) curfew
Restricting gatherings in the private sphere (‘bubbels’)
Prohibition of non-essential movements

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The measures (preventive)
Contact-tracing
Belgium organised contract-tracing (via an app).
As this was not within the competence of the Federal State, Regions had to take initiatives (include voting a
decree on contact-tracing) and had to set up an interregional cooperation.
The regions have commissioned the development of a corona app, Coronalert. It is a free app for mobile
phone. The Coronalert app uses blue tooth technology to speed up contact detection in Belgium
Regions have organised contact-centers for tracing (manuel) and warning people via large contracts that were
outsourced.
As there were many problems local governments also started organising local contact-tracing complementary
to the regional tracing (also adding services for people (grocery,…) and supporting and informing people
@home
.

8. www.globalpandemicnetwork.org
The measures (support)
Subsidies and measures at federal local and regional level to support specific sectors & economy
Allowing workers on temporary unemployment (so that employers do not have to pay them) (Temporary unemployment
due to force majeure - COVID-19 - eased procedure)
Bankruptcy: A moratorium on company bankruptcies expired on 1 February 2021.
Tax measures (tax reduction, delayed payments, tax credits, new tax shelter system COVID-19 etc. but also a fiscal
encouragement will be given to landlords to forgive all or part of rent due for the months of March to May in the form of a
30% tax-reduction for the cancelled rent.
In the public sector many public landlords dismissed all or part of the rentals of business that were/are closed.
VAT exemptions (on Covid-19 related products), VAT reductions (on protection equipment, on certain restaurants and
catering activities, etc.)
Social measures:
Example Postponement social elections
Corona parental leave for employees

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The measures (support)
Misc.
Measures related to permitting ( ex. submitting new applications for planning and environmental permits (or additional
documents to a file already submitted) is now only done by post. Submitting an application on site is no longer possible,
some terms on environmental permits have been extended, depending on the date of the submission of the application,
the type of application or the stage of the procedure, etc..;)
Measures related to government contracts (guidance on how to deal with force majeure, additional costs, delays )
Measures related to legal proceedings: no oral hearings/procedures in writing, extension of deadlines,…

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Case law (on restrictions/examples)
RvS 27 april 2020, nr. 247.452
Re. closing of shops etc., as imposed during the first phase of the COVID-19 pandemic
The Council of State accepts a (very) wide discretion at the disposal of the competent administrative authority in light of
the urgent situation/health crisis: The Minister has ‘in light of the urgent fight against an unprecedented and most serious
(international) health crisis’ in Belgium, the ‘widest discretionary power’
RvS 8 december 2020, nr. 249.177
Re. the (then) applicable corona measure according to which the collective practice of worship was prohibited, except in
certain strictly limited circumstances (e.g., only spouses, their witnesses and the registrar could attend weddings)
The Council of State considered this as a disproportionate restriction of the freedom of religion
See however: RvS 22 December 2020, no.249.313, 249.314 and 249.315 (re. the measure according to which, although
the collective practice of worship in buildings was allowed again, this practice was limited to a maximum of 15 people):
according to the Council, the competent authority had made it sufficiently plausible that the contested restriction is
necessary to protect public health in the context of the corona pandemic. The Council also considered that the norm in
question did not conflict with, among other things, the freedom of religion, the equality principle and the proportionality
principle

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The main problems
Legal uncertainty related to legal basis used.
 Criticism: The ‘Civil Safety Act 2007’ provides for a direct allocation of regulatory powers from
the legislator to the Minister
 need for a specific (formal) legal basis for (severe) restrictions of fundamental rights?
Lawyers & academics: ‘ we want a corona law’/current measures
unconstitutional
Possible advantages/work in progress
• no regulatory powers to a one-headed administrative body (one Minister)
• (more) parliamentary scrutiny /democratic debate
• a more solid legal basis, with respect for the legality principle and the fundamental
rights/constitution
• clearly delineated framework within which severe restrictions/measures are (temporarily) possible

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Concluding remarks
• Belgium faced and is facing huge difficulties in managing the corona-crisis.
• Coordination is very difficult because of the division of powers between the federal state and
the regions
• Difficulties to ensure full enforcement due to the allocation of competences (e.g., quarantine
regimes)
• Excessive and mis-calibrated use of ministerial decrees to pass coronavirus measures,
without the necessary legal scrutiny and democratic approval in parliament; rush
implementation
• "For the same offence, one judge may impose a heavy fine or even a prison sentence,
while another gives an acquittal.” (Belgian Lawyers Association)
• New comprehensive and transparent legislative proposal in draft (but too late for this crisis?)

13. Thank you/Bedankt!
steven.vangarsse@uhasselt.be
matteo.fermeglia@uhasselt.be