Coronavirus: some topics under public law (Lydian)
Publication date: 02/03/3030
The ‘action plan’ of the Belgian government – who decides which measures are to be taken regarding the prevention and treatment of the Coronavirus?
Both the Communities and the federal government are competent for specific aspects of the Belgian healthcare policy. Where the Communities became competent for most of the aspects of the public health after the state reform of 1980, the federal government remained competent for crisis management.
In the event of epidemics and emergency situations, such as the outbreak of the Coronavirus, an intensive collaboration is put in place between the Federal Public Service (FOD) Health, Food Chain Safety and Environment on the one hand, and the health care authorities of the Communities on the other hand (for Flanders: Agency for Care and Health).
In event of any threat of the public health, these health authorities will take measures. The Risk Assessment Group (RAG) analyses the risk for people based on epidemiological investigation and scientific data. The Risk Management Group (RMG) will then decide which measures are necessary to protect the public health.
You can find an overview of the measures and recommendations regarding the Coronavirus on the following webpage: https://epidemio.wiv-isp.be/ID/Pages/2019-nCoV.aspx
These measures indicate for instance who is to be considered as a ‘suspected patient’ and which procedure is to be followed when confronted with such a ‘suspected patient’.
Is Belgium allowed to close its borders as a remedy to the Coronavirus?
Where, in the Schengen area, there is a serious threat to public policy or internal security in a member state, that member state may exceptionally reintroduce border control at its internal borders (Schengen Borders Code of 9 March 2016).
The scope and duration of the temporary reintroduction of border control cannot exceed what is strictly necessary to respond to the serious threat.
Where a member state plans to reintroduce this control, it has to notify the other member states and the European Commission prior to the planned reintroduction. However, where a serious threat to public policy or internal security in Belgium requires immediate action to be taken (which could be the case with the Coronavirus), Belgium may, on an exceptional basis, immediately reintroduce border control at internal borders, for a limited period of up to ten days (extendable up to 2 months).
Border control at internal borders can only be introduced as a last resort. We understand that (so far) none of the member states have relied on this possibility.
Is it possible for a contractor to invoke the Coronavirus in a public procurement contract to revise its contractual obligations?
The Royal Decree of 14 January 2013 establishing the general rules on the performance of public procurement provides in a ‘hardship-clause’.
A contractor can invoke unforeseeable circumstances to obtain a revision of the public procurement contract. This revision can take the form of an extension of the execution period, or in case of a significant disadvantage, another form of revision (e.g. financial compensation) or even the termination of the contract.
For work contracts, we can speak of a financial disadvantage when a disadvantage occurs of minimum 2.5% of the original tender sum. When the contract is awarded based on a financial award criterion that is taken into account for at least 50% of the points, the financial disadvantage is also indicated in absolute terms. For supply and most of the service contracts, a disadvantage has to be taken into account of at least 15% of the original tender sum.
The contractor can however only claim such a revision if he can provide evidence of the fact that the revision of the public procurement contract has become necessary due to circumstances (ii) which were not reasonably foreseeable when submitting the tender, (ii) which could not be avoided and (iii) of which the consequences could not be remedied, notwithstanding the fact that the contractor did the necessary to do so.
The epidemic character of the Coronavirus, the possible closing of the borders and the consequences for e.g. the import of specific products/services, can possibly be qualified as a circumstance that could not be reasonably foreseen when submitting the tender. However, it might be possible to avoid the consequences by using alternative products/services. A case-by-case approach will apply.
Bear in mind that the contractor has to follow strict time limits when submitting his claim for revision, under penalty of being null and void. It is e.g. mandatory to invoke these circumstances and its consequences within a period of 30 days after they occurred. This obligation remains even when the authority is aware of the specific circumstances.