De rol van de Belgische declaratoire vordering bij het nastreven van niet-vergoedende doelstellingen van het buitencontractuele aansprakelijkheidsrecht

Claimants increasingly rely on extra-contractual liability claims to pursue other goals than compensation (in kind or by way of pecuniary damages). Attention for the multifunctionality of extra-contractual liability law has grown over the past decades. This is clear, for example, in the draft bill regarding the introduction of the extra-contractual liability provisions in the new Civil Code, and is also apparent in Belgian doctrine and even case law. The first part of the carried out research has mapped the non-compensatory goals or functions of extra-contractual liability law. It concerns prevention and enforcement (of rights), to be distinguished from mere effects such as loss spreading or punishing. These non-compensatory functions are grafted onto the primary, compensatory function and can only be pursued on the basis of extra-contractual liability law within that compensatory framework. The pursuit of non-compensatory goals by relying on extra-contractual liability law is possible by using the flexibility of this domain and its concepts, such as the notion of damage or of compensation in kind. In particular, one may think of costs to prevent (a deterioration of) a loss as autonomous items of loss, or consider the influence of the precautionary principle on the interpretation of the prerequisites of extra-contractual liability. The resulting enlargement or stretching of extra-contractual liability law, however, does have its limits. Without damage or in case of merely potential, future damage, one cannot act on the basis of extra-contractual liability law. Furthermore, compensation for damage should be distinguished from preventing damage. With regard to enforcement of rights, the violation of a right by itself does not suffice. Besides the fault element, there must also be a loss and a causal link. The question arises which alternative paths are conceivable for pursuing prevention and enforcement outside of extra-contractual liability law (and its restraints). With respect to non-compensatory goals, two remedies come to the fore: a declaratory relief and a judicial order or prohibition (injunctions). They can constitute compensation within the framework of extra-contractual liability law, but they can also be pursued outside of that compensatory framework. (The claim for) declaratory relief in Belgian law is underdeveloped and neglected, being only mentioned indirectly in Article 18(2) Judicial Code. Nevertheless, this provision holds great potential. From a comparative law perspective, it is striking how developed (the action for) declaratory relief is in other legal systems. The second part of the carried out research constructs a general framework for (the) Belgian (action for) declaratory relief. Besides a thorough analysis of Belgian case law, the research relies on comparative insights from French, Dutch and German law. The general framework comprises of both preventive actions (before a violation of the law and to prevent it) and curative actions (after a violation of the law and to provide redress for it). A declaratory action is an action that aims at obtaining a binding declaration in law by a judge regarding the (non-)existence in concreto of a legal relationship, without any condemnation and independently from any coercive measure that can be coercively enforced. A legal relationship is a relationship that originates from the application of the law on a specific, factual situation of a legal subject and from which legal consequences can arise for that legal subject. Whether a declaratory action is founded, depends on whether or not the legal relationship at hand exists. In light of the procedural interest requirement, the analysis resulted in four questions to assess the admissibility of the declaratory action: 1) Does the claimant advance a violated or seriously threatened subjective right? 2) Is there a legal dispute? 3) Is the need for legal protection sufficiently great? 4) Is the requested declaration in law useful? Procedural economy does not constitute an admissibility requirement for the Belgian declaratory action, but it play a role by means of abuse of process. Finally, the research embarks upon evaluating the added value of the declaratory action in Belgian law when it comes to pursuing the non-compensatory goals of extra-contractual liability law. The added value depends on four criteria: 1) the extent to which claimants encounter restraints in pursuing the identified non-compensatory goals, i.e. how difficult it is to pursue these goals in light of how strict the prerequisites are; 2) legal certainty, i.e. the accessibility of the instrument (liability claim of declaratory action) and how clear the application is; 3) the possibility to prevent abuse, i.e. the extent to which the instrument can also be used to pursue other goals than the identified non-compensatory goals; 4) the extent to which the instrument enables a focus of the proceedings on the non-compensatory goal at hand. To a great extent, the declaratory action allows to overcome the restraints present when pursuing the non-compensatory goals on the basis of extra-contractual liability law. In that respect, the declaratory action does not rely on the presence of damage but on a violated or seriously threatened subjective rights, thus enabling claimants to act on the basis of merely the violation of the subjective right and in case of only potential future damage. Yet, the declaratory action is excluded in case of summary proceedings and does not result in a condemnation, so that it is independent from any coercive measure that can coercively be enforced. The declaratory brings about more legal certainty. Since a dispute is required, abuse by way of seeking judicial advice by means of a declaration in law is ruled out. The lack of an explicit embedding of the prerequisites for a declaratory action in Belgian may create uncertainty. The time is ripe to introduce a general framework for the declaratory action. The final judgment is clear: the declaratory action undoubtedly has added value in overcoming the restraints for pursuing the non-compensatory goals on the basis of extra-contractual liability law. Directly relying on the seriously threatened or violated subjective right, the prerequisites for the declaratory action in general provide more legal certainty than an unbridled interpretation and stretching of the prerequisites for extra-contractual liability. Insofar the threat of damage or harmful behavior or the need for enforcing subjective rights results from uncertainty regarding the legal relationship at hand, the declaratory action provides a strong focus and more legal certainty. Besides its exclusion in summary proceedings, the declaratory action has one substantial limitation. It is limited to a declaration in law without any condemnation. Insofar as legal subjects (try to) obey the law and infringements of the law result from uncertainty (and disagreement) regarding the legal relationship at hand, this limitation does not need to be a problem.

Publication year:2020

Accessibility:Closed