New liability rules in Belgium : protect your appointees!

It is a basic legal principle that everyone is responsible for their own actions. This means that if one’s action was wrongful and harmed someone, one will be expected to compensate that person. Anyone can end up in a situation in which their liability could be at stake. It is not about blaming, it is simply about putting things right.

From this basic principle follows a myriad of scenarios. The most obvious scenario is when you yourself cause damage. A simple example is that, when you scratch a car with your bike, the car owner will ask you to pay the repair costs.

It can get more complicated. When you committed an error, it might be that you did so when acting on behalf of someone else. This might happen when you carry out a task for an association in your role of director, employee or volunteer. It could even be that it was your action that caused your association to breach its contract with another organisation. For instance, you disclosed information that needed to stay confidential under the contract. It is your association that will have defaulted under its contract, but you have committed the act.

Up to 31 December 2024, if you were in Belgium, you did not need to worry too much about this situation. If you were helping your association to perform its contract and you committed an error while doing so, the association’s contracting party could, as a general rule, only turn against your association to claim damages for your action.

On 1 January 2025, when Book 6 of the Belgian Civil Code entered into force, this rule has been reversed. Consequently, returning to the example above, when you disclosed information, the association’s contracting party may still go to your association to obtain compensation but, on top of that, they may also initiate a claim against you personally.

Understandably, not everyone is happy with this drastic change. The important question is whether something can be done about it. There is good news and bad news in this regard. The ‘good news’ is that it is possible to (again) reverse the rule in the association’s contract. Thus, the contract may forbid the parties to turn against one another’s “appointees”. The term “appointee” refers to an individual who was designated by the association to act on its behalf, and who is carrying out tasks for the association. This encompasses directors, employees, volunteers, subcontractors and so on. Another term that you might come across is “auxiliary agent”, which means somebody helping to execute the contract. The ‘bad news’ is that you must already think about this when the contract is drafted. If that contract is already in place, you will have to revise it. After all, before Book 6, appointees were automatically protected and did not need a specific provision in a contract for this.

One might ask if it is fair to shield appointees from incurring liability under a contract when they made an error. In most cases, it is, because, also in most cases, that person does not personally benefit from that contract. They are simply doing the task given to them by the association to the best of their abilities. If that person committed an error in good faith when helping the association to perform the contract, it seems reasonable to protect them. However, if the person deliberately acted wrongfully, an exoneration of liability provision in the contract will not help them. The wronged contracting party might still sue them, because it is contrary to Belgian law to exonerate someone for fraud. In such case, the association too will have some options to take recourse against the person when acting in their role for the association.

Liability litigation cases can become awfully complex, especially in an international context. It starts with the fact that one must determine the law applicable on the case and which country’s courts are competent. Often contracts are unclear on those points. If one gets past that first stage, several legal elements are to be established before an appointee will be held liable by a court. The wronged person must not only prove that the appointee committed a wrongful act, but also that the damage was caused by it. That is what is called the ‘causal link’, which may be broken if other factors contributed to the damage. Before compensation can be awarded, the wronged person will also need to demonstrate the extent of the damage. This might be direct damage (e.g. the costs that you paid to repair the damage) or indirect damage (e.g. loss of revenues). When you boil it down, the outcome will always be specific to the case and in most cases difficult to predict. That is why many are inclined to mediate and settle their case before it turns into full-scale litigation.

It might be worthwhile to examine insurance options. The right insurance policy may be helpful, although it will not be a miracle cure against all liability risks for your association and its appointees. There is no insurance policy that does not exclude at least some errors or events from its coverage. Depending on the type of insurance policy and liability risk to be covered, the premiums might go up, again especially in an international context. After having provided coverage, insurance companies are also allowed to take recourse against the appointees who committed the error unless the insurance policy or the law prevents them from doing so.

To conclude, it is important to start with gaining a clear understanding of the capacity that you hold when you are acting for an association. This will help to make sure that the association’s contracts are revised appropriately to sufficiently protect its volunteers, employees and directors. I am looking forward to shedding more light on these matters and answering your questions during the workshop that I will lead at the upcoming UIA Round Table Europe in Brussels on 21 November 2025.