Proposition 53K1286

Projet de loi relative à l'indemnisation des dommages corporels et moraux découlant d'un accident technologique.

General information ¶

Authors

Ecolo Ronny Balcaen
MR David Clarinval, Denis Ducarme, Marie-Christine Marghem
N-VA Karel Uyttersprot
PS | SP André Frédéric, Karine Lalieux, Linda Musin, Christiane Vienne

Submission date

March 15, 2011

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

industrial hazard man-made disaster indemnity insurance insurance

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP ∉ Open Vld N-VA LDD MR

Abstained from voting

VB

Contact form ¶

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Discussion ¶

July 7, 2011 | Plenary session (Chamber of representatives)

Full source

The rapporteur, Mr. Van den Bergh, refers to his written report.

Mr. Speaker, dear colleagues, Mrs. Marghem, I wish I had made a brief vote statement. Basically, our party can only welcome the concerns of the applicants of the proposal and the effect in the bill.

Ms. Marghem, you remember the first committee meeting in which your proposal was explained. The aim was to compensate victims of major technological disasters such as Gellingen in the short term and to completely disconnect this advance compensation from the recording of the determination of liability, a matter of years that has left too many victims in the past and too long in the cold. These are noble intentions and the drafting of the proposal is good.

Our group has worked together in the committee, for example, to rewrite the definitions of the bill and to simplify certain less simple documents. I think of the functioning of the committee or the intervention of doctors when one has to come to a medical decision. As a group, we acted as constructively as possible. This technical workpiece could have obtained the unanimous approval of all political groups in the committee and in the plenary session, if some had not applied the cordon sanitary. We do not play with these kinds of games.

Mrs. Marghem, the Flemish Interest will fully vote in favour of your bill. We support your goal.

Mr. Speaker, the way in which our group has been forbidden from signing this bill, we cannot accept, now and neither later. We are very pleased with this proposal, but we will not approve it. We will abstain, and this is due solely to the commission itself. We would be very happy to have signed this proposal.

Mr. Speaker, colleagues, we all know them, the so-called technological disasters like Gellingen or the gas explosion in a flat building in Liège. Natural disasters and floods are usually covered by insurance companies. In technological disasters, on the other hand, there is a responsibility, and that is determining. It can take years before the responsibilities are fixed and the insurance companies compensate the victims.

N-VA has actively participated in this bill because we find it unacceptable that victims have to wait because of complex legal procedures regarding the debt claim.

Initially, we had a few comments. Therefore, we have submitted a whole series of amendments.

We look back on an intensive and positive consultation with the various parties to come to a proposal that was acceptable for all and practical in practice. That was important in order to establish a number of definitions, for example: what is a technological accident? What is a major accident? What is an Extraordinary Damage Case? What is the composition of a wise committee? and so on.

In this bill, we have also sought to depolitize by leaving the decision on what is a major technological disaster not to the Council of Ministers, but to a separate committee whose composition is regulated by law. That committee will apply the law only when the deadlines threaten to expire and when there is uncertainty about the liability.

For this bill, we have mediated between the insurance sector and the authors, in order to ensure a correct and smooth application to the victims. As a result, the bill may have become a lot more technical, but the main reasons for this were to avoid discussions and interpretations and thus also to allow the sector to make reserves, commissions.

In Gellingen there were 24 deadly victims and 132 wounded. The court ruled in first instance only in 2010, six years later.

The Court of Appeal ruled on 28 June 2011, exactly 7 years after the facts. It is a little symbolic, Mrs. Marghem, that coincidentally on that day the bill was approved in the committee.

In summary, if a disaster is designated as a special disaster by a committee of wise men on the basis of concrete criteria, the Common Motor Guarantee Fund will compensate the victims within a short period of time.

What is a “Great Technological Disaster”? It is an accident in which at least five natural persons suffer a serious physical injury, to the extent that they, for example, die, have to stay in the hospital continuously for 15 days, or have to stay in the hospital regularly for a period of 6 months.

The Joint Motor Safeguard Fund is further funded with 15 million euros per year, coming from the insurance companies. Compensation is a friendly, optional and free-of-charge procedure, which is conducted for and by the Fund and which is independent of liability. Victims of a technological disaster must report within 6 months. The fund only compensates for physical injuries. If after the judicial proceedings it is determined who is liable, his or her insurer will refund the fund.

Mr. Chairman, colleagues, N-VA wants to solve this social problem. We will therefore support this proposal and look back on good cooperation within the committee.

Mr. Speaker, dear colleagues, it would have been necessary to wait until the disaster occurred on 30 July 2004 in Ghislenghien at the construction site of Diamond Board for the legislator to measure the urgency and the need for intervention in the area of compensation for damages caused by technological disasters. Therefore, it would have taken another seven years for a text to be finally submitted to the vote of our Assembly. Meanwhile, other catastrophes have hit our country and recalled the urgency of legislation for faster compensation to victims. One of them was the explosion on Leopold Street in Liège.

To date, while Mons’s Court of Appeal has just made its ruling on the responsibilities in the Ghislenghien disaster, many victims have still not benefited from compensation worthy of that name. In addition to physical and psychological suffering, for many years, financial problems arise from the consequences of this catastrophe.

Finally, adds the impression, justified in my opinion, that insurance has not played a ⁇ positive role in the victim compensation process. This is evidenced by a very clear tendency to underestimate the damages incurred and, moreover, the circumstances in which the mediation attempt initiated after the disaster has unfortunately aborted due to the withdrawal of the insurers.

Beyond the constatation on this past catastrophe, it is also important to remember that French insurers, the day after the catastrophe of the AZF plant in Toulouse in 2001, assessed the occurrence of a comparable accident every thirty years and a less serious catastrophe every ten years. It was therefore necessary to legislate to improve and speed up compensation for victims of technological disasters. We are, of course, delighted that the House can today take a stand on a text initially and strongly put forward by our colleague, Ms. Marghem, a text that marks a real progress, a text that has been the subject of hearings and important work before its adoption in committee.

From now on, as soon as a large-scale technological catastrophe occurs, once defined as an exceptional catastrophe by the Committee of the Wise implemented by the bill, a new process will take place. It will allow compensation to the victims without waiting for the end of the judicial procedure aimed at determining those responsible for the disaster.

Therefore, it will no longer be necessary to wait for the responsibilities to be determined in order for the temporary or definitive compensation to be paid to the victims. The procedure thus established will enable the implementation of a mechanism that no longer depends solely on the insurers. This is attested by the composition of the Committee of the Wise, which will include representatives of public authorities, insurers and consumers.

I would also like to highlight at this stage the role in the procedure of the Common Automotive Guarantee Fund. In this, the planned device, if it is original, is not yet a new gas plant, as we have heard in some criticisms, inventing heavy structures. On the contrary, in an interest of efficiency and economy, the bill calls for an existing body that already has the resources and competence necessary to carry out its new tasks. It should be welcomed that the Fund, associated with the drafting of the bill in its initial version, has agreed to take up the challenge. We must now hope that the insurers will also play the role that is given to them in the new device.

Dear colleagues, the bill that is being voted today is voluntary, it is supported almost unanimously by the political groups of our Assembly and it represents a remarkable progress towards better taking into account the fate of the victims of damage from a catastrophe of exceptional scale. We will today confirm our active support for the original text and amendments, convinced that in an increasingly complex modern society, where technologies with their positive sides but also their dangers have a real impact on the lives of citizens, it was necessary today to provide a response to protect victims from the slowness in determining responsibilities, which is largely linked to the increasing complexity of our environment.

On 30 July 2004, Ghislenghien was the scene of the most deadly industrial disaster in our country since the tragic fire of the Cazier Wood. That day, 24 people died, while 132 were seriously injured and their bodies marked for life.

A few days ago, on Tuesday, June 28, 2011, while the Economy Commission voted for the bill that is presented to you today, the Mons Court of Appeal finally delivered its judgment, thus ending seven long years of suffering for the survivors and the families of the missing. Seven years too long to finally be able to end their mourning.

Judicial time, by its very nature and its indispensable detail, does not agree with human time. A hundred and thirty-two people had to undergo very heavy medical treatments, and this for very long months, even years.

This kind of catastrophe has something terribly land-to-land. Beyond all the sufferings endured, the question of compensation or, more prosaically, of the ability to simply support the costs inherent in such an accident arises irrevocably. It took a tragedy to remember it.

To bring humanity back to the place it deserves, that is the meaning of the bill submitted to our vote. To this end, it establishes a specific procedure to divide the issue of compensation for victims, questions of liability and, a fortiori, criminal matters. Giving a human and especially quick response to people affected by technological disasters is what we are asking today.

I use this to pay tribute, first of all, to Marie-Christine Marghem who literally fought for years to get there. I recall that the initial proposal was submitted in 2007, so four years ago, that it was in 2009 that the Commission finally looked at this matter; therefore it will take two years of discussions and work to ⁇ it.

I would also like to thank all colleagues for the substantial work done to deliver amendments signed by all the democratic groups.

It was long. It was a lot of trouble, but it was worth it, no doubt! In addition to a significant breakthrough that crushes our legal traditions that put the victim compensation issue in the background, this proposal also shows how fully the Parliament plays its role and manages to move the lines.

I remember another bill that was hardly voted. This is the Partyka Act, named after a member who is no longer here today, relating to the insuredness of increased health risks. This is a flagrant example! Today, we will probably talk about the Marghem Law.

I hope, however, that the Marghem Law will not know the earthquakes of the First Law and will not have to suffer the messy lightning of the insurers. We have a lot more tags so they can’t escape their responsibilities because the victims don’t deserve it!

The great catastrophes inevitably bring us back to human tragedies. They penetrate through the media into our daily lives. The images remain marked permanently and yet it is little. It is little to see these dramas, to share them with a few moments of emotion at a distance, compared with what they will know or what the victims have experienced. You need to have the opportunity to meet them, to meet them. We need to have the opportunity to carry with them their dossier and their pain to realize the challenge.

The end of the twentieth century is marked by the emergence, in our law, of the right of victims, at all levels. The victim has its place in the trial, it has the right to express itself, to complain and to interpell us. It also reminds us of our duties.

However, it must be noted that, in the artifice of our social security, the victims – and, mainly, those who have suffered the most serious damage – are, unfortunately, not adequately cared for. It is as if social security should only respond to the concern of a large number in order to ensure a minimum of comfort, forgetting that true solidarity must be exercised towards the most serious victims. This is why, during the previous legislature, my colleagues, Ms. Fonck and Mr. Brotcorne, and myself, had drafted a bill aimed at addressing the problem of victims of technological acts. We had extended it to another reality. I think of the victims of attacks or desperate acts.

Ghislenghien, Liege, Liege for the second time with little things close... We are not safe from new dramas, even though our society is technologically highly evolved. In this context, our committee has been led to consider a bill. We have been able to advance through amendments, counter-proposals, hearings, towards a device that can appear today as satisfying.

For my colleagues and myself, however, it was indispensable that, in the proposal that would be submitted to you, some principles were taken into account. First, it is the victim’s autonomy. Of course, initially it was planned that a reception cell at the prosecutors would gather the names of the victims, but it also seemed to us essential that they could address directly, and independently of the prosecutors' services, to the Fund which would be responsible for compensating them.

Secondly, as far as the decision-making body is concerned, the Joint Auto Insurance Fund is here to take over the compensation of victims or, in any case, to make a proposal.

We wanted this body to be independent. This is why we invoke, in our bill, the Fund for Victims of intentional acts of violence.

Here, the fund is subject to control. In fact, a judicial remedy is provided in case of disagreement. Victims will be able to allocate the funds before the courts and courts of the Judicial Order to assert their right.

In addition, they have a deadline to submit their application, an appeal. In fact, the victim is often disempowered; she is alone; she is lost; she does not know what to do or no longer has the strength to do what to do.

It was also essential that the procedure be established amicably, free of charge and optional. Free because it must be prevented that victims do not initiate a procedure due to lack of resources. Optional because the victim must be able to choose the common law.

Furthermore, it was important for us that this procedure does not interfere with or reduce the victim’s rights towards the responsible third party or third parties.

So I come to the fifth principle.

If the Fund compensates and if a transaction occurs with the Fund, the transaction decision is valid only for one damage. Indeed, in the case of human tragedies resulting from a disaster such as that of Ghislenghien or Liège, there are different forms of damage: the victim’s bodily injury, the damage by repercussion, the help of third parties, the damage related to the fact that the life expectancy is reduced. All these forms of damage are worth considering.

Another principle is the place of the lawyer. The latter, as a partner of justice, has a fundamental role to play. It will often be he who will be listening, who will be the transmission belt, who will be able to prepare, gather the pieces, carry the dossier, defend it. Another principle that follows the bill as amended: the independence of the medical expert. It is not the fund alone who will choose his doctor in whom he may have only trust to determine the physiological, professional, extra-professional consequences of the technological act of which the victim was the subject. It is a truly contradictory expertise that will be set up with the possible recourse to an expert third party, with the guarantees that this can bring.

These are the principles that we consider essential and which, through very fruitful discussions in committees, are reflected in the proposal that is submitted to you.

It remains to be seen whether the Fund, as planned, the Common Automotive Guarantee Fund, which is a mutual insurer representing all the insurers operating in the auto RC branch, will be able to cope. I want to believe that yes, this is the hope we put in this proposal. We hope that there will be no further damages and other technological accidents as soon as possible, but we also hope that it can provide immediate compensation to victims in the event of a new accident, either in a provisional form or in a definitive form, both cases being planned, and that it can respond promptly without the time of judicial truth being made waiting forever.

I will conclude with this judicial truth. Of course, one can dream that in such disasters the judicial truth is faster. But, in order to know this type of procedures, we know that the search for judicial truth is not easy: it is necessary to resort to expert examinations, to contradictory findings, to analyses. All this takes time in laboratories, in scientific analyses.

And we know that, during this time, the victim is always alone and disempowered. That is why there was a need for another path, beside the judicial truth.

Especially because at the end of a judicial procedure, if the responsible person is designated, he is not always solvent. And if he is insured, his insurance company may also oppose a default clause, a non-insurance reason, a guarantee limitation. And the victim, in judicial proceedings, sometimes finds himself with a beautiful judicial decision that she unfortunately cannot execute.

It is at the heart of this proposal that the merit of having created an independent, friendly, free, quick mechanism that allows, regardless of the fault, to ensure solidarity with the victims of serious technological accidents.

Mr. President, Mrs. Deputy Prime Minister, Mr. Deputy Prime Minister, Mr. Secretary of State, dear colleagues, I appreciate very much that Mr. Renaat Landuyt asked me not to be too long. When it starts, you know when it starts, but you don’t always know when it ends. I will try to be brief.

First of all, I would like to thank the members of the Economic Committee who, since 2007, when I filed the first text (legislature 2003-2007), have always strongly supported the principle defended by this bill. This should allow victims to receive immediate compensation for their bodily injury when the injury originates in an accident due to the implementation of technologies by the human being, thus in everything that does not fall within the scope of a natural disaster.

Of course, between the goal pursued and its achievement, many obstacles have arisen on our path. Historically, to put it briefly, this text had to be submitted three times. It was first in the legislature 2003-2007; it was then in the legislature that abruptly interrupted in 2010. The last time was the right one – is it not said, “Never two without three”? –, and it was during our present legislature, which has not yet found its epilogue, since we are waiting for the formation of a government...

Meanwhile, and Ms. Lalieux has very well recalled it, the Parliament has taken its responsibilities and filled a legal void in order to make room for the proven assassination of the insurers, as shown by the compensation of the victims of Ghislenghien.

In 2007, I asked the Minister of Justice about a burning question – whether I can afford to use this adjective –, about the possibility that she had to impose on the insurers present in the Ghislenghien dispute the moral obligation to compensate the victims by sitting around the table, as it had been done in France, after the gas explosion in Toulouse. On this occasion, she had answered me positively but, unfortunately, on the ground, there was no possibility to morally impose on insurance companies an action aimed at voluntary compensation of victims and the legal void had necessarily to be filled...

Mr. Landuyt, you asked me to be brief. I suppose this is not to make noise and prevent me from continuing my exhibition!

It is not Mr. Landuyt who makes noise, Mrs. But Mr. by Michel! I invite you to continue.

For precisely this legal void, it was important that a legal obligation be articulated to ensure that insurers, who are present in a dispute due to a technological origin, are obliged to compensate victims on whose behalf they will belong, that is, without knowing prima facie who was responsible for the disaster.

I go over the technical details of the proposal as I realize that the atmosphere is on holiday and that insurance technology is not a real concern!

However, I’ll give you a few principles that will reassure some interlocutors.

First of all, this proposal, in addition to the implementation of principles already existing in our law, does not create new principles of liability or is not based on a lack of liability. The principles of civil liability are ⁇ ined. The insurance agencies work as they are used to do and the victims’ care and their compensation are housed in an already existing fund, namely the Common Car Guarantee Fund, whose expertise was requested by Assuralia in the framework of Ghislenghien fifteen days before the opening of the trial in first instance, that is, at a time when the victims were vulnerable and under pressure and, ⁇ , more inclined to accept the proposals of compensation that were made to them.

It is to avoid this pressure, to avoid this expectation and to take care of the victims who, often, are in a process of derrealization given the severity of the bodily injuries they suffer due to the accident that, all, we have supported this project.

What happens in the event of a technological disaster? When, due to a technical failure, a human error, a technological catastrophe occurs and this is of large scale, because there is death of victims, hospitalization for 15 days or repeated hospitalization for six months, the Minister of Justice seeks the Prosecutor’s Office, where criminal information is opened, and asks him to establish a cell of reception and accompaniment of victims by drawing up the list of these victims, keeping it up to date and also indicating the rightholders of victims and the names of their possible lawyers.

At the same time, the Minister of Justice requests a committee of wise men established by law, consisting of ministers of Justice, Health, Finance and Insurance in their powers, plus a representative of insurance and consumers as well as a representative of the Common Auto Guarantee Fund and the BNB with a deliberative voice, for them, to meet and decide within the month following this referral whether the large-scale technological disaster is an exceptional disaster.

It is at this time that the Joint Automotive Guarantee Fund receives applications either through the list established with the prosecutor’s office or directly through the victim itself, who has six months to appear with the Joint Automotive Guarantee Fund.

The procedure takes place as usual. An amicable expertise is provided for bodily and moral damage that is not easily quantifiable. This expertise is carried out completely independently. If the Fund has its expert, the victim designates its own. They shall designate, in an amicable agreement of expertise, a third expert who will link the two previous ones, if they do not agree on the incapacities, the periods of incapacity, the amount or the severity of the damage and the formulation of the compensation.

Meanwhile, the Joint Automotive Guarantee Fund calls on all Belgian insurers, branch 13, and asks them, for that part of the damage they must compensate, to advance provisions in proportion to their market shares in the previous calendar year.

These provisions are technical provisions within the meaning of Belgian legislation. They can be tax-exempted and the insurers of Branch 13 will see, at the end of the trial, these provisions refunded, if the responsible author designated by the court at the end of the trial is validly insured, that is, if he has the capacity to repay them.

If that responsible author is insufficiently insured, insured or insolvent, the Natural Disasters Fund will only cover 50% of that balance. National solidarity will be expressed through this reimbursement of the Natural Disasters Fund but only in the amount of 50% since it is a technological disaster, that the insurers of branch 13 ensure the civil liability of companies and that it is appropriate that the entrepreneurial world can be validly insured and participate, in this case, in the overall effort required from the society, in the case of disasters affecting the whole of this society.

I will conclude by saying that each of the commissioners brought his stone to the building. I do not blame you, Mr. George, and I will not make, in an apothicary balance, the weight of the souls of each, saying: untel brought this, untel brought this. We all also worked to ⁇ the goal and the text that is being submitted to our vote today.

I warmly thank you for this work. It has been four years of hard struggle to ⁇ this. I dedicate, with your permission – but I think you will agree – this text to all victims, especially to the victims of the Ghislenghien disaster, since it was directly inspired by this sad fact. I hope that the victims of the upcoming catastrophes, of which I obviously do not wish the occurrence, will find in this text an alleviation of their suffering.

Someone ask-t-il la encore parole? (Not to)