Public law news
Overview of the latest public law news
CJEU rules on lease by public authorities of office buildings before construction
5 May 2021
On 22 April 2021, the Court of Justice of the European Union (CJEU) rendered a noteworthy judgment related to public procurement. The CJUE analysed in particular the question as to whether the lease of a building before construction by a public authority constitutes a public works contract.
Ban on car hire with driver services’ use of smartphones in Brussels: highlights from the Court of Appeal judgment
30 March 2021
On 19 February 2021, the “Direction Transport de Personnes” of the Brussels Capital Region issued a circular (circulaire/omzendbrief) concerning the operating conditions of car hire with driver services in the Brussels-Capital Region. With this circular, the Brussels Capital Region reminded operators of such services of their legal obligations laid down in the Ordonnance of 27 April 1995, as well as the operating conditions contained in the 29 March 2007 Decree of the Brussels-Capital Region Government. More specifically, the Brussels Capital Region stressed that a written contract must be concluded prior to the service being rendered. The regional Government also noticed that the use of a radio communication transmitter or receiver (smartphone, walkie-talkie, etc.) for the purpose of receiving orders is prohibited under the aforementioned legislation.
Court of Cassation rules on absolute nullity sanction upon violation of the equality and transparency principle
2 March 2021
With a noteworthy judgement of 22 January 2021, the Belgian Court of Cassation ruled on the fate of contracts concluded by public authorities in disregard of the principle of equality and transparency.
The Court of Cassation considers that the principle of equality and transparency constitutes a legal basis of society’s economic and moral order, which imposes itself on the contracting authority. Contracts concluded with public authorities that violate these principles can be sanctioned with absolute nullity.
Signature of tenders: a daily management act?
19 February 2021
According to settled case law from the Belgian Council of State, signing a public procurement tender cannot be regarded as a daily management act. This course might change following a recent judgement (5 February 2021). Basing itself upon the new Companies and Associations Code, the Council of State leaves room for discussion on whether the signing of a tender qualifies as a daily management act. The judgment was delivered through an extremely urgent procedure and thus only provides a prima facie assessment. This newsflash looks at the impact of the new Belgian Companies and Associations Code on public procurement law.
What remains of the EU State Aid regime after the EU-UK trade deal?
19 January 2021
The transition period that started on 31 January 2020, when the UK officially left the EU, came to an end on 31 December 2020. And while it looked certain that both sides were not going to come to an agreement regarding the trade relationship going forward, a deal came through at the final hour. Both parties concluded a ”Trade and Cooperation Agreement” (TCA) setting out the economic relationship as of 1 January 2021.
It is no secret that the level playing field was one of the more challenging issues during negotiations. The UK wanted to break free of the EU State aid regime and ‘take back control’ of its subsidy policy. The EU demanded certain conditions in return for tariff-free access to their single market. It is thus no surprise that there is a specific section devoted to the subsidy control of both the UK and the EU in the agreement.
EU Industrial strategy: Seven pillars outlining the EU’s industry of tomorrow
19 October 2020
On 11 December 2019, the European Commission presented the Green Deal, with the main goal of a climate-neutral European Union by 2050. One of the key actions to achieve this is the development of an industrial strategy for a clean and circular economy. In this regard, the European Commission issued a communication on 11 March 2020, outlining a new industrial strategy for Europe.
The strategy is related to and complements the White Paper on Artificial Intelligence and the Data Strategy, which had been released approximately two weeks before. The key element in the Industrial Strategy is the so-called “twin ecological and digital transition” of the European industry.
From green certificates to tender system for medium-sized PV installations
14 August 2020
On 10 July 2020, the Flemish Government approved an amendment to the Energy decision to provide for a tender system for medium-sized PV installations. With this, the Flemish Government confirms its intention to extend the existing tender system of investment support with fixed annual budgets for small and medium-sized wind turbines to medium-sized PV projects, in order to execute the most cost-efficient projects.
European Green Deal: A closer look at the new EU Circular Economy Action Plan
17 July 2020
On 11 March 2020, the European Commission published a new Circular Economy Action Plan - one of the main pillars of the European Green Deal - with measures to make sustainable products the norm in the EU over the next decade. The Commission introduces measures across the entire life cycle of products, from design and manufacturing to consumption, repair, re-use and recycling.
Deloitte Legal has identified the following key points as particularly relevant for companies that manufacture or sell products.
Proxy Decrees adopted in COVID-19 crisis context: State of affairs after three months
14 July 2020
On 30 March 2020, the two laws of 27 March 2020, which empower the King to take measures to combat the spread of COVID-19, were published in the Belgian Official State Journal. These laws gave the King the power to amend existing laws in certain matters by Royal Decree until 30 June 2020, in order to respond to the various challenges brought by the pandemic. Deloitte Legal analyses the extent to which this power has been used in recent months and considers the consequences of both laws.
REACH update: restriction for phthalates DEHP, DBP, DIBP and BBP entered into force
10 July 2020
As of 7 July 2020, the phthalates DEHP, DBP, DIBP and BBP are restricted in the EU. Articles containing these phthalates can no longer be placed on the market or used unless they comply with the conditions of the restriction laid down in Entry 51 of Annex XVII to REACH.
Where does the EU stand six months after the Green Deal announcement?
9 July 2020
On 11 December 2019, the European Commission presented the European Green Deal, which contains an initial roadmap of key policies and measures to make the EU’s economy sustainable. It is part of the Commission’s strategy to implement the United Nations 2030 Agenda and the Sustainable Development Goals. The Green Deal policies and measures, as well as their adoption status are summarised below.
New Engineering Contract 4 - Engineering and Construction Contract: an innovative contract model for Belgian infrastructure projects
3 July 2020
This newsletter looks at the New Engineering Contract 4: Engineering and Construction Contract (NEC 4 ECC), which will be applied for the first time in a large infrastructure project in Belgium, namely the Oosterweel project in the city of Antwerp.
Public law proceedings during COVID-19: will procedural deadlines be suspended?
15 April 2020
On 20 March 2020, the Flemish Government issued the Decree on special measures in the event of a civil public health emergency. This newsflash discusses the two main pillars of this “Emergency Decree” and its possible and practical impact on public law proceedings during the COVID-19 outbreak.
New regulatory framework for real estate transactions in Flemish region
6 August 2019
Since January 2019, a new regulatory framework has been in place for real estate transactions carried out by Flemish and local administrations.
The Decree of 30 November 2018 aims to create a separate legal framework for real estate transactions carried out by the Flemish community and the Flemish region. The decree imposes additional formal obligations for the Flemish Government when transferring immovable property or rights in rem. The threshold for parliamentary approval when transferring immovable property has also increased.
As regards the local authorities, new articles were implemented in the applicable legislation as there was previously a lack of regulatory framework.
Flemish parliament adopts new framework decree on administrative enforcement
18 March 2019
On 13 March 2019, the Flemish parliament adopted a new framework decree on administrative enforcement regarding violations of Flemish regulations.
The new Flemish framework decree serves as an additional general legal framework for sectoral regulations. Dealing with supervision, investigation, prosecution and fines, it also aims for legal protection of citizens.
The federal law on municipal administrative sanctions of 24 June 2013 remains the general framework regulation for administrative sanctioning at local level.
A Clean Planet for All: the EU Commission calls for a climate neutral Europe by 2050
4 December 2018
On 28 November 2018, the European Commission launched A Clean Planet for all, a European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy by 2050.
The purpose of this long-term strategy is not to set targets, but to create a vision and sense of direction, plan for it, and inspire as well as enable stakeholders, researchers, entrepreneurs and citizens alike to develop new and innovative industries, businesses and associated jobs.