I OVERVIEW

In Belgium, insurance and insurance law has become a hot topic in the media. Increasingly, policyholders are dissatisfied with the cost of premiums, refusals by insurers to provide coverage, claims settlements, and alleged violations of legal obligations such as information requirements.

The legislature is continuously working on legal solutions and trying to adapt existing legislation to fit contemporary practices and complaints. For example, life insurers will have to respect certain deadlines in the future when paying out life capital, a tax reduction has been granted for legal expenses insurance, the notice periods for policyholders for the cancellation of an insurance contract can now be shortened, a right to be forgotten has been granted to policyholders when they have been cured of cancer for at least 10 years, and mandatory insurance for fire and water damage has been introduced for tenants and landlords. Moreover, the Insurance Distribution Directive (IDD)2 has been implemented into Belgian law and the Belgian legislature has proactively taken measures in case of a Brexit without an agreement with the EU. It is not only legislation that is evolving, but also case law. For example, the Supreme Court has interpreted the forfeiture-of-coverage clause, the burden of proof regarding the right to redress, and the limitation periods for a direct claim by an injured party and the injured party’s insurer against the liable person and the liable person’s insurer. Furthermore, the Belgian Constitutional Court has asked a preliminary question to the European Court of Justice regarding the insured’s free choice of advisers in legal expenses insurance contracts.

In this chapter, I discuss in detail the legal framework of Belgian insurance disputes, interesting recent case law, international insurance disputes and emerging trends in insurance claims.

II THE LEGAL FRAMEWORK

i Sources of insurance law and regulation

For Belgian law practitioners, the first point of reference regarding insurance law is the Act of 4 April 2014 concerning insurance (the Insurance Act), which contains, among others, provisions on the insurance contract, the obligations of the parties, limitation periods, insurance mediation and distribution, and supervision of insurance companies.

Apart from the rather long Insurance Act, Belgium has a number of relevant specific acts (e.g., for motor vehicle insurance, damage caused by terrorism, and the status and supervision of insurance companies) and countless royal decrees (e.g., for life insurance and fire insurance for simple risks).

Although the law changes constantly, the following key developments from the past 12 to 18 months are worth mentioning:

  1. First and foremost, the IDD has been implemented into Belgian law by five measures. Of these, the most noteworthy for this chapter are the Act of 6 December 2018 and the Royal Decree of 18 June 2019. Even though it intended to implement the IDD as literally as possible, Belgium did introduce certain differences. For example, the monetary limitation for the exemption for ancillary intermediaries from the strict requirements for distribution activities introduced by the IDD has been set at premiums of €200 per year.3 Furthermore, some provisions regarding insurance-based investment products are applicable to all insurance products. Some information requirements are not applicable to professional clients. Moreover, Belgian law still makes a distinction between brokers, agents and tied agents, and introduces some additional conditions for intermediaries. Finally, some provisions introduced by the Act of 6 December 2018 are not based on the IDD, such as those concerning data storage and liability for tied agents. The Royal Decree of 18 June 2019 concerns the registration of intermediaries, the number of persons responsible for distribution, professional liability insurance, the professional and organisational requirements for intermediaries, and the definition of a professional client.
  2. Second, the Act of 9 May 2019 concerning Mandatory Civil Professional Liability Insurance in the Construction Industry introduces mandatory insurance for architects, expert land surveyors, health and safety coordinators and other service providers in the construction sector. The coverage cannot be less than €1.5 million for damage resulting from bodily injuries, €500,000 for material and non-material damage and €10,000 for objects that were entrusted to the insured by the constructor.
  3. Third, the Act of 2 May 2019 concerning Diverse Provisions regarding Economics adds new provisions to the Insurance Act4 regarding the pay-out period of life insurance contracts. In accordance with this Act, the insurer has to respect certain deadlines. For example, if it receives a request to pay out on a life insurance policy, the insurer has to state within two weeks which documents and information it requires. Any necessary additional documents or information must then be requested by the insurer within one month of receiving the original documents and information. After receiving all necessary documents and information, it has to pay out the life insurance within one month. There are, of course, exceptions, but these are too extensive to treat exhaustively in this chapter. If the insurer does not respect these deadlines, it has to pay interest, counted from the expiration of the deadline at issue, until the relevant requirement has been complied with. Furthermore, the documents and information requested by the insurer have to be reasonable and relevant for the payment of the life insurance. These provisions will take effect on 22 May 2020.
  4. Fourth, the Act of 22 April 2019 on Making Legal Expenses Insurance More Accessible introduces a tax reduction of 40 per cent for legal expenses insurance that complies with certain requirements. The coverage is limited for different kinds of disputes, namely €13,000 for civil disputes, €13,500 for criminal proceedings, €3,375 for divorces and €6,750 for construction and labour disputes. A royal decree will identify the maximum amount of lawyers’ fees that will be covered by these insurance contracts.
  5. Fifth, the Act of 22 April 2019 amending the Act of 4 April 2014 concerning Insurance, to Adapt the Requirement regarding the Cancellation of Insurance Contracts to Better Protect Consumers amends Article 85 Section 1 of the Insurance Act. Normally, the parties to an insurance contract have to cancel the contract three months before the expiry date. If they do not, the contract is tacitly renewed for one year. By royal decree, for certain types of insurance contracts, the king can introduce shorter notice periods for policyholders when they do not want the insurance contract to be tacitly renewed. This royal decree has yet to be published.
  6. Sixth, the Act of 4 April 2019 amending the Act of 4 April 2014 concerning Insurance Introducing a Right to Be Forgotten for Certain Types of Personal Insurance forbids an insurer assessing the current health of a potential policyholder to take into account cancer when the prospective client has been cured for 10 years. The insurer cannot exclude cancer, nor refuse to provide insurance nor charge an additional premium because of the previous illness. This Act will take effect on 1 February 2020. In the future, a royal decree will define certain types of cancer for which the 10-year period will be shortened, as well as other chronic diseases to which this Act will apply.
  7. Seventh, the Act of 3 April 2019 concerning the Withdrawal of the United Kingdom from the EU, or the Brexit Act, among other things, prepares the insurance sector for a Brexit without an agreement with the EU. For this reason, a new type of insurance intermediary has been introduced into Belgian law, namely underwriting agents. Moreover, measures will be taken to secure the execution of existing insurance contracts concluded by insurers who lose their European passport as a result of such a Brexit.
  8. Eighth, the Flemish Decree of 9 November 2018 concerning the Rent of Goods or Parts of Goods Intended for Habitation, in its Article 29, introduced mandatory insurance for fire and water damage for tenants and landlords.5

ii Insurable risk

In theory, almost every risk is insurable. However, a few exceptions exist.

First and foremost, fines and settlements in criminal matters are not insurable.6 Nevertheless, the person who is legally liable for the perpetrator can conclude an insurance contract covering such fines and settlements unless the insurance relates to road traffic or road transport.

Second, no insurer can be obliged to provide coverage for intentional damage.7 After all, when damage is induced intentionally, the parties to the insurance contract have not been confronted with any risk, which is one of the key components of insurance.

Third, some legal statutes or codes provide for general exclusions, such as Article 127 of the Insurance Act, which excludes harvest that has not been gathered, cattle living outside a building, soil, crops and forest plantations from natural disaster insurance coverage. However, the insurance contract can deviate from this provision.

Fourth, some insurers might refuse to insure a certain risk because, following a cost–benefit analysis, it proves to be too costly or too risky for the insurer. For example, a health insurer for pets always refuses to cover hereditary diseases. Generally, no insurer covers damage caused by war or similar circumstances.8 The same applies to the life insurer who, in principle, does not cover suicide or death immediately and directly caused by a crime intentionally committed by the insured as perpetrator or co-perpetrator, if the consequences were foreseeable.9

Another distinction can be made between compulsory insurance and non-compulsory insurance. Belgium has introduced compulsory insurance for no fewer than 33 categories of risks. These categories are:

  1. occupational accidents;
  2. architects, expert land surveyors, health and safety coordinators, contractors and other service providers in the construction sector in real estate;
  3. tenants and landlords (fire and water insurance);
  4. investments;
  5. mediation;
  6. payment institutions and collective investment undertakings;
  7. surveillance companies, internal surveillance services and security companies;
  8. accounting and tax professions, insolvency practitioners and temporary administrators;
  9. civil security;
  10. audit agency;
  11. service providers;
  12. animals;
  13. healthcare;
  14. hunting;
  15. fairground activities;
  16. nuclear installations;
  17. surveyor experts;
  18. environment;
  19. local public institutions;
  20. notaries;
  21. education, training and childminders;
  22. public procurement;
  23. publicly accessible institutions;
  24. care homes;
  25. social developments;
  26. sports;
  27. mine waste;
  28. trustees of real estate;
  29. tourism;
  30. employment;
  31. transport;
  32. volunteers; and
  33. health.

iii Fora and dispute resolution mechanisms

Insurance disputes are dealt with at various levels. Frequently, the general conditions of the insurance company advise the policyholder to file a complaint with the internal ombudsman service. If this step is unsuccessful, the policyholder often contacts the Insurance Ombudsman, established by the Federal Public Service Economy.10 The Insurance Ombudsman tries to settle the dispute and to obtain a favourable solution for every party.

Increasingly, parties try to resolve their disputes amicably, not only through the Insurance Ombudsman, but also through binding third-party decisions11 and mediation.12

A policyholder or the insurance company can also subpoena the other party before regular courts. Which court depends on the amount of the claim, the nature of the claim and the capacity of the parties. If the amount of the claim does not exceed €5,000, the claim can be brought before a justice of the peace.13

Generally, claims have to be brought before courts that hold special or exclusive competence. For example, claims for damages resulting from a traffic accident have to be brought before a police court, unless the dispute has a purely civil nature.14 The labour courts are competent for occupational accidents and group insurance (supplementary pensions).15 If an insurer files a subrogation claim against a tenant, the claim has to be brought before a justice of the peace. In most cases, however, the parties refer insurance disputes to the court of first instance.

If the parties are both enterprises or if the defendant is an enterprise, the claim has to be brought before a commercial court.

The Belgian legislature is not very fond of arbitration in the insurance sector. According to Article 90 Section 1 of the Insurance Act, insurance contracts cannot include an arbitration clause. However, the Royal Decree of 24 December 1992 makes an exception for certain types of insurance.16

III RECENT CASES

i Forfeiture of coverage

Article 141 of the Insurance Act states that liability insurance aims to provide cover to the insured against all claims for damages arising from the occurrence of damage described in the contract, and to safeguard the insured’s property within the coverage limits against all debts arising from a certain liability. Article 65 of the Insurance Act provides that no full or partial forfeiture of the right to the performance of the insurance can be stipulated except for the non-performance of a certain obligation imposed by the contract where there is a causal link between the non-performance and the insured event.

A dispute arose between a civil liability insurer for business operations and the insured. The insurer covered ‘the laying of underground cables and pipelines – horizontal drilling’. The general conditions included an exclusion for damage that directly and exclusively arose from the choice of the modalities of the execution of the work or a lack of elementary precautions. The special conditions stated (under a special ‘cables and pipelines’ clause, clause E00012) that ‘compensation for damage to underground cables and pipelines is only guaranteed if the policyholder requested, before the beginning of the work, the plans of the aforementioned cables and pipelines within the periods prescribed by the laws and regulations and if he consulted them on the construction site and carried out the necessary surveys if he had the slightest doubt about their location’.

The Court of Appeal had ruled that clause E00012 was null as this clause rendered the insurance cover devoid of purpose.

The Supreme Court did not agree. According to the Supreme Court, Articles 141 and 65 of the Insurance Act, as quoted above, imply that a provision regarding the forfeiture of the coverage is null when it eliminates any coverage of the risk described in the insurance contract.17 This annulment has to be interpreted strictly. Only when a forfeiture of coverage eliminates any coverage can the clause be annulled. If a court does not examine whether any coverage remains standing, it cannot annul the forfeiture clause.

ii Burden of proof: right to redress

According to Article 152 Section 2 of the Insurance Act, the liability insurer has the obligation to notify the policyholder or, if applicable, the insured who is not the policyholder, that it wants to exercise its right to redress. The liability insurer has to do this the moment it learns of the fact on which it bases that decision. If the insurer does not comply with this obligation, it loses its right to redress. Article 870 of the Judicial Code stipulates that the person who states something has to prove it. Furthermore, Article 1315 Section 2 of the Civil Code obliges the person who claims to be liberated to prove that his commitment has been extinguished.18

An insurer had notified its insured by registered letter. However, this letter was sent to the wrong address. The insurer tried to argue that it had complied with its notification requirement since the registered letter was not returned to it. According to the insurer, if a letter is not returned to the sender, it has reached its destination.

The Court of Appeal had agreed with this argument. However, when the Supreme Court had to assess the situation, it ruled that the insurer had the burden of proof regarding its notification requirement.19 By agreeing with the aforementioned argument, the Court of Appeal had reversed the burden of proof.

Following this judgment, insurers have to make sure they have the correct address for insureds when they want to notify them of the insurers’ intention to exercise the right to redress.

iii Limitation period: direct claim against insurer

In Belgium, the injured person can file a claim against the liability insurer of the liable person directly, in what is called the injured party’s ‘own right’.20 That right can also be exercised by the insurer of the injured person if that insurer has provided coverage to the injured person; because of this, the insurer is subrogated in the rights of the injured person against the liable person and can file a direct claim against the insurer as well.

There are specific limitation periods for the direct action against the insurer of the liable person. According to Article 88 Section 2 of the Insurance Act, the claim resulting from the injured party’s own right against the insurer is time-barred by five years, counting from the damage-causing event or, in the case of a crime, from the day the crime was committed. However, if the injured person proves that he or she has only learned of his or her right against the insurer at a later date, the limitation period will only start from that time, but it will in any case expire after 10 years from the damage-causing event or from the day the crime was committed. This means that the limitation period does not start until the moment that the injured party knows who the insurer of the liable person is.

The facts that led to the judgment of the Supreme Court of 14 March 201921 were as follows. An explosion had caused damage to the buildings owned by the insureds of Generali and AXA on 31 January 2005. The explosion originated from the building owned by the AXA insured (i.e., the liable person).

On 28 February 2005, Generali (the injured party’s insurer) became aware of the identity of the liable person. On 12 September 2005, Generali paid damages to its insured, the injured party, whereby Generali became subrogated in the insured’s rights. On 6 September 2010, Generali subpoenaed AXA, the liable person’s fire insurer, which also covered fire damage to third parties. Generali’s insured, namely the injured party, took advantage of this subpoena and filed a claim against AXA and its insured on 18 March and 3 May 2011.

The court of appeal ruled that Generali’s claim was time-barred. However, the claim of its insured was not time-barred.

According to the court of appeal, Generali, when it became aware of the identity of the liable person, should also have known the identity of his insurer. Generali should at least have asked the liable person who his insurer was. Therefore, the limitation period for Generali started on 28 February 2005. On the other hand, the injured party himself became aware of the identity of the insurer, AXA, on 15 June 2010. Unlike Generali, the injured party could not have been expected to know the identity of the insurer of the liable person. Furthermore, the injured party did not have the same investigative obligation as Generali. Therefore, the limitation period for that injured party started on 15 June 2010.

The Supreme Court did not agree with this argument. The Supreme Court found that the court of appeal judgment – which held that the limitation period for Generali started before the limitation period for Generali’s insured (the injured party) and before Generali was subrogated in the insured’s rights – did not legally justify the decision to declare the claim of Generali against AXA time-barred. In other words, if the limitation period for Generali’s insured had not started, the limitation period for Generali, which was subrogated in the rights of its insured, had also not started. The claim of the subrogated insurer could not be time-barred if the claim of its insured was not time-barred.

IV THE INTERNATIONAL ARENA

For matters concerning international and European areas, Belgium and other Member States often look to the European Court of Justice for guidance. For example, the Belgian Constitutional Court has asked a preliminary question to the European Court of Justice regarding free choice in respect of advisers in legal expenses insurance contracts.

The Act of 9 April 2017 amended Article 156(1) of the Insurance Act regarding the free choice of advisers in legal expenses insurance contracts. Every legal expenses insurance contract has to state that the insured has a free choice of lawyer or any other person who is qualified to defend, represent or promote the insured’s interests when judicial, administrative or arbitration proceedings have to be initiated. Moreover, the insured can freely choose any person who has the required qualifications and is appointed to do so in the event of arbitration, mediation or any other acknowledged extrajudicial form of dispute resolution. The amendment to Article 156(1) of the Insurance Act now extends that free choice of advisers to alternative forms of dispute resolution such as mediation.

This Act makes a distinction between, on the one hand, a free choice of lawyer in the event of a judicial, administrative or arbitration procedure and, on the other hand, a free choice of the person who leads the arbitration, mediation or other extrajudicial dispute resolution procedure. For example, in the case of mediation, the insured does not have a free choice of lawyer, but does have a free choice of mediator. According to the legislature, the reason for introducing this distinction was that the presence of a lawyer is not beneficial for mediation and the agreement reached through mediation is not necessarily based an legal reasoning.

The Belgian Bars asked the Constitutional Court to annul this Act.22 According to them, this Act introduced an unconstitutional difference between, on the one hand, the insured who wants to introduce an arbitration procedure and, on the other hand, the insured who wants to solve a dispute through mediation.

In Belgium, there is a distinction between extrajudicial mediation and judicial mediation. An extrajudicial mediation can be initiated by the parties before, during or after judicial proceedings. The agreement reached by the mediator and the parties can be accredited by a judge if the mediator is acknowledged. A judicial mediation occurs when the judge ruling on a dispute orders mediation at the parties’ request, or if the judge proposes mediation and the parties agree to this. The dispute remains pending and the judge can take other measures. The agreement reached by the parties through judicial mediation can be accredited by that judge. If no agreement is reached, the judicial proceedings continue. The difference between these two types of mediation and arbitration is that arbitration leads to a decision made by arbitrators.

According to the Constitutional Court, arbitration and mediation are comparable situations, meaning that no discrimination between the two may arise. The Court refers to case law of the European Court of Justice to rule that the free choice of a lawyer cannot be restricted.23 However, European law does not extend this right to extrajudicial proceedings. Therefore, the Constitutional Court decided to ask this preliminary question to the European Court of Justice: ‘Should the term “proceedings” in Article 201(1)(a) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance be interpreted as including extrajudicial and judicial mediation proceedings, as provided for in Articles 1723/1 to 1737 of the Belgian Gerechtelijk Wetboek (Judicial Code)?’24

We will have to wait and see what the opinion of the European Court of Justice is on this subject.

V TRENDS AND OUTLOOK

i Busiest areas of claims

It is very difficult to assess the busiest areas of insurance claims in Belgium. Belgium does not have an overview of all claims that were referred to the different courts. However, one can investigate all insurance disputes of the highest courts of Belgium, since their judgments are published. Here it becomes apparent that most disputes involve mandatory liability insurance for motor vehicles. Of course, this is very understandable since every person who owns or drives a motor vehicle is obliged to take out liability insurance.

The same conclusion can be made for all complaints filed with the Insurance Ombudsman.25 In 2018, 1,285 complaints involved motor vehicle insurance, 1,130 life insurance, 980 health insurance, 973 fire insurance and 580 legal expenses insurance. The remaining complaints were about various insurance contracts (transport, credit and complaints not clearly defined (510), other civil liability insurance (265), assistance insurance (194), all-risks insurance, such as for mobile phones (173), occupational accidents (86) and individual accidents (43). Compared to complaints in 2017, there has been a clear increase in complaints regarding life and health insurance, mostly because of alleged long settlement periods. There has also been an increase in complaints regarding legal expenses insurance because of allegedly insufficient communication being provided to the consumer.26

More than one in four questions (28 per cent) related to response time, especially in relation to life and health insurance.27 In this digital age, consumers expect quicker answers and are less understanding regarding waiting periods and delays. The Insurance Ombudsman recommends clear agreements concerning the communication between the various parties; for example, the policyholder, the intermediary and the insurance company. Moreover, an administrative simplification could prevent a lot of complaints.28

Insurance intermediaries are often confronted with complaints about claims management by the insurance company (27 per cent), non-compliance with deadlines (19 per cent) and the lack of information at the moment of the conclusion or adaptation of the insurance contract (18 per cent). The policyholder is often of the opinion that the insurance product does not comply with his or her needs and that he or she was not correctly informed about the conditions of the contract.29

ii Areas that are likely to evolve and become more important in the future

First, new or changed legislation always results in new disputes and case law. Two noteworthy examples are the General Data Protection Regulation (GDPR) and the IDD.

Since the entry into force of the GDPR, insurers have had to change their privacy policy.30 One of the most important changes is the protection against data breaches. Cyberattacks occur increasingly and, as a result, insurance against these is becoming more vital for businesses. One can see more and more insurers introducing these new kinds of policies. Since they are relatively new, they might become a hot topic in the near future.

Furthermore, courts are often confronted with claims concerning life insurance policies without a guaranteed return (known as Branch 23 policies). In the years before the global financial crisis, these insurance policies were promoted by and concluded with the help of insurance intermediaries who were, at the time, not extensively regulated. The clients for these policies are now starting proceedings because rather recently it became clear that all the money invested in these policies is now lost. The clients often claim in these proceedings that the insurance intermediaries or the insurer withheld information, and had the clients received that information they would have invested in another product.

Obviously, the European and Belgian legislatures have now started to regulate the activities of insurance companies and intermediaries, and clients are increasingly aware of the behaviour that the insurance companies and intermediaries have to adopt.

One of the most recent pieces of European legislation is the IDD. This instrument is not only relevant for compliance officers, but also for clients, who can now expect certain behaviour on the part of their contracting parties.

In the context of evolving areas, a general awareness of global problems, such as climate change, can result in new insurance policies. Currently, the insurance sector is reluctant to provide coverage for weather disasters because of high costs and risks; for example, in the agricultural sector, the renewable energy sector, the transport sector or the tourism sector. However, these kinds of insurance policies are becoming more essential than ever. Reliance on the Belgian Agricultural Disaster Fund might not be sufficient. Therefore, the Belgian government has promoted insurance for weather disasters since the autumn of 2017 and together with several agricultural organisations continues to negotiate in favour of affordable premiums.31 For example, the Decree of 5 April 2019 of the Flemish Region further simplifies administrative procedures, updates the reimbursement process and introduces an aid scheme for farmers who have concluded a comprehensive weather insurance contract.32

In addition, technological and scientific progress sparks new insurance policies. As mentioned above, the first cyber insurance policy was concluded in 2010.33 Vanbreda Risk & Benefits, a Belgian independent insurance broker and risk consultant, predicts that drone insurance will become common in 2020 and that the first insurance policy for robotics and automated guided vehicles will appear in 2030.34

Insurance law is an ongoing process of trial and error and a constant interaction between the legislature, the judiciary and the executive. When new legislation is published, case law will evolve. When case law evolves, legislation has to be changed. When certain insurance problems receive media attention, both case law and legislation are to an extent forced into taking a certain direction. Therefore, it is fairly possible that new topics will arise in the future and we, as law practitioners, look forward to any evolution of insurance law.


Footnotes

1 Merel van Dongen is a lawyer at Schuermans advocaten.

2 Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (recast).

3 Article 258 Section 1 Insurance Act.

4 Article 197/1 to 197/3 Insurance Act.

5 The Walloon decree of 15 March 2018 already obliged tenants and landlords to conclude fire insurance. The Flemish Region goes further by also requiring insurance for water damage.

6 Article 155 Insurance Act.

7 Articles 62 and 240 Insurance Act.

8 Article 63 Insurance Act.

9 Article 164 Insurance Act.

10 Royal Decree of 21 June 2006 modifying the handling of complaints in the insurance sector defined in the Royal Decree of 22 February 1991 containing general regulations concerning the supervision of insurance companies and of the Royal Decree of 25 March 1996 implementing the Act of 27 March 1995 relating to insurance mediation and the distribution of insurance; Articles 302 and 303 Insurance Act of 4 April 2014.

11 The parties agree that a third party will make a binding decision about their dispute. This third party is no judge or arbitrator. For example, in legal expenses insurance: Article 157 Insurance Act and Article 7-8 Royal Decree of 12 October 1990 concerning the legal expenses insurance. For example, in fire insurance: Article 121 Insurance Act.

12 Articles 1730-1737 Judicial Code.

13 Article 590 Judicial Code.

14 Article 601 bis Judicial Code.

15 Article 578, 22-24° and Article 578 bis Judicial Code.

16 The excepted types of insurance are (1) insurance contracts other than non-marine insurance; (2) fire insurance for industrial risks; (3) civil liability insurance other than motor vehicle insurance, private life insurance and fire insurance for simple risks; (4) insurance contracts that cover monetary losses for industrial risks; (5) construction all-risk insurance other than goods that meet the criteria of simple risks; (6) the risks covered in an additional or complementary manner in the agreements concluded in accordance with the Act of 3 July 1967 concerning the compensation for occupational accidents, accidents on the way to and from work and occupational diseases in the public sector and the Act of 10 April 1971 concerning occupational accidents; (7) insurance contracts the duration of which are shorter than one year; and (8) credit and bail insurance.

17 Supreme Court 19 October 2018, C.18.0082.N/3, T.Verz. 2019, 1, 76-77.

18 Note that the Belgian Civil Code of 1804 will be replaced by a new Civil Code, published in the Belgian Official Journal on 14 May 2019. This new Civil Code will take effect on 1 November 2020. The principle of the ‘old’ Article 1315 Section 2 will be formulated in Article 8.4: ‘he who claims to be liberated, has to prove the legal acts or facts that support his claim’.

19 Supreme Court 14 March 2019, C.18.0056.F/1, available on www.cass.be.

20 Article 150 Insurance Act.

21 C.18.0307.F.

22 Constitutional Court 11 October 2018, case 6752, Belgian Official Journal 26 October 2018, 81857.

23 European Court of Justice 10 September 2009, Enschig, C-199/08, 38-58, European Court of Justice 7 April 2016, Büyüktipi, C-5/15, 16-23 and European Court of Justice 7 April 2016, Massar, C-460/14, 18-25.

24 European Court of Justice, C-667/18, pending.

26 Insurance Ombudsman, Annual Report 2018, available at: http://www.ombudsman-insurance-annualreport.be/2018-ombudsman-verzekeringen-jaarverslag/. p. 6.

27 Insurance Ombudsman, Annual Report 2018, available at: http://www.ombudsman-insurance-annualreport.be/2018-ombudsman-verzekeringen-jaarverslag/. p. 8.

28 Insurance Ombudsman, Annual Report 2018, available at: http://www.ombudsman-insurance-annualreport.be/2018-ombudsman-verzekeringen-jaarverslag/. p. 13.

29 Insurance Ombudsman, Annual Report 2018, available at: http://www.ombudsman-insurance-annualreport.be/2018-ombudsman-verzekeringen-jaarverslag/. p. 17.

30 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

32 Decree of 15 April 2019 regarding the compensation of damage caused by disasters in the Flemish region, Belgian Official Journal 23 April 2019, 39955.