What does Book 6 of the new Civil Code mean for the worker’s liability?

On 1 February 2024, the Federal parliament approved a new act relating to Book 6 "Extra-contractual liability" of the Civil Code. This reform significantly altered the rules governing the liability of auxiliaries (incl. workers). It will enter into force on 1 January 2025.

The reform has important implications regarding the former quasi-immunity of the “executing agent”, including workers.

This affects the contractual situation where there are three parties:

• the principal creditor (A);
• a prime contractor (principal debtor) (B); and
• a subcontractor or an executing agent (C).

Hence, there is a contractual link between the principal creditor (A) and the principal debtor (B) and between the principal debtor (B) and the subcontractor (C). There is no contractual link between the principal creditor (A) and the executing agent (C).

If we apply this to an employment situation: e.g. a client of the employer is (A), the employer is (B) and the employee (worker) of the employer is (C).

Before the reform, the principal creditor/client (A) could not sue the executing agent/worker (C) in cases of non-performance or improper performance of the executing agent/worker’s obligations (C) outlined in the contract between the principal debtor/employer (B) and the executing agent/worker (C).

An executing agent may only be held liable in extra-contractual terms under two conditions: (i) the fault must represent a violation of the general duty of care applicable to all, distinct from any contractual obligations, and (ii) this fault must have resulted in damages beyond those arising from the inadequate performance of the contract (Cass., 7 December 1973, n° F-19731207-2). In this case (A) could take a contractual action against  (B) and an extra-contractual action against (C). This system was called the quasi-immunity of executing agents (C).

On 1 February 2024, the Act concerning Book 6 “Extra-contractual Liability” of the Civil Code was adopted, thereby reforming this existing system. Under this new system, (A) will be able to sue the (B) on a contractual basis and (C) on an extra-contractual basis, regardless of whether the damage arises from improper performance of the contract between (B) and (C). However, Article 6.3, §2 of the new Civil Code allows (C) to use the same defense mechanisms against (A) which are available to (B).

Since a worker can be considered as an auxiliary or executing agent (C) in relation to their employer (B), this implies that we need to study the impact of this reform on her/his liability. It is clear that the worker loses the quasi-immunity as an executing agent, but this does not mean that her/his liability is no longer limited: We must take into account:

• Article 18 of the Employment Contracts Act: in general, a worker’s contractual and extra-contractual obligations are regulated by the (old and new) Civil Code. However, Article 18 of the Employment Contracts Act diverges from the (old and new) Civil Code’s regulations by reducing the worker’s liability not only towards the employer but also towards third parties. This article is not changed by the new Civil Code. According to Article 18, workers are solely liable for cases involving fraud, gross negligence, or habitual minor negligence. Article 18 is a mandatory provision, which in principle cannot be derogated from. Article 18, §3 nevertheless provides for the possibility of derogation by a collective bargaining agreement enforced by Royal Decree and only for the liability vis-à-vis employers (so not against third parties). In practice, this derogation is rare.

• Liability exclusion clauses (art. 5.89, new Civil Code): the liability of the worker (C) may be limited by a liability exclusion clause inserted in the main contract between A and B. Such a clause allows the debtor to be exonerated from gross negligence on his part or on the part of a person for whom he is responsible (the worker). However, are excluded from exoneration: the intentional fault on the part of the employer or worker, a fault - even if unintentional - when it affects the life or physical integrity of another person, and a clause that removes the contract of its principal content and obligations. The worker (C) may invoke this exclusion clause against the principal creditor (A).

Therefore, the liability of the worker is still protected by Article 18 of the Employment Contracts Act (not liable except for fraud, gross negligence and habitual minor negligence), but the Employer can even go further than this and contractually provide that the worker is not liable for gross or minor habitual negligence, unless if these faults were intentional, if the faults did not harm the physical integrity of a third party or if this exoneration does not clear the contract between A and B from its principal content or obligations.   

In practice, the employer will not necessarily be inclined to reduce the worker's liability in the employment contract but it could provide for an exoneration of his gross negligence of a gross negligence from his worker in the contract with (A), which the employee could invoke in the event of action against him by (A). In light of the extra-contractual liability of the employer (B), for damage caused to third parties by his worker (C) (art. 6.14 of the new Civil Code), it is mainly in the relationship between (A) and the employer (B) that the exoneration of the worker's gross negligence (C) will be of interest.

Book 6 will be published in the Official Gazette in June 2024 and enter into force on 1 January 2025.