Vangnet of springplank? Een enkele opmerking over de spankracht van het buiten-contractuele aansprakelijkheidsrecht anno 2013

Where do things stand in the Belgian and Dutch law of delict in the year 2013? It is a system with a full agenda. It is a multifunctional system that, in addition to its compensatory function, has to fulfil tasks in the field of prevention and influencing behaviour. Nevertheless, this multifunctional aspect also makes tort law vulnerable and susceptible to criticism: as to the diverse tasks, tort law experiences competition from other systems that are better equipped to fulfil the specific function. Sometimes, accentuation and improvement of the law of delict is possible and in so doing increased efficiency can be realised within the tort system. The end justifies the means: in a number of situations expansion of the existing array of sanctions is possible and desirable. One could in this regard think of sanctioning violations of the obligation to provide information by doctors as well as pressurising tabloids. Even specific use of punitive damages in case of a law enforcement deficiency is worth considering. The law of delict tends to expand further and further. At the same time, there are limits to this growth: certainly relevant is the emphasis to a larger extent on one aspect, which could be either compensation or influencing behaviour, it is more obvious to seek benefit in other systems that are geared toward the specific task. For example, compensation is guaranteed by private insurance and social security, which are therefore more efficient compensation mechanisms than the law of delict, and it is more feasible to influence behaviour via other legal mechanisms. The legislature has indeed made specific arrangements in certain important areas: industrial accidents and traffic accidents form the most important examples. In these legal fields we see remarkable differences between Belgium and the Netherlands. While specific regulations for compensation have been introduced in Belgium, the Dutch legislature has not done much in the field of the law of delict since the introduction of the new civil code in 1992. In the Netherlands, it is not the legislature but the supreme court that manages the development of law, although the court occasionally makes clear that it has reached the limits of what it can do in this respect. The latter can for instance be observed in the field of industrial accidents. The difficulty of specific legislative initiatives in particular fields of the law of delict is that the question whether a special treatment is justified keeps arising. What justifies preferential treatment of one particular category of victims? The Dutch legislature seems to have more problems with this question than its Belgian counterpart. A dossier that has recently been taken up forms a striking illustration of the aforegoing. While a no-fault system has been introduced in Belgium to complement the law of delict, the focus in the Netherlands is on improvement of the functioning of the law of delict.