Since end March 2020, several municipalities have requisitioned hotels in order to house the homeless for the duration of the lockdown. Considering the urgency and the need to contain the pandemic, additional properties could be requisitioned not only for the homeless but also to shelter people that still need to be in quarantine after leaving the hospital.
WHAT IS A REQUISITION ?
Although there is no legal definition, it is generally accepted that a requisition is the exceptional right of the state to temporarily claim and impose certain services, to request people to perform certain services and to attribute itself certain assets. It cannot be regarded as a normal means of administration, since there must always be exceptional and extremely serious circumstances justifying the requisition. The exceptional and extremely serious circumstances at hand must make it difficult or nearly impossible for the administration to achieve its end by any other means.
The Constitution does not provide any specific protection regime regarding requisitions, as it does for expropriations, however a compensation will be often be provided. Furthermore, the requisition needs to be founded on a legal basis.
WHAT ARE THE GROUNDS FOR THE REQUISITIONS OF IMMOVEABLE ASSETS SUCH AS HOTELS ? IS THERE A COMPENSATION ?
Articles 11 and 181 of the Civil Security Law of the 15th of May 2007 authorizes the Minister or his delegates, as well as the Mayor and Zone Commander (and/or his delegate officials while intervening) to requisition any natural person and legal entity and moveable/ immoveable assets alike for interventions ensuring all missions of the civil security operational services such as, notably, urgent medical assistance, rescue and assistance to persons in endangered conditions. The refusal or the fact of neglecting to comply with requisition measures is punished by civil penalties or imprisonment sentences (Article 185 of the Civil Security Law of the 15th of May 2007 and Article 422 of the Criminal Code).
The Royal Decree of the 25th April 2014 further implements the execution modalities for the requisitions based on Article 181 of the Civil Security Law and provides a clear framework as to the notification of a requisition order and the compensation to be paid. The compensation may be jointly agreed by the persons concerned by the requisitions and the government. In the absence of such agreement, the requesting authority shall determine the compensation’s amount and shall notify it to the persons concerned (a specific process applies in case this amount is disputed).
Furthermore, for the missions which are not covered by Article 11 of the Civil Security Law of the 15th of May 2007, the Municipality, in concreto the Mayor, has the power to accommodate a requisition on the legal basis of Articles 133, al.2 and 135,§2,5° of the New Municipalities Law.
These provisions allow the Mayor to issue Police Decrees in the unforeseen events of riots, malicious gatherings, serious disturbances of public peace or any other unforeseen events, where the slightest delay could endanger or harm residents. Within this legal basis the Mayor can execute requisitions on both people as moveable/immoveable assets.
WHAT ARE THE SPECIFIC MEASURES ALDREADY ADOPTED REGARDING PRODUCTS’ REQUISITIONS ?
The Ministerial Decree of the 23rd of March 2020 (hereafter the “MD”) on special measures in the context of the SARS-CoV-2 pandemic, on the basis of Book XVIII of the Economic Law Code, stipulates that :
- The officials appointed by the competent Minister may requisition certain medical equipment;
- The requisition order will be signed by the Director-General of the General Directorate of Economic Inspection;
- In case of requisition, a compensation will be paid for covering the cost price of the product.
The requisition order may concern the following products: surgical and other masks, screening equipment, disinfection wipes for medical use, respirators and associated devices and accessories, sheaths for single-use blood pressure measurement, self-adhesive ECG electrodes, devices used for Broncho alveolar lavage, inhalation chambers, masks bronchoscopes for single use, hydro-alcoholic gels, protective gels, protective goggles and masks, long sleeve gloves, hand alcohol and hydrogen peroxide 12 % and nebulizers.
In the current MD, the Minister refers explicitly to Article XVIII.2. of the Economic Law Code as a legal basis for the measure. This Article enables the Minister to requisition products in the event that unforeseen circumstances of occurrences threaten entirely or partly the good functioning of the economy, and allows these products to be made available to the state, public services or private persons and institutions. The requisition order may be extended to the equipment required for the production, processing, transport, storage of the product or its sale.
The MD gives no explanation on how to assess the product’s cost price. Is the cost price evaluated in the light of the sale’s price of the assets for the company? Is the loss of revenue to be taken into account ?
In the following days, there is a possibility that another MD will be issued that may derogate from the above-mentioned legal frameworks for requisitions. In order to ensure a quick response to the current Corona crisis, the Parliament voted on two different laws granting the federal government powers that normally are granted to the Parliament.