Abolition of the Establishment Legislation: How Are Architects Affected?
On 1 January 2019 contractors in Flanders were no longer required to have a certificate of establishment to practise the profession of contractor. This decision was passed by the Government of Flanders on 19 October 2018 further to the European Directive of 7 September 2005. The establishment legislation remains in force in the Walloon and Brussels-Capital Regions.
The RD of 29 January 2007
The Royal Decree of 29 January 2007 concerning professional competence in the practice of self-employed professions in construction, electrical engineering and general contracting, divides the regulated construction activities into nine categories.
In other words, the decree sets out the professional competencies that enterprises must have at their disposal if they wish to practise regulated construction activities.
Under the RD a contractor that wishes to practise one of these activities on the account of a third party must have the specific competency and be able to prove it.
Professional competency essentially involves a basic knowledge of business management and, in the case of contractors, specific technical and administrative knowledge.
This concerns a much-publicised case involving access to the profession of contractor, in which the court voided a works contract between a client and a contractor who was unable to produce a certificate of establishment for the works awarded to him, as this was not in the public interest. This was also recently affirmed by a Supreme Court decision of 27 September 2018 (no. C.17.0669.F).
The architect is required, under his duty to assist and advise, to help his client choose a contractor and to make this requirement known. This was one of the points stressed in the Supreme Court decision of 6 January 2012.
We (Protect) would like to stress that access to the profession of contractor is not synonymous registration or accreditation. The regulations governing contractor registration were abolished in 2012 and accreditation only applies to contractors in the public sector.
The Decree of 19 October 2018
The Decree of 19 October 2018 (BOJ 23 November 2018) abolished the Royal Decree of the Flemish Government of 29 January 2007 concerning professional competence in the practice of self-employed professions in construction, electrical engineering and general contracting.
This was prompted by the European Professional Qualifications Directive, which is founded on the free circulation of services and only permits conditions of establishment, such as professional qualifications, if they are in the general interest.
The Flemish government took the view that this discriminated against Flemish contractors because, unlike contractors from other EU countries, they needed these professional qualifications to practise as contractors.
Professions in the construction industry are still regulated in the Walloon and Brussels-Capital Regions for the time being, so that between regions the professions are governed by different regulations.
Whether the regional abolition of professional competency is a good thing in practice is a matter for discussion, but we thought it worth a mention in any case.
Although very recently (27 September 2018) the Supreme Court ruled that professional competency for contractors is a matter of public interest, it has ceased to apply in Flanders.
How are architects affected?
Needless to say, the architect's duty to assist the client when selecting a contractor continues to apply in Flanders.
This is because it is not confined to a mere check for the contractor's certificate of establishment. It also involves telling whether the contractor has a good reputation in the industry (if known) and gathering facts, on the basis of freely available information, on his technical proficiency or solvency.
The appraisal and comparison of tenders is also clearly a vital aspect of the assistance given in the selection of a contractor.