About the concept of force majeure in Belgium, please read the Belgian section of the CMS Expert Guide to Force Majeure.
Since construction activities are not formally prohibited, subject to the compliance with the social distancing obligations, force majeure does not automatically affect the construction industry, but may indirectly affect it.
For instance, based upon the principles described under question 1, workers based abroad could not be allowed to cross the borders and reach the construction site. Deliveries of construction materials could also be affected by the general measures, for instance if the manufacturers/suppliers cannot implement social distancing within their organisation.
Consequently, through the “snowball effect”, general contractors could potentially suspend their works by reason of force majeure, for instance if they are short of workers or building materials. But this requires a case-by-case analysis, based upon the factual situation and proven evidence.
Regarding the time consequences, as a matter of principle, if a general contractor can establish force majeure, its contract will be suspended as long as the event of force majeure is continuing; it will not be considered in breach of its contractual obligations and no delay penalties will be due.
Regarding the price consequences, as a matter of principle, if a general contractor can duly invoke force majeure to suspend the contract, he cannot claim additional fees. Under Belgian law, the debtor of an obligation suspended by reason of force majeure bears all the consequences of the event of force majeure.
However, as a matter of practice, since parties are free to regulate force majeure clauses (or to insert MAC/hardship clauses), construction agreements usually provide for specific provisions governing, for instance, the ability to invoke force majeure (or hardship), the period within which the event of force majeure must be notified, the effects of the force majeure on the contract, etc.
It must also be stressed that for construction agreements subject to public procurement rules, the latter includes a “revision clause” for unpredictable circumstances beyond the control of the tenderer. The tenderer may invoke the application of this “revision clause” only if he demonstrates that the review became necessary as a result of circumstances which he could not reasonably foresee at the time of the submission of his tender, which he could not avoid and the consequences of which he could not avoid, although he had taken all the necessary steps.