Introduction

During the last decades, the role of human rights in the European legal system has expanded. This is especially true for the principle of equality and non-discrimination in Belgium. Not only has this principle led to the rise of non-discrimination law, it has also been used by the Constitutional Court – by using a very broad interpretation of the principle of equality – as an instrument to broaden its competences. Consequently, all legal branches are affected by this ‘constitutionalisation’-process. This is also the case for the Belgian law of obligations.

In 1981, this evolution was only in its infancy. The first anti-discrimination law had been adopted that year, but it did not yet have the broad scope of application that it would receive later on. It was only gradually that anti-discrimination law became relevant for the law of obligations. Similarly, the Constitutional Court has been established in 1984 but only started to have influence on the law of obligations in 1995 when it found some prescription rules in the field of tort law to be in violation with the constitutional principle of equality. Some scholars at that time were surprised by this ‘sudden’ influence of the principle of equality on the law of obligations. Nevertheless, it has become more and more common that the compatibility of rules of the law of obligations with the principle of equality is tested before the Constitutional Court.

In this contribution we will discuss the increasing influence of the principle of equality and non-discrimination in the Belgian law of obligations7 since the adoption of the first anti-discrimination law in 1981 and the establishment of the Constitutional Court in 1984. In order to do so, we will make a distinction based on the different addressees to whom the principle of equality is aimed: government and citizens. Indeed, the principle of equality is aimed at citizens who make contracts in the sense that it forbids them to discriminate one another. The government, on the other hand, has to take the principle of equality into account when it makes laws or delivers judgments with regard to the law of obligations. Rules cannot be drafted in such a way so that they treat different tort victims or contracting parties in a similar situation in a discriminatory way.