At the end of April, an interesting article was published in “De Juristenkrant” (a Flemish gazette addressed to legal professionals) by a group of legal researchers from KU Leuven. According to the authors, actively tracing and returning second-residents who already reside on the coast does not pass the test of legality and proportionality.
According to Article 7 of the Ministerial Decree of 18 March 2020, non-essential travel in Belgium was prohibited. Furthermore, Article 8(1) stipulated that persons had to stay at home and it was forbidden to be on public roads and in public places, except in case of necessity and for urgent reasons. In the absence of any transfer or movement, the authorities could not invoke Article 7 to track down second-inhabitants and expel them from their property. Moreover, by returning to the first place of residence, a person who has been sent back finds himself on the public highway without any necessary and urgent reasons and provokes a non-essential displacement. This is therefore in breach of Articles 7 and 8.
A second uncertainty concerns the interpretation of Article 8, which stipulated that persons had to stay at home. However, the term ‘home’ was not defined. In the absence of a definition in the Ministerial Decree, a second residence can also qualify as a ‘home’, at least in the broad sense of the word. The researchers also note that prior to the proclamation of the prohibition, citizens should have been given the choice of where they would prefer to stay, just as students were given the opportunity to do so. In any case, according to the lawyers, the rigorous way in which the measure was enforced could be questioned. In some municipalities, for example, large-scale police checks were set in motion, ‘home visits’ were carried out and drones with thermal cameras were deployed. According to the authors, the proportionality of this measure – which postulates second residents as if it were hunted game – is hard to find on all fronts.