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Is the limitation on the number of spectators at events unlawful?

16/10/2020
Is the limitation on the number of spectators at events unlawful?
Photo: MelindaNagy/shutterstock.com

Sabam[1] and Playright[2], the Belgian CMO’s for music composers respectively artists, have launched suspension and annulment proceedings before the Council of State (Raad van State – Conseil d’Etat) against the rules to organise ‘corona-proof’ events. They are arguing that these measures are discriminatory vis-à-vis the other regulated sectors[3]. For instance, the number of maximum customers in shops is determined by the available square meters, whereas the maximum number of spectators for events remains the same, whatever the venue. At first sight, this restriction seems unfair, but does this make the limitation on the number of spectators really unlawful?

 

At present, an audience of a maximum of 200 persons may attend events and shows such as music concerts, theatre plays or film screenings. If these events take place outdoors, then a maximum of 400 people may attend. This general rule, set out in Article 11, §4 of the Ministerial Decree of 30 June 2020, is the same for all events. These rules are supplemented by the protocols developed by the Flemish government and the Fédération Wallonie-Bruxelles. Mayors can also grant specific derogations for events to receive a greater number of people in the seated audience, in agreement with the competent minister, after consultation with a virologist and in compliance with the applicable protocol.

To successfully argue that there is a violation of the principle of equality, and thus discrimination, one needs to prove that (i) two comparable categories (ii) are treated differently (iii) without a reasonable and objective justification. The main question to be judged by the Council of State is whether cultural events are really comparable with other regulated sectors that need to take ‘corona-proofing measures’ such as education, retail and restaurants. In principle, different situations ask for different measures. In the end, the challenged decrees should also be assessed while keeping the alleged lawful purpose of the limitation on the number of spectators in mind, i.e. limiting the spread of the coronavirus, and the possibilities to organise ‘corona-proof’ events, whilst keeping enough distance between the spectators. In this regard, one could argue that the number of square meters of a venue could be also taken into account.

Since the proceedings launched by Sabam and Playright only concern ‘ordinary’ suspension and annulment proceedings, we should expect a judgment on the suspension request and the prima facie lawfulness of the measures in the coming months. As a side note, the ‘ordinary’ suspension and annulment procedure gives the Council of State some more time to examine the contested measures, as opposed to prior proceedings relating to cultural and leisure events were the Council of State needed to take a decision by ‘extreme urgency’. In addition, one must keep in mind that as the coronavirus has shown, a lot can happen in a couple of months, and the public health situation could change drastically, which could also influence the final outcome of the proceedings. In any case, we hope that the Council of State will consider the alleged inequality of treatment between the event sector and other sectors in depth. Above all, we sincerely hope that the health crisis can be controlled somewhere in the near future so that we can all start enjoying the marvels of culture again without or with as less restrictions as possible.

 

[1] The notification of the Council of State proceedings by SABAM was published in the Belgian State Gazette of 5 October 2020.

[2] The notification of the Council of State proceedings by Playright and others was published in the Belgian State Gazette of 23 September 2020.

[3] “La Sabam attaque la règle des 400 personnes au Conseil d'État”, l’Echo 6 October 2020.

Contact

Vera Van Thuyne

Associate

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