Coronavirus may be a new issue, but epidemics are not. Legal issues related to epidemics are of all times. Two disasters which struck in recent times were the millennium bug and the financial crisis. This contribution deals with the question how Dutch law has coped with the Corona crisis. More in particular it addresses how the 1992 Civil Code’s new provision on unforeseen circumstances has been (non) applied in practice. The contribution then turns to two international developments: the work of the International Chamber of Commerce – see also the contribution by Denis Philippe in this volume – and the work of the Common Core of European Private Law (Trento) project.

INTRODUCTION

The coronavirus has all of us in its grips. Apart from medical and ethical questions, it raises legal and economic issues. Is the train passenger entitled to repayment of the fare when travel is suspended? Is there recourse for the air passenger who has been leftstranded at a Moroccan airport? May the small retailer call in force majeure or a hardship clause when he/she can no longer pay the rent? Is the Government empowered to commandeer medicine from unwilling pharmaceutical companies?

Coronavirus may be a new issue, but epidemics are not. Legal issues related to epidemics are also of all times. It therefore seems a good idea when trying to answer the questions to look back to the past. I do not have in mind a fullfledged historical survey of the pest or Spanish influenza or the Mexican flu. No doubt a systematic study of these disasters will be undertaken. What springs to one’s mind is a comparison with two more or less recent occurrences of a comparable nature.

The first occurrence is a problem which during the last millennium change raised wide-spread anxiety, and was known as the millennium-bug or Y2K. It refers to events related to the formatting and storage of calendar data for dates beginning in the year 2000. Problems were anticipated, and did arise, because many programmes represented four-digit years with only the final two digits – making the year 2000 indistinguishable from 1900. The assumption of a twentiethcentury date in such programmes could cause various errors, such as the incorrect display of dates and the inaccurate ordering of automated dated records or realtime events.

In January 2020, a pandemic broke out. It brought death and havoc, and commercial and economic links were cut off. This coronavirus epidemic immediately became the subject of scientific research. How to find a vaccine to cure COVID-19? How to alleviate pain and suffering? But it was not only medical and pure scientific matters which were considered. Economic and ethical issues were explored as well, as were legal problems. This volume purports to explore the latter. The coronavirus has already led to a number of national publications from Belgium, the Netherlands, Switzerland, the US, and other jurisdictions. A pan-European approach, or even a global focus, is quite evident. The current book enlists contributions from various European nations. The authors have mainly, but not exclusively, been selected from a group of scholars who, in the past, were engaged in European projects such as the DraftCommon Frame of Reference and who still are in touch over issues such as Brexit.

I am very grateful to these authors, who have been so kind as to adhere to a very strict time limit, the idea being that in order to have any effect, a book should be on the market as soon as possible.

My gratitude also goes to the five eminent jurists who have been willing to take on the editorship of the volume. Travel restrictions brought about by the coronavirus made a high-tech approach with MicrosoftTeams and Zoom necessary. So, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst and Fryderyk Zoll, thank you so much.

We also wish to thank our publisher, Intersentia, for their cooperation. All contributions reflect the latest in COVID-19 emergency legislation as of at least July 2020.

This volume purports to provide an overview of the national and international measures developed to fight the COVID-19 pandemic in Europe, and aims to serve as a “toolbox” for judges and practitioners. By the time the book goes to print, the coronavirus, we are afraid, has not finished its devastating work. Virus mutations were even threatening that worse is still to come. Vaccination, however, is hopefully showing a way out. Developments such as these make it difficult to predict what the future will bring. We have therefore refrained from presenting the reader with a fully-fledged conclusion. Instead, we intend to offer you some ideas of a methodological nature, as well as some acknowledgements.

As regards the methodology: how did our project come into being? The historical background is to be found in the late 20th century, when several working groups of legal academics from various countries emerged. Commissions, such as Ole Lando’s Commission on European Contract Law, were created and working groups, such as those begun by Christian von Bar, Giuseppe Gandolfiand Reiner Schulze, among others, came up with drafts for a European Civil Code. By the early years of the current millennium, such projects began to run out of steam. The work was done, the money was spent. This did not mean that the members of the various groups lost touch. On occasions such as New Year, or disasters – as perceived by many – such as Brexit, contacts were again taken up, instigated by academics such as Hugh Beale and Matthias Storme. Likewise, early in 2020, when the pandemic started spreading, the group of former Commission members, now at around 100 members, proposed the idea of turning the negative development of the pandemic into something positive. The idea of a special volume was born. Over the past few months, this project has come to fruition. We will now present the way in which we have approached our task.

One of the first questions posed was: what purpose should the volume have? Two options were raised. The majority of the potential authors considered a classical overview of the law the best option.

PREAMBLE

The outbreak of COVID-19 has brought immense suffering and death to a considerable number of people around the world. It has impacted fundamentally the functioning of States, their democratic institutions and legal systems. Therefore, it is understandable that governments have and are continuing to resort to exceptional measures in seeking to get control over the spread of COVID-19. These exceptional measures inevitably restrict the fundamental rights of citizens in ways that can be justified only in these extraordinary circumstances. It is in the greatest interest of society that these measures against COVID-19 are imposed and enforced within the framework of established democratic principles, the international legal order and the rule of law.

Therefore, although the spread of COVID-19 justifies limitations on the functioning of institutions such as Parliaments and courts, these limitations must be subject to democratic control, must not be misused and not applied for purposes other than measures related directly to the COVID-19 crisis.

The measures taken by governments such as mandatory quarantine, the closure of borders, restrictions in mobility, are also having a dramatic impact on business, trade and employment. It is essential that the legal measures taken to address the hardship and other difficulties caused by COVID-19 take into account principles of solidarity and fairness as well as the need for co-ordinated action between States at an international or EU level as appropriate.

In these circumstances, the European Law Institute (ELI), an entirely independent non-profit organisation established to provide practical guidance in relation to European legal development, puts forward a summary of some of the important legal issues that arise in relation to the COVID-19 crisis.

Its summary, made from an independent non-governmental perspective with due consideration of what has been published by other bodies, is set out in 15 principles. These are addressed to all European States (whether or not Member States of the EU), and are intended to guide European States, EU institutions and other bodies with the object of ensuring that everything that is done accords with the rule of law and democratic values.