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- INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)
- 1. Main dates in the evolution of the review of administrative acts
Via Articles 92 and 93 (144 and 145 in the consolidated Constitution of 17 October 1994), the Belgian Constitution of 7 February 1831 entrusted the judiciary branch, i.e. the courts and tribunals, with jurisdiction to rule on disputes concerning civil and political rights.
This jurisdiction is general. It is exclusive if the dispute pertains to civil rights (property, status of persons, etc.) and, in principle, if the dispute pertains to a political right (the right to vote and be elected, the "right" to pay taxes, etc.).
The Constituent Assembly also enabled the legislator to create "contentious" administrative courts (Articles 146 and 161 of the consolidated Constitution).
The Constituent Assembly having drawn no distinction as to the parties to the proceedings, these rules apply to disputes between private individuals as well as to those involving the public authorities.
Moreover, the Belgian Constitution vested the courts and tribunals with the powers to refuse to enforce general, provincial and local decrees and rulings if they are not compliant with legislation.
This supervision pertains to all administrative acts, whether regulatory or individual, and extends to the internal and external legality thereof.
Nevertheless, the courts and tribunals have for several decades developed a restrictive interpretation of their jurisdiction, based on strict enforcement of the separation of powers: on the basis of a separation between management and sovereignty, having no other foundation than their case law, the ordinary courts first declared themselves to have no jurisdiction to judge the administration – particularly as regards the latter's civil liability – when it acted in the exercise of public authority.
This narrow interpretation was finally abandoned.
This abandonment was affirmed in a ruling of 5 November 1920, in the case of the City of Bruges versus La Flandria (Pas., 1920, I, 1930), one of the most decisive ever pronounced by the Supreme Court of Appeal in administrative litigation.
The ruling stated in particular that "when a person said to have a civil right claims that said right has been violated and demands reparation for the injury incurred, the courts may and indeed must hear the dispute and are qualified to order reparation where warranted, even if the alleged perpetrator of the injury were the State, a municipality or any other public body, as well as is the case where the injury was caused by an unlawful act committed by a governmental body."
It would take until the rulings of the Supreme Court of Appeal of 7 March 1963 (Pas., 1963, I, 745 et seq.) and 26 April 1963 (Pas., 1963, I, 905) for the ordinary courts to agree to hear cases against the administration in a civil liability action, without drawing a distinction as to whether the fault at issue were committed by an act of decision or of enforcement.
By a ruling of 26 June 1980 (Pas., 1980, I, 1341 et seq.) the Supreme Court of Appeal once again upheld that it is up to the courts and tribunals to order the administration to redress in kind the injury it had caused, where such redress is possible and does not constitute an improper exercise of a right.
By a ruling of 3 March 1972 (R.C.J.B., 1973, p. 431) the Supreme Court of Appeal asserted that the verification of legality based on Article 107 (159 in the consolidated Constitution) covers both the internal and external legality of administrative acts.
These developments notwithstanding, a petition for the annulment of an illegal administrative act nevertheless could not – and still cannot – be lodged before the courts and tribunals.
A Council of State was consequently created in Belgium by the Act of 23 December 1946 after protracted parliamentary debates (initiated by a bill introduced on 15 May 1930), primarily to fill this gap.
Inspired by the appeal against the misuse of powers that can be lodged with the Council of State in France, the Belgian legislator provided that the Council of State being established had jurisdiction to annul, on appeal by any stakeholder, administrative acts and regulations in the event of breach of formal requirements that are substantial or are prescribed on pain of nullity. This jurisdiction is exercised by the administrative legal action.
A particular feature of the Belgian system is that in the absence of any other competent court, the administrative section of the Council of State rules on an equitable basis – taking due account of all the circumstances of private or public interest – on claims for moral or material damage caused by an administrative authority.
The legislative section of the Council of State is also required to give opinions to the different members of the governments of Federal Belgium on bills, decrees, orders and draft regulations.
The existence and jurisdiction of the Council of State have since 18 June 1993 been based on Article 160 of the Constitution. Prior to that date, the Council of State was based on only an ordinary law.
Finally, a Court of Arbitration was created by virtue of Article 107(b) (2) (Article 142 of the consolidated Constitution), introduced on 29 July 1980, and organised by an Act of 28 June 1983, now repealed and replaced by the Special Act of 6 January 1989.
Article 142(1) of the Constitution was amended to change the term "Court of Arbitration" to "Constitutional Court" as of 7 May 2007. This Amendment was published in the Belgian Official Gazette (Moniteur Belge) on 8 May 2007.
This court currently has jurisdiction to verify – in actions for annulment or concerning a reference for a preliminary ruling – that standards that have legal force comply or are compatible with the provisions of Title II (public liberties) and Articles 170, 172 and 191 of the Constitution (legality of and equality before taxation, protection of foreign nationals) as well as the rules of distribution of powers among the legislators of Federal Belgium.
Although they do not concern the verification of the legality of administrative acts directly, rulings of the Constitutional Court are among primary sources of Belgian public case law.
- 2. Purpose of the review of administrative acts
Without any doubt, the supervision of the administration as carried out in Belgium aims to guarantee compliance by the administrative authorities with the law, so as to ensure that said authorities operate correctly and provide effective protection to citizens.
a) Verification that action (or inaction) by the administrative authorities is legal and in the public interest is carried out first by the authorities themselves, exercising their official or supervisory powers.
The supervisory powers are based on legislation and extend in particular to local authorities (provinces and municipalities).
Article 249 of the Flemish municipal decree (Gemeentedecreet) of 15 July 2005 consequently provides: "In exercising the provision pursuant to this decree, the supervisory authorities shall limit themselves to the verification of the law and of the public interest, namely, all interests higher than the municipal interest."
Article 242 of the Flemish provincial decree (Provinciedecreet) of 9 December 2005 contains a similar provision.
In Article 13(2) section 2 and Article 16(4) section 2 of the Decree of 1 April 1999, now Articles L 3122-1 and L 3131-1 of the Walloon Code of Local Democracy and Decentralisation (CDLD), the Walloon legislator declared that "an act which violates the principles of good governance or which runs contrary to the interest of any superior authority" is contrary to the public and regional interest.
By decree of 22 November 2007, the Walloon legislator returned to the conventional formula: the powers to approve or annul are to be exercised if the local or provincial authority (referred to in Article L 3111-1(1), CDLD) "violates the law or undermines the public interest" (Articles L 3122-1 and L 3131-1(5)).
Article 9 of the Decree of 20 December 2004 on the ordinary administrative supervision of the municipalities in the German-speaking region stipulates that "the Government may suspend or annul, in whole or in part, any decision by a subordinate authority that violates the law or undermines the public interest."
b) Judicial supervision by the government is carried out at different levels.
1) It may be carried out by the Constitutional Court, whose primary task is to make sure that the different legislators of Federal Belgium comply with Title II of the Constitution (public liberties), Articles 170, 172 and 191 (legality of and equality before taxation, status of foreign nationals), and the rules that distribute powers between the Federal State, the Regions and the Communities.
It has jurisdiction to verify the legality of administrative acts and regulations (see in particular C.A., 4 April 1995, no. 31/95, roll no. 738, Belgian Official Gazette, 16 May 1995).
2) The courts and tribunals may, in civil or criminal proceedings, refuse to apply administrative acts and regulations if they consider them to be illegal.
3) The administrative courts, and especially the Council of State, still have jurisdiction to conduct a judicial review of the legality of administrative acts and regulations.
The Council of State may not only refuse to apply said acts and regulations if they are illegal, like all courts, but may also and above all annul them, on appeal by any stakeholder.
The Council of State may also hear appeals against decisions handed down in the final instance by the administrative courts.
It is worth noting that in Belgium the Supreme Court of Appeal has jurisdiction to settle jurisdictional disputes between the courts and tribunals and the Council of State (Article 158 of the Constitution).
Belgium has no Court of Jurisdiction.
- 3. Definition of an administrative authority
There is no "official" definition of administrative authority in Belgian law.
Nor is such a definition contained in the Constitution, laws or regulations.
The legislator nonetheless makes frequent use of the expression "administrative authority"
However, rather than impose a definition, the legislator referred to the concept as it is used, but not defined, in Article 14(1) of the Consolidated Acts of 12 January 1973 on the Council of State which empowers the latter to annul acts and regulations of the "administrative authorities" if they are tainted by misuse of power, by relying upon the interpretation given by case law.
The problem is that case law – not to mention legal doctrine – on this matter has varied greatly over time.
Put briefly, it has shifted – far from smoothly and not without controversy – from a precise but overly narrow definition (according to some) based on an organic criterion to an extensive, albeit more ambiguous, representation geared towards a combination of organic and material criteria.
According to the initial interpretation by the Council of State in a ruling by the assembly (no. 93.289 of 31 February 2001), the administrative authorities within the meaning of Article 14(1) of the Consolidated Acts are the bodies which, by virtue of the Constitution and the special institutional reform acts, exercise executive power,(1) as well as the bodies which, by virtue of constitutional or legislative law, fall under the hierarchical(2) or supervisory (3) purview of the federal government, the community or the region.
According to the second interpretation, laid down on 6 September 2002 by the Supreme Court of Appeal (J.L.M.B., 2004, pp. 11 et seq.) in its capacity as court of jurisdictional disputes, institutions created or accredited by the federal public authorities, the Communities, the Regions, the provinces or the municipalities, constitute administrative authorities within the meaning of Article 14 of the Consolidated Acts on the Council of State, inasmuch as their operation is determined and supervised by the public authorities and they can take required decisions regarding third parties, more specifically by determining unilaterally their own obligations to third parties or by ascertaining, likewise unilaterally, the obligations of third parties.
This interpretation has in particular led to the recognition that private education institutions acted as administrative authorities when they issued or refused to issue diplomas to their students.
There has been an "alignment" of the positions adopted on the matter by the legislative section of the Council of State (see, in particular, Lower House Session 2002-2003, Parliamentary Document no. 50 0679/002, p. 14) and by the plenary session of the administrative section (as named on the date that these rulings were handed down - C.E., 4 June 2003, Zitoumi versus Institut technique Cardinal Mercier-Notre-Dame du Sacré-Coeur, no. 120.131; Van den Brande versus the non-profit association Inrichtende macht van de Vlaamse Katholieke Hogeschool voor Wetenschap en Kunst, no. 120.143).
(1)Namely, with Belgian public law as it stands, the King, the ministers and secretaries of state, the members of the federal government, the members of the Community and regional governments, the memers of the board and of the French-speaking Community and the Joint Community Commission.
(2)For example, the public universities coming under the jurisdiction of the Community.
(3) Bodies of the provinces, municipalities, the Brussels conurbation, most public institutions, public economic undertakings, inter-municipal associations and so forth. ...
- 4. Classification of administrative acts
As with French law, Belgian law draws a distinction between individual acts and regulations (general legislative acts).
It also draws a distinction between unilateral acts and contracts concluded by the administration.
It addresses the problems of the repeal and annulment of unilateral acts based on the separation of acts that create rights from acts that do not.
- I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS
- A. COMPETENT BODIES
- 5. Non-judicial bodies competent to review administrative acts
The principle of the separation of administrative and jurisdictional functions is generally observed in Belgian law.
The higher or supervisory authorities under the administrative authority verify whether administrative acts and regulations are legal and compliant with the public interest.
As already mentioned, in Belgian law, the legality of administrative acts and regulations is still verified by the courts and tribunals, as well as by administrative courts with special jurisdictions (Aliens Litigation Council, etc.) and by the Council of State, the only administrative court with general jurisdiction.
Unlike French law, Belgian law draws no distinction between administrative courts and administrative courts of appeal.
Owing to functional duplication, the legislator may confer jurisdiction to administrative authority bodies, as in the case of the permanent delegation to the provincial council, now known as the provincial board in Wallonia and the executive (de deputatie) in Flanders.
At the time of the Court of Arbitration, the Constitutional Court had allowed this functional duplication, taking care to specify that, in exercising its jurisdictional functions, the Walloon provincial board was spared the political responsibility which, pursuant to Articles L 2212-40 and L 2212-44 of the CDLD, could lead to a motion of constructive distrust (see C.A., 25 May 2005, no. 95/2005, Belgian Official Gazette, 7 June 2006, Ed. 2).
- 6. Organization of the court system and courts competent to hear disputes concerning acts of administration
The answers to questions 7 and 8 contain the statement of the underlying principles for the distribution of disputes involving the administration between the courts and tribunals, the bodies of the judiciary, and the administrative courts, headed by the Council of State.
The legality of administrative acts and regulations is supervised as follows in Belgian law.
As indicated above, it is up to all the courts, whether or not under the purview of the judiciary, to verify the legality of administrative acts and regulations and to refuse to apply such acts and regulations where they are illegal.
The basis for this supervision is provided by Article 159 of the consolidated Constitution.
For the judiciary, this jurisdiction is consequently vested in the justices of the peace and the police, the courts of first instance, labour and commercial courts, the courts of appeal and courts for the settlement of industrial disputes, and finally the Supreme Court of Appeal, which has jurisdiction throughout Belgium.
This jurisdiction is also vested in administrative courts with special competences and in the Council of State, where proceedings can be initiated to annul administrative acts tainted by misuse of power.
The Constitutional Court hears essentially petitions for annulment or preliminary rulings on the constitutionality of Belgian legislative laws (federal laws, Community and Regional decrees, as well as, subject to certain restrictions, ordinances issued in the Brussels-Capital Region).
As already pointed out, this supervision does not extend to the entire Constitution at this time, but to compliance with the provisions of Title II, to Articles 170, 172 and 191, as well as to the rules contained therein concerning distribution of jurisdiction.
The Constitutional Court, as already mentioned, verifies the legality of administrative acts and regulations.
- B. RULES GOVERNING THE COMPETENT BODIES
- 7. Origin of rules delimiting the competence of ordinary courts in the review of administrative acts
In Belgian law, the jurisdiction of judicial courts is based primarily on Articles 144 and 145 of the Constitution.
According to Article 144, disputes concerning civil rights fall under the exclusive purview of the judicial courts.
According to Article 145, disputes concerning political rights fall in principle under the purview of the same courts, but it is up to the legislator to introduce exceptions to this principle.
The application of these provisions has led the judicial courts and tribunals to hear a sizeable portion of administrative disputes.
This is because a good number many cases involving citizens and the administrative authorities pertain to subjective rights and many of these were considered to be civil rights.
Disputes pertaining to civil, contractual, extra-contractual and administrative liability, as well as those concerning arrears in payment of salaries to civil servants are consequently heard by the ordinary courts and tribunals and not by the administrative courts or the Council of State.
Furthermore, many legislative provisions vest judicial courts with jurisdiction to hear particular disputes. The Code of Judicial Procedure contains many examples.
- 8. Existence and origins of specific rules related to the competence and duties of the administrative courts or tribunals
Article 160 of the Constitution stipulates: "There shall be a Council of State for all of Belgium, the composition, competence and operation of which shall be determined by the law. Nevertheless, the law may vest the King with powers to determine the procedure in accordance with such principles as it shall define.
The Council of State shall rule as an administrative court and shall give opinions in cases determined by law."
The dual advisory and jurisdictional competence of the Council of State is therefore based on the Constitution.
The organisation and role of the Council of State were determined by an Act of 23 December 1946, and subsequently by the Consolidated Acts of 12 January 1973, amended numerous times since.
The Act of 15 September 2006 reforming the Council of State and creating an Aliens Litigation Council constituted the 41st amendment of said Acts since they were consolidated on 12 January 1973.
The organisation and jurisdiction of the various administrative courts are, pursuant to Articles 145, 146 and 161 of the Constitution, governed by particular legislative provisions, the excessive dispersion whereof has been criticised on numerous occasions.
There has been no response to the many bills introduced to remedy this dispersion or to create one or more administrative courts of first instance with general jurisdiction.
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- 9. Internal organization of the ordinary courts competent to review administrative acts
There are no specialised chambers in the judicial courts to hear administrative disputes.
Disputes involving the administrative authorities are heard by the ordinary courts and tribunals in accordance with the Code of Judicial Procedure which, according to Article 2 thereof, lays down the usual rules for the procedure.
- 10. Internal organization of the administrative courts
As indicated above, there are no administrative courts with general jurisdiction in Belgian law similar to the administrative courts under French or under German law.
Nevertheless, a large number of administrative courts with specialised jurisdiction have been created by the legislator over time, pursuant to Articles 145, 146 and 161 of the consolidated Constitution.
The legislator has most often introduced a new body to do so.
In certain cases, however, he has entrusted jurisdictional competences to administrative authorities that already existed, owing to functional duplication.
In the Walloon Region, disputes concerning the validity of municipal elections are settled in the first instance by the provincial board, pursuant to Article 104, section 8, of the provincial Act of 30 April 1836, maintained in force by the Decree of 12 February 2004, Article 137.
The administrative courts rule sometimes in both the first and final instance, sometimes in the first instance and then on appeal.
Final decisions handed down by these courts fall under the jurisdiction of the Council of State for appeal (Article 14(2) of the Consolidated Acts of 12 January 1973).
- D. JUDGES
- 11. Status of judges who review administrative acts
The seat of the administrative courts is frequently composed of judicial judges, government officials and representatives of the citizens concerned.
To cite but one example, the chambers of first instance and the chambers of appeal set up at the medical assessment and examination service, as organised by Article 145 of the Act on compulsory health insurance and compensation, consolidated by the Royal Decree of 14 July 1994, are, in addition to members nominated by insurance organisations and by representatives of the professions concerned and appointed by the King, composed of magistrates from the judiciary or from the public prosecution office which also preside over them.
The duties of judges may, however, be entrusted to bodies composed exclusively of politicians.
As stated above, this was the case with the delegation to the provincial council, which became the provincial board in Wallonia and the executive (deputatie) in the Flemish Region, whose members are appointed through a second-degree election in the provincial council; this delegation or board is composed of politicians. There is no requirement for a law graduate to be present in its ranks.
The legislator's only concern was to determine the procedure that the permanent delegation must follow when it rules as a court of law, pursuant to Article 104(a) of the provincial Act, implemented by the Royal Decree of 17 September 1987.
- 12. Recruitment of judges in charge of review of administrative acts
A distinction must be drawn here once again.
a) The judicial magistrates who are called upon to sit on the courts or tribunals or administrative courts are recruited according to the very precise rules of the Code of Judicial Procedure.
To cite but one provision, Article 190(1) of this Code stipulates that, to be appointed as a judge (or additional judge) to the court of first instance, the labour court or the commercial court the candidate must hold a law degree or doctorate and have passed the professional aptitude examination for which provision is made under Article 259(a)(9)(1) or have completed the judicial training stipulated in Article 259(g)(2).
According to Article 259(b)(1) of the same Code, before the King proceeds to an appointment as referred to in Article 58(a)(1), the Minister for Justice requests, within 45 days from the publication of the vacancy in the Belgian official Gazette, a reasoned opinion in writing in a form established by said minister, on a proposal of the Higher Council of Justice, the head of the court or of the public prosecution office at the court where the appointment is to be made.
Pursuant to paragraph 2 of the same article, the advisory bodies send opinions to the Minister for Justice in duplicate within 30 days from the date of the request.
Pursuant to paragraph 4, within 100 days from the publication referred to in paragraph 1, the Minister for Justice forwards the file on each candidate to the competent appointment committee of the Higher Council for Justice, with the request that a candidate be nominated. The nomination is carried out by a two- thirds majority vote based on the criteria relating to the applicant's capacities and aptitude.
Pursuant to paragraph 5, upon receipt of said nomination, the King has 60 days to take a decision and communicate it to the appointment committee and to the candidates by registered letter (and by ordinary letter to the head of the court or the public prosecution office of the court where the appointment is to be made, and to the head of the applicant's entity). A copy of this reasoned decision is sent by ordinary letter to the appointment committee and to the chief public prosecutor of the place where the oath has to be taken. In the event of a reasoned refusal, the appointment committee has 15 days from the receipt of said decision to make a fresh nomination pursuant to paragraph 4. Such a reasoned refusal is notified by registered letter to the appointment committee and to the nominated candidate. The head of the court or of the public prosecution office at the court where the appointment is to be made, the head of the entity of the nominated candidate, and the other candidates are informed of the refusal by ordinary letter.
b) The appointment of members of the Council of State is subject to different provisions.
The Council of State is not part of the judiciary; consequently, the constitutional and legislative provisions laying down the personal requirements for judicial judges(4) do not apply directly to its members.
It is nonetheless worth highlighting that the legislator wanted to confer independent status on the members of the Council of State on the model of that which the Constituent Assembly conferred on judicial judges.
A determination to "depoliticise" the procedure for appointing Members of the Council of State was added to this concern, while making sure, as the Minister for the Interior put it, "that there are always candidates from all walks of life." (5)
An Act of 8 September 1997 made considerable amendments to Article 70 of the Acts on the Council of State, consolidated on 12 January 1973.
The legislator maintained the procedure for appointment by nomination adopted previously, but assigned a leading role in this nomination to the assembly of the Council of State.
Pursuant to Article 70(1) of the Consolidated Acts of 12 January 1973, amended by the Acts of 8 September 1997 and of 15 September 2006, the Members of the Council of State are appointed by the King from a list of three formally reasoned names presented by the Council of State, once it has examined the admissibility of the candidacies and compared the respective qualifications and merits of the candidates.
The general assembly of the Council of State may organise a selection examination according to procedures of its choosing.
The general assembly of the Council of State hears the candidates of its own motion or at their request. To that end, it may designate at least three of its members to report on these hearings.
The Council of State notifies its nomination along with all the candidacies and its assessments thereof concurrently to the Lower House or to the Senate, and to the Minister for the Interior.
The candidate first nominated unanimously by the general assembly of the Council of State may be appointed a member of the Council of State unless the Minister for the Interior refuses this nomination, either because the conditions set in paragraph 2 are not met, or because s/he thinks that the number of members of the Council of State who were appointed from among the members of the auditor's office is too high by comparison with the number of other members of the Council of State.
Where the minister accepts a unanimous nomination by the Council of State, s/he informs the Lower House or the Senate which, if they deem that the number of members of the Council of State who were appointed from among the members of the auditor's office is too high compared with the number of other members of the Council of State, may refuse said nomination within a period not exceeding 30 days from receipt thereof.(6)
If the minister, the Lower House or the Senate should refuse, the general assembly of the Council of State makes a fresh nomination.
Where no unanimous decision can be reached in the case of either a first nomination or a fresh nomination following a refusal, the Lower House or the Senate may, within a period not exceeding 30 days of receipt of said nomination (7) either confirm the list submitted by the Council of State, or present a second list of three names for which formal reasons have been provided.
The Lower House or the Senate may hear the candidates. Without prejudice to the provision of Section 11, the appointment is made on the basis of the list submitted by the Council of State when the period referred to in this section has expired.
When the Lower House or the Senate submits a second list of three names, the member of the Council of State can be appointed only from among the persons who are on one or the other of these two lists.
The Minister for the Interior publishes the vacancies in the Belgian Official Gazette at the initiative of the Council of State.
The publication mentions the number of vacant posts, the conditions of appointment, the period of at least one month during which to nominate candidates, and the authority to which the nominations are to be submitted.
All nominations are published in the Belgian Official Gazette; the appointment can take place at the earliest 15 days after said publication.
Pursuant to Article 70(2) of the Acts on the Council of State, consolidated on 12 January 1973, amended by the Act of 8 September 1997 and the Act of 15 September 2006, no person may be appointed member of the Council of State if s/he is not at least 37 years old, does not hold a bachelor's degree, master's degree or doctorate in law, does not have relevant professional experience of a legal nature of at least ten years, and does not meet one of the following conditions:
1) to have passed the competition for auditor and assistant auditor at the Council of State, the competition for legal secretary at the (Constitutional) Court, the competition for assistant auditor at the Court of Audit or the professional aptitude test stipulated in Article 259(a) of the Code of Judicial Procedure;
2) to hold an administrative position of at least rank 15 or equivalent in a Belgian public authority or a Belgian public organisation;
3) to have submitted and defended successfully a doctoral dissertation in law or to have qualified for higher education instruction in law;
4) to carry out duties in Belgium as a magistrate in the public prosecution office or as an actual judge or be a member of the Aliens Litigation Council as referred to in Article 39/1 of the Act of 1980 on admission to national territory, residence, establishment and repatriation of foreign nationals;
5) to hold a teaching position in law at a Belgian university.
It is worth noting that this restrictive yet fairly open list provides no room for experience gained at the Bar. Nevertheless, the date of registration with the Bar is taken into consideration in calculating periodic salary increases for those who hold a position with the Council of State. (8)
At least half of the members of the Council of State are appointed from among the members of the auditor's office and the bureau of coordination (Article 70 (2) final section of the Consolidated Acts of 12 January 1973).
This provision has considerable implications because the members of the auditor's office and the bureau of coordination are recruited through competition.
(4)Article 151 relating to the conditions of appointment; Article 152 relating to the security of tenure; Article 154 relating to the legal determination of salaries; Article 155 relating to the prohibition of the exercise of duties by a judge paid for by the State; Article 292 and 293 of the Code of Judicial Procedure which deals with the combination and incompatibilities of offices.
(5)Sen. Sess. 1996-1997, Parl. Doc. No. 539/3, p. 1.
(6)Pursuant to the Act of 22 March 1999 amending Article 70(1) of the Acts on the Council of State, the period of thirty days provided under Sections 5 and 7 will be interrupted:
- where the Federal houses of parliament are dissolved in accordance with Article 46 of the Constitution;
- where the parliamentary session is adjourned in accordance with Article 45 of the Constitution;
- where the parliamentary session is closed in accordance with Article 44, Section 3, of the Constitution;
- during the parliamentary recess fixed by the Lower House and the Senate. The new time limits run from the day after the definitive officers of the federal parliament have been installed.
(7)See previous note.
(8)Article 3(3)(1)(1) of the Act of 5 April 1995 on the salaries of holders of a position in the Council of State, replaced by Article 27 of the Act of 25 May 1999.
- 13. Professional training of judges
Access to the position in theory entails, in addition to an age requirement, a bachelor's degree, master's degree or doctorate in law as well as relevant experience.
It is worth pointing out that lay judges and consular judges, and members of labour courts and commercial courts, are "laymen" appointed by the King, following nomination by the Ministers for Labour and Justice, and the organisations representing employers, manual, clerical and self-employed workers on the one hand, and following joint nomination by the Ministers for Justice, Economic Affairs and the Self-Employed and professional and inter- professional organisations representing trade and industry on the other.
It is also worth noting that jurisdictional competences are at times vested in administrative authority bodies whose members may not hold any law degree.
- 14. Promotion of judges
Promotion in the judicial courts is based on experience and seniority.
Chefs de corps are appointed by the King for a seven-year term (not automatically renewable) in the same court or the same prosecution service (Article 259(c) of the Code of Judicial Procedure).
Access to the office of chamber president, president and first president has hitherto been decided essentially on seniority in accordance with the available vacancies.
Whether it is a custom or habitual practice is open to discussion but in any event, the rule, where it exists, is alien to statute law.
The situation in the auditor's office is different: Article 71(2) of the Acts on the Council of State consolidated on 12 January 1973 provides that assistant auditors, who are appointed through competition, may be appointed as auditors by the King on the favourable advice of the auditor general or assistant auditor general depending on the case when they have been in office for at least two years. Paragraph 3 of the same provision stipulates that auditors who have been in office for 11 years may be appointed as first auditors by the King.
- 15. Professional mobility of judges
Members of the judicial courts move to the Council of State on a voluntary basis and do so rather frequently.
The reverse also applies, albeit in very rare cases (i.e. mobility from the Council of State back to a judicial court).
Several members of the Council of State have applied for the Constitutional Court and become members thereof.
Magistrates from the Council of State have also been entrusted with assignments by the Government.
- E. ROLE OF THE COMPETENT BODIES
- 16. Available kinds of recourse against administrative acts
a) Under Belgian law, complaints may be lodged with the administrator in office, even if no provision under legislation is made for such. These are non- regulated applications for reconsideration, to a higher authority, or of a supervisory nature.
In many cases, legislative or regulatory provisions allow for such appeals against administrative acts individually or by categories.
b) A distinction must again be drawn concerning the division of petitions that may be brought before judicial courts and administrative courts.
In carrying out the powers vested in them, the judicial courts – which, by way of reminder, rule essentially on disputes surrounding subjective rights, in particular those arising out of a contract, even when concluded by an administrative authority, or on entitlement to damages, even when caused by the administrative authorities – may not only refuse to apply administrative acts and regulations where the latter are illegal, but may also order the administrative authority to pay amounts or to do or not to do certain things.
To cite but one example, on 26 May 1908, the Supreme Court of Appeal ruled that it was up to the courts and tribunals to order the Belgian state to redress in kind damages it has caused to neighbouring owners of public property, where such redress is possible and does not constitute any improper exercise of rights (Cass., 26 June 1980, Pas., 1980, I, 1341 et seq., see J. Velu).
Administrative courts with special competences generally have jurisdiction for full proceedings.
The same applies, albeit exceptionally, to the Council of State where the latter exercises the powers mentioned in Article 16 of the Consolidated Acts of 12 January 1973.
These hypotheses concern areas as varied as provincial and municipal elections, the cancellation or review of certain contracts concluded before or after World War I, social assistance, disputes between newly created municipalities concerning the division of property between inhabitants of separated territories and the election of members of the police council provided for by the Act of 7 December 1998 organising an integrated police service, finally with a two-tier structure. (9)
However, in appeals for annulment on the grounds of misuse of power, based on Article 14(1) of the Consolidated Acts of 12 January 1973, the jurisdiction of the Council of State is limited to annulment. It is not up to the Council of State to reform the contested act.
The rules that determine the division of competences between judicial and administrative courts moreover lead to a situation where disputes pertaining to the interpretation, performance or rescission of a contract, even when concluded with an administrative authority and even when they pertain to a public contract, have to be brought before the courts and tribunals.
The Council of State may, however, hear appeals for the annulment of acts "detachable" from contracts, such as decisions taken unilaterally by the administration during a preliminary procedure for a public contract.
(9)Article 12 of the Act of 7 December 1998 stipulates that the local police in a multi-municipal area is to be administered by a council composed of 13 to 25 members, depending on the size of the population. According to Article 14 of the same Act, to be eligible for election as a full or alternate member of the police council, a candidate must, on the date of the election, be a member of the town council of one of the municipalities in the multi-municipal area. The amending Act of 2 April 2001 added an Article 18(b) to the Act of 7 December 1998, which states: "Whether a complaint has or has not been lodged with it, the permanent delegation or the board referred to in Article 83(d)(2) of the special Act of 12 January 1989 on the institutions of Brussels, shall, in its capacity as administrative court, rule on the validity of the elections within 30 days of receipt of the file and, where warranted, shall correct errors made when determining the results of the elections. If no decision is forthcoming within this period, the election shall be deemed to be lawful." An Article 18(c) introduced by the same amending Act of 2 April 2001, stipulates that: "Within 15 days of the communication or notification referred to in Article 18(a)(6), an appeal may be lodged with the Council of State by the legal and natural persons referred to in Article 18(a) (5). Such an appeal may also be lodged by the governor within 15 days of the decision handed down by the permanent delegation or the board referred to in Article 83(d)(2) of the special Act of 12 January 1989 on the institutions of Brussels or prior to the expiry of the time limit. The appeal to the Council of State shall not suspend the decision of the permanent delegation, unless it is lodged against a decision of the permanent delegation or the board referred to in Article 83(d)(2) of the special Act of 12 January 1989 on the institutions of Brussels, which pertains to the annulment of the election or the election of one or more members or alternates. Within eight days of receiving such an appeal, the chief clerk of the Council of State shall notify the governor and the multi-municipal area and the town council concerned, and shall apprise them of the ruling of the Council of State as well." A similar appeal may be lodged by a police council member elected in accordance with Articles 18 or 19(2) of the Act of 7 December 1998, who contests that, pursuant to Article 21(b)(1) s/he has tendered his or her resignation as a member of the police council.
- 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty
Whether judicial or administrative, the courts often have to request a preliminary ruling from international authorities or a national court.
Article 177 (now 234) of the Treaty of Rome is applied frequently.
The Belgian Council of State may also request a preliminary ruling from the Benelux Court of Justice.
This was the case regarding the interpretation of Article 1 of the Uniform law on Penalty Payments,(10) the source of Article 1385(a) of the Belgian Code of Judicial Procedure.
Article 26 of the special Act of 6 January 1989 on the Court of Arbitration, amended by the Act of 9 March 2003, is applied particularly frequently. This provision requires the Council of State to refer to said court, at the request of any party, any question pertaining to the interpretation of the provisions of Title II (public liberties), and Articles 170, 172 (tax system) and 191 (status of foreign nationals) of the Constitution, as well as the provisions that divide competences between the federal, community and regional authorities.
A special Act of 12 July 2009 added that, where a legislative provision is contested before a court for violating a fundamental right guaranteed in a similar manner, fully or partially, by a provision of Title II of the Constitution, as well as by a provision of European or international law, the court is first required to ask the Constitutional Court for a preliminary ruling on the compatibility thereof with the provision of Title II of the Constitution.(11)
(10)The Benelux Court of Justice has jurisdiction to interpret the Uniform Law by virtue of Article 6(1-3) of the Treaty concerning the establishment and statute of said court, signed in Brussels on 31 March 1965, and approved by the Act of 18 July 1969; see F. Dumon, La Cour de justice Benelux, Bruxelles, Bruylant, 1980, pp. 57 et seq.
(11) This provision was justified as follows during the debate on the special Act in the Senate:
"The Constitutional Court has recognised in its recent case law that it has no jurisdiction to verify legislative rules in regard to treaty provisions. Nevertheless, when a binding treaty provision for Belgium has a similar scope as one of the constitutional provisions which falls under its purview and which has allegedly been violated, the court considers that the guarantees enshrined in this treaty provision constitute an integral whole with those enshrined in the constitutional provisions concerned. It has consequently concluded that, in the supervision it exercises in regard to constitutional provisions, it must take account of provisions of international law that guarantee similar rights and freedoms (for example, Ruling no. 189/2005 of 14 December 2005). The Supreme Court of Appeal on the other hand, does not adopt the same attitude concerning other fundamental rights, as that which it adopted concerning an alleged violation of the principle of equality. In a number of rulings, the Court itself has noted that a legislative rule does not fail to recognise a treaty provision, even though it refuses to ask the Constitutional Court for a preliminary ruling. It explains this position by the consideration, raised for the first time explicitly in its case law, that a treaty having direct effect takes precedence over the Constitution, and when the latter sets no more requirements than a treaty provision having direct effect, a subsequent verification of the law in the light of the Constitution is irrelevant (e.g. Cass., 16 November 2004).
Needless to say, under the rule of law, the risk of contradictory case law concerning fundamental rights and freedoms must be avoided as far as possible. The legal uncertainty that would ensue, for citizens as well as for lawyers, judges and the authorities, consequently requires the legislator to intervene" (Senate, Extraordinary session, Parl. Doc., 2007, no. 4-12/1).
- 18. Advisory functions of the competent bodies
The Belgian Council of State has exercised both jurisdictional and advisory duties ever since it was created by the Act of 23 December 1946.
This dual remit is reflected in the way it is organised.
Its legislative section has no judicial function.
Its powers are essentially advisory.
Its task is to enlighten and assist the legislator, the federal government, the councils (now the parliaments), and the Community and regional governments, the members of the French-speaking Community Commission or the Assembly, the members of the Board of the French-speaking Community Commission and the Board, depending on the case, in exercising their legislative duties (12).
b) The administrative legal section is vested with judicial functions.
Articles 8 and 9 of the Acts on the Council of State, consolidated on 12 January 1973, provide that this section, then called the administrative section, may be consulted by the federal ministers and members of the Community and regional governments, the members of the French-speaking Community Commission and the members of the Board, each for the matters that concern them, on the difficulties and disputes that the executive power has to solve or settle, provided they are of an administrative rather than a litigious nature.
Several hundreds of opinions have been issued in this way.
Articles 8 and 9 of the Consolidated Acts were repealed by Article 3 of the Act of 15 September 2006, which entered into force on 1 December 2006, since the legislator considered that issuing opinions was too time-consuming for members of the Council of State assigned to deal with legal cases (Lower House session 2005 –2006, Parl. Doc. No. 51 2779/001, p. 21).
(12) Articles 2-6 of the Consolidated Acts, as amended by the Act of 4 August 1996.
- 19. Organization of the judicial and advisory functions of the competent bodies
The administrative legal section of the Council of State comprises the first president or president, the chamber presidents and members of the Council of State who have not yet been appointed to the legislative section.
The members of the Council of State assigned to the administrative legal section may be called upon by the first president to sit on the legislative section, either to replace a member who is prevented from attending, or to constitute additional chambers as and when required.
The members of the Council of State appointed to the legislative section may be called upon to sit on the administrative legal section as and when needed to form a bilingual chamber, either to replace a member of the Dutch-speaking chamber or a member of the French-speaking chamber prevented from attending, or to form additional chambers.
A ruling issued on 28 September 1995 by the Strasbourg Court could imply that the distribution of the members between the legislative section and the administrative legal section on the Belgian Council of State runs contrary to Article 6(6)(1) of the ECHR. In its ruling, said Court held that for an institution such as the Luxembourgish Council of State, the mere fact that certain persons have exercised advisory and judicial duties in succession regarding the same decisions was of such nature as to call the institution's structural impartiality into question. (13)
On analysis, however, it turns out that thanks to this precaution in the Consolidated Acts, the organisation of the Belgian Council of State is not open to the same criticism.
More specifically, pursuant to Article 29(2) of the Consolidated Acts of 12 January 1973, amended by the Act of 25 May 1999, the members of the administrative legal section and of the auditor's office may not hear petitions for annulment, suspension or provisional measures concerning the decisions and regulations on texts on which they have an opinion as members of the legislative section or in respect of which they intervened in said section.
(13) Case no. 1994/474/555, A.P.M., 1995, p. 189; see F. Benoît-Rohmer under the same ruling, D., 1996, p. 301; see L. Bihain under the same ruling, J.L.M.B., 1996, pp. 1098 et seq.; see D. Spielmann under the same ruling, R.T.D.H., 1996, pp. 271 et seq.; M. Thewes, Le Conseil d'Etat luxembourgeois après l'arrêt "Procola" de la Cour européenne des droits de l'homme, R.B.D.C., 1996, pp. 69 et seq.; E. Boumans, Het Procola- arrest ... twee jaar later, T.B.P., 1998, pp. 387-390.
- F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES
- 20. Role of the supreme courts in ensuring the uniform application and interpretation of law
It is appropriate to mention first the regulating role which may be assumed respectively by the Supreme Court of Appeal and the Council of State, the latter itself ruling in cassation as regards both the administrative and judicial courts ruling in the final instance.
The task of the general assembly of the administrative legal section of the Council of State is to ensure harmonisation of the latter's case law.
The first president or the president may order referral to the general assembly on the advice of the rapporteur member of the Council of State.
The first president may also order referral to the general assembly where, having received the advice of the auditor rapporteur, the auditor general considers for the same reason that a case must to be brought in the general assembly.
There is no procedure for requesting legal opinions in Belgian law, similar to that provided for under Article L 113-1 of the French Code of Administrative Justice.
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
A distinction has to be drawn here again.
a) Referral to the judicial courts is independent from prior administrative reviews, whether or not governed by legislation.
The judicial court in theory has jurisdiction from the point at which the dispute referred to it actually pertains to a subjective right.
b) An action for misuse of power is admissible depending on whether administrative authority reviews, if organised in accordance with legislative or regulatory provisions, have been exhausted.
There are no other preconditions.
- 22. Right to bring a case before the court
Any natural or legal person concerned, whether governed by private or public law, may take action before the courts and tribunals, provided said party can justify an interest.
Any natural or legal person concerned, whether of private or public law, may petition the Council of State for an annulment.
The action may be introduced by private individuals as well as private associations with legal personality or by trading companies.
Local authorities have also brought proceedings before the Council of State to annul decisions passed by the supervisory authority which they considered to be illegal.
Furthermore, associations or groupings without legal personality, such as most often trade unions and political parties in Belgium, may take action before the Council of State for an annulment, when they act in defence of a prerogative recognised by laws and regulations, i.e. for the defence of a functional interest.
This solution is generally explained by the objective nature of the action for misuse of power. Legal personality is not required to take action to have an illegal administrative act annulled; it must simply exist in the eyes of the law.
- 23. Admissibility conditions
The petitioner must justify his or her legal entitlement (in principle, age of majority for a natural person, legal personality for an association or grouping) and capacity to act (in particular where proceedings are being lodged in someone else's name).
The petitioner must also establish a legitimate interest.
This condition is altogether general.
It falls expressly under Article 17 of the Code of Judicial Procedure.
It is provided for no less explicitly under Article 19 of the Consolidated Acts on the Council of State.
Case law shows that the interest of taking legal action for annulment must be direct, topical, legitimate and sufficiently personalised. It may also be both material and moral.
There is abundant case law on the admissibility of an annulment action as regards the petitioner's interest.
- 24. Time limits to apply to the courts
a) The period within which to appeal a decision of the judicial court is in theory one month as of the date when the decision was handed down or notified in accordance with Article 792(2) and (3) of the Code of Judicial Procedure (Article 1051 of the Code of Judicial Procedure), and three months for appeal in cassation as of the date that the contested decision was handed down or notified in accordance with Article 792(2) and (3) (Article 1073 of the Code of Judicial Procedure).
b) There is no time limit on the legal review that courts and tribunals may exercise pursuant to Article 159 of the Constitution.
c) Time limits specific to different disputes referred to the judicial courts must also be taken into account.
For instance, according to Article 2262(a) of the Civil Code:
"Paragraph 1. All personal actions shall be time-barred after ten years.
By way of derogation from section 1, any action for damages based on non-contractual liability shall be barred after five years from the day following that on which the injured person became cognisant of the loss or the aggravation thereof and of the identity of the person responsible.
The actions referred to in section two shall in any event be time- barred after 20 years from the day following that on which the event that caused the loss occurred.
Paragraph 2. If a judgement that has become final admits reservations, the petition to rule thereon shall be admissible for 20 years as of the delivery of said judgement."
Claims on the State arising from judgements shall no longer lapse after 30 years but after ten years.
d) The period during which an annulment action is admissible before the Council of State is in principle 60 days, as of the publication, notification or cognisance of the contested act, depending on the case.
This period may be increased in accordance with the distance: the rules of procedure provide for an increase of 30 days for people who live in a European country not bordering Belgium and 90 days for those who live outside Europe.
The time limit runs against minors and other persons under judicial and other disability. The Council of State may nonetheless grant them an exception when it is established that they were not duly represented in due course prior to the expiry of the time limit.
The "dies a quo" and "dies ad quem" of this 60-day period are determined in accordance with precise legislative and regulatory provisions in respect of which particularly extensive case law exists.
Under many legislative provisions that contribute to ensuring 'transparency' on the part of the administrative authorities, the time from which the period runs is dependent on the point at which the defendant becomes aware of the action. Consequently, an administrative decision regarding an individual must inform the latter of the options for action available as well as the forms and time limits; otherwise, according to the concept most frequently used, the time limit does not run.
e) Due care must be taken to ensure that an application for a judicial review before the Council of State is filed at the latest on the 30th day after the contested decision was notified (Royal Decree of 30 November 2006 defining the procedure for a judicial review before the Council of State, Article 3(1)).
- 25. Administrative acts excluded from judicial review
In principle, Belgian law contains no theory similar to that of government acts under French law.
The Council of State has agreed to hear a petition to have a Royal Decree appointing a provincial governor annulled, whereas the Belgian State, as the opposing party in the proceedings, relied particularly on an exception drawn from an act of government (E.C., 10 June 2002, Vandendoren vs the Belgian State, no. 107.561).
The "act of government theory" was cited again unsuccessfully to remove from the competence of the Council of State the "motion of constructive distrust" pursuant to which a local official may be held liable before the town council in the Walloon Region (see E.C., 8 March 2006, Brynaert vs. the City of La Louvière, no. 156.078; 28 March 2006, Vanbergen versus the City of Charleroi, no. 157.044; 11 July 2006, Vanbergen versus the City of Charleroi, no. 161.253).
Certain aspects among the key ones dealt with via administrative action remain restricted, however. We do not know of anyone who has hitherto undertaken to contest, before the Belgian Council of State, a decision such as the appointment of a federal government minister by the King, for instance.
And yet, the King is considered to be an administrative authority under Belgian law...
It is difficult to predict what the position of an administrative court would be if it had to hear such a case.
- 26. Screening procedures
Preliminary proceedings before the Constitutional Court are provided for under Articles 69-73 of the special Act of 6 January 1989.
A restricted chamber, composed of the president and two rapporteurs, examines whether, in view of the petition for or decision being referred, the action or request for a preliminary ruling is manifestly inadmissible or unfounded, or whether the Court manifestly has no jurisdiction to hear it. The chamber may, on the conclusions of the rapporteurs in this respect, decide, by unanimous vote, to examine the case, without any other procedural step, via a ruling in which the action or the question is declared inadmissible, or in which the Court is declared incompetent.
As regards the Council of State, Article 20 of the Consolidated Acts, as re-established by Article 8 of the Act of 15 September 2006, makes the action for a judicial review, as can be introduced before this court pursuant to Article 14(2), subject to a prerequisite: the petitioner must be authorised by the Council of State itself before s/he may refer the matter to it.
Under the terms of Article 20(1), the application for judicial review is broached only where it is declared admissible by virtue of Article 20(2).
Article 20(2) provides that, as soon as it is placed on the list, each application for judicial review is immediately subjected to the admission procedure on the basis of the petition and the file of the procedure.
Applications for judicial review for which the Council of State has no jurisdiction or which are irrelevant are declared inadmissible.
Only applications for judicial review that cite a violation of the law or a violation of rule of form, either in terms of substance or where required on pain of nullity, are declared admissible, provided that the argument cited by the application does not manifestly lack grounds, and said violation is actually of such nature as to lead to the judicial review of the disputed decision, and that it could have influenced the scope of the decision.
These conditions are declared cumulative.
Nevertheless, under the terms of the final section of Article 20 (2) (new), applications for judicial review in respect of which the Council of State has no jurisdiction, or which are irrelevant and manifestly inadmissible, and which have to be examined by the section to ensure the unity of case law, are likewise declared admissible.
According to Article 20(3), the first president, the president, the chamber president and the member of the Council of State with at least three years of seniority in the position, appointed by the head of the administrative legal section, decide, by ordinance, within eight days of receipt of the court file, on the admissibility of the application for a judicial review, without holding a hearing.
The proceedings must be rapid, without either a hearing or a debate, and succinct reasons must be provided for the decision not to admit or to refuse to admit the application. The legislator has availed himself of the case law of the Court of Justice of the European Communities (CJEC, 8 July 1999, Goldstein vs. the Commission, C-199/98) and of the European Court of Human Rights (ECHR, 19 February 1996, Botten versus Norway, series 1996-1).
- 27. Form of application
a) Referral to the judicial court is via writ of summons, except in the case of derogation provided for by law or by a statement of voluntary appearance.
The legislator has thus provided that in certain cases the joint petition was justified either because the defendant was easy to reach (e.g. the tax authorities), or because the proceedings benefited from special supervision (e.g. the labour auditor's office).
Similarly, the proceedings may be lodged by unilateral petition in cases expressly provided for by law, or where there is no opposing party to the proceedings.
b) Referral to the Council of State may be via letter, provided it is registered.
The Regent's Decree of 23 August 1948 defining the proceedings before the administrative legal section, as amended by the Royal Decree of 25 April 2007, details, in Articles 3 to 3(a), the contents and the conditions for the enrolment of the petition.
By virtue of Article 3(2) of the Royal Decree of 30 November 2006 laying down the procedure for a judicial review before the Council of State, the petition for a judicial review must be signed by a solicitor who meets the conditions detailed in Article 19(3) of the Coordinated Acts; its content is fixed by the same provision.
- 28. Possibility of bringing proceedings via information technologies
a) Once it has fully entered into force, the Act of 10 August 2005 introducing the Phenix information system, published in the Belgian Official Gazette of 1 September 2005, should make it possible to notify, serve and communicate acts required by judicial proceedings by e-mail.
b) The Council of State requires strictly that the documents for the proceedings be sent by registered letter in accordance with its general rules of procedure (E.C., 6 December 2000, Herbiet versus Barthélemy et al., no. 91.398).
Nevertheless, the Royal Decree of 5 December 1991 detailing the summary proceedings before the Council of State provides that notices, communications and notifications sent to the parties or to persons interested in the resolution of a particular case may be served by registered carrier. In cases of extreme urgency, such communications may also be sent by fax (Article 3(1)).
The Royal Decree of 9 July 2000 on the rules of procedure in respect of decisions relating to access to the territory, residence, establishment and repatriation of foreign nationals provides that in cases of extreme urgency only, the plaintiff may send the petition for suspension or provisional measures by fax, and then sign it for authentication at the hearing (Article 19).
- 29. Court fees
a) The court fee is €35 before the justice of the peace (€25 in cases of final instance or involving alimony), €82 before the court of first instance or the commercial court (€69.50 for summary proceedings), €186 before the court of appeal (€139 in summary proceedings) and €325 before the Supreme Court of Appeal.
Furthermore, the petition fee is €52 except for the justice of the peace (€25), and the recording fee is €30 (Royal Decree no. 64 of 30 November 1939 containing the Code on registration duties, mortgage duties and registry fees, Articles 269-1, 269-2, 269-3 and 270-1).
b) A petition for annulment, like the application for a judicial review, which may be filed before the Council of State is subject to a charge currently fixed at €175.
- 30. Compulsory representation
a) For proceedings initiated before the judicial courts, Article 1026 of the Code of Judicial Procedure provides that a unilateral petition must, in principle, be signed by a solicitor.
Similarly, the Code of Judicial Procedure requires that a solicitor's assistance is needed to lodge an appeal before the Supreme Court of Appeal.
b) For an annulment action before the Council of State, the petitioner, a natural person acting in his or her own name or as a representative of another natural person, legal person or grouping, may act alone, if s/he feels capable of doing so.
If such a person should conclude that a solicitor's assistance is necessary, s/he may engage a solicitor of his or her choice, even if the latter is a trainee.
An application for judicial review must be dated and signed by a solicitor (Royal Decree of 30 November 2006 laying down the procedure for a judicial review before the Council of State, Article 3(2)).
The terms of Section 3 of Article 19 of the Consolidated Acts on the Council of State state: "The parties may be represented or assisted by solicitors registered with the bar association or on the list of trainees as well as, depending on the relevant provisions of the Code of Judicial Procedure, by nationals of an EU Member State who are accredited to practice law."
- 31. Legal aid
As regards actions before the Council of State, the provisions governing "free legal assistance" are laid down in Articles 77-82 of the aforementioned Regent's Decree of 28 August 1948.
The president of the chamber to which the case is referred rules on the request for free legal assistance (legal aid) without proceedings.
S/he hears the parties if necessary and his or her decision is final.
If legal aid is refused, the petitioner is asked to affix a stamp to his or her petition. If this is not done within 15 days of relevant notice served by the registrar, the petition is removed from the case list (Article 81).
In the course of proceedings, the president of the chamber may grant legal for such acts and duties as s/he deems appropriate (Article 82).
- 32. Fine for abusive or unjustified applications
a) As regards the judicial courts, only an idle appeal may be subject to a fine (Article 1072(a) of the Code of Judicial Procedure) without prejudice to the possibility for the defendants or respondents to ask the court to order the plaintiff and the appellant to pay damages for frivolous and vexatious proceedings.
b) Article 37, reintroduced by the Act of 17 February 2002 in Chapter IV of Title V of the Consolidated Acts of 12 January 1973, and amended by the Act of 2006, provides that a fine may be imposed for improper use of the proceedings before the Council of State.
The general terms of the new Article 37 suggest that the administrative legal section may impose a fine each time it rules on an application, i.e. when exercising its powers (in particular on an action for annulment, application for summary proceedings, third party proceedings, for a review and request for penalty payment).
A fine can consequently be imposed both by a chamber composed of three councillors and by a single judge.
This provision states: "If in the view of the auditor's report or additional report, the Council of State should deem that a fine may be justified for manifestly improper legal action, the ruling shall fix a hearing at an early date to that end." (14)
If, once an application for a judicial review has been declared inadmissible by virtue of Article 20, the Council of State considers that the fine referred to in section 1 is justified, a difference member of the Council of State to the one who took the decision not to admit the application, shall fix a hearing at an early date for that purpose.
The decision shall be notified to the petitioner and to the opposing party.
The decision imposing the fine shall be deemed to have been handed down on the basis of a hearing.
Fines range between €125 and €2,500. These sums may be changed by the King in accordance with the consumer price index. A fine shall be imposed on the petitioner and recovered in accordance with Article 36(4). The proceeds shall be deposited with the penalties management fund.
(14)In its opinion of 13 March 2000 on the bill, the legislative section underscored the ambiguity of these terms: "Does this mean that the parties will have to lodge new submissions and the auditor a new report? Or will the proceedings be merely oral?" (Sess. 1999-2000, Parl. Doc. No. 50 0101/004, p. 8). What seems to be well established in any event is that no fine can be imposed in the absence of a conclusive report as to the manifestly improper nature of the action (see L. Lejeune, La loi "sanctionnant le recours manifestement abusif à la section d'administration du Conseil d'Etat", J.T., 2003, p. 167).
- B. MAIN TRIAL
- 33. Fundamental principles of the main trial
Articles 148 and 149, included in Title III, chapter IV of the consolidated Constitution, provide that hearings of the court shall be public, that all judgements will be reasoned, and that they will be handed down in public hearings.
The question as to whether these provisions apply only to courts and tribunals, or if they apply also to all judgements, even those handed down by an administrative court, is still under discussion.
In any event, the following general principles (among others) apply to all acts of a judicial nature:
- the principle that requires a court to rule when a case is referred to it;
- the principle that requires the presence of judges in all hearings during which the litigation is debated and deliberated on; it is worth noting the position to the contrary taken by the Supreme Court of Appeal when it declared that there is no general principle pursuant to which a judgement must be handed down by the court that heard the case;
- the principle that requires respect for the rights of defence;
- the principle that precludes the court from ruling on matters not requested;
- the principle of impartiality, which precludes the same person from being both judge of and party to the proceedings;
- the principle of the transfer of appeal jurisdiction;
- the principle that enables judges to interpret their rulings and judgements.
- 34. Judicial impartiality
a) Provision is made for the following grounds of objection in Article 828 of the Code of Judicial Procedure:
"Any judge may be challenged for the following reasons:
1) If there is legitimate suspicion. 2) If s/he or his/her spouse has a personal interest in the dispute.
3) If s/he or his/her spouse is related to either of the parties in a direct line (…) or in the fourth degree in the collateral line; or if the judge is related directly or by marriage in the aforementioned degree to the spouse of either of the parties.
4) If the judge, his/her spouse, their ancestors or descendants or relatives or relatives by marriage in the same line, has/have a dispute about a matter similar to that between the parties.
5) If they are engaged in proceedings in their own name before a court where one of the parties is a judge; if they are creditors or debtors of one of the parties.
6) If there have been criminal proceedings between them and one of the parties or their spouses and relatives or relatives by marriage in direct line.
7) If there have been civil proceedings between the judge, his/her spouse, their ancestors and descendants, or relatives in the same line, and one of the parties, and said proceedings, if initiated by the party, were heard before the court in which the challenge was lodged; if said proceedings were completed within six months prior to the challenge.
8) If the judge is guardian, second guardian or trustee, transitional administrator or judicial consultant, presumptive heir or donee, master or partner of one of the parties; if s/he is administrator or superintendent of an establishment, company or association that is party to the proceedings; if one of the parties is his/her presumptive heir or donee.
9) If the judge has given advice, pleaded or written about the dispute; if s/he had previously sat as a judge or arbitrator for the dispute, except if in the same degree of jurisdiction:
1. if s/he contributed to a judgement or interlocutory judgement;
2. having set the application aside by a judgement by default;
3. having ruled on an appeal, he heard the same case subsequently in joint chambers;
10) If the judge has been involved in a judgement in the first degree and the appeal was referred to him/her.
11) If s/he has testified as a witness; if s/he has been in contact with one of the parties or has accepted gifts from the latter since the proceedings commenced.
12) If there is mortal enmity between him/her and one of the parties; if there has been abuse, insults or threats, verbally or in writing, on his/her part, since the proceedings, or during the six months prior to the proposed challenge."
b) The members of the administrative legal section of the Council of State may be challenged for reasons pursuant to Articles 828 and 830 of the Code of Judicial Procedure.
As already mentioned, any member of the legislative section who has issued an opinion on a draft regulation may not hear an application to annul that regulation as a member of the administrative legal section.
A particular problem arose during subsequent examination of the application for suspension and the petition for annulment.
Apart from in the instances provided for under Article 17(1)(3) and (2) (3) and Article 18(3), the chambers of the administrative legal section sit as one member on applications for suspension and interim measures.
These approaches have given rise to delicate questions. They may entail one and the same member of the Council of State having to hear, initially, an application for the suspension of enforcement alone, which may be accompanied by a request for provisional measures, and then, in a second step, an application for annulment, this time as a member of a panel of three judges.
Said approaches have led the Council of State to hear applications to challenge some of its members.
- 35. Possibility to rely on the new legal arguments in the course of proceedings
a) Before the judicial courts of instance and appeal, the plaintiff may in principle cite new legal arguments.
Conversely, only grounds relating to public order may be cited for the first time before the Supreme Court of Appeal.
b) Before the Council of State, it is up to the petitioner to set out his or her arguments in the petition itself.
The petitioner nonetheless has the option of citing new arguments in the trial documentation (reply and closing statement), as well as at the hearing, until the proceedings are closed, on the express condition that said grounds relate to public order.
No list of grounds relating to public order is contained in laws and regulations.
They are to be determined by case law.
To cite but one example, the grounds based on lack of competence on the part of the perpetrator (ratione materiae, ratione loci and ratione temporis) are deemed to relate to public order.
- 36. Persons allowed to intervene during the main hearing
a) Articles 812 and 813 of the Code of Judicial Procedure provide that intervention may be made before all judicial courts, but an intervention to obtain a conviction may be exercised for the first time on appeal.
Intervention is subject to the same conditions as the main action, i.e. a plaintiff in intervention must show that s/he has an interest.
b) Any interested party may ask to intervene during the proceedings for suspension and annulment held before the Council of State, in support of the petitioner or of the opposing party.
The conditions of this intervention are determined in Article 21(a) of the Acts on the Council of State coordinated on 12 January 1973.
- 37. Existence and role of the representative of the State (“ministère public”) in administrative cases
In disputes that fall under the purview of judicial courts, the public prosecution office may intervene by virtue of the rules of the Code of Judicial Procedure.
The main rulings of the Supreme Court of Appeal on the non-contractual liability of the administration, for instance, have drawn inspiration from the arguments of the general prosecutor's office of the Supreme Court of Appeal.
There is no body of prosecutors before the administrative courts, and more particularly before the Council of State, similar to that of the public prosecutor's office.
The competence devolved to the members of the auditor's office cannot be considered to be similar to that of the public prosecutor's office.
- 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"
As already pointed out, the Belgian Council of State includes in particular an auditor's office.
This auditor's office has a dual function in the administrative legal section.
a) It participates actively in the handling and disposal of appeals.
During proceedings for annulment for misuse of power, it draws up and distributes a written report in which it analyses the petition in terms of admissibility and of substance, as well as the pertinence of arguments from the opposing party and, where appropriate, from the intervening party or parties.
It then upholds or dismisses the appeal, via the usual procedure.
b) Pursuant to the principle of double examination of the case, it gives its opinion at the hearing once the parties have exchanged all their arguments. In said opinion, it states the position it would take if it were judging the case.
No provision is made for the parties to respond to the opinion, but this option is frequently granted by the president, in particular when the reporting auditor takes a position in his or her opinion which is different from the position that s/he adopted in his/her report.
It is worth underscoring that the member of the auditor's office does not take part in the deliberation.
- 39. Termination of court proceedings before the final judgment
a) The plaintiff may withdraw from his/her action or from the proceedings before the judicial courts.
In cases where the proceedings have not yet been closed, demise remains without effect for as long as no relevant notification has been served.
Where notification is served, the rightful claimants may, if necessary, be summonsed when proceedings are resumed.
b) The petitioner may renounce his/her petition before the Council of State. The chamber to which the case has been referred must comment on the withdrawal.
If either party should die before the debates are closed, the proceedings should be resumed.
Apart from in an emergency, proceedings are suspended during the time granted to the heirs to draw up an inventory and to deliberate.
The rightful claimants of a deceased resume the proceedings via a petition lodged with the registry of the court, drawn up in accordance with Article 1.
The court registrar sends a copy of this petition to the party.
Once the time limits for the inventory and deliberation have expired, the proceedings are duly resumed against the rightful claimants of the deceased by petition drawn up in accordance with Article 1.
If the deceased petitioner's rightful claimants do not resume the proceedings by the expiry of the time limits, the case is removed from the case list.
- 40. Role of the court registry in serving procedural documents
a) Where judicial proceedings are initiated by joint petition, a copy is appended to the summons to appear sent by the court registry by registered missive to the parties (Article 1034(e) of the Code of Judicial Procedure).
By virtue of Article 745, section 1 of the Code of Judicial Procedure, all submissions are sent to the opposing party or the latter's solicitor, at the same time as they are filed with the court registry.
The Code of Judicial Procedure moreover provides that the opinion of the public prosecution office is to be notified to the solicitors of the parties by letter, and to the parties who appeared at the hearing without solicitor by registered missive (Article 767(3)).
b) In the Council of State, all documents pertaining to proceedings are to be sent to the registry, which is in charge of forwarding them to the parties.
- 41. Duty to provide evidence
a) Before the judicial court, each of the parties must provide evidence of the facts it is citing (Code of Judicial Procedure, Article 870).
The court may nonetheless order any litigant to produce proof at his or her disposal (Code of Judicial Procedure, Article 871).
Where there are precise and concordant serious presumptions that a party or a third party holds a document containing proof of a relevant fact, the court may order this document or a certified copy thereof to be included in the case file (Code of Judicial Procedure, Articles 877 and 878).
b) Proceedings before the Council of State are inquisitorial: when examining an application for annulment, the judge is vested with precise responsibilities regarding the examination of the case.
As underscored in the Report to the Regent preceding the Decree of 23 August 1948 laying down the procedure before the administrative section of the Council of State (now the administrative legal section): "It is because the very idea of administrative litigation is inseparable from the concept of general interest that the proceedings must be conducted through the judge, and not by the parties or their counsels. To decide otherwise would be to enable the parties – which are naturally tempted to put their personal conveniences and interest before the general interest – to delay the settlement of disputes; it would moreover enable an administrative authority to use all the means at its disposal to prolong the effects of the illegal act it committed, to the detriment of the law. That is why in France, as in the Netherlands, the Council of State itself conducts the proceedings ( … )" .(15)
(15)Belgian Official Gazette, 23-24 August 1948, p. 6821.
- 42. Form of the hearing
The hearings of the courts and tribunals, like those of the Council of State, are public, unless to hear them in public would undermine public order or decency.
At the Council of State, the President gives the floor first to the member reporting on the case.
The President then gives the floor to the petitioner, then to the opposing party and, where applicable, to the intervening parties.
The member of the auditor's office then gives his/her opinion.
The President ultimately brings the debate to a close and deliberates on the case.
- 43. Judicial deliberation
Only the judges who have heard the case may be involved in the deliberation.
The ruling handed down by the European Court of Human Rights on 20 February 1996 in the case of Vermeulen versus Belgium is worth mentioning here (58/1994/505/587; RTDH, 1996, pp. 615 et seq.; see P. Lambert; JLMB 1996, pp. 904 et seq., see P. Henry; see also Messrs F. Dumon, R. Charles and E. Krings, De procureur-generaal en de advocaten-generaal in het Hof van Cassatie van België, R.W., 1996-1997, pp. 313 et seq.; S. Van Drooghenbroeck, see under Cass., 13 September 1999, RCJB, 2000, pp. 745 et seq.).
In a civil case, the petitioner complained about not having been able to reply, through his counsel, to the submissions of the public prosecutor, and not having given the final submission in a hearing before the Supreme Court of Appeal; he also denounced the participation of the public prosecution office in the deliberation that ensued.
The Court held: "In view of the stakes for the petitioner in the proceedings before the Supreme Court of Appeal and the nature of the public prosecutor's submissions, the closure of the hearing denied the party concerned his right to be heard. This entails in principle the right for the parties to criminal or civil proceedings to take cognisance of all exhibits or observations submitted to the court, even by an independent magistrate, with a view to influencing its decision and discussing it."
In the wake of the Vermeulen ruling, all parties henceforth have the right to take cognisance of – and to discuss – the public prosecution office's opinion before judgement is handed down.
An Act of 14 November 2000 amended Articles 766,767, 770 and 771 of the Code of Judicial Procedure accordingly by drawing a distinction according to whether the public prosecution office's opinion is oral or written (G.de Leval, Eléments de procédure civile, Brussels, Larcier 2003, p. 208).
It is also important to mention that, to provide for legislative follow- up to the ruling in the Vermeulen versus Belgium case, an amendment to the bill amending the Acts on the Council of State, coordinated on 12 January 1973, as well as the Code of Judicial Procedure, was introduced on 24 February 1999 by Messrs Detremmerie and Vanpoucke, proposing to complete Article 76 as follows: "If in his or her opinion, the member of the auditor's office intends to state his/her point of view or provide new elements, the parties shall be informed accordingly and may submit their observations thereon before the opinion of said member is given." (Lower House session 1998-1999, Parl. Doc. No. 1960/3, p. 4). This amendment was nonetheless withdrawn after the Deputy Prime Minister and Minister for the Interior declared that if these initiatives were taken on this matter, he feared that they would be technically premature (Lower House session 1998-1999, Parl. Doc. No. 1960/4, p. 8); see R. Andersen, L'arrêt Vermeulen et le rôle de l'auditeur du Conseil d'Etat, in Mélanges en hommage à P. Lambert, Brussels, Bruylant 2000; S. Van Drooghenbroeck, Les paroles s'envolent, les écrits restent. A propos du principe d'égalité des armes dans les procédures abrégées devant le Conseil d'Etat, A.P.T., 1997, pp. 229 et seq.
Since members of the auditor's office are not involved in deliberation on rulings of the Council of State, a problem similar to that which arose in the case which led the Strasbourg Court to hand down the ruling of 7 June 2001 in Kress versus France, could not occur under Belgian law.
- C. JUDGMENT
- 44. Grounds for the judgment
The grounds for the judgements and rulings of the courts and tribunals, as for the rulings of the Council of State, vary considerably depending on the cases heard.
Within the Council of State, a clear trend has emerged of handing down more concise rulings than was the case ten or 20 years ago, when several dozen pages setting out the grounds were not uncommon.
- 45. Applicable national and international legal norms
The reference frameworks, or formal sources of Belgian administrative law, include directly applicable international treaty law, European law, administrative decisions and regulations, the Constitution, standards having legislative force (federal laws, Community and regional decrees and, to a certain degree, ordinances passed by the Brussels-Capital Region) and the general rules of law which, unlike the former, are unwritten rules recognised as having the force of law.
- 46. Criteria and methods of judicial review
The legal supervision exercised by the Council of State on individual administrative acts and regulations pertains both to external legality (jurisdiction, process of preparation, force) and internal legality (object, motive and purpose).
The scrutiny of grounds more particularly pertains both to grounds in law (legal basis) and to grounds in fact (substantive accuracy, legal classification and evaluation of the facts).
The question as to whether it is up to the court hearing a case of misuse of power to balance the interests is controversial.
The legal supervision exercised on administrative rulings and regulations by the judicial courts pursuant to Article 159 of the Constitution likewise pertains to both internal and external legality.
- 47. Distribution of legal costs
a) Pursuant to Article 1017 of the Judicial Code, any final judgement handed down, even as a matter of course, entails ordering the losing party to pay the costs, unless particular laws provide otherwise and without prejudice to an agreement between the parties as ordered in the judgement, as the case may be.
This provision applies to civil proceedings altered before the civil courts, subject to application of Article 2 of the Code of Judicial Procedure (G. de Leval, op. cit., p. 427).
b) Pursuant to the amendments introduced by Article 2 of the Royal Decree of 19 July 2007, Article 68 of the Regent's Decree of 23 August 1948 defining the proceedings before the Council of State runs as follows:
"The Council of State shall settle the charges referred to in Article 66(1) as well as all other expenses and shall rule on the contribution towards the payment thereof.
When the suspension of enforcement of an act or regulation by an administrative authority is requested, the ruling of the Council of State shall settle both the expenses of the petition for suspension and those of the application for annulment and shall rule on the contribution towards the payment thereof when it decides on the application for annulment.
In any event, all expenses relating to the petition for suspension and to the application for annulment shall be borne by the unsuccessful party. Nevertheless, where the petition for suspension cannot be accompanied or followed by an application for annulment, the decision that lifts the suspension shall settle the expenses by having them assumed by the petitioner."
- 48. Composition of the court (single judge or a panel)
The courts are organised in such a way that judgements are handed down in them by judges ruling alone (justices of the peace), or by chambers of a single judge or three judges (civil courts), or by chambers of a single member or three members (Courts of Appeal).
The rulings of the Supreme Court of Appeal may be handed down only by five members, including the presiding member (Code of Judicial Procedure, Article 128).
The principle of collegiality was the predominant one in the chambers of the administrative section of the Council of State, now the administrative legal section, until 1993.
This principle is still applied, but significant exceptions now apply.
Article 90 of the Consolidated Acts, as amended by Article 38 of the Act of 4 August 1996, Article 24 of the Act of 25 May 1999, and Article 47 of the Act of 15 September 2006 should be consulted on this matter.
In the case of applications for cancellation and for judicial review and requests for penalty payments pursuant to Article 36(1) of the Consolidated Acts, the chambers of the administrative section are composed of three members, including the presiding member.
They are nonetheless composed of a single member when hearing:
1) petitions for suspension and provisional measures;
2) applications for annulment or judicial review pursuant to Article 17(4)(a) and (4)(b), Article 21, section 2 or Article 26, or when the application has to be declared irrelevant, or calls for withdrawal or has to be removed from the case list, or entails only summary proceedings.
By way of derogation, the President of the chamber may automatically order the case to be referred to a chamber composed of one member where the legal complexity or interest of the case is not thereby compromised.
By way of derogation, the president of the chamber may, if the petitioner has made a reasoned request in his or her petition or automatically, order that the case be referred to a chamber composed of three members, when the legal complexity or the interest of the case or specific circumstances so require.
3) Pursuant to Article 9(2), amended by Article 47 of the Act of 15 September 2006, when examining the admissibility of an application for judicial review as referred to in Article 20, the bench is always composed of a single member.
- 49. Dissenting opinions
No dissenting opinions are permitted in either the administrative and the judicial courts.
- 50. Public pronouncement and notification of the judgment
The judgement is issued in writing, delivered in principle orally, and served or notified in writing.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
A distinction has to be drawn.
a) Pursuant to Article 23 of the Code of Judicial Procedure, the authority of res judicata pertains only to the subject of the decision. The subject of the petition must be the same; the petition must be based on the same cause; the petition must be between the same parties and lodged by or against them in the same capacity.
Such is the rule concerning judgements handed down by the courts and tribunals.
b) Although not stipulated by any legislative provision, rulings by the Council of State annulling acts and regulations have, according to established case law, absolute authority of res judicata (erga omnes effect).
This case law is based on formal declarations made during the preparatory work on the Act of 23 December 1946 concerning the creation of the Council of State.
- 52. Powers of the court in limiting the effects of judgment in time
Article 14(b), introduced in the Consolidated Acts on the Council of State by the Act of 4 August 1996, empowers it to indicate, by general provision, the effects of annulled regulatory acts that have to be considered as final or maintained tentatively for such a period as it determines.
This provision is all the more justified since an appeal may be filed with the Council of State following an annulment ruling of the Constitutional Court; and if the latter ruled only on annulment without retroactive effect, as authorised to do so by Article 8, section 2 of the Special Act of 6 January 1989, it would in no way be consistent with the annulment of the piece of legislation in question, even if fully retroactive.
The power vested in the Council of State by Article 14(b) of the Consolidated Acts is not unlimited, but must comply with the higher legislation that enshrines, in particular, the right to equality, to a fair trial, and to respect for legal certainty.
Recent case law demonstrates a certain reluctance on the part of the courts to avail themselves of this competence.
- 53. Right to the execution of judgment
A series of distinctions must be made here.
a) In Belgian law, the administrative authorities may, for the sake of the continuity of public services, invoke immunity from suit.
A distinction must moreover be drawn between convictions against them, depending on whether they entail "an obligation to pay" or "an obligation to act."
To enforce the former, Article 1412(a) of the Code of Judicial Procedure may be applied. Certain property belonging to the administrative authority previously inventoried may be seized, or in the absence of such an inventory or where the items thereupon are not of sufficient value to pay off the creditor, items which are evidently not required by these legal persons to perform their duties or to continue the public service may also be seized.
To enforce the latter, immunity remains virtually total, even if the case law of the Supreme Court of Appeal does not preclude the court from authorising private individuals to replace the failing administrative authority, at the latter's expense, when this solution does not affect the continuity of services (Cass., 24 April 1998, J.L.M.B., 1999, pp. 67 et seq., see Ph. Coenraets and D. Delvaux).
b) The only direct coercion procedure that can be applied against certain Belgian administrative authorities to enforce a court decision where required is to dispatch a special commissioner. This is a well-known, albeit limited, supervisory procedure: it must be formally provided for by law, decree, or ordinance and may only pertain to an independent public service.
Article 9 of the Decree of 1 April 1999 on the supervision of municipalities, provinces, inter-municipal structures and single- or multi- municipality police areas of the Walloon Region (CDLD L3116-1) stipulates that the supervisory authority may appoint a special commissioner by decree where the municipality, province or inter-municipal structure fails to provide the information or elements requested, or to implement the measures prescribed by the laws, decrees, regulations or statutes, or by a decision of the courts that has acquired the force of res judicata. The special commissioner is empowered to take all such measures as necessary in the place and stead of the failing authority, within the limits of the powers vested in him or her by the decree appointing him/her.
This clearly useful method is also contained in Articles 14 to 16 of the Decree of 20 December 2004 on the normal administrative supervision of the municipalities in the German-speaking Region.
However, it is not contained either in Article 261 of the Flemish municipal decree (Gemeentedecreet) of 15 July 2005, or in Article 253 of the Flemish provincial decree (Provinciedecreet) of 9 December 2005, or in Article 18 of the Brussels ordinance of 14 May 1998 on the administrative supervision of the municipalities in the Brussels-Capital Region.
c) The administration may be ordered to pay a fine, irrespective of these enforcement measures.
In theory, it is up to both judicial and administrative judges to impose a fine in conjunction with all orders to enforce an obligation to act.
The matter is settled separately by the Code of Judicial Procedure (Article 1385(a) et seq.) and by the Consolidated Acts on the Council of State of 12 January 1973 (Article 36).
It is worth noting that, whereas the Council of State may, when petitioned, order the suspension of an administrative act or impose provisional measures subject to a fine, the same does not apply to an annulment ruling.
The petitioner may not ask for the annulment of an administrative act or regulation and at the same time ask that a fine be imposed in addition to said annulment.
This option is open to petitioners only if the administration fails to enforce the annulment ruling within a period of three months from its notification.
A separate petition must be filed to that end once the administrative authority concerned has been formally notified.
It is worth noting that when the Council of State imposes a fine, the amount thereof is not paid to the plaintiff but to a fund known as the penalties management fund.
- 54. Recent efforts to reduce the length of court proceedings
The congestion of the judicial and administrative courts and, consequently, their backlog, are the subject of an ongoing debate in Belgium.
a) As regards the judicial courts and tribunals, the Act of 26 April 2007 amended the Code of Judicial Procedure "to combat said backlog".
In particular, it authorises the court, before passing judgement, to order a preliminary measure at any stage of the proceedings, intended to examine the petition or to settle an incident pertaining to such a measure, or to settle provisionally the situation between the parties. To this end, the first party to take action may bring the case before the court at any stage during the proceedings by simple written request sent to or deposited with the court registry. The court registrar convenes the parties and, where necessary, their counsel by ordinary letter or, where a party fails to attend the hearing lodging the proceedings and has no legal counsel, by registered missive (Article 19, section 2, of the Code of Judicial Procedure, amended by the Act of 26 April 2007).
The circumstances under which the case may be broached via the procedure provided for summary proceedings have been expanded (Article 735 of the Code of Judicial Procedure, amended by the Act of 26 April 2007). The legislator may subject the court to strict discipline regarding the delivery of its judgements.
When the court is deliberating on the judgement, it sets the day for said delivery, which must be within one month of the closing of submissions.
The registrar draws up a list of cases in which issuance of the judgement has been deferred beyond one month; the list is communicated to the chief of staff.
If the court extends its deliberation beyond three months, it shall inform the chief of staff and the first president of the Court of Appeal and the Labour Court, without prejudice to one of the parties taking the initiative to do so.
The magistrate concerned is summoned immediately by the chief of staff to explain the reasons for the delay.
The information obtained may be taken into account for disciplinary measures, the evaluation of the magistrate or an appointment or designation procedure concerning him or her (Article 770 of the Code of Judicial Procedure, amended by the Act of 26 April 2007).
b) Bills have been introduced over several years to create administrative courts with general competence under different forms (one per province? one per region? one per appellate court district?) which would rule, in first or final instance, in appeal, on judgements passed by the administrative courts with special competences, with the Council of State intervening only as an appellate body.
None of these proposals has succeeded.
c) As regards the Council of State, draconian measures (for the litigants) have been taken since 1991 to expedite proceedings.
To cite but one example, by virtue of the Act of 4 August 1996 amending the Consolidated Acts on the Council of State, a petitioner whose request for suspension has not been accepted, is deemed to have withdrawn if s/he does not file a petition to continue the proceedings within 30 days as of the notification of stoppage.
Since these measures did not suffice to reduce the backlog, especially in litigation involving foreign nationals, the legislator decided to adopt the Act of 15 September 2006 reforming the Council of State and establishing an Aliens Litigation Council.
In a key point of the reform, the Council of State is no longer competent, in applications for suspension or annulment, to review individual decisions taken by virtue of the legislation relating to aliens. This competence was transferred to the Aliens Litigation Council on the date the latter was created. The decisions of this body may, however, be referred to the Council of State for review.
This new entity is in theory competent to hear petitions contesting decisions taken by the general commissioner for refugees and stateless persons regarding applications for asylum in the broad sense of the term, i.e. both as regards refugee status and the new subsidiary protection status; it is also competent to review, in petitions for annulment, other decisions taken by virtue of the laws concerning access to the territory, residence, establishment and repatriation of aliens; it has the power to suspend, where necessary in a procedure for extreme urgency, decisions contested before it and to order provisional measures where appropriate, in anticipation of the decision on the application for annulment.
"Modern management techniques" have been introduced within the Council of State itself, accompanied by statutory amendments. The aim is to apply the instruments used in courts and tribunals to the Council of State as far as possible.
The system of term of office replaces the appointment for life for the chief of staff, the chamber president, the first chief auditor of the section and the first secretary of the section. Holders of the office of first president and president are responsible for management of staff only and are not responsible for management of a chamber.
An evaluation system for office-holders was introduced by law and their workload is to be measured and recorded.
Regulations governing illness and disablement of office have been introduced that are similar to those applied in the courts and tribunals.
Additional magistrates, members of the Council of State and members of the auditor's office as well as court clerks have been appointed and assigned to reduce the backlog of ordinary litigation as a matter of priority.
Measures have also been taken to expedite proceedings.
The list of cases in which the dispute may be decided by a single judge has been lengthened.
A petition for judicial review must be signed by a lawyer. A screening procedure is applied. Misuse of such appeal is subject to a fine.
Requests for suspension and for annulment may in theory be filed by means of a "single petition".
Measures have been taken to simplify rulings and reports.
"Written appearance" has been made possible, and intervention is simplified in the context of an application for annulment lodged concurrently with a petition for suspension.
- E. REMEDIES
- 55. Sharing out of competencies between the lower courts and the supreme courts
By way of reminder, there are no administrative courts of first instance or of appeal with general competences in Belgium. The Council of State rules in first and final instance and on appeal as regards the annulment of any unilateral act by an administrative authority, and may review final judgements handed down by administrative courts with special competences.
- 56. Recourse against judgments
a) Insofar as it falls within the remit of the judicial courts, administrative litigation is in principle subject to two-tier proceedings (first instance and appeal).
b) The Council of State has jurisdiction to hear appeals and to conduct judicial reviews of decisions handed down by the administrative courts.
Litigation for misuse of power falls within the remit of the Council of State, which rules in the first and final instance.
Nevertheless, by virtue of Article 39/2(2) of the Act of 15 December 1980 on access to the territory, residence, establishment and repatriation of aliens, as introduced by Article 80 of the Act of 15 September 2006, the Aliens Litigation Council rules on annulment via rulings on individual decisions handed down pursuant to said Act, with the exception of the decisions of the general commissioner for refugees and stateless persons, which may be contested with full jurisdiction before the same council.
Rulings by the Council of State may be appealed before the Supreme Court of Appeal only if they are handed down on its own competence compared with that of the judicial courts (jurisdictional conflict).
There is no institution in Belgium equivalent to the jurisdiction court.
The Supreme Court of Appeal passes judgement on jurisdictional conflicts (Article 158 of the Constitution).
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- 57. Existence of emergency and/or summary proceedings
a) With the single exception of litigation involving foreign nationals, until 1991, a petition for summary proceedings against an administrative decision could be filed only with the judicial judge, namely the president of the court (of first instance, commercial court, and labour court).
According to Article 584 of the Code of Judicial Procedure, the judge of summary proceedings rules tentatively in all cases that s/he recognises as being urgent, on all matters, except those shielded from the judiciary by law.
In practice, the president of the court rules in summary proceedings on all petitions that contest a subjective right, even where the administration is an opposing party.
It is no longer a matter of limiting this intervention only to cases of acts of violence. It covers all culpable infringement of a subjective right.
The powers of the president of the court sitting in summary proceedings were spelled out by the Supreme Court of Appeal in a ruling of 21 March 1985: "The court in summary proceedings shall not interfere with the powers of the executive branch when, ruling in proceedings it recognises as such, it declares itself, as in the case at hand, competent to stipulate, within the limits of its role, measures for the administrative authority, in particular protective measures required to prevent or put a stop to prejudice apparently brought wrongly to bear by said authority on subjective rights which the courts and tribunals are required to protect." (16)
b) Since the entry into force of the Act of 19 July 1991, which amended accordingly Articles 17 and 18 of the Consolidated Acts on the Council of State, the latter rules in summary proceedings.
The rule is that when an administrative act or regulation is likely to be annulled (jurisdictional decisions for which, unlike in French law, no petition for suspension may be filed, are therefore excluded), the Council of State has exclusive jurisdiction to order the suspension thereof.
This rule is deceptively clear.
Its application has caused many jurisdictional conflicts.
The Supreme Court of Appeal has developed an interpretation under the terms of which it does not prejudice the jurisdiction of the president of the court based on Article 584 of the Code of Judicial Procedure: s/he retains jurisdiction in cases where subjective rights are at issue.
c) Administrative summary proceedings are also governed by Article 39/82 of the Act of 15 December 1980 on access to the territory, residence, establishment and repatriation of foreign nationals, as introduced by Article 185 of the Act of 15 September 2006 before the Aliens Litigation Council.
(16)J.T., 1985, pp. 697 et seq., submissions by the director of public prosecutions, Mr Velu, then advocate general. By way of application, see in particular. Civ. Namur (summary proceedings), 25 March 2003, J.T., 2003, pp. 688 et seq.
- 58. Requests eligible for the emergency and/or summary proceedings
a) As mentioned above, the judicial judge in summary proceedings may take any useful provisional measure to protect a subjective right.
S/he may intervene as such to protect public liberties in particular.
b) A petition for the suspension of an administrative act or regulation may be lodged with the Council of State pursuant to Article 17 of the Consolidated Acts of 12 January 1973.
When such a petition is filed with it, if it contains serious arguments and a risk of serious prejudice that is difficult to remedy, the Council of State may order all such measures as necessary to protect the interests of the parties or persons who have an interest in the resolution of the case, except for measures relating to civil rights.
Accordingly, by a ruling of 20 December 1991, having ordered the suspension of an order served on a foreign petitioner to leave the country's territory, the Council of State enjoined the Belgian State to register the person in question in the population register and issue an EEC residence permit to her. (17).
(17) E.C., 20 December 1991, Triches vs the Belgian State, no. 38.402, U.G.A.; see also, E.C., 15 January 1992, Ukcardes versus the City of Brussels, no. 38.499, U.G.A.; J.L.M.B., 1992, p. 272, see Ch. Panier, L'injonction peut avoir pour objet l'autorisation de pénétrer dans le Royaume – see E.C., 27 October 1992, Kongo Vangu versus the Belgian State, no. 40.846, U.G.A.
- 59. Kinds of summary proceedings
Strictly speaking, there is no interim relief in Belgian law to protect fundamental liberties or where urgency is required, similar to those under Articles L.521-2 and L.521.3 of the French Code of Administrative Justice.
But the filing of a petition for suspension, followed by a petition for interim relief, may lead to similar if not equivalent results.
- III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES
- 60. Role of administrative authorities in the settlement of administrative disputes
As already indicated in the answer at 16, under Belgian law, petitions may be filed with the administrative authorities, in the absence of relevant legislative or regulatory provisions.
1) A distinction is drawn in this respect between an application for reconsideration lodged with the perpetrator of the act at issue, a hierarchical application and a supervisory application lodged with the corresponding supervisory authority, that fall under administrative centralisation and decentralisation respectively.
An administrative authority is not required to review such an application not covered by legislative or regulatory provisions.
This is not a prerequisite to filing an application for annulment before the Council of State.
2) Countless standards have the force of law, as do regulations that provide for applications to administrative authorities, which were set up specially to hear such cases or which existed already.
An administrative authority with which such an application is filed is required to examine it.
It then acts to reverse it.
This is generally a prerequisite to an appeal lodged with the Council of State.
- 61. Role of independent non-judicial bodies in the settlement of administrative disputes
Mediation has in the last ten years or so found its place among the procedures for settling administrative disputes.
Separate ombudsmen have been created for federal, Community, and regional administrative authorities, their powers being circumscribed to the decision-making sphere of each.
Pursuant to the recitals of the bill establishing a federal ombudsman (18) , to work on the proposal for a decree on the establishment of an ombudsman in the Walloon Region(19), to the recitals of a preliminary draft decree for the creation of an ombudsman service in the French-speaking Community, and to work on a proposal for a decree establishing the Flemish ombudsman service(20) it is incumbent upon the ombudsman to seek a solution to an inappropriate, but not necessarily illegal action on the part of the administration by exercising advisory rather than decision-making powers.
The legislator has systematically refused to attach a suspending or interrupting time limitation to jurisdictional appeals referred to the ombudsman.
The legislator has moreover generally provided that the examination of a complaint lodged with the ombudsman would be suspended if an organised administrative or jurisdictional appeal were filed.
For reasons that are unclear, these points are not broached in the Decree of 20 June 2002 on the ombudsman of the French-speaking Community.
(18) Lower House session 1993-1994, Parl. Doc. No. 1436/1, p. 3.
(19)Council of Walloon Region, session 1993-1994, Cons. Doc. No. 255/1, p. 2.
(20) Flemish Parliament, session 1997-1998, no. 893-1.
- 62. Alternative dispute resolution
Until the Act of 19 May 1998 entered into force, the public authorities were prohibited, apart from some rare exceptions, from resorting to arbitration. Such was the rule imposed by Article 1676(2) of the Code of Judicial Procedure for several decades.
This rule had elicited criticism. It was considered obsolete and poorly suited to the intervention of the public authorities in the economic sphere, whilst the singular exclusion imposed by Belgian law on the matter was denounced.
The legislator did not remain impervious to such criticism(21) .
By the Act of 19 May 1998 amending the provisions of the Code of Judicial Procedure relating to arbitration(22) , the prohibition of legal persons governed by public law to submit to arbitration, though it is still the rule, has been considerably eased. (23)
Article 3 of said Act has replaced Article 1676(2) of the Code of Judicial Procedure, which henceforth runs as follows:
"Whosoever has the capacity or is empowered to compromise may conclude an arbitration agreement.
Without prejudice to the particular laws, legal persons governed by public law may, however, conclude an arbitration agreement only in cases where the agreement concerns the settlement of a dispute relating to the establishment or performance of a contract. Such an arbitration agreement shall be subject to the same conditions regarding its conclusion as the agreement whose performance is the subject of the arbitration. In addition, legal persons of public law may conclude arbitration agreements with respect to all matters, which are determined by law or by a royal decree deliberated upon in the Council of Ministers. Such a decree may also stipulate the conditions and rules governing conclusion of the agreement."
(21)Lower House, session 1997-1998,parl doc, n 1374/1, p. 3.
(22)Published in the Belgian Official Gazette of 7 August 1998, this Act entered into force ten days later.
(23)See L. De Geyter, Arbitrage met publiekrechtelijke rechtspersonen, T.B.P., 2001, pp. 304 et seq.; L. Demeyer, De wet van 19 mei 1998 tot wijziging van de bepalingen van het Gerechtelijk Wetboek betreffende de arbitage, R.W., 1998- 1999, pp. 865 et seq.
- IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA
- A. FINANCIAL RESOURCES MADE AVAILABLE FOR THE REVIEW OF ADMINISTRATIVE ACTS
The answers to the questions in section IV are based on data and tables originally made available most graciously by Mr Klaus Vanhoutte, administrator of the Council of State, and revised by Mr Pierre Liénardy, chamber president.
- 63. Proportion of the State budget allocated to the administration of justice
The data below are taken from the general draft budget of expenses for 2009 contained in parliamentary documents. (24)
The budget for the Constitutional Court falls within the budget for allowances.(25) In 2009 the appropriations for commitment and settlement each totalled €8.83 billion.
The necessary appropriations to the courts and tribunals that comprise the judiciary branch fall within the budget of the Federal Public Service Justice. (26)
In 2009, the commitment and settlement appropriations totalled €887.669 billion and €886.612 billion respectively.
The budget of the Council of State falls under a separate budget division of the Federal Public Service Interior.(27) In 2009, the commitment and settlement appropriations each totalled €40.836 billion. (28)
The appropriations required for the operation of other administrative courts with special competences (29) fall within the budgets of the departments or services to which they pertain. (30)
Finally, to give an idea of the 'average budget allocated to justice', the table below indicates, for the last four years available, the sum of appropriations according to the international COFOG 1998,(31) based on parliamentary documents. Classes 03 (32) and 0330 (33) as well as the overall total of the expenditure of the Federal State are cited.
(in € thousands)
Functions and sub-functions
| || |
|03 – Public order and security || |
3 561 865
3 947 523
3 866 174
4 239 706
|0330 - Courts || |
|Total federal government expenditure || |
106 497 419
107 953 773
112 694 905
129 053 468
(24)All budget documents are available on the website of the Lower House (http://www.lachambre.be). The budget acts are published in full in the Belgian Official Gazette (http://www.moniteur.be). (25) General budget of expenditure, tables appended to the Act, Table 1, Budget 01, Division 53, Programme 1, Lower House parl. Doc. 2008-2009, no. 52- 1528/001, pp. 184-185. (26) General budget of expenditure, tables appended to the Act, Table 2, departmental budgets, Budget 12, Organic Division 56 (ordinary courts), ibid., pp. 262-267. (27) General budget of expenditure, tables appended to the Act, Table 2, departmental budgets, Budget 13, Organic Division 59, programme 13.59.0, ibid., pp. 328-331. (28) The Annual Report of the Council of State, available on its website (http://www.conseildetat.be), contains details of the financial resources made available to the institution. (29) See answer to question 6 above. (30) They were purposely not examined. (31) The UN Classification of the Functions of Government 1998 (COFOG), revised in 1998 under the SCN93, which corresponds to the classification of functions of government of the SEC 95, is used as of Budget Year 3. (32) Budget of revenues and expenditure for Budget Year 2009, General Statement, Lower House, Parl. Doc. 2008-2009 no. 1526/1 pp. 331 et seq. (33) See Tables 5a and 5b of the functional regrouping of federal government expenditure, based on COFOG 1998, per function and per sub-function 2005- 2008, General Statement, op. cit.
- 64. Total number of magistrates and judges
Among the measures taken to reduce the 'delay in justice' in ordinary litigation(34) , the legislator decided, conditionally and temporarily, to increase the number of staff available.(35)
The Council of State, in the strict sense, comprises the members of the institution whose missions are identified with those of the Council of State itself. As such, the Council of State comprises 50 members: a first president, a president, 14 chamber presidents and 34 members (councillors). (36)
The auditor's office comprises an auditor general, a deputy auditor general, 14 first section head auditors, 64 first auditors, auditors or assistant auditors (or 80 members in all). (37)
Here once again, the increase is conditional and temporary.(38)
The coordination office is composed of two section head first secretaries, two first secretaries, secretaries or assistant secretaries.
(34) The recitals of the bill that was to become the Act of 15 September 2006 indicate that this was "a specific and temporary organisational measure (….) to reduce the backlog in ordinary court cases and/or to react with greater flexibility if new cases should suddenly arise" (Lower House session 2005-2006, Parl. Doc. No. 2479/001, p. 87).
(35) The declaration of situations vacant for this increase in staff was subject to the approval, by the Minister for the Interior, of a "plan to reduce the backlog" drawn up by the First President in close cooperation with the President. This plan had to specify in very concrete terms how the holders of office thus added would be used to reduce the backlog in cases before the Council of State. Moreover, this increase is temporary: it is to be terminated, as of right, on the last day of the third full judicial year after the establishment of additional councillors. This measure may be renewed by the King once only, for a period of two judicial years, following the approval of a new or adapted "plan to reduce the backlog” (Article 122 (1) of the Consolidated Acts, inserted by Article 68 of the Act of 15 September 2006).
(36) Consolidated Acts of 12 January 1973 on the Council of State, Article 69, replaced by Article 22 of the Act of 4 August 1996, amended by Article 14 of the Act of 25 May 1999, by Article 4 of the Act of 18 April 2000, by Article 2 of the Act of 14 January 2003, by Article 2.1 of the Act of 2 April 2003 and by Articles 25 and 69 of the Act of 15 September 2006. It was initially decided to increase the number of chamber presidents by two without increasing the number of members of the Council of State, which remained fixed at 44. This was done to enable the First President and the President of the Council of State to 'manage' the council, by relieving them of duties as chamber president (Lower House session 2005-2006, Parl. Doc. No. 51 2479/001, p. 52).
(37) Article 69 of the Consolidated Acts of 12 January 1973, as replaced by Article 22 of the Act of 4 August 1996, amended by Article 14 of the Act of 25 May 1999, by Article 4 of the Act of 18 April 2000, by Article 2 of the Act of 2 April 2003, by Article 25 of the Act of 15 September 2006 and by Article 146 of the Act of 27 December 2006.
(38) In parallel with the decision to increase the number of State Councillors, the legislator provided that the positions concerned would be declared vacant once the Minister for the Interior had approved a 'plan to reduce the backlog', drawn up at this level by the auditor general and the deputy auditor general, each as regards his or her competences. This plan had to specify in very concrete terms how the holders of office thus added would be used to reduce the backlog in cases before the Council of State. It was moreover provided that the temporary increase in question would be terminated, as of right, on the last day of the third full judicial year after the establishment of the members of the auditor’s office pursuant to this increase. This measure may nonetheless be used only once, for a period of two judicial years, and renewed by the King after the approval of a new or adapted 'plan to reduce the backlog' (Article 123(1) of the Consolidated Acts, inserted by Article 70 of the Act of 15 September 2006).
- 65. Percentage of judges assigned to the review of administrative acts
At the Council of State, 38 members with the capacity of president, chamber president and State councillor are assigned to the administrative legal division, as are 56 members of the auditor’s office.
- 66. Number of assistants of judges
Several chamber presidents, State councillors and members of the auditor's office are assisted by a legal secretary having the title of administrative secretary. They all hold an advanced law degree.
Most are assigned to the chambers.
There are 47 assistants for the Council and the auditor's office.
- 67. Documentary resources
The Council of State has a library containing the main collections of legal periodicals and works on legal doctrine in French and Dutch.
A workstation is connected to the Council's databases and to other Belgian, European and foreign sources accessible via the Internet.
- 68. Access to information technologies
Each member of the Council of State has a computer with access to the network.
The auditor's office and the coordination office have created databases that are particularly suitable to the work of the institution.
The opinions and rulings of the Council of State are systematically entered into the databases, which are for the most part made available to the public.
- 69. Websites of courts and other competent bodies
The Ministry of Justice has a website featuring a section on courts and tribunals and containing case law – not only that of the Supreme Court of Appeal, but also that of the judicial courts and tribunals. This case-law application can also be used to search for decisions handed down by other commissions or courts, including the Constitutional Court, which has its own website.
The Council of State has its own website.
External users can access this site for information on the role and operation of the institution, on the legislation applicable thereto, and on rulings and opinions handed down by it. The site was completely revised recently (2007- 2008). It is updated continuously and has a News section on the home page where recent newsworthy decisions and information are posted.
The Council of State is also responsible for making the rules and regulations in force available to the public via the refLex database (39) , which was designed as a research tool for regulations applicable in Belgium. It can also be used to browse through other databases.(40)
The Council's website can also be used to access juriDict (41) , a database of the Council's case law and containing rulings as well as non-admission orders. (42)
(40) Users have access not only to identifying and analytical data, but also to content, when available in electronic form.
(42) The key words for accessing the contents are classified in a tree- structure. This structure is divided into two main branches: the Dutch- speaking branch, giving access to Dutch-speaking case law, and the French- speaking branch, giving access to French-speaking case law; juriDict also features a search function for rulings and orders. Searches may be performed by data, keywords within the tree-structure and words in the text that raise points of law. This structure ensures systematic access to rulings as of number 61,000 (17 July 1996). Before this date, only sporadic rulings are available. Rulings on litigation involving foreign nationals and non- admission orders are included only if they are of interest in the context of case law or legal research.
- B. OTHER STATISTICS
- 70. Number of new applications registered every year
- 71. Number of cases heard every year by the courts or other competent bodies
- 72. Number of pending cases
- 73. Average time taken between the lodging of a claim and a judgment
- 74. Percentage and rate of the annulment of administrative acts decisions by the lower courts
- 75. The volume of litigation per field
Table 1 :
Overview of the number of appeals filed from judicial year 2006/2007 to judicial year 2007/2008 (June 2008), per language case-list, split between litigation involving foreign nationals and general litigation. It is worth underscoring that each case on a single case list, which may apply to several appeals, is entered under the term Appeal.
Judicial year 2006/2007
|Nature of the litigation ||Object of the litigation ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|General application for annulment ||Foreign nationals ||2356 ||2553 ||0 ||0 ||4909 |
|General ||1197 ||1185 ||13 ||0 ||2395 |
|Judicial review ||Foreign nationals ||851 ||446 ||0 ||0 ||1297 |
|General ||14 ||8 ||0 ||0 ||22 |
|Overall total || || || || || ||8623 |
Judicial year 2007/2008
|Nature of the litigation ||Object of the litigation ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|General application for annulment ||Foreign nationals ||16 ||26 ||0 ||0 ||42 |
|General ||1174 ||1198 ||19 ||0 ||2391 |
|Judicial review ||Foreign nationals ||1195 ||797 ||0 ||0 ||1992 |
|General ||12 ||7 ||0 ||0 ||19 |
|Overall total || || || || || ||4444 |
Table 2 :
Overview of the number of 'interlocutory' rulings from judicial year 2007/2008, by language case list, split between general litigation, litigation involving foreign nationals and judicial reviews.
(Admission orders for judicial reviews are indicated in a separate table).
|Nature of the litigation ||Object of the litigation ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|General application for annulment ||Foreign nationals ||39 ||197 ||0 ||1 ||237 |
|General ||493 ||436 ||10 ||5 ||944 |
|Judicial review on the merit of the case ||Foreign nationals ||- ||- ||- ||- ||- |
|General ||0 ||4 ||0 ||0 ||4 |
|Overall total || || || || || ||1185 |
Admission orders for judicial review
|Nature of the litigation ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|General judicial review ||11 ||3 ||0 ||0 ||14 |
|Judicial review involving foreign nationals ||186 ||164 ||0 ||0 ||350 |
|Overall total || || || || ||364 |
Table 3 :
Overview of the number of final rulings handed down in judicial year 2007/2008, per language case list, and split between general litigation, litigation involving foreign nationals and judicial review.
(Non-admission orders for judicial review are indicated in a separate table).
|Nature of the litigation ||Object of the litigation ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|General application for annulment ||Foreign nationals ||3000 ||3723 ||2 ||4 ||6729 |
|General ||1963 ||1707 ||23 ||26 ||3719 |
|Judicial review on the merit of the case ||Foreign nationals ||- ||- ||- ||- ||- |
|General ||66 ||44 ||0 ||0 ||110 |
|Overall total || || || || || ||10558 |
Non-admission orders for judicial review.
| ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|Judicial review (general) ||1 ||4 ||0 ||0 ||5 |
|Judicial review (foreign nationals) ||1037 ||648 ||0 ||0 ||1685 |
|Overall total || || || || ||1690 |
Table 4 :
Overview of the total number of (final and interlocutory) rulings handed down in judicial year 2007/2008, per language case list, and split between general litigation, litigation involving foreign nationals and judicial review.
(Admission and non-admission orders for judicial review are indicated in a separate table).
|Nature of the litigation ||Object of the litigation ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|General application for annulment ||Foreign nationals ||3039 ||3920 ||2 ||5 ||6966 |
|General ||2456 ||2143 ||33 ||31 ||4663 |
|Judicial review on the merit of the case ||Foreign nationals ||- ||- ||- ||- ||- |
|General ||66 ||48 ||0 ||0 ||114 |
|Overall total || || || || || ||11743 |
Admission and non-admission orders for judicial review.
| ||Case list in Dutch ||Case list in French ||Bilingual case list ||Case list in German ||total |
|Judicial review (general) ||12 ||7 ||0 ||0 ||19 |
|Judicial review (foreign nationals) ||1223 ||812 ||0 ||0 ||2035 |
|Overall total || || || || ||2054 |
The total number of cases pending as at 1 September 2008 was as follows:
a) 23,518 cases of general litigation, of which 14,427 involving foreign nationals;
b) 489 cases for judicial review;
c) 24,007 cases in all.(43)
(43)The most recent public annual report (2007/2008) available on the website of the Council of State contains more complete tables and graphs that show the trend in the number of cases pending since judicial year 2005/2006; they are too extensive to be reproduced here.
- C. ECONOMICS OF ADMINISTRATIVE JUSTICE