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Developments in Belgian Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the fourth installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak Republic and Romania.  As we have done in the past, we reiterate our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our Belgian contributors. –Richard Albert]

Luc Lavrysen (Judge at the Belgian Constitutional Court and Full Professor at Ghent University), Jan Theunis (Associate Professor at Hasselt University and law clerk at the Belgian Constitutional Court), Jurgen Goossens (Postdoctoral Researcher at Ghent University), Pieter Cannoot (Academic Assistant at Ghent University), and Viviane Meerschaert (Legal Officer at the Belgian Constitutional Court). For more recent developments in Belgian constitutional law, visit www.belconlawblog.com.

I. Introduction to the Belgian Constitutional Court

The Belgian Constitutional Court was created in 1983 and started functioning in 1984 under the name of “Court of Arbitration”. On 7 may 2007 the name changed to “Constitutional Court”.

From the seventies of last century on, Belgium embarked on a process of federalization. The transformation of the unitary Belgian state into a federal state led to a multiplication of legislative bodies in Belgium. The creation of federated entities – regions and communities – empowered to adopt rules with the same legal effect as acts of federal parliament resulted in the possibility of conflicts between legislative acts. Therefore, the original mission of the Constitutional Court was to supervise the observance of the constitutional division of powers between the federal state, the communities and the regions.

In the following decades, the competence of the Court was extended to the constitutional rights and freedoms, limited at first stage (1988) to the principle of equality and non-discrimination (Articles 10 and 11 of the Constitution), the rights and liberties in respect of education (Article 24 of the Constitution), and later on extended (2003) to all constitutional rights and freedoms. However, the Court has always held the view that Articles 10 and 11 are general in scope and prohibit any form of discrimination, irrespective of its grounds: the constitutional principles of equality and non-discrimination apply to all rights and freedoms, including those that are embedded in international treaties with binding effect in Belgium. Consequently, the Court had already been reviewing the compatibility of legislative acts with other rights and freedoms before its jurisdiction was extended to review the constitutionality of other articles of the Constitution, namely indirectly through Articles 10 and 11 of the Constitution. Since 2014, the Court is also competent to review compliance with Article 143, §1 of the Constitution (federal loyalty).

During the period between 1985 and 2015, conflicts of competencies represent about 9% of the judgments. The majority of cases concern infringements of the equality principle, namely 63% of the total number of cases. It is worth noting that, so far, the transformation from indirect to direct review of compliance with all fundamental rights and freedoms of Title II of the Constitution, has had no noticeable impact on the number of cases or on the substance of the case law, since those provisions had already been covered previously by the review work of the Court. The figures since 2003 show that review of compliance with Articles 10 and 11 of the Constitution still accounts for the majority of cases heard by the Court, followed by review of compliance with Article 23, which concerns fundamental socioeconomic rights, Articles 170 and 172 (taxation guarantees), 22 (protection of private and family life), 12 and 14 (legality principle in criminal matters) and 16 (protection of property rights).

 

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The Constitutional Court makes the assumption that the fundamental rights under Title II of the Constitution and those enshrined in the international conventions are inextricably linked. It is, therefore, unavoidable that the provisions under Title II of the Constitution should be interpreted in conjunction with the provisions concerning similar fundamental rights in the international treaties. After all, they are the same fundamental rights, regardless of whether they are guaranteed by the Constitution or by the European Convention on Human Rights (ECHR).

As a result, the case law of the European Court of Human Rights (ECtHR) has a considerable influence on the case law of the Constitutional Court. The Constitutional Court does expressly refer to judgments of the ECtHR. The Constitutional Court considers itself to be bound by the judgments of the ECtHR, or more particularly by the provisions of the ECHR as they are interpreted by the ECtHR. In that sense, the Belgian Constitutional Court indeed seems to be a satellite of the ECtHR (see L. Lavrysen and J. Theunis, “The Belgian Constitutional Court: a satellite of the ECtHR?”, in Liberae Cogitationes. Liber amicorum Marc Bossuyt, Cambridge, Intersentia, 2013, 331-354). The Constitutional Court contributes in an important way to the effective implementation of the Convention as interpreted by the ECtHR, through annulling or declaring unconstitutional – and thus setting aside – acts of parliament violating the Convention. However, the Court has to serve at the same time another planet. The case law of the Court of Justice of the European Union (CJEU) is indeed also increasingly reflected in the jurisprudence of the Constitutional Court.

Method of Referral

A case may be brought before the Constitutional Court through an action for annulment or a reference for a preliminary ruling. Along with the action for annulment, or during the course of the proceedings, the suspension of the challenged legislative act may be demanded.

An action for annulment may be brought by the various governments, presidents of parliaments (at the request of two-thirds of their members) and by any natural or legal person who has a justifiable interest in the annulment of the legislative act in question. It should be noted that, in the period before 1989, individuals were not allowed to bring a case before the Court.

 

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An action for annulment must, as a rule, be brought within six months of the official publication of the challenged act. If an action for annulment is well-founded, the Court will annul all or part of the challenged provisions, while (provisionally) maintaining – where appropriate – the effects of the provisions in question. The judgment of annulment is absolutely final and conclusive from the date of its publication in the Official Journal. If the action for annulment is dismissed, the judgment shall be binding on the courts with respect to the points of law settled by the judgment.

 

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The action for annulment does not suspend the effect of the challenged federal law, decree or ordinance. In order to prevent that the challenged norm may cause irrevocable prejudice during the period between the introduction of the action and the judgment of the Court, and taking into account that a subsequent retroactive annulment may no longer have any effect, the Court may – at the applicant’s request and in exceptional circumstances – order the suspension of the challenged norm pending a judgment on the merits of the case. Such an action for suspension must be brought within three months following the publication of the challenged norm in the Official Journal (“Moniteur belge”).

 

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If one of the parties invokes the infringement by a legislative act of the division of competencies – between the State, the communities and the regions – and of the fundamental rights, guaranteed by the Title II “On Belgians and their rights” and by the articles 143 (1), 170, 172 and 191 of the Constitution in a dispute before a court of law, the court of law must in principle refer a question for a preliminary ruling to the Constitutional Court.

 

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The court that referred the question for a preliminary ruling and any other court of law called upon to rule on the same dispute must comply with the ruling given by the Constitutional Court to settle the dispute. In that case, the challenged provision remains in effect. However, if the Constitutional Court found an infringement, a new six-month term will be granted during which an action for annulment of that provision may be brought. When a court in another case with an identical subject is confronted with provisions deemed unconstitutional by a preliminary ruling, the logic of the system requires that the court refuses to apply these provisions, unless the court considers it necessary to refer a new preliminary question.

 

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Conclusions

From the Court’s foundation in 1985 until the end of 2015, the Court has delivered 3900 judgments and has handled 6084 cases in total. 213 judgments ruled on a request for suspension. 1355 judgments concerned actions for annulment and 2370 judgments concerned references for preliminary rulings. As time went by, we witnessed an increase in the number of preliminary rulings. Where in the beginning the number of actions for annulment were in the majority, we can observe since the mid-nineties that preliminary rulings gained the upper hand. The Courts of First Instance refer most of the preliminary questions, followed by the Courts of Appeal and the Council of State. The rate of success is actually quite high. In 28 % of the cases, the actions for annulment are successful in the sense that they result in a total or partial annulment of the challenged provisions. Preliminary rulings have an average success rate of 32%.

 

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The discrepancy between the number of treated and completed cases and the number of judgments is due to joined cases. Sometimes the proceedings are terminated by an order of the Court that, for example, grants the discontinuance of the action. A case may, therefore, be terminated without a judgment. Conversely, it occurs that the Court gives an interlocutory ruling or a provisional ruling while the case is still pending. This takes place when the Court, before deciding on the merits of the case, refers a case to the Court of Justice of the EU for a preliminary ruling.

II. The Constitutional Court’s 2015 case law

A. The Belgian Constitution in Europe [and the World]

As before, in 2015 the Constitutional Court showed great openness towards international and European law, in particular the ECHR and EU Law. There have been references to the jurisprudence of the ECtHR in 55 cases and to the case law of the CJEU in 24 cases. Other sources of international law can be found in 41 cases. Although the Court, on the basis of the CILFIT case law, found that there was no need to refer in 7 cases for a preliminary ruling to the CJEU when it was invited to do so by some of the parties, it did so in two cases. In its Judgment No. 11/2015 of 28 January 2015 concerning the so called Fairness Tax, the Court followed a suggestion in that sense of the requesting party. In its Judgement No. 15/2015, discussed below, the Court lodged the request for a preliminary ruling of the CJEU ex officio.

  1. Judgment No. 15 of 2015 Guarantee scheme protecting the shares of individual members of financial cooperatives – Justification – Compatibility with EU Law

During the financial crisis of 2008 the Belgian Government put in place a Deposit Guarantee Scheme for credit institutions of EUR 100 000 per saver and a similar Insurance Guarantee Scheme for ‘Branch 21’ Life Insurance Products. In 2009, an additional guarantee scheme protecting the shares of individual members of financial cooperatives was introduced to secure the shares of around 800.000 people who had invested inter alia via the financial cooperative ARCO Group in the Dexia Banking Group which was collapsing. The Royal Decree making the scheme operational was challenged before the Council of State by shareholders and funds that could not benefit from that scheme. In three cases that were joined by the Constitutional Court, the Council of State referred questions for preliminary rulings to the Constitutional Court. The question was whether in light of the Articles 10 and 11 of the Constitution, those shareholders and funds were discriminated in comparison with the shareholders of the financial cooperatives. Meanwhile, the European Commission decided that the guarantee scheme was unlawfully adopted by Belgium and that Belgium should recover the incompatible aid from the beneficiaries and terminate the aid. This Commission decision, however, was challenged before the General Court of the EU by both the ARCO Group and Belgium. The Constitutional Court was of the opinion that it could not answer the questions brought before it by the Council of State, without referring questions on the validity of the aforementioned Commission Decision, as well as on the interpretation of various EU Law provisions to the CJEU. The main reason is that – apart from the fact the European Commission had found the Scheme unlawful, but this decision was not final because challenged in the General Court of the EU – when a distinction is made between various categories of persons, and that difference in treatment is contrary to binding international or European rules (e.g. in the field of State aid or the regulation of financial institutions), the difference cannot be justified and is violating the Articles 10 and 11 of the Constitution.

Full-text available in Dutch and French.

  1. Judgment No. 32 of 2015 Smoking in prisons and closed centers for illegal immigrants – Private quarters – Protection of health risks of personnel – Private life of prisoners

In 2009, the legislator introduced a general smoking ban in closed places accessible to the public. The Constitutional Court annulled with its Judgment No. 37/2011 of 15 March 2011 one of the remaining exceptions to that ban for small bars not serving meals, taking effect on 1 July 2011. Another exception remained and was challenged via a request for a preliminary ruling by a worker of a closed center for illegal immigrants. In private quarters of prisons and closed centers where residents and non-residents are allowed to smoke, the ban does not apply. The referring judge asked the Constitutional Court if that exception was compatible with the Articles 10 and 11 of the Constitution, combined with the Articles 3 and 11 of the European Social Charter, Articles 22 and 23 of the Constitution and Article 8 of the ECHR. In answer to the defense of the Council of Ministers that those provisions of the European Social Charter lacked direct effect and should not be taken into consideration, the Court held that while reviewing the compatibility of a legislative norm with the Articles 10 and 11 of the Constitution, it should not check if those provisions have direct effect or not, but if the legislator has not violated its international commitments in a discriminatory manner. The Court also took into consideration, while reviewing the exception against Article 23 of the Constitution, the Framework Convention of the World Health Organization on Tobacco Control, its implementing Guidelines and the EU Recommendation on smoke-free environments, as well as Article 8 ECHR, and the relevant case law of the ECtHR, while reviewing the norm against Article 22 of the Constitution. The Court came to the conclusion that the legislator has found the right balance between the protection of the health of the workers against the nuisances of smoking and the right of private life of those deprived from their liberty, the exception being only applicable in the private quarters, not in the other parts of the establishment.

Full-text available in Dutch and French.

  1. Judgment No. 66 of 2015 Circus Animals – Ban – Justification – Free Movement of Goods and Services

An Act of Federal Parliament of 7 February 2014 introduced a ban to use animals in circuses and travelling exhibitions. The King, however, could make an exception for some categories of domesticated animals. The ban was challenged by some holders and trainers of wild animals for circuses on the basis of a violation of the Articles 10 and 11 of the Constitution, in combination with the Articles 34, 36 and 56 of the Treaty on the Functioning of the European Union (TFEU). The Court came, with reference to the case law of the CJEU, to the conclusion that such a ban has to be considered as a restriction of the free trade in those wild animals. The Court found, however, that the restriction was justified, referring to the fact that the Protection of Animal Welfare is a legitimate aim of public interest according to Article 13 TFEU and that the ban has to be considered necessary to protect the concerned animals in an effective way. The fact that in some EU Member States less stringent measures apply does not mean that the contested measures are not proportionate. The Court referred also to an infringement action started by the European Commission against Austria, which had finally been dropped after the Commission came to the conclusion that the ban was compatible with the free movement of services. The Court refers in that respect to a Decision of the European Ombudsman closing his inquiry into a complaint against the European Commission. On the basis of the CILIFIT case law the Court found that there was no need to refer a question of interpretation of the TFEU provisions for a preliminary ruling to the CJEU. The arguments concerning the violation of the equality principle, in combination with the freedom of trade and enterprise, the principle of legal certainty and legitimate expectations were also declared unfounded.

Full-text available in Dutch and French.

  1. Judgment No. 118 of 2015 Land Use Plan – Public Participation – Aarhus Convention

Through an Act of the Flemish Parliament of 4 April 2014 the rules applicable for the announcement of a public inquiry on a draft land use plan have been modified. According to the previous provision that announcement should be done through posters in the municipalities concerned, a notice in the Official Journal and in at least three daily newspapers, on the website of the authority concerned, and (for a regional draft land use plan) through three message on public radio. According to the new and challenged provision that should be done through “at least a notice in the Official Journal” and furthermore according the executive provisions established by the regional government. The Court comes to the conclusion that the legislator, who restricted himself to determine the essential requirements and charged the government to adopt implementing provisions, had no intention at all to restrict the announcement to that notice in the Official Journal. The Court held that the standstill principle derived from the right to the protection of a healthy environment (Article 23 of the Constitution), was not violated by that provision and it is up to the Council of State to review, as the case might be, the regulations adopted in this respect by the government. Before the challenged amendment it was also provided that land use plans should be adopted by the relevant authority within a deadline of 180 days after closure of the public inquiry. The challenged provision provides now for an exception. When the relevant authority discovers an irregularity, it can withdraw the plan and adopt a reviewed one, beyond that deadline. The Court came to the conclusion that this Amendment is not violating Article 23 of the Constitution, read in conjunction with Article 7 of the Aarhus Convention, because only irregularities established by the Council of State may be repaired and the new decision should be based on current legal and factual data. The Court is indeed frequently referring to the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted on 25th June 1998 in Aarhus. Until the end of 2015 that was the case in 37 judgments.

Full-text available in Dutch and French.

B. State Structure and Separation of Powers 

  1. Judgment No. 103 of 2015 Administrative loop – Council of State – Impartiality and independence of the judge – Annulment with preservation of legal effects – Intérêt au moyen

In Judgment No. 103 of 16 July 2015 the Constitutional Court reviewed the constitutionality of the Act of 20 January 2014 on the reform of the jurisdiction, procedural rules and organization of the Council of State. The Council of State Reform Act of 2014 aims to improve the efficacy of the judicial proceedings before the Belgian highest administrative court. The Constitutional Court upheld the contested legal provisions except the provision regarding the so-called ‘administrative loop’ (boucle administrative). Furthermore, it declared two other provisions constitutional insofar as they are interpreted and applied as prescribed by the Court.

Inspired by the administrative loop in the Netherlands, the Belgian federal legislator introduced an administrative loop before the Council of State in 2014. This legal instrument enables the administrative judge to give the administrative authority – via an interim judgment – the possibility to rectify a (minor) irregularity of the contested administrative act within a determined period of time. On 8 May 2014 (Judgment No. 74), the Constitutional Court already annulled a comparable administrative loop of the Flemish Council for Permit Disputes, and on 29 October 2015 (Judgment No. 152) the Court again annulled a new administrative loop of the Flemish Council for Permit Disputes and the High Enforcement Council for the Environment. In these two cases, the reasoning of the Constitutional Court was comparable to the judgment of 16 July 2015. The Court held that the administrative loop was unconstitutional for three reasons. Firstly, the loop provides the administrative judge the possibility to express their point of view regarding the outcome of the dispute, while the application of the loop could not lead to a (rectified) decision with an altered content. The administrative judge thus proposes to rectify an irregularity in order to avoid an annulment, whereby he must rule that the irregularity could not have an impact on the content of the administrative act. As a result, the administrative loop in a discriminatory way violates the principle of impartiality and independence of the judge. The Court argued that in such a case the administrative judge is involved in the determination of the content of a discretionary administrative act. The latter is a task of the administrative authorities, not of the court. Secondly, the Court ruled that the application of an administrative loop was in conflict with the formal obligation to state reasons, because the administrative loop enables an administrative authority to provide the required reason-giving after the petitioner lodged an annulment appeal. Thirdly, as opposed to the Flemish administrative loops, the federal provision did not stipulate that interested parties may not be disproportionately disadvantaged by the application of the loop. As there was also no possibility for interested parties to appeal the new decision adopted after the loop, the Constitutional Court held that the right of access to a judge was violated.

Moreover, the Council of State Reform Act embeds the case law of the Council of State regarding “l’intérêt au moyen”. According to the Reform Act, irregularities only lead to an annulment if they could influence the scope of the decision, deprive the concerned parties of a guarantee or result in influencing the competence of the author of the act. Thus, a petitioner can in principle only invoke an irregularity in an admissible way if the irregularity harms his interests. The Constitutional Court, however, points out that one can still invoke an irregularity before the Council of State even if this irregularity does not affect the petitioner’s personal situation. Therefore, the Court rules that an association could still invoke irregularities that harm its pursued collective interests (and thus not just a personal interest). According to the Constitutional Court, it is also not the petitioner but the Council of State’s obligation to determine that the content of the contested act would not have been different without the irregularity invoked by the petitioner. Finally, the contested provision must be interpreted in a manner compatible with EU Law.

An interpretation compatible with EU Law is also necessary for the constitutionality of the provision that allows the Council of State to preserve the legal effects of an annulled administrative act (see CJEU, 13 November 1990, C-106/89, Marleasing). When the Council of State annuls an act or regulation based on a violation of EU Law, it cannot in principle preserve its legal effects, unless the conditions prescribed in the case law of the CJEU are fulfilled (see CJEU, Grand Chamber, 28 February 2012, C-41/11, Inter-Environnement Wallonie). Additionally, when the Council of State annuls an act or regulation based on the violation of another rule than a rule of EU Law and preserves its legal effects, the other courts of law should – where appropriate – refuse to apply a national provision that conflicts with EU Law, irrespective of the judgment of the Council of State which preserved the legal effects (see, mutatis mutandis, CJEU, 19 November 2009, C-314/08, Filipiak).

Full-text available (No. 103) in Dutch, French and English.

  1. Judgment No. 113 of 2015 Supreme Council for Enforcement Policy – Coercive fine – Execution of judicial decisions – Distribution of powers between the federal state, communities and regions

As an answer to several questions of the Council of State for a preliminary ruling, the Constitutional Court ruled that the competence of the Flemish Supreme Council for Enforcement Policy to partially enforce or temporarily suspend a due and payable coercive fine was unconstitutional. The competence of the Supreme Council for Enforcement Policy, which is considered to be an administrative authority and thus not a court of law, regarding the enforcement of coercive fines may impede the execution of judicial decisions. As a result, it violates the fundamental principle of the Belgian legal system according to which judicial decisions can only be altered by applying legal remedies. Moreover, the Flemish decretal provision violates the rules distributing powers between the federal state, the communities and regions, because it concerns certain aspects of the judicial proceedings that fall under the competence of the federal legislator. Based on Article 1385quater of the Judicial Code, a forfeited coercive fine should integrally be granted to the party that obtained the fine. Only this party may refrain from enforcement of the fine. The decretal legislator is not competent to stipulate that an administrative authority may impede the enforcement of coercive fines. In such a case the force of res judicata of the judicial decision imposing the coercive fine is violated.

Full-text available in Dutch and French.

  1. Judgment No. 119 of 2015 Legislative validation – Land use plan – Environmental Impact Assessment

The Constitutional Court declared the appeal for annulment of Articles 8 – 11 of the Decree of the Flemish Region “concerning legal redress of land use plans of which the Environmental Impact Assessment was drafted in accordance with the Flemish Government Decree of 18 April 2008 on the integration track for the Environmental Impact Assessment of a land use plan” unfounded. The Flemish Government Decree of 18 April 2008 introduced a procedure which differed from the general procedure to draft the Environmental Impact Assessment of a land use plan as regulated by the Flemish Government Decree of 12 October 2007. For this reason, the Council of State had ruled that the former Government Decree violated the principle of equality and non-discrimination of Articles 10 and 11 of the Constitution and declared it inapplicable based on Article 159 of the Constitution. As a result, in Artikel 35 of the Decree of 11 may 2012 the Flemish Parliament provided a so-called “legislative validation” for an indefinite period of the unconstitutional situation created by the Flemish Government Decree of 18 April 2008 in order to safeguard legal certainty for the concerned land use plans. In Judgment no. 114/2013 of 31 July 2013 the Constitutional Court ruled that the legislative validation was unconstitutional, because it did not merely concern a formal defect and could not be considered as an ultimum remedium. According to the Constitutional Court it violated the principle of equality and non-discrimination in Articles 10 and 11 of the Constitution. In Judgment No. 119 of 2015 the new Decree of the Flemish Region, which provides a temporary legislative validation of the land use plans awaiting the completion of a recovery procedure, was considered to be constitutional.

Full-text available in Dutch and French.

  1. Judgment No. 169 of 2015: Walloon Regional Parliament – Natural election threshold

The number of parliamentary seats in electoral districts are regularly adapted to the actual number of inhabitants. Following a recent adaptation, political party Ecolo challenged the division of electoral districts itself before the Council of State. Regarding the election for the Walloon Regional Parliament, Ecolo was of the opinion that electoral districts with less than four seats were too small, which disadvantaged them being a rather small political party. The required number of votes to obtain a seat leads to a so-called “natural election threshold”. In small electoral districts a higher number of votes is necessary to obtain a seat.

In response to a question of the Council of State for a preliminary ruling, the Constitutional Court held that Article 5 and annex 1 of the Ordinary Act of 16 July 1993 completing the federal state structure violated Articles 10 and 11 of the Constitution. This judgment was in line with a previous, comparable judgment of the Constitutional Court (5 December 2007, No. 149/2007) that declared electoral districts of less than four seats for the Flemish Provincial Council Elections discriminatory. In judgment no. 169/2015, the Constitutional Court acknowledged that there are reasons to maintain small electoral districts, such as proximity to voters. Nevertheless, differences in natural election threshold can only be justified if they remain within reasonable limits. According to the Constitutional Court, an electoral district of four seats is compatible with the system of proportional representation, but the natural election threshold is too high in electoral districts with only two or three seats.

Full-text available in Dutch and French.

C. Justice and Order 

  1. Judgment No. 9 of 2015Terrorism – Freedom of speech

In this case, the Court upheld a federal act focusing on counter-terrorism and in that regard implemented a framework decision of the Council of the European Union. The act introduced new criminal offences in the Belgian Criminal Code that penalize spreading messages that encourage terrorism, recruiting terrorists, educating terrorists and attending terrorist trainings. The act also introduced a provision explicitly stating that the Criminal Code does not aim to restrict fundamental rights, such as the freedom of speech. The judgment demonstrates the difficulties stemming from balancing conflicting human rights.

The Court held that the principle of legality in criminal matters (Article 7.1 ECHR, Article 12.2 Belgian Constitution) does not stand in the way of a broad margin of appreciation for the judiciary. The Court ruled it necessary in a democratic society to protect the values and principles of the ECHR against persons or groups that want to undermine those values through incitement of violence and terrorism. The judge, looking at the concerned message encouraging terrorism, can only punish the perpetrator if he acted with a special purpose. Notwithstanding his broad margin of appreciation, the judge cannot express a condemnation that would unjustifiably restrict the freedom of speech. The Court clearly heavily relies on the judge’s proportionality assessment.

Full-text available in Dutch and French, and a summary in English.

  1. Judgment No. 84 of 2015Data retention – Respect for privacy

A federal act of 30 July 2013 implemented the 2006 EU Data Retention Directive, which enabled governments to retain telecommunications data during one year. Prior to the judgement, the Court of Justice of the EU had declared the directive to be invalid as it entailed a wide range and particularly a serious interference with the fundamental rights of respect for private life and of the protection of personal data, while the interference is not limited to what is strictly necessary.

The Court followed the CJEU’s ruling and held that the legislator surpassed the boundaries of the principle of proportionality in the light of articles 7, 8 and 52.1 of the EU Charter of Fundamental Rights. The act violated Articles 10 and 11 of the Constitution, read together with the aforementioned provisions and was therefore annulled. The Court condemns the lack of distinct treatment of persons whose behaviour does not correspond – directly or indirectly – to the offences listed in the act. Moreover, the act does not provide any limitations on data retention in time, space or personal relations, nor any material or procedural conditions with regard to accessing the data. Lastly, regarding the period of retention, the act does not make a distinction between the data in the light of their relevance or persons involved.

Full-text available in Dutch and French.

  1. Judgment No. 44 of 2015Municipal administrative sanctions – Temporary place restrictions – Right to fair trial

In 1999, the federal legislator introduced a system of municipal administrative sanctions to combat disturbances of the public order at the local level. An Act of 2013 introduced new regulations regarding the sanctions and brought adolescents into their scope (see Judgment No. 45/2015 of 17 September 2015). In this case, the Court upheld the new federal act. Although the latter act raised many questions regarding its constitutionality and respect for several fundamental rights, none of the applicant’s arguments were sufficiently convincing.

The act introduced a temporary place restriction in case of disturbance of the public order through individual or collective behaviour, or repeated violation of municipal regulations on the same place in the municipality that causes disturbance of the public order. The Court stated that, since the temporary place restriction amounts to a measure of administrative police, the principle of legality in criminal matters does not apply. The act did not violate the right to a proper administration of justice (Articles 6, 13 and 14 ECHR, read together with articles 10, 11 and 13 of the Constitution): the Mayor’s competence to impose a temporary place restriction is reasonably justified in the light of its legitimate aim, i.e. to stop disturbance to the public order. Moreover, the Council of State has full jurisdiction to review the legality of the measure. Therefore, the temporary place restriction does not disproportionately limit the rights of persons concerned.

Full-text available in Dutch and French, and a summary in English.

  1. Judgment No. 45 of 2015Municipal administrative sanctions – Minors – Children’s rights

As mentioned above, in 2013 the federal legislator lowered the possible age for the application of administrative sanctions from sixteen to fourteen. The Court upheld the act, but clarified its interpretation by stating that a minor, who is capable of forming his or her own views, always has the right to be heard when being subjected to an administrative fine, in accordance with article 12 of the Convention on the Rights of the Child.

The Court also ruled that there is no right to an administrative appeal against administrative sanctions. Article 6 of the ECHR does not preclude administrative sanctions being imposed by civil servants, as long as an impartial and independent judge, exercising full jurisdiction, can review the legality of the administrative decision. The Court held that the act complied with these procedural conditions.

Full-text available in Dutch and French.

  1. Judgment No. 178 of 2015Criminal procedure – Right to fair trial – Right to privacy

In this case, the Court annulled several new provisions in the Code of Criminal Procedure regarding the collection of monetary punishments. The Court ruled the possible measure of observation of the property of the convicted person to be insufficiently precise and a disproportionate restriction of the right of privacy. Moreover, the Court held that the act violated article 13 of the Constitution, read together with article 6 ECHR, as the new code did not foresee an appeal to an independent and impartial judge against the refusal by the Public Prosecutor’s Office to grant access to the judicial file when a sequestration has not yet occurred. Lastly, the Court annulled the obligation of the convicted and third parties “in bad faith” to cooperate in a search of ICT-systems, on the basis of articles 10, 11 and 22 of the Constitution, read together with article 8 ECHR. This obligation to cooperate amounted to an obligation of self-incrimination.

Full-text available in Dutch and French.

D. Hot Topics and Ethical Issues 

  1. Judgments No. 13 and No. 41 of 2015Serious tax fraud – Locus standi – Aggravation of penalty – Proportionality

Two non-profit associations, the Taxpayers’ League (Judgment No. 13) and the Belgian Federation of the Financial Sector (Judgment No. 41) requested the annulment of the provisions of the Acts of 17 June 2013 and 15 July 2013 relating to the fight against tax fraud. These provisions amend several legislative acts and aggrevates the penalty when punishable offences must be regarded as serious tax fraud. According to its established case law, the Court accepted that the applicant associations have a sufficient collective interest in contesting provisions that can directly and unfavourably affect their social goals.

As to the merits, the Court noted that the impugned provisions have not created a new offence. They simply introduce an aggravation of the penalty when conduct whose punishable nature has already been established can be classified as serious. Furthermore, only the maximum length of the prison sentence can be increased to five years. The impugned provisions did not affect the minimum length of prison sentences or the possible amounts of fines. The Court held that the impugned provisions grant courts a considerable amount of discretion, but at the same time do not grant them the kind of independent power to define offences which would encroach on the powers of the legislature.

The Court added that the principle of legality requires the penalty to be proportionate to the seriousness of the misconduct. In this respect, the Court expressly referred to the case law of the European Court of Human Rights (ECtHR, 11 January 2007, Mamidakis v. Greece) and the Court of Justice of the European Union (CJEU, 3 December 2014, De Clercq and Others, C-315/13). The Court concluded that the impugned provisions were not in breach of the principle of legality in criminal matters and dismissed the application.

Full-text available (Judgment No. 13) in Dutch and French, and a summary in English, (Judgment No. 41) in Dutch and French.

  1. Judgment No. 34 of 2015Right to education – Freedom of religion – Neutrality of the State – Dispensation for classes religion or ethics

Under Article 24.1 of the Constitution, schools run by public authorities are required to offer a choice between instruction in one of the recognised religions or non-denominational ethics until the end of compulsory education. In the Court’s view, however, this provision does not require pupils to attend one of these classes. That requirement stemmed from the legislation in the French Community on which the Court had been asked to rule.

The Court stated subsequently that under Article 24.3 of the Constitution, everyone has the right to an education that respects fundamental rights and freedoms. Among these fundamental rights is the right of parents, guaranteed in particular by Article 2 Protocol 1 ECHR, to ensure that the education and teaching dispensed to their children by the public authorities is in conformity with their own religious and philosophical convictions. The Court noted that neither the non-denominational ethics classes nor the classes in religion can be considered to disseminate information or knowledge that was “objective, critical and pluralistic”, as required by the case law of the European Court of Human Rights (see ECtHR, 29 June 2007, Folgero and Others v. Norway).

The Court concluded that if it is interpreted not to entail the right for parents to be granted a dispensation for their child to attend lessons in one of the recognised religions or in non-denominational ethics on a simple request requiring no other reasons to be given, the impugned legislation is in breach of Article 24 of the Constitution, read in conjunction with Article 19 of the Constitution and Article 2 Protocol 1 of the ECHR.

Full-text available in Dutch and French, and a summary in English.

  1. Judgment No. 50 of 2015Popular events – Ticket sale – Restriction on reselling – Free market correction

In order to make popular events (festivals, football games, etc.) accessible to a wide audience, a federal Act of 30 July 2013 restricts the possibility of reselling tickets, i.e. any ticket sale not provided by the original seller. A Swiss company (eBay International AG) and a Dutch company (2dehands.nl BV) asked to annul the Act, because it would infringe their freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union, read together with Articles 10 and 11 of the Constitution).

The Court noted that the contested Act aims to correct the excesses of the free market on the so-called secondary market. Such a secondary market is the likely result of an original ticket price being significantly lower than the price resulting from the law of supply and demand. However, according to the Court, it belongs to the Governments tasks, when the original seller himself has tried to correct the free market by providing tickets at a reasonable price, to make sure that this ethical concern is not merely wiped out on the so-called secondary market.

Full-text available in Dutch and French.

  1. Judgment No. 94 of 2015Adoption by former (same-sex) partner – Condition of continued cohabitation – Condition of consent

The Civil Code does not allow the former partner of an adoptive parent to apply for adopting the child as well, even though they have developed a stable long-term parental relationship. The condition of continued cohabitation with the adoptive parent prevents the applicant from officialising his engagement towards the child. Completely in line with Article 22b of the Constitution and Article 21 of the Convention on the Rights of the Child, the Court considered the best interests of the child to be the first and paramount consideration. Therefore, it ruled out the condition of continued cohabitation with the adoptive parent.

The Civil Code also prevents the former same-sex partner of the biological mother to adopt the child they both chose to conceive, when the biological mother does not consent with the adoption after birth. The Court ruled out this condition of consent as inconsistent with Articles 22 and 22b of the Constitution. Any refusal of consent should be subject to judicial scrutiny. In balancing the conflicting rights and interest, the interest of the child to an official establishment of double paternity will in general prevail over the right of the biological mother to oppose to the adoption by her former partner.

Full-text available in Dutch and French.

  1. Judgment No. 145 of 2015Boards of direction – Gender diversity – Positive action – Freedom of association

Two Acts of 9 January 2014 of the Parliament of the Walloon Region regulate the “balanced representation” of men and women in the boards of direction of retirement homes, organized or authorized by public authorities: at most two third of the directors are allowed to be of the same sex.

The Court considered the Acts to be in accordance with the Articles 10 and 11 of the Constitution, as they meet the conditions developed in its earlier case law concerning positive actions: (1) the existence of an obvious inequality, and (2) it is the aim to eliminate the inequality, (3) by a measure of temporary nature, (4) that does not unnecessarily interfere with the rights of others. In applying these conditions, especially the last one, the Court gave due regard to the measures of transition and derogation provided by the Walloon legislator.

The Court further held that Article 27 of the Constitution (freedom of association), read together with Article 11 ECHR, does not prevent private institutions to be subjected to conditions of operation and supervision, as far as they are engaged in public service.

Full-text available in Dutch and French.

  1. Judgment No. 153 of 2015Euthanasia – Decriminalization – Extension to minors – Right to life – Right to make life-ending decisions

The federal Act of 28 May 2002 decriminalized euthanasia performed by a physician under strict conditions. An Act of 28 February 2014 extended the scope of application of euthanasia under additional conditions to “minor patients with the capacity for discernment” who are “in a medically futile condition of constant and unbearable physical suffering that cannot be alleviated and will result in death within the foreseeable future, and is the result of a serious and incurable condition caused by illness or accident”. The adoption of the 2014 Act was the result of a request formulated by paediatricians and other caregivers.

Two natural persons and three non-profit associations, whose purpose is to promote and protect human life until death by natural causes, requested the annulment of the 2014 Act. They mainly contested the compatibility of the Act with the right to life.

The Court considered first of all that, in ethical issues, it is primarily up to the legislature to decide which choices should be made in that respect. Having regard to the substantial safeguards described in detail and with abundant reference to the case law of the European Court of Human Rights (e.g. ECtHR 20 January 2011, Haas v. Switzerland), the Court concluded that the Act of 28 May 2002, as amended by the contested Act, is based on a fair balance between, on the one hand, the right of every person to make life-ending decisions in order to avoid an undignified and distressing end to life, a right that follows from the right to respect for private life, and, on the other hand, the minor’s right to measures aimed at preventing abuses in the performance of euthanasia, a right that follows from the right to life and physical integrity. The Court reached this conclusion with due regard to the positive obligation to protect the right to life and the physical integrity of vulnerable persons, such as children, following from Articles 2 and 3 ECHR, Article 6 of the Convention on the Rights of the Child, and Article 22b of the Constitution.

The term “capacity for discernment” relates to the ability of the minor to understand the real implications of his euthanasia request and its consequences. The Court clarified that the contested Act cannot reasonably be interpreted in the sense that, if the psychiatrist or psychologist finds that the minor patient does not have the requisite capacity for discernment, the attending physician may nevertheless go ahead to perform euthanasia on the minor.

Full-text available in Dutch, French and English.

Suggested Citation: Luc Lavrysen, Jan Theunis, Jurgen Goossens, Pieter Cannoot and Viviane Meerschaert, Developments in Belgian Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, October 12, 2016, at: http://www.iconnectblog.com/2016/10/developments-in-belgian-constitutional-law-the-year-2015-in-review

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Published on October 12, 2016
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