Editor’s Note: Today we publish the 2016 Report on Belgian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—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 (FWO Postdoctoral Researcher at Ghent University and Assistant Professor at Erasmus University Rotterdam), Pieter Cannoot (Ph.D. Researcher at Ghent University) and Viviane Meerschaert (Legal Officer at the Belgian Constitutional Court)
First, this contribution presents the Belgian Constitutional Court and its activities in 2016. Second, it discusses two constitutional controversies that were at the center of much political and media attention, namely the separation of powers and the refugee crisis as well as the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. Finally, we deliver an overview of the main cases before the Constitutional Court for the past year that can be of interest to an international audience. We divide the cases into the following categories: the Belgian Constitution in Europe and the world; separation of powers; justice and order; and ethical issues and hot topics.
II. The Constitution and the Constitutional Court
Belgium has embarked on a process of federalisation since the 1970s. The transformation of the unitary Belgian state into a federal state led to a multiplication of legislative bodies. 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 gradually extended to constitutional rights and freedoms.
Now that the division of powers between the federated entities and the federal state is well established, competence conflicts only represent a small portion of the case law (4% of the judgments in 2016). The majority of cases in 2016 concerned infringements of the principle of equality and non-discrimination, for historical reasons still the most invoked principle before the Court (52%), followed by review of compliance with the fundamental socioeconomic rights in Article 23 of the Constitution (11%), the tax guarantees in Articles 170 and 172 (8%), the property rights of Article 16 (5%), the legality principle in criminal matters of Articles 12 and 14 (4%) and the right to private and family life of Article 22 (4%).
The Court assumes that the fundamental rights under Title II of the Constitution and those enshrined in international conventions are inextricably linked. It is, therefore, unavoidable that the provisions under Title II are interpreted in conjunction with the provisions concerning similar fundamental rights in international treaties. 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, which considers itself to be bound by the provisions of the European Convention on Human Rights (ECHR) as interpreted by the ECtHR. Moreover, the case law of the Court of Justice of the European Union (CJEU) is also regularly reflected in the jurisprudence of the Constitutional Court.
A case may be brought before the Constitutional Court by an action for annulment or a reference for a preliminary ruling. A party may demand suspension of the challenged legislative act along with the action for annulment, or in the course of the proceedings.
An action for annulment may be brought by the various governments, presidents of parliaments (at the request of two-thirds of MPs) and any natural or legal person who has a justifiable interest in the annulment. In 2016, two institutional parties and 72 individual applicants brought a case before the Court. 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 (29 times in 2016) while (provisionally) maintaining the effects of the act (three times) if necessary. If an action for annulment is dismissed (on 19 occasions in 2016), the judgment shall be binding on the courts with respect to the points of law settled by the judgment. The Court declared annulment appeals inadmissible in four other judgments (out of a total of 52).
An action for annulment does not suspend the effect of the challenged act. To prevent the challenged norm from causing irrevocable prejudice in the period between the introduction of the action and the judgment of the Court, the Court may— at applicant’s request and in exceptional circumstances—order the suspension of the challenged norm pending a meritorious decision. In 2016, the Court ordered suspension in three cases. Such an action for suspension must be brought within three months following the official publication of the challenged norm.
If a party to a dispute invokes the infringement of its fundamental rights guaranteed in Title II “The Belgians and Their Rights” or by the Articles 143 (1), 170, 172 and 191 of the Constitution by a legislative act, lower courts must in principle refer a question for a preliminary ruling to the Constitutional Court. Most of the preliminary questions were referred by the Courts of First Instance (51), followed by the Courts of Appeal (25), the Labour Courts (10) and the Labour Tribunals (10). Incidentally, the highest courts also referred some questions, namely eight times for the Council of State and on six occasions for the Court of Cassation. Infringement was found in 36% of these cases, whereas no infringement was found on 64 occasions (58% of the cases). In other judgments, the Court held that the question does not need an answer, referred the case back to the court of law, declared itself incompetent or declared the question inadmissible.
In 2016, the Court delivered 170 judgments and handled 207 cases in total. The discrepancy between the number of treated and completed cases and the number of judgments is due to joined cases. Moreover, proceedings are sometimes terminated by a court order that, for example, grants the discontinuance of the action. 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 refers a case to the CJEU for a preliminary ruling.
The Constitutional Court ruled six times on a request for suspension, 52 judgments concerned actions for annulment, 110 judgments concerned references for preliminary rulings and there were two requests for interpretation. Therefore, most judgments were preliminary rulings (65%) while actions for annulment represented 31% and requests for suspension represented 4% in 2016.
III. Constitutional Controversies
A. The separation of powers and the refugee crisis
Since October 2016, Belgium has had a fierce debate about the separation of powers related to the “refugee crisis.” The controversy started when a Syrian family asked for a humanitarian visa via the Belgian embassy in Beirut for a short stay in Belgium to be able to seek asylum. The applicants invoked Article 3 ECHR, which prohibits inhuman or degrading treatment. The Belgian Immigration Service, which falls under the authority of the Secretary of State for Asylum and Migration, Theo Francken, denied the request, but was faced with a suspension of its decision by the Council for Alien Law Litigation (CALL) and with the injunction to take a new decision within 48 hours due to an insufficient reasoning regarding the risk of inhuman or degrading treatment. This judgment was followed by two other suspensions by the CALL due to insufficient reasoning, as the rejection decision was three times almost identical. The third time, even though issuing a visa is a discretionary decision of the competent administrative authority, the judge imposed the Secretary of State to issue a visa. This judgment elicited Francken and his party N-VA to launch an advertising campaign attacking the “unworldly judges” for their alleged judicial activism. He filed an appeal in cassation before the Council of State, as well as an appeal of the judgment of the President of the Francophone Brussels Court of First Instance that imposed a coercive fine related to the obligation to issue the visa. Francken firmly refused to issue the visa and to pay the fine.
These actions led to severe criticism, amongst others of the High Council of Justice, stating that the Secretary of State refused to comply with the separation of powers and undermined the rule of law. In another case, the CALL referred for a preliminary ruling to the CJEU concerning the request for a humanitarian visa through an embassy. Several other countries and the European Commission joined the case. The Advocate-General advised the CJEU to hold that a EU Member State is obliged to issue a visa on humanitarian grounds if, given the circumstances, there are serious motives to believe that a refusal would directly lead to the applicant being subjected to torture or inhuman or degrading treatment by withholding a legal action to exercise the right to request international protection in that Member State.
In October 2016, the world was wondering how the Minister-President of the Walloon Region, on his own, was able to postpone the signing of the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. Treaty-making power in Belgium is allocated according to the principle in foro interno, in foro externo, established by Article 167 of the Constitution. Community and Region Governments have the power to enter treaties that exclusively relate to matters falling within their jurisdiction. As regards “mixed treaties” such as CETA, treaty-making power is shared with the federal authorities. After a period of power-play and some minor adjustments, the Walloon Government conceded, which allowed CETA to be signed.
IV. Major Cases
A. The Belgian Constitution in Europe and the World
In 2016, the Constitutional Court continued to show great openness towards international and European law; in particular, the ECHR and EU Law. References were made to the jurisprudence of the ECtHR in 46 cases and the case law of the CJEU in 19 cases. References to other sources of international law can be found in 29 cases. Based on the CILFIT case law, the Court ruled in 5 cases that there was no need to refer for a preliminary ruling to the CJEU.
Judgment No. 62/2016 – Treaty on Stability – Demand for Annulment – Admissibility – Primacy of EU Law – National Identity
The 2012 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union is an intergovernmental agreement between 25 EU Member States to reinforce budget discipline of euro area governments following the sovereign debt crisis in 2010. The Constitutional Court had to decide on the admissibility of a demand for annulment of various acts of the Federal and the Flemish Parliaments approving the Treaty and implementing its Article 3 (1). A number of citizens and non-profit organizations asserted that the strict budgetary objectives established in the fiscal compact would lead to the authorities no longer being able to fulfill their constitutional obligations in terms of fundamental social rights (Article 23 of the Constitution).
The fact that austerity measures can be imposed on the basis of the Treaty is, according to the judgment, not sufficient to demonstrate a proper individualized connection between the personal situation of the applicants and the disputed provisions. They could only be affected directly and unfavorably by measures intended to achieve those budgetary objectives. In the Court’s view, having an interest as a citizen or a person who has the right to vote is likewise not sufficient because the challenged acts have no direct effect on the right to vote. Nonetheless, the Court considered whether the challenged acts interfered with any other aspect of the democratic rule of law which would be so essential that its protection is in the interest of all citizens. Parliament is indeed the only constitutional body empowered to not only approve the annual budgets but also to set medium-term budgetary objectives. It can enter into such commitments by way of a treaty. When parliamentarians do approve a treaty, however, they may not violate constitutional guarantees. Although the Stability Pact makes provision for detailed targets and deficit reduction, it leaves national parliaments entirely at liberty as to how they draw up and approve budgets.
The Stability Pact does not merely create an inflexible budgetary framework; it also entrusts certain powers to the EU institutions, which is permitted by the Constitution (Article 34). However, for the first time, the Court asserted that “under no circumstances can there be any discriminatory violation of the national identity contained in the basic political and constitutional structures or of the fundamental values of protection that the Constitution affords to any person.” The disputed acts, however, do not interfere with any aspect of the democratic rule of law which would be so essential that its protection is in the interest of all citizens. Consequently, none of the applicants had an interest to the degree required for them to seek the annulment of the challenged acts and the annulment appeals were declared inadmissible.
B. Separation of Powers
Judgment No. 153/2016 – Administrative Courts – Administrative Loop – Independence and impartiality of the judiciary
In judgments no. 103/2015, 74/2014 and 152/2015, the Constitutional Court reviewed the constitutionality of the so-called “administrative loops” of the (federal) Council of State and the (Flemish) Council for Permit Disputes and the High Enforcement Council for the Environment. This legal instrument enables the administrative judge to give an administrative authority in an interim judgment the possibility to rectify an irregularity in the contested administrative act. It aims to contribute to the timely final adjudication of disputes. According to the Court, the initial design of the loop provided the administrative judges the possibility to express their viewpoint regarding the outcome of the dispute while the application of the loop could not lead to a (rectified) decision with an altered content. As a result, the administrative loop puts pressure on the separation of powers and in a discriminatory way violates the principle of impartiality and independence of the judiciary. According to the Court, the administrative judge intervenes in the determination of the content of a discretionary administrative act, which is a task of the administrative authorities.
On 1 December 2016, however, the Constitutional Court dismissed the appeal against the Decree of 3 July 2015, which granted the above-mentioned two Flemish administrative courts a redesigned administrative loop for formal and substantive illegalities. The judge can now offer the defending party the possibility to rectify the unlawfulness by adopting a new rectified administrative act of which the content can be altered. In contrast to the previous loops, the judge only holds whether the unlawfulness could be rectified and no longer needs to rule on the content of the administrative act. The Constitutional Court rejected all arguments of the applicant and held that the contested provision is constitutional. The Court, inter alia, ruled that there is no longer a violation of the independence and impartiality of the judge.
C. Justice and Order
Judgment No. 83/2016 – Criminal Procedure Code – Out of Court Settlement – Insufficient Judicial Review
Article 216bis, § 2 of the Criminal Procedure Code, as introduced by the Act of 14 April 2011 and modified by the Acts of 11 July 2011 and 5 February 2016, considerably enlarged the possibility for public prosecutors to settle criminal cases out of court. Such a settlement also became possible when the case was already pending before the criminal court or was already judged in the first instance, as long as there was no final judgment on appeal, and provided that the victims have been compensated properly. The Constitutional Court judged that insofar as the public prosecutor can settle a case that is under instruction of an investigating judge without an effective judicial review of the proposed settlement, the provision is incompatible with Articles 10 and 11 of the Constitution in conjunction with the right to a fair trial and the principle of independence of the judiciary, guaranteed by Article 151 of the Constitution, Article 6 (1) ECHR and Article 14 (1) ICCPR. As the settlements concerned cases pending before the criminal (trial) judge in the first instance or appeal, the judicial review limited to the formal conditions of the settlement was insufficient and thus violated the same provisions and principles. The Court decided to uphold the legal effects of the unconstitutional provision until the date of publication of the judgment in the official journal.
Judgment No. 108/2016 – Police Databases – Privacy – Supervision
The Act of 18 March 2014 provides a comprehensive legal framework for the various databases of the federal and local police in Belgium. The Act identifies the various databases, the data that they may or must contain in view of administrative or judicial policing, their management, the use of these data, the measures taken to protect privacy and abuse, their access and supervision, and their interaction with the judiciary and other law enforcement bodies. In a lengthy judgment counting 141 pages, the Court came to the conclusion that, considered as a whole, sufficient measures have been taken to avoid any non-justified interference in the right to privacy guaranteed by Article 22 of the Constitution, Article 8 ECHR, Article 17 ICCPR and Articles 7 and 8 EU Charter of Fundamental Rights, after a detailed analysis of the relevant ECtHR case law. Nonetheless, the Court imposed a restrictive interpretation of several provisions. Only one provision was partially annulled, namely concerning the composition of the body supervising the observance of the law by the various police departments. As the number of police members can exceed the number of independent external experts and members of the judiciary or members representing the Privacy Commission, the Court opined that the Act does not offer sufficient guarantees for effective and independent supervision. The legislator has been ordered to amend this provision before the end of 2017.
D. Ethical Issues and Hot Topics
Judgment No. 2/2016 – Freedom of Choice Regarding a Child’s Surname – Equality between Men and Women
In 2014, the federal legislature amended the Civil Code to establish the autonomy of choice and equality between men and women regarding the way in which surnames are passed on to children. The new provision enabled parents to choose between the father’s surname, the mother’s surname or a double-barrelled surname made up of these two surnames in the order determined by the couple. It also stated that if the parents disagreed on the choice of the child’s surname or if they do not make a choice, the father’s surname would be assigned to the child. The latter provision was challenged before the Constitutional Court.
The Court first held that the right to pass on one’s surname cannot be regarded as a fundamental right. It noted the legislature’s choice to give preference to the parents’ freedom of choice and considered it justified for Parliament to determine the surname in cases of disagreement or the absence of choice, as it is important to establish a child’s surname at birth in a simple, swift and uniform way. However, the reasons for giving precedence to the father’s surname in these cases—tradition and a desire to make gradual progress—do not justify the differential treatment between the parents solely on the basis of their sex. Indeed, the disputed provision gave the father a veto right when deciding on the child’s surname. Therefore, the Court found a violation of the principle of equality (Article 10 of the Constitution) and annulled the disputed provision.
Judgment No. 18/2016 – Filiation – Right to Challenge Paternity – Right to Know One’s Descent
In a controversial case involving the former King of Belgium, the Constitutional Court confirmed, once more, with reference to the case law of the ECtHR, that in legal proceedings to determine filiation, the universal right to know one’s descent must in principle take precedence over the interests of family peace and legal certainty of family ties. Therefore, Article 318 of the Civil Code is incompatible with the right to respect for private life (Article 22 of the Constitution, read in conjunction with Article 8 ECHR) insofar as it bars a challenge to paternity when the child has been treated as the child of his legal father, a situation known as “de facto status” (possession d’état), and insofar as it forbids a child over the age of 22 to challenge the paternity of his mother’s husband more than one year after he discovered that the man is not his father. Any other ruling would prevent the courts from taking the interests of all parties concerned into account. The lift of this double bar permitted Delphine Boël to challenge the paternity of her mother’s husband before the Court of First Instance in excess of both limits and to bring a paternity suit against her supposed biological father, the former King of Belgium.
Judgment No. 72/2016 – Combat of Discrimination – Sexism – Clear Definition – Freedom of Expression
In 2014, Belgium became the only country in the world to introduce a criminal provision prohibiting sexism in the public space. The provision was challenged before the Constitutional Court for violating the principle of legality in criminal matters, as it allegedly did not define the offense of “sexism” in sufficiently clear and accurate terms. It allegedly also violated the freedom of expression (Article 19 of the Constitution). The Court held that even if the definition of sexism is not sufficiently precise in scope or in content, the requirement that the criminalized acts and gestures must have resulted in a serious infringement of the dignity of the person leaves the courts sufficient indications as to the scope of the contested provision. Indeed, it is inherent to the criminal court’s mission to determine whether particular behavior falls within the scope of criminal law on a case by case basis.
The Court further acknowledged that the contested Act interfered with a person’s right to freedom of expression. However, as equality between men and women is one of the fundamental values of a democratic society, the Act serves a legitimate aim. Moreover, the necessity of the Act in a democratic society does not depend on its effectiveness, measured in terms of its application by the courts and sentences passed. Indeed, the Act may also have an educational and preventive effect. Lastly, given the fact that the Act requires a special intent and a serious infringement of the dignity of specific persons, it cannot be considered disproportionate. The Court, therefore, upheld the “Sexism Act.”
The success rate of appeals before the Constitutional Court was quite high in 2016. From the Court’s foundation in 1985 until 2015, actions for annulment were successful in 28% of the cases in the sense that they resulted in a total or partial annulment. In 2016, the Court annulled the challenged provisions in 56% of the cases. Until 2015, preliminary rulings had an average success rate of 32%; the rate was 36% in 2016. Last year, the Court ordered three suspensions (50%), which is considerably more than the 10% average from the past. The cases discussed in section IV of course only show a partial picture of the Court’s case law.
 Judgment no. 175.973 of 7 October 2016
 Judgments no. 176.363 of 14 October 2016 and no. 176.577 of 20 October 2016
 Judgment no. 16/3438/B of 25 October 2015
 Judgment no. 179.108 of 8 December 2016
 C-638/16 PPU
 See English version at <http://www.const-court.be/public/e/2015/2015-103e.pdf˃
 See English version http://www.const-court.be/public/e/2016/2016-072e.pdf
 See L. Lavrysen, J. Theunis, J. Goossens, P. Cannoot and V. Meerschaert, Developments in Belgian Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, October 12, 2016, http://www.iconnectblog.com/2016/10/developments-in-belgian-constitutional-law-the-year-2015-in-review