Belgian Supreme Judicial Authorities

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BELGIAN SUPREME J UDICIAL AUTHORITIES

Executive Summary

The purpose of this memorandum is to examine Belgiums supreme judicialauthorities, public access to the supreme judicial authorities, and the role theinstitutions plan in protecting individual substantive rights. Belgiums threesupreme judicial authorities include the Court of Cassation, the ConstitutionalCourt, and the Council of State. Each court has a separate jurisdiction, and eachallows citizens to bring claims within the rules and procedures of the courts.

The Court of Cassation is Belgiums highest appellate court, and considersappeals on issues of law to ensure that the law is applied consistently throughoutBelgium. As established through the LeSki decision, the Court also considers

whether domestic laws conflict with Belgiums international commitments,including its obligations as a European Union member. In addition, the Courtassumed a role in interpreting substantive rights when the appellant claims

protections under international law through its decision in the Vlaams Blok case.

The Constitutional Court was initially established to resolve intra-governmental disputes, but its jurisdiction was later broadened to allow individualsto challenge laws that they believe substantially and negatively impede theirconstitutionally protected rights. The Constitutional Court has addressed a numberof issues, including the rights to non-discrimination and equality. The Council ofState serves as a dispute resolution mechanism and an advisory body for issues ofadministrative law. Citizens may challenge administrative acts before the Councilof State as discriminatory or detrimental to their interests.

Although each court has the power to consider issues related to the protection of substantive rights, in practice, the Constitutional Court remains the primary venue for adjudicating issues and questions of substantive rights protections. The Council of State frequently defers such issues withinadministrative decisions to the Constitutional Court or decides them on procedural

grounds. Although the LeSki principle and the Vlaams Blok decision suggest thatthe Court of Cassation is assuming a stronger role in the protection of substantiverights where international law is invoked, the relationship between the Court ofCassation and the Constitutional Court in adjudicating such issues is still evolving.Despite these overlaps, however, Belgian supreme judicial authorities provideseveral mechanisms for asserting individual rights and for ensuring protection ofrights under Belgian and international law.


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T ABLE OF C ONTENTS

Statement of Purpose 1

Introduction 1

Introduction 1

Court of Cassation 2 Jurisdiction 3 Protection of Individual Rights 4

Access to the Court 4Protection of Individual Rights 5

Constitutional Court 6 Jurisdiction 7 Protection of Individual Rights 8


Resolving Intra-governmental Disputes 10

Council of State 12 Jurisdiction 12 Protection of Individual Rights 12


Advisory Powers 15

Conclusion 16

Annex: Reference Chart 17


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BELGIAN SUPREME J UDICIAL AUTHORITIES

Statement of Purpose

The purpose of this memorandum is to examine Belgiums supreme judicialauthorities, public access to the supreme judicial authorities, and the role theinstitutions plan in protecting individual substantive rights.

Introduction

Supreme judicial authorities are state-level institutions that harmonize theinterpretation and application of a states law. States may have one or multiplecomplementary supreme judicial authorities. In states, such as Belgium, where thesupreme judicial authority is composed of more than one court or judicialinstitution, responsibilities are typically divided among the institutions.

Belgiums supreme judicial authority is divided between three stateinstitutions: the Court of Cassation, the Constitutional Court, and the Council ofState. Although each institution has a distinct mandate and jurisdiction, each playsa role in ensuring that the law is applied consistently and in accordance with theguiding principles of the Belgian state.

State Structure

Belgium is a highly devolved and decentralized federal state. TheConstitution of Belgium provides for a division of the state by territory andlinguistic group. Along territorial lines, the Constitution divides Belgium intothree Communities - Flemish, French, and German 1 - and three Regions - Flanders,Walloon, and Brussels. 2 In addition, the Constitution divides the state into fourlinguistic regions consisting of the Dutch-speaking region, the French-speakingregion, the bilingual region of Brussels, and the German-speaking region. 3 EachCommunity and each Region has its own parliament, which may legislate oncertain matters and elect its respective government. 4 The Communities regulatecultural, educational, and language-related matters, and may make agreements

between one another or treaties with other states on these matters. 5

1 BELGIUM CONST . art. 2 (2007), available at http://legislationline.org/documents/section/constitutions/country/41.2 BELGIUM CONST . art. 3 (2007).3 BELGIUM CONST . art. 4 (2007).4 BELGIUM CONST . arts.115-116, 121, 132 (2007).5 BELGIUM CONST . art. 127 (2007).


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Belgium has three high courts at the federal level: the Court of Cassation,the Supreme Court, and the Constitutional Court. The judiciary is organizedaccording to Section VI of the Constitution and Articles 58 through 555 of theJudicial Code. 6

Court of Cassation

As the highest court in the Belgian judicial system, the Court of Cassationreviews decisions of Belgiums Appeal Courts for compliance with the law.Because the Courts decisions are limited to issues of law, the Court does notconsider new facts, evidence, or the merits of the case. 7 Court of Cassationdecisions are limited to questions of whether decisions of the Appeal Courtsconflict with the law or the rules of procedure set forth in the Judicial Code. 8 The

primary role of the Court of Cassation is to ensure that the lower courts in the

judicial system apply the law consistently, thereby also ensuring equality in thecourts. 9

The Court of Cassation is composed of three chambers, each with achairman and five or six judges. 10 The Court consists of a criminal chamber, acivil and commerce chamber, and a social chamber. 11 Each chamber is furtherdivided into Dutch-speaking and French-speaking divisions. 12 There is noGerman-speaking chamber in the Court of Cassation. The King appoints judges tothe Court of Cassation, and judges terms last for life. 13 The King selects fromnominees one of two lists one put forth by the Court of Cassation and one fromeither the House of Representatives or the Senate, which alternate. 14

6 European Judicial Network of the European Commission, Organization of Justice: Belgium (June 20, 2006),available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm. 7 BELGIUM CONST . art. 147 (2007); European Judicial Network of the European Commission, Organization of

Justice: Belgium (June 20, 2006), available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm. 8 European Judicial Network of the European Commission, Organization of Justice: Belgium (June 20, 2006),available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm. 9 Jean Dujardin, Referring a Case to the Court of Cessation , COURS JUDICIAIRES SUPREMES FRANCOPHONES , available at http://www.ahjucaf.org/Referring-a-case-to-the-Court-of.html.10 Lexadin World Law Guide, Courts and Cases Belgium (October 31, 2010), available athttp://www.lexadin.nl/wlg/courts/nofr/eur/lxctbel.htm.11 Yves Rosenoer, Doing Business in Belgium: Legal, Judicial, and Institutional System , United Legal Network,available at http://www.united-legal-network.com/belgium, (last visited Jan. 12, 2012).12 There is no German-speaking chamber in the Court of Cassation. Lexadin World Law Guide, Courts and Cases

Belgium (October 31, 2010), available at http://www.lexadin.nl/wlg/courts/nofr/eur/lxctbel.htm. 13 BELGIUM CONST . art. 151, sec. 4, art. 152 (2007).14 BELGIUM CONST . art. 151, sec. 6 (2007).


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Jurisdiction

The purpose of the Court of Cassation is to ensure that Belgians laws areapplied consistently throughout the judicial system and in accordance with

Belgiums international obligations. As noted above, the Constitution providesthat the Court of Cassation does not have jurisdiction over the substance of cases,and may only consider whether the law was applied properly in the court below. 15 For instance, the Court of Cassation may review whether evidence was properlyadmitted during trial, or whether a Court was competent to review the case in thefirst place. The Judicial Code provides that the Court of Cassation is a court forspecial appeals on points of law. 16 Special appeals are appeals made to theCourt of Cassation on questions of law, whereas ordinary appeals are those madeto Courts of Appeal to overturn or set aside a decision. 17 Thus, cases are only sentto the Court of Cassation to consider a possible error of law or failure to follow therules of procedure. 18 The time limit for lodging an appeal based on errors of law or

procedure with the Court of Cassation is three months (with some exceptions) fromthe date of notification of the challenged decision. 19

In 1971, the Court of Cassation heard a seminal case that established notonly the relationship between Belgian law and international law, but also theCourts role in considering conflicts between them. In the Franco-Suisse Le Skidecision, the Court held that self-executing international treaties have primacy overdomestic Belgian law. 20 The case pertained to a Belgian company that brought an

action against the Belgian government because the government had repealed a taxon imported milk products following a European Court of Justice finding that thetax violated the European Communities Treaty. 21 The company argued thatBelgian law should take precedence over the treaty, enabling Belgium to imposethe milk tax. 22 The Court found that the European Communities Treaty took

15 BELGIUM CONST .,art. 147 (2007).16 European Judicial Network of the European Commission, Organization of Justice: Belgium (June 20, 2006),available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm. 17 European Judicial Network of the European Commission, Organization of Justice: Belgium (June 20, 2006),available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm.18 European Judicial Network of the European Commission, Organization of Justice: Belgium (June 20, 2006),available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm. 19 European Judicial Network of the European Commission, Organization of Justice: Belgium (June 20, 2006),available at http://ec.europa.eu/civiljustice/org_justice/org_justice_bel_en.htm. 20 European Union Agency for Fundamental Rights, Access to Fundamental Rights Thematic Study: Belgium , 2(2011), available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-country-BE.pdf.21 Andrew Oppenheimer, T HE R ELATIONSHIP BETWEEN EUROPEAN COMMUNITY LAW AND NATIONAL LAW : THE CASES (VOLUME 1) 246 (1994).22 Andrew Oppenheimer, T HE R ELATIONSHIP BETWEEN EUROPEAN COMMUNITY LAW AND NATIONAL LAW : THE CASES (VOLUME 1) 246 (1994).


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precedence over Belgian law. The decision established the Le Ski principle,which provides that when there is a conflict between an international treaty anddomestic law, the international treaty prevails. 23

In addition to establishing the precedence of international law over Belgianlaw, the LeSki decision solidified the place of international law within the Courts jurisdiction. The Court of Cassations jurisdiction over questions of internationaland Belgian law strengthens the Courts power to serve as a check on Belgiumslegislature by ensuring that all Belgian legislation is consistent with domestic andinternational law.

Protection of Individual Rights

The Court of Cassation also plays a role in enforcing and protectingindividual rights. Court procedure permits Belgian citizens to bring cases beforethe Court in specified instances. In considering questions of rights and allegedrights violations, the Court has relied on both Belgian and international law.

Access to the CourtCourt procedures provide that an individual may bring an appeal only if he

was a party to the original decision and can prove that he was personally affected by the legal consequences of that decision. 24 To file an appeal with the Court, theindividual is required to submit an application to the Court declaring: (1) his

interest in the application and the way the contested decision harmed that interest;(2) the name of the original respondent; (3) the law allegedly violated; (4) thegrounds for contesting the decision; and (4) any other information in support of theclaim contesting a point of law. 25 An individual may only refer a case to the Courtof Cassation after exhausting all other legal remedies for setting aside a

judgment. 26 Given the Court of Cassations role in ensuring that the law isconsistently applied, the requirements for referring a case to the Court are morenumerous and more demanding than the requirements of other courts. 27

23 Andrew Oppenheimer, T HE R ELATIONSHIP BETWEEN EUROPEAN COMMUNITY LAW AND NATIONAL LAW : THE CASES (VOLUME 1) 247 (1994).24 Jean Dujardin, Referring a Case to the Court of Cessation , COURS JUDICIAIRES SUPREMES FRANCOPHONES , available at http://www.ahjucaf.org/Referring-a-case-to-the-Court-of.html.25 Jean Dujardin, Referring a Case to the Court of Cessation , COURS JUDICIAIRES SUPREMES FRANCOPHONES , available at http://www.ahjucaf.org/Referring-a-case-to-the-Court-of.html.26 Jean Dujardin, Referring a Case to the Court of Cessation , COURS JUDICIAIRES SUPREMES FRANCOPHONES , available at http://www.ahjucaf.org/Referring-a-case-to-the-Court-of.html.27 Jean Dujardin, Referring a Case to the Court of Cessation , COURS JUDICIAIRES SUPREMES FRANCOPHONES , available at http://www.ahjucaf.org/Referring-a-case-to-the-Court-of.html.


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Protection of Substantive RightsViolations of individual rights are typically handled through Belgiums

Constitutional Court. However, the LeSki decision empowered the Court ofCassation to rule on questions surrounding the conformity of domestic legislation

with international treaties. This provided the Court of Cassation with a limited rolein protecting the individual substantive rights protected in international treaties,including decisions pertaining to the effective protection and enforcement ofrights. 28

In 2004, the Court of Cassation considered the Vlaams Blok case, whichconcerned an alleged violation of the rights to freedom of association and speechof a far-right Flemish party under the European Convention on Human Rights andFundamental Freedoms. 29 The Belgian government had limited the actions of theVlaams Blok party based on Belgiums anti-racism legislation. The Vlaams Blokclaimed that the governments actions violated the partys rights to freedom ofspeech and freedom of association under Articles 10 and 11 of the ECHR, as wellas under Articles 19, 26, and 27 of the Belgian Constitution. 30

The lower court found that the party was guilty of violating the anti-racismlegislation, and therefore the governments actions were justified and did notimpede on the partys rights to freedom of speech or association. 31 The partychallenged the decision, which was appealed to the Court of Cassation. As aninitial issue, the party challenged the jurisdiction of the Court of Cassation, arguing

that the invocation of the Constitution meant that the Court of Cassation wasobligated to refer the case to the Constitutional Court. 32 The Court of Cassationheld that it had jurisdiction over the case because the ECHR preempts domesticlaw and the Court of Cassation rules on matters of international law. 33 The Courtof Cassation ultimately upheld the lower courts decision, holding that the VlaamsBlok party was in violation of Belgiums anti-racism legislation, and thegovernment was justified in imposing restrictions.

28 Substantive rights are legally protected individual rights. Substantive Right Blacks Law Dictionary (2010).Eva Brems, Belgium: The Vlaams Blok Political Party Convicted Indirectly of Racism, 4 I NTERNATIONAL JOURNALOF CONSTITUTIONAL LAW 702, 709 (2006). 29 Court Rules Vlaams Blok is Racist, BBC NEWS , November 9, 2004, available athttp://news.bbc.co.uk/2/hi/europe/3994867.stm.30 Eva Brems, Belgium: The Vlaams Blok Political Party Convicted Indirectly of Racism, 4 I NTERNATIONALJOURNAL OF CONSTITUTIONAL LAW 702, 710 (2006).31 Court Rules Vlaams Blok is Racist, BBC NEWS , November 9, 2004, available athttp://news.bbc.co.uk/2/hi/europe/3994867.stm.32 Eva Brems, Belgium: The Vlaams Blok Political Party Convicted Indirectly of Racism, 4 I NTERNATIONALJOURNAL OF CONSTITUTIONAL LAW 702, 710 (2006).33 Eva Brems, Belgium: The Vlaams Blok Political Party Convicted Indirectly of Racism, 4 I NTERNATIONALJOURNAL OF CONSTITUTIONAL LAW 702, 710 (2006).


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The Courts assertion of jurisdiction over Vlaams Blok established a role forthe Court in deciding issues of substantive rights when the basis of the claim stemsfrom Belgiums international obligations. 34 The decision was not without

controversy, however, as many commentators perceived the case as an overtattempt by the Court of Cassation to strip the Constitutional Court of its jurisdiction over cases involving international law. 35

As the highest court in Belgium, the Court of Cassation protects individualrights by ensuring that Belgian laws are applied consistently throughout the state.In addition, recent decisions of the Court suggest that its role in protecting rights isexpanding. Through the LeSki decision, the Court affirmed the precedence ofinternational law over Belgian domestic law and established the Courts role indeciding issues relating to conflicts between international and domestic law.Through the Vlaams Blok decision, the Court established its ability to considerissues surrounding substantive rights if they relate to Belgiums internationalobligations. While international observers have criticized the Vlaams Blok decision, the decision suggests that the Court may consider issues of individualsubstantive rights in instances where rights protected by international conventionsare invoked.

Constitutional Court

The Constitutional Court of Belgium was created in 1980 as part of the earlyefforts to transform Belgium from a unitary to a federal state. 36 Initially called theCourt of Arbitration, it was charged with arbitrating between the legislatures of thestate, regions, and communities to ensure that the laws of each level conformed tothe power-sharing mechanisms of the Constitution and the laws regulatinginstitutional reform. 37 The Court of Arbitration was renamed the ConstitutionalCourt in 2007, and its jurisdiction was expanded to include individual rights andfreedoms, the legality and equality of taxes, and the protection of foreign nationalsunder the Constitution. 38

34 Eva Brems, Belgium: The Vlaams Blok Political Party Convicted Indirectly of Racism, 4 I NTERNATIONALJOURNAL OF CONSTITUTIONAL LAW 702, 711 (2006).35 Eva Brems, Belgium: The Vlaams Blok Political Party Convicted Indirectly of Racism, 4 I NTERNATIONALJOURNAL OF CONSTITUTIONAL LAW 702, 711 (2006).36 Constitutional Court of Belgium, Organization of the Constitutional Court (Aug. 29, 2011), available athttp://www.const-court.be/en/common/home.html (last viewed December 30, 2011).37 Constitutional Court of Belgium, Organization of the Constitutional Court (Aug. 29, 2011), available athttp://www.const-court.be/en/common/home.html (last viewed December 30, 2011). 38 Constitutional Court of Belgium, Organization of the Constitutional Court (Aug. 29, 2011), available athttp://www.const-court.be/en/common/home.html (last viewed December 30, 2011).


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The jurisdiction, organization, operation, official languages, and rules of procedure of the Constitutional Court are set forth in the Special Act of 6 January1989 on the Constitutional Court. 39 The Court consists of twelve judges appointed

by the King for life terms, selected from lists alternately put forth by the House ofRepresentatives and the Senate. 40 Six judges belong to the Dutch language group,and six from the French language group, with at least one judge who is able tospeak German. 41 The Court has two presidents, selected from the Dutch andFrench language groups. 42 The 1989 Act was amended in 2003 to extend theCourts jurisdiction to encompass individual fundamental freedoms. 43 In 2007, theParliament amended the Constitution to change the name of the Court ofArbitration to the Constitutional Court. 44

Jurisdiction

The Constitution grants the Constitutional Court jurisdiction over conflicts between federal, regional, and community laws; discrimination by laws at anylevel of government; and conflicts between any law and the Constitution. 45 TheCourt has jurisdiction over statutes adopted by the federal Parliament as well asdecrees and ordinances adopted by the legislatures of the communities andregions. 46 The Constitutional Court considers whether challenged laws conform tothe principles of power-sharing, equality, and human rights under theConstitution. 47 The Constitutional Court does not have jurisdiction over

government or royal decrees, which do not have the force of law; provincial or

39 Special Act of 6 January 1989 on the Constitutional Court , arts. 31-33 (Belgium 1989) available athttp://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012). 40 Special Act of 6 January 1989 on the Constitutional Court , arts. 31-33 (Belgium 1989) available athttp://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012).41 Special Act of 6 January 1989 on the Constitutional Court , arts. 31-33 (Belgium 1989) available athttp://www.const-court.be/en/basic_text/basic_text_law_01.html / (last visited Jan. 2, 2012).42 Special Act of 6 January 1989 on the Constitutional Court , art. 33 (Belgium 1989) available at http://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012). 43 Patriek Peeters, Expanding Consti tutional Review by the Belgian Court of Arbitration 11 E UROPEAN PUBLICLAW 480 (2005).44 BELGIUM CONST ., art. 142 (2007).45 BELGIUM CONST ., art. 142 (2007). 46 Special Act of 6 January 1989 on the Constitutional Court , art. 1 (Belgium 1989) available at http://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012). 47 Marc Bossuyt, President of the Constitutional Court of Belgium, The Influence of Constitutional Justice onSociety in Belgium, WORLD CONFERENCE ON CONSTITUTIONAL JUSTICE 1 (Jan. 2009), available atwww.venice.coe.int/WCCJ/Papers/BEL_Bossuyt_E.pdf .


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municipal regulations; or court judgments that are unrelated to issues within itscompetency. 48


Like the Court of Cassation, the Constitutional Court provides citizens withaccess to bring claims challenging Belgian laws and to protect their substantiverights. In considering discriminatory laws, the Court will look to both Belgian andinternational law, frequently using international law to extend the rights protectionsowed to Belgian citizens.

Access to the CourtCases may be brought to the Constitutional Court by a direct application for

annulment of a law or a request for a preliminary ruling on a law. 49 Prior to the1988 constitutional reforms, only the federal Council of Ministers and regionalgovernments had standing to initiate cases before the Constitutional Court. 50 Under the Constitution, the Court may accept cases from any other court,governmental authority designated by law, or an individual who can prove a

justifiable interest. 51 A person has a justifiable interest in the case if he can provethat he is likely to be directly, personally, and negatively impacted by thechallenged law. 52 The Special Act of 6 January 1989 on the Constitutional Courtfurther defined the government authorities able to bring claims before the court toinclude the federal Council of Ministers and the presidents of all legislatures (with

the approval of two-thirds of the members).53

Claims submitted to the Constitutional Court on behalf of private individuals

must demonstrate that the challenged law has a personal, direct, and adverse effecton the individual. The application is required to identify: (1) the law beingchallenged; (2) the specific provisions within that law that violate constitutional

principles; (3) the specific constitutional principles being violated; and (4) why

48 Constitutional Court of Belgium, Jurisdiction of the Constitutional Court (May 9, 2007), available athttp://www.const-court.be/en/presentation/presentation_jurisdiction.html. 49 Patriek Peeters, Expanding Constitutional Review by the Belgian Court of Arbitration 11 E UROPEAN PUBLICLAW 475, 479 (2005).50 Patriek Peeters, Expanding Consti tutional Review by the Belgian Court of Arbitration 11 E UROPEAN PUBLICLAW 475, 479 (2005).51 BELGIUM CONST ., art. 142 (2007).52 Constitutional Court of Belgium, Jurisdiction of the Constitutional Court (May 9, 2007), available athttp://www.const-court.be/en/presentation/presentation_jurisdiction.html. 53 Special Act of 6 January 1989 on the Constitutional Court , art. 2 (Belgium 1989) available at http://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012).


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those provisions violate those specified constitutional principles. 54 Claims must be brought within six months of the publication of the challenged law in the officialgovernment reporter ( Moniteur Belge ).55 If an applicant can prove that the law inforce could cause irreparable harm while the case is still pending, the Court can

suspend the law provided that it makes a judgment on the merits of the case withinthree months of the suspension. 56

Protection of Substantive RightsThe Constitutional Court has addressed a number of issues within its

mandate, and frequently relies on Belgiums international obligations inconsidering the scope and extent of individual rights. For instance, theConstitutional Court has used the European Court of Human Rights non-discrimination principle in considering cases related to non-discrimination. 57 TheEuropean Court of Human Rights non-discrimination principle provides that adifference in treatment between people its justified where the difference is basedon a reasonable and objective justification, and the means employed are

proportional to the aim of the differential treatment. 58 The Court initially appliedthis principle to equal education cases, but subsequently extended the use of thedefinition to all equality cases. 59 Similarly, the Court has upheld the extension ofindividual rights granted by international treaties to Belgian case law. 60 In case23/2000, the Court used European Community law to find that the requirement that

private radio stations only be permitted to operate locally, while public stationscould operate state-wide, was permissible under the Belgian Constitution and

European Community law.61

54 Special Act of 6 January 1989 on the Constitutional Court , art. 4 (Belgium 1989) available at http://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012).55 Special Act of 6 January 1989 on the Constitutional Court , art. 114 (Belgium 1989) available athttp://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012). 56 Special Act of 6 January 1989 on the Constitutional Court , art. 19 (Belgium 1989) available at http://www.const-court.be/en/basic_text/basic_text_law_01.html (last visited Jan. 2, 2012).57 Patriek Peeters, Expanding Consti tutional Review by the Belgian Court of Arbitration 11 E UROPEAN PUBLICLAW 475, 481 (2005).58 Patriek Peeters, Expanding Consti tutional Review by the Belgian Court of Arbitration 11 E UROPEAN PUBLICLAW 475, 481 (2005).59 Patriek Peeters, Expanding Consti tutional Review by the Belgian Court of Arbitration 11 E UROPEAN PUBLICLAW 475, 481 (2005).60 See Belgian Constitutional Court Case 13/2000 (2000) Moniteur belge 11.03.2000 available athttp://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/bel/bel-2000-1-001?f=templates$fn=document-frameset.htm$q=%5Brank%3A%5Bsum%3A%5Bstem%3ABEL%5D%5Bstem%3A23%2F2000%5D%5D%5D$x=server$3.0#LPHit1. 61 See Belgian Constitutional Court Case 13/2000 (2000) Moniteur belge 11.03.2000.


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Many of the Courts most significant cases relate to the rights of minoritiesin the communities and regions. For instance, in Judgment 54/1996, theConstitutional Court held that legislatures in the communities and regions have aduty to protect minorities. 62 Specifically, the Court held that the Community of

Flanders was solely responsible for protecting the right of minority French-speakers in Flanders to have their own language facilities. 63 While languagefacilities included more than schools, the importance of guaranteeing educationfor minorities played an important role in this decision. 64 The Courts ruling wassignificant because the Court recognized that the linguistic minorities living inmonolingual regions of Belgium enjoy equal protection and a right to education asa matter of both constitutional and international law. 65

The Constitutional Court has played a significant role in protecting the rightsof individuals by providing a mechanism through which Belgian citizens can asserttheir constitutionally protected rights and seek remedy for injuries resulting fromdiscriminatory laws. In considering citizen challenges to Belgian law, theConstitutional Court has frequently considered international and Europeanstandards, extending the rights provided by the Belgian Constitution and furtherincorporating international rights standards into Belgian law.

Resolving Intra-governmental Disputes

Under the Constitution, the Constitutional Court is charged with resolving

disputes of law between the federal government, the regions, and thecommunities. 66 The Court was created to act as an arbitrator between thelegislatures of the federal government, the regions, and the communities byensuring that the laws, decrees, and ordinances adopted by each conform to the

power-sharing mechanisms put forth in the Constitution. 67

For instance, in an important case involving intra-governmental disputes, theConstitutional Court declared that the Brussels-Halle-Vilvoorde (BHV) electoral

62 Parliamentary Assembly, Council of Europe, Protection of Minorities in Belgium , Doc. 9536 (September 5, 2011),available at http://assembly.coe.int/documents/workingdocs/doc02/edoc9536.htm.63 See Parliamentary Assembly, Council of Europe, Protection of Minorities in Belgium , Doc. 9536 (September 5,2011), available at http://assembly.coe.int/documents/workingdocs/doc02/edoc9536.htm.64 See Parliamentary Assembly, Council of Europe, Protection of Minorities in Belgium , Doc. 9536 (September 5,2011), available at http://assembly.coe.int/documents/workingdocs/doc02/edoc9536.htm.65 See Parliamentary Assembly, Council of Europe, Protection of Minorities in Belgium , Doc. 9536 (September 5,2011), available at http://assembly.coe.int/documents/workingdocs/doc02/edoc9536.htm.66 BELGIUM CONST ., art. 142 (2007).67 Constitutional Court of Belgium, Welcome to the Website of the Constitutional Court of Belgium, available athttp://www.const-court.be/en/common/home.html ( last visited Jan. 1, 2012).


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district was unconstitutional. 68 The BHV district is a bilingual area encompassingBrussels and its suburbs, which extend into Flanders, but are home to a largenumber of French-speakers. 69 The BHV district became the subject of aconstitutional question in 2003, when the federal Elections Act changed Belgiums

electoral system from one based on districts to one based on larger (linguisticallyhomogenous) provinces, but left the BHV electoral district intact. 70 The issue was brought before the Court, which found that it was unconstitutional to change theelectoral system for the entire state but exclude BHV, as it resulted in differentialtreatment for candidates and voters in BHV. 71 The Court remanded the question tothe state Parliament to find a solution. 72 However, the federal government wasunable to negotiate a settlement in an effort to avoid the four-year deadlineimposed by the Court, the federal government moved up the 2007 elections by aweek, to pass on the BHV issue to the next administration. 73 Eight years after theConstitutional Courts decision, the issue remains unresolved and is one of the

priorities for Belgiums recently formed federal government. 74

The Constitutional Court plays a critical role in maintaining the principles ofthe Belgiums government by protecting the rights of individuals and by workingto resolve intra-governmental disputes. The Court provides a significantmechanism for individuals to assert their rights in challenging state laws,

promoting equality among Belgiums diverse citizenry and eliminatingdiscrimination within state structures. In addition, the Court plays an importantrole in maintaining Belgiums internal balance of power by resolving disputes

between different government entities.

68 Patrick Peeters and Jens Mosselmans, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap, 15 E UROPEANPUBLIC LAW 5 (Mar. 2009), available athttp://www.kluwerlaw.com/McmsTemplates/resources/SampleIssuesPDF/268.pdf.69 Patrick Peeters and Jens Mosselmans, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap, 15 E UROPEANPUBLIC LAW 5 (Mar. 2009), available athttp://www.kluwerlaw.com/McmsTemplates/resources/SampleIssuesPDF/268.pdf.70 Patrick Peeters and Jens Mosselmans, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap, 15 E UROPEANPUBLIC LAW 5 (Mar. 2009), available athttp://www.kluwerlaw.com/McmsTemplates/resources/SampleIssuesPDF/268.pdf.71 Patrick Peeters and Jens Mosselmans, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap, 15 E UROPEAN

PUBLIC LAW 9 (Mar. 2009), available athttp://www.kluwerlaw.com/McmsTemplates/resources/SampleIssuesPDF/268.pdf.72 Patrick Peeters and Jens Mosselmans, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap, 15 E UROPEANPUBLIC LAW 8 (March 2009), available athttp://www.kluwerlaw.com/McmsTemplates/resources/SampleIssuesPDF/268.pdf. 73 Patrick Peeters and Jens Mosselmans, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap, 15 E UROPEANPUBLIC LAW 5 (March 2009), available athttp://www.kluwerlaw.com/McmsTemplates/resources/SampleIssuesPDF/268.pdf.74 Constant Brand, Belgian Cabinet Sworn In, EUROPEAN VOICE , December 6, 2011, available athttp://www.europeanvoice.com/article/2011/december/belgian-government-sworn-in.


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Council of State

The Belgian Constitution provides for a central Council of State whosecomposition, jurisdiction, and operation are determined by law. 75 Consistent with

the Constitution, the Council of State was created on October 9, 1948, pursuant toan establishing law of December 23, 1946, and a Decree of the Regent of August21, 1948. 76 The Council of State is primarily an administrative court, 77 dividedinto two sections: the Administrative Litigation Section and the LegislationSection. 78 The Council has forty-four members, who are appointed for life,divided into Dutch and French-speaking chambers. 79

Jurisdiction

The Council of State has three primary roles. The Council considerschallenges to administrative acts and suspends and annuls administrative acts thatcontravene legal rules. 80 In addition, the Council of State acts as an Administrativeappellate court by reviewing the decisions of the lower administrative courts. 81 The Council of State also serves in an advisory capacity, providing analysis andadvice to the national, regional, and community legislatures and executive

branches regarding drafts of legislation, decrees, and ordinances. 82


The Council of State has the power to protect individual rights by hearingchallenges to administrative regulations and decisions. In practice, however, theCouncil often resolves such issues on procedural grounds. 83 The Council of Stateis also responsible for deciding on the recognition of religious groups in Belgium.

75 BELGIUM CONST ., art. 160 (2007).76 Council of State, About the Council of State (2011), available at http://www.raadvst-consetat.be/?page=about&lang=en. 77 BELGIUM CONST ., art. 160 (2007).78 Council of State, The Council (2011), available at http://www.raadvst-consetat.be/?page=about_organisation_council&lang=en.79 Council of State, The Council (2011), available at http://www.raadvst-consetat.be/?page=about_organisation_council&lang=en. 80 Council of State, Legal Powers (2011), available at http://www.raadvst-consetat.be/?page=about_competent&lang=en . 81 Council of State, Legal Powers (2011), available at http://www.raadvst-consetat.be/?page=about_competent&lang=en . 82 Council of State, Legal Powers (2011), available at http://www.raadvst-consetat.be/?page=about_competent&lang=en . 83 See United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.


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Access to the CourtIndividuals may make applications to the Administrative Litigation Section

of the Council of State for annulment or suspension of an administrative act. 84

When an individual applies to annul an administrative act, he or she must state: (1)his or her name; (2) the opposing partys identity; (3) a statement of facts; (4) theadministrative act being challenged; and (5) the legal grounds for challenging theact. 85 The individual may also plead for a suspension of the act by providingevidence that the act in question will cause immediate and irreparable harm if notsuspended. 86 An individual may also apply for an appeal in cassation to contest adecision of a lower administrative court within thirty days of the contesteddecision. 87

Protection of Substantive RightsThe Administrative Litigation Section of the Council of State has the power

to protect individual substantive rights affected by administrative acts of thegovernment. 88 In practice, however, the Council frequently defers these issues on

procedural grounds. 89 An important case in this regard surrounds the FlandersEducational Council ban on Muslim headscarves in schools in September 2009. 90 Students appealed to the Council of State to suspend and annul the ban. 91 TheCouncil denied the request for suspension. 92 In March 2010, the Council of Statetemporarily annulled the ban, but not on human rights grounds. 93 Rather, theCouncil annulled the ban on grounds that it lacked jurisdiction to determine the

issues, holding that the Constitutional Court was the proper body to determine

84 The Legislation Section of the Council serves an advisory purpose to government officials. Council of State, Proceedings (2011), available at http://www.raadvst-consetat.be/?page=procedure&lang=en. 85 Council of State, Application for Annulment (2011), available at http://www.raadvst-consetat.be/?lang=en&page=proc_admin_annul_page1. 86 Council of State, Single Application: Action for Annulment with Application for Suspension (2011), available athttp://www.raadvst-consetat.be/?lang=en&page=proc_admin_susp_page1. 87 Council of State, Appeal in Cassation (2011), available at http://www.raadvst-consetat.be/?lang=en&page=proc_admin_cass_page1. 88 See Council of State, Legal Powers (2011), available at http://www.raadvst-consetat.be/?page=about_competent&lang=en . 89 See Law Library of Congress, Belgium: Ban on Headscarves in Flanders (Oct. 16, 2009), available athttp://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205401601 _ text.90 Law Library of Congress, Belgium: Ban on Headscarves in Flanders (Oct. 16, 2009), available athttp://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205401601 _ text.91 Law Library of Congress, Belgium: Ban on Headscarves in Flanders (Oct. 16, 2009), available athttp://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205401601 _ text.92 Law Library of Congress, Belgium: Ban on Headscarves in Flanders (Oct. 16, 2009), available athttp://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205401601 _ text.93 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.


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whether the Flemish educational authority or the Flemish parliament has theauthority to impose such a ban on the Flemish public school system. 94

Similarly, in April 2010, an organization called the Movement against

Racism, Anti-Semitism, and Xenophobia (MRAX) appealed a ban on headscarvesin two Francophone schools. Again, the Council denied the appeal based on thefact that MRAX did not have standing to appeal, rather than determining whetherthe ban infringed upon individual rights. 95 Observers have suggested the Councilhas avoided the headscarf issue altogether, preferring to allow local schools andgovernments to settle the issue themselves. 96

The Council of State may also consider appeals of denials of officialrecognition of religious groups. The Belgian federal government is responsible forrecognizing religious groups and paying wages to the ministers and religiousinstructors of such groups. 97 To receive state benefits, the religious group is firstrequired to apply to the Ministry of Justice, which then issues recommendations toParliament to grant official recognition. 98 If the Ministry of Justice denies theapplication, the applicant may apply to the Council of State for an appeal of thedecision. 99

As a forum and an appellate body for challenging administrative decisions,the Council of State has the mandate to consider issues of and enforce individualrights impacted by administrative decisions. In practice, however, the Council

typically defers such issues on procedural grounds and frequently defers to theConstitutional Court on such issues.

Advisory Powers

94 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm. 95 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.96 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.97 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.98 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.99 United States Department of State, Belgium: International Religious Freedom Report 2010 (Nov. 17, 2010),available at http://www.state.gov/g/drl/rls/irf/2010/148917.htm.


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In addition to considering challenges to administrative decisions, theCouncil acts as an advisor to all levels of government. 100 The Legislation Section

provides mandatory consultation to federal ministers and members of thecommunity and regional governments on every pre-draft act, decree, or ordinance,

and on all draft regulation.101

Thus, government officials are required to seek theopinion of the Legislation Section before bills become law. 102 The consultationmay be waived by a showing of reasoned urgency or matters relating to budgets,loans, accounts, public lands, or the military. 103 Similarly, the Chairman of theLegislative Assemblies of the Communities and Regions must seek an opinion ondrafts of law where one-third of the members of the assembly in question requestit.104 The Chairmen of the federal Senate and the House of Representatives and theParliament of Brussels must seek an advisory opinion upon a request by themajority of the members of one linguistic group. 105

In addition to the mandatory consultations, the Legislation Section also provides optional consultations to government institutions on drafts of laws,decrees or ordinances, and in some cases engages in legislation-drafting. 106 TheLegislation Section also provides opinions to the federal governmentsCoordination Office on coordinating laws among the state, the Communities, andthe Regions. 107

The Council of State serves an important role in the promotion and protection of individual rights through Belgiums judicial system. Although the

Council frequently defers rights issues on procedural groups, it provides amechanism through which individuals may challenge the discriminatory impact ofadministrative rulings and decisions. In addition, the Council provides an

100 Council of State, Legal Powers (2011), available at http://www.raadvst-consetat.be/?page=about_competent&lang=en.101 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.102 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.103 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.104 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.105 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.106 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.107 Council of State, Who Consults the Legislation Section and What are the Requirements for Doing So? (2011),available at http://www.raadvst-consetat.be/?lang=en&page=proc_consult_page1.


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important source of legislative and review and consultation, frequently at therequest of a particular linguistic group.

Conclusion

Belgiums supreme judicial authorities protect individuals substantive rights by providing forums to challenge laws or administrative decisions that infringe on protected interests. The Court of Cassation promotes equality in the legal system by overseeing the consistent application of the law. The Constitutional Courtadjudicates individual claims against alleged discriminatory legislation. TheCouncil of States jurisdiction is limited to administrative matters, but permitsclaims by individuals regarding the states administrative actions that adverselyaffect protected interests. In practice, the Constitutional Court remains the primaryvenue for adjudicating issues and questions of substantive rights protections. TheCouncil of State frequently defers such issues within administrative decisions tothe Constitutional Court or decides them on procedural grounds. Although the

LeSki principle and the Vlaams Blok decision suggest that the Court of Cassation isassuming a stronger role in the protection of substantive rights where internationallaw is invoked, the relationship between the Court of Cassation and theConstitutional Court in adjudicating such issues is still evolving. Despite theseoverlaps, however, Belgian supreme judicial authorities provide several options forasserting individual rights and for ensuring protection of rights under Belgian andinternational law.


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Annex: Reference Chart

Court of Cassation ConstitutionalCourt

Council of State

Jurisdiction

Highest appellatecourt. Does not

consider cases onthe merit;considerswhether the lawand procedureswere appliedcorrectly.

Decides whetherfederal lawsconflict with theConstitution.

Has jurisdictionover conflicts

between federal,regional, andcommunity laws.

Cannot reviewdecrees, whichdo not have theforce of law.

Reviewscomplaintsregardingadministrativedecisions.

Acts as alegislativeadvisor.

Organization Fifteen toeighteen judges,appointed for life.

Three chambers civil/criminal,commerce, and

social. Chambers are

divided intoFrench and Dutchspeakingchambers.

Twelve judges,appointed forlife.

Six judges fromFrench andDutch language

groups. One judge must

be able to speakGerman.

The Court hastwo Presidents one French andone Dutch.

Forty-fourmembersappointed for life.

Two sections -AdministrativeLitigation Section

and LegislationSection.

Sections aredivided intoFrench and Dutchspeakingchambers.

Access Challenges to

lower courtdecisions must be brought withinthree months ofthe decision.

Parties to lowercourt decisions

Challenges to

laws are requiredto be broughtwithin sixmonths of thelaws

publication. Individuals

Challenged

administrativeacts must be brought withinthirty days of thecontesteddecision.

Private citizens


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who can showthat they wereaffected by thelower decision(s)

and providegrounds forappeal on anissue of law mayappeal to theCourt.

challenging lawshave todemonstrate thatthe laws directly

and adverselyimpact theindividual and

point to specificconstitutional

provisions inconflict with thelaw.

may challengesadministrativedecisions throughthe

AdministrativeLitigationsection.

Governmentofficials mayrequest advisoryopinions on draftlaws through theLegislationSection.

IndividualRights

Has consideredissues ofindividual rightsgranted byinternationalconventions, suchas the ECHR.

Has consideredcases based onBelgiumsconstitutionally

protected rights,including issuesof protections forregionallanguages,

equality, andnon-discrimination.

Has the power toconsidersubstantive rights

protection inadministrativeissues, but, in

practice, hasdecided issues on

procedural

grounds anddeferred rightsquestions to theConstitutionalCourt.

Belgian Supreme Judicial Authorities

Documents

Transcript of Belgian Supreme Judicial Authorities