Patricia Popelier (responsible) and Werner Vandenbruwaene (collaborator) - University of Antwerp, Law Faculty, Research group on Government and Law

n.3, 2016

Osservatorio sulle fonti / Observatory on Sources of Law

Section: Sources of Law in the EU member States

Belgium – 2016

By Patricia Popelier and Werner Vandenbruwaene, University of Antwerp

Name of the Act/s Judgment of the Constitutional Court No 107/2016

Date of entry into force of original text

August 23, 2016

Date of Text (Adopted)

July 7, 2016

Type of text

(name in English / name in the official language)

Judicial branch: Constitutional Court judgment/Grondwettelijk Hof
If Federal State

X Federal level

□ State level (specify the State)

If Regional State

□ State level

□ Regional level (specify the Region/Comunidad Autonoma)

Enacted by Constitutional Court
Reference to the Constitution (art)

Art. 105 of the Belgian Constitution:

Art. 105: The King has no powers other than those formally attributed to him by the Constitution and by specific laws passed by virtue of the Constitution itself.

Art. 170 para 1: Taxes to the benefit of the State can only be introduced by a law.

Art. 172: No privileges with regard to taxes can be introduced.

No exemption or reduction of taxes can be introduced except by a law.

                                                                                    

Subject area Tax law – Delegation to the Executive
If the act implements a source of EU Law: cite the relevant EU legal source

European Directive 77/388/EEC on the common system of value added tax  

Comment As a reply to the proceedings initiated by the European Commission for not fulfilling its obligations under the European Directive on the common system of value added tax, the Belgian Parliament empowered the federal executive to take the necessary measures for the implementation of the European Directive. The law required the initiation of a bill for the Parliamentary approval of the Executive Order at the next Parliamentary session. The timing was not respected and the Executive Orders (having acquired the quality of Parliamentary Acts since their approval by Parliament) were challenged before the Constitutional Court for having been approved too late.
The Constitutional Court repeated that according to the legality principle laid down in Art. 170 of the Constitution, the essential elements of taxes should be inserted in an Act of Parliament. However, this can be delegated to the Executive under the following conditions: 1) it is impossible for Parliament to enact the law because respect of the parliamentary procedures would hinder the a purpose of general interest, 2) the authorization given to the Executive is explicit and unambiguous, 3) the Executive orders are examined by Parliament within a relatively short term established by the delegating Act.
The Court deemed that the first condition was fulfilled, considering the proceedings initiated against the Belgian State and the resulting urgency of the matter. More doubtful was the question whether the third obligation was fulfilled, since the deadline for submitting the bill prescribed by the delegating Act had not been met. The Court considered that the essential elements of the regulation were already established in the European Directive and subsequently adopted in the Executive Orders. According to the Court, the taxpayers could foresee the applicable tax rules since the adoption of the Executive Orders and the essential elements had been established by a binding Directive. For these reasons, the delayed approval was ‘regrettable’ but not unconstitutional.
Hence, although the legality principle in tax law is considered a principle to protect citizens against arbitrary taxes by confiding the matter to a representative Parliament, European norms may (at least temporarily) substitute for the requirement to lay down the essential elements in an Act of Parliament.
Secondary sources/ doctrinal works (if any) /
Available Text http://www.const-court.be/public/n/2016/2016-107n.pdf

 

Date of entry into force of original text

 

July 16, 2015

 

Date of Text (Adopted)

 

July 16, 2015

Type of text

Judicial branch: Constitutional Court judgment/Grondwettelijk Hof

Level

Federal

Enacted by

Constitutional Court

Reference to the Constitution (art)

Art 10-11 of the Belgian Constitution:

 

Art. 10: No class distinctions exist in the State.

Belgians are equal before the law; they alone are eligible for civil and military service, but for the exceptions that can be created by a law for particular cases.

Equality between women and men is guaranteed.’

 

Art. 11: ‘Enjoyment of the rights and freedoms recognised for Belgians must be provided without discrimination. To this end, laws and federate laws guarantee among others the rights and freedoms of ideological and philosophical minorities’

                                                                                          

Law regarding the Formal Reason-Giving in Administrative Acts

 

Subject area

Procedure before the Council of State

Comment 

In this judgment, the Constitutional Court assesses the new procedure before the Council of State, providing the government with tools to repair formal deficiencies before the Council’s final judgment, including the absence of formal reason giving in the administrative act. According to the Court, this provision violates the individual’s right to be immediately informed of the reasons of a decision, taking into account the fact that this information should allow the individual to assess the opportunity of judicial proceedings against the act. The Court states that the provision violates this right as inserted in the Law regarding the Formal Reason-Giving in Administrative Acts, thereby suggesting that the requirement to give reasons in the individual administrative act itself has supra-legal value.

Available Text

http://www.const-court.be/public/n/2015/2015-103n.pdf 

Date

 

January 22, 2015

 

Date of Text (Adopted)

January 22, 2015

Type of text

Judicial branch: Constitutional Court judgment/Grondwettelijk Hof

Level

Federal level

Enacted by

Constitutional Court

Reference to the Constitution (art)

Art 10-11 of the Belgian Constitution:

Art. 10: No class distinctions exist in the State.

Belgians are equal before the law; they alone are eligible for civil and military service, but for the exceptions that can be created by a law for particular cases.

Equality between women and men is guaranteed.’

Art. 11: ‘Enjoyment of the rights and freedoms recognised for Belgians must be provided without discrimination. To this end, laws and federate laws guarantee among others the rights and freedoms of ideological and philosophical minorities’

Subject area

Tax law

Comment 

In this decision, the Constitutional Court annuls a fiscal law because Parliament did not give any reasons for retroactively taxing collective investment companies. According to the Government, the public interest justified the measure. However, the Constitutional Court demanded a more specific notion of public interest with regard to the specific case. It also referred to the opinion of the Council of State, Legislative Branch, where it advised the Government to give a more specific justification for the retroactive measure.

This way, the Constitutional Court reminded Parliament that the public interest does not give a license for taking any measure without due deliberation and justification. It also insisted on taking more seriously the legal expert opinion issued by the Council of State. When submitting a bill to Parliament, the Government is obliged to seek the advice of the Council of State, Legislative Branch, which is an independent advisory body of legal experts. If taken seriously, this body helps Parliament to issue laws that are legally sound and to avoid annulment by the Constitutional Court. In this case, Parliament hardly took notice of the Council of State’s reminder. 

Available Text

http://www.const-court.be/public/f/2015/2015-001f.pdf

Name of the Act

Niveau V. Verandering voor veiligheid (Level V. Change for safety)

Date of entry into force of original text

September, 2016

Date of Text (Adopted)

September, 2016

Type of text

Political party policy plan

 

Federal level

Enacted by

Political party (in the federal coalition government)

Reference to the Constitution

Art. 167 of the Belgian Constitution: The Constitution cannot be wholly or partially suspended.  

Subject area

Anti-terrorism – Patriot Act

Comment 

Since the terrorist attacks on Brussels Airport and the underground tube Maalbeek on 22 March 2016, politicians bid up safety measures. The most far-reaching was the safety plans of the governing political party N-VA, presented as ‘Level V – Change for safety’, which invokes the IS threat on European soil to proclaim a state of emergency. The state of emergency would justify measures that seriously infringe upon fundamental rights, enabling a National Security Council, amongst others, to prohibit public meetings, to keep someone under house arrest or to conduct house searches without prior judicial interference. 

The European Convention on human rights offers a legal ground to derogate from (some) convention rights in a state of emergency. Several countries made uses of this. In Belgium, however, it is generally accepted that the Constitution does not allow for such practice. Article 187 of the Constitution states that ‘The Constitution cannot be wholly or partially suspended‘.

According to the N-VA, the plan nonetheless remains within the limits oft he law, refering to the Supreme Court’s case law on martial laws. This was 1940, and the Supreme Court upheld the laws that enabled drastic limitations to fundamental rights during the war. But the Supreme Court did not actually review the content oft he law against the constitution. It merely stated that due to force majeure, Parliament was not able to assemble, and therefor the government could exercise legislative powers on its own. The government’s decree was therefore equal to an Act of Parliament, and the Supreme Court did not have the power to review the content of an Act of Parliament.

This revived the discussion of whether there is a constitutional ground for the state of emergency. Advocate general Hayoit de Termicourt’s reasoning was brought up, arguing that the dercee of 18 November 1830 that proclaimed the independence oft he Kingdom of Belgium, has supra-constitutional value, allowing for unconstitutional measures to defend the country’s independence. Other authors stated that no argument can override the necessity to safeguard national sovereignty and the continuity of government power. The Council of State, in an advisory opinion of 1952, agreed.

Other scholars point out the weak legal ground for such reasoning.

But even if the reasoning is accepted, this in itself does not justify the Patriot Act proposed in the N-VA’s safety plan. The arguments based on the decree of independence as well as the ones based on the inherent value of national sovereignty, require that certain conditions are met: the continuity or independence oft he nation must be at risk, the measures must be temporary and enacted by Parliament. It is doubtful whether the first condition is fulfilled.

According to the European Court of human rights, Art. 15 of the Convention can be invoked if there is the threat of terrorist attacks puts at risk fysical integrity and human lifes, but it does not necessarily imply that the State’s institutions or the country’s existence as a civil community are imperilled (Grand Chamber, A v the United Kingdom, 19 February 2009). However, should the continuity or independence oft he state be accepted as a legal ground fort he state of emergency according to Belgian law, higher demands are made. The threat of terrorist attacks justifies increased vigilance, but fort he time being, the state institutions kept functioning and the independence oft he Belgian State was never at risk.

Meanwhile, it is noteworthy that the N-VA, whose main point in its political charter is Flander’s secession from Belgium, now invokes the necessity to safeguard the continuity of the Belgian state…

Available Text

https://www.n-va.be/sites/default/files/generated/files/news-attachment/niveau_v_-_10092016.pdf

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