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

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


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

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



March 13, 2015


Date of Text (Adopted)

Not yet adopted.

Type of text

Draft legislative act (Projet de loi) concernant la promotion de l’emploi)



Enacted by

House of representatives

Reference to the Constitution (art)

Art. 39 of the Constitution:

“The law assigns to the regional bodies that it creates and that are composed of elected representatives the power to manage the matters that it determines, with the exception of those referred to in Articles 30 and 127 to 129, within the scope and according to the manner laid down by a law. This law must be passed by a majority as described in Article 4, last paragraph.”

Art. 6, § 1, VI, 5th indent, 3° of the Special Act Institutional Reform, as last changed in 2014:

[the federation has the competence over] the price- and salarypolicy, wth exception of the prices and salaries concerning matters governed by the Regions and Communities, with the exception of energy-distribution tariffs.

Art. 6, §1, IV, 2° of the Special Act Institutional Reform, as last changed in 2014:

[The Regions have competence over] the specific rules on the rent of houses or parts oft hem.

Subject area

Labour law – indexation – salaries - rent


A major policy initiative of the current government is to pass over the indexation of salaries for one time. While normally this indexation follows the evolution of the prices of certain goods, for reasons of international competitiveness, the centre-right federal government opted to introduce this singular “jump” and not letting the salaries increase.

In order to soften critique from the left-winged opposition, the idea was floated to also install a jump in the indexation of house rental prices.  This would soften the loss of purchase power from the salary index jump.

So far, so good, but the federal level is in principle not competent to regulate the rent of houses, that is an exclusive regional competence. But the federation does enjoy a general competence of prices and salaries. The preparatory acts were not completely clear on this issue. It seems that the federal level could limit the increase in rental prices, as long as it was part of a general framework of price controls. If the measure would only concern house rentals, then the Regions would be competent to the exclusion of the federation.

Moreover, the current legislation, awaiting a new Regional Act on house renting, refers to the federal system of the calculation of the price level.

Both the competences and the substantive referral between the norms are intertwined, contradicting the principle of exclusive division of competences that inspires Belgian federalism.

Available Text

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Osservatorio sulle fonti

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