Council of State (Belgium)
Encyclopedia
Council of State in Belgium
, is an organ of the Belgian government: it is the Supreme Administrative Court of Belgium. Its functions include assisting the executive with legal advice and being the supreme court for administrative justice. Its members are (for the most part) high level jurists.
; thus, no Council of State was created in Belgium.
After World War II
the need arose for a Supreme Administrative Court, and such an organ was created by the law of 23 December 1946 as a body that administers justice. It does not officially belong to the judiciary; rather, it falls under the competence of the minister of the interior.
Since then, the Belgian Constitution has been amended to include the existence of the Council of State. Article 160 of the Belgian Constitution
provides that there is, for all of Belgium, one Council of State, the composition, competence and functioning of which are regulated by law. The organisation and functioning of the Council of State are presently provided for by the organic laws on the Council of State, coordinated by the Royal Decree of 12 January 1973.
The Council has 44 judges:
The judges themselves elect their Presidents. Chamber Presidents are elected from those judges who are at least three years on the bench, Presidents and the First President are elected from judges at least eleven years with the Council of State of which at least five years as a judge.
The aforementioned judges are appointed for life by the King out of a list containing three names nominated by the Council of State itself. If the nominating list was made unanimous by the Council of State, the person topping the list will be appointed unless the minister of the interior vetoes the appointment because the conditions of the law are not met. If the minister accepts these nominations then he/she proceeds to notify the Belgian Senate
and the Belgian Chamber of People's Representatives
, which can refuse the nominations if they consider the number of former auditeurs to have grown to large. In this case the Council of State drafts a new list. If the list with nominations by the Council was not unanimous then the Chamber or Senate can draft a new list containing three names, the King will proceed to appoint one of the candidates from these two lists.
In order to become a judge on the Council of State the following conditions must be met:
The Council has its seat at the following address: Wetenschapsstraat/rue de la Science 33 in Brussels.
The Council of State examines the conformance of these regulations and administrative decisions with respect to the Constitution, (higher) administrative decisions, the general principles of Law, statute law, international traties and conventions. The general principles of Law are principles that are not found in any statute, yet derive from the spirit of the body of law; they are discovered by the Council and thus made into case law.
The Council is the cassation jurisdiction for decisions by administrative courts of appeal, meaning that it hears cases in which the plaintiff argues that the court of appeal ignored or misinterpreted law.
The procedure is inquisitorial: the litigant writes a letter to the Council, stating precisely what happened and why he feels that the defendant acted illegally
; the Council then starts an inquiry, asking the other party (generally, a government or government agency) for precisions, and so on until the Council has a clear picture of the case. The litigant does not have the burden of proof: the Council may well decide that the litigant was right and the government was wrong if the information supplied by the litigant was sufficient to enable it to find the missing proofs. Of course, both parties may supply supplemental information until the case is ready for final judgment. A litigant has to make his claim within 60 days after the publication of the regulation in the Belgisch Staatsblad/Moniteur Belge
, or if it is a decision which affects only a limited number of people, within 60 days after he gets notified of it.
In some cases, it is unclear whether a case should be heard before administrative courts or judiciary courts. In this case, Court of Cassation
decides who has jurisdiction.
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, is an organ of the Belgian government: it is the Supreme Administrative Court of Belgium. Its functions include assisting the executive with legal advice and being the supreme court for administrative justice. Its members are (for the most part) high level jurists.
History
After Belgium gained its independence from the Netherlands, the Belgian government was hesitant to create a Council of State, given the perceived abuse of the Dutch Council of StateDutch Council of State
In the Netherlands, the Council of State is a constitutionally established advisory body to the government which consists of members of the royal family and Crown-appointed members generally having political, commercial, diplomatic, or military experience...
; thus, no Council of State was created in Belgium.
After World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
the need arose for a Supreme Administrative Court, and such an organ was created by the law of 23 December 1946 as a body that administers justice. It does not officially belong to the judiciary; rather, it falls under the competence of the minister of the interior.
Since then, the Belgian Constitution has been amended to include the existence of the Council of State. Article 160 of the Belgian Constitution
Constitution of Belgium
The Constitution of Belgium dates back to 1831. Since then Belgium has been a parliamentary monarchy that applies the principles of ministerial responsibility for the government policy and the Trias Politica. The Constitution established Belgium as a centralised unitary state...
provides that there is, for all of Belgium, one Council of State, the composition, competence and functioning of which are regulated by law. The organisation and functioning of the Council of State are presently provided for by the organic laws on the Council of State, coordinated by the Royal Decree of 12 January 1973.
Organisation
The Council of State comprises the council, the auditeurs' office, the coordination office, the registry and the administrative staff. The Council is further divided into a Legislative section and an Administrative litigation section.The Council has 44 judges:
- a first President
- a President
- 14 Presidents of Chambers
- 28 Councillors
The judges themselves elect their Presidents. Chamber Presidents are elected from those judges who are at least three years on the bench, Presidents and the First President are elected from judges at least eleven years with the Council of State of which at least five years as a judge.
The aforementioned judges are appointed for life by the King out of a list containing three names nominated by the Council of State itself. If the nominating list was made unanimous by the Council of State, the person topping the list will be appointed unless the minister of the interior vetoes the appointment because the conditions of the law are not met. If the minister accepts these nominations then he/she proceeds to notify the Belgian Senate
Belgian Senate
The Belgian Senate is one of the two chambers of the bicameral Federal Parliament of Belgium, the other being the Chamber of Representatives. It is considered to be the "upper house" of the Federal Parliament.-History and future:...
and the Belgian Chamber of People's Representatives
Belgian Chamber of People's Representatives
The Belgian Chamber of Representatives is one of the two chambers in the bicameral Federal Parliament of Belgium, the other being the Senate...
, which can refuse the nominations if they consider the number of former auditeurs to have grown to large. In this case the Council of State drafts a new list. If the list with nominations by the Council was not unanimous then the Chamber or Senate can draft a new list containing three names, the King will proceed to appoint one of the candidates from these two lists.
In order to become a judge on the Council of State the following conditions must be met:
- at least 37 years of age
- legal degree
- at least ten years of legal experience
- one of the following conditions:
- succeeded in a government exam for auditeur or referendaris
- administrative function of rank 15 in a Belgian civil service
- holder of a doctorate in law
- Belgian magistrate
- professor of law at a Belgian university.
The Council has its seat at the following address: Wetenschapsstraat/rue de la Science 33 in Brussels.
Competence
The Belgian Council of State was modelled after her French namesake with greatly similar powers.Litigation
The Council hears cases against decisions of the federal government (royal decrees, regulations issued by ministers, decisions by committees with a national competency) and decisions of the regional governments and the governments of the communities (executive orders, regulations issued by ministers,...) as well as against decisions of the provincial and municipal governments and decisions of various state organs.The Council of State examines the conformance of these regulations and administrative decisions with respect to the Constitution, (higher) administrative decisions, the general principles of Law, statute law, international traties and conventions. The general principles of Law are principles that are not found in any statute, yet derive from the spirit of the body of law; they are discovered by the Council and thus made into case law.
The Council is the cassation jurisdiction for decisions by administrative courts of appeal, meaning that it hears cases in which the plaintiff argues that the court of appeal ignored or misinterpreted law.
The procedure is inquisitorial: the litigant writes a letter to the Council, stating precisely what happened and why he feels that the defendant acted illegally
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
; the Council then starts an inquiry, asking the other party (generally, a government or government agency) for precisions, and so on until the Council has a clear picture of the case. The litigant does not have the burden of proof: the Council may well decide that the litigant was right and the government was wrong if the information supplied by the litigant was sufficient to enable it to find the missing proofs. Of course, both parties may supply supplemental information until the case is ready for final judgment. A litigant has to make his claim within 60 days after the publication of the regulation in the Belgisch Staatsblad/Moniteur Belge
Belgian Official Journal
The Belgian Official Journal is the official journal of the Kingdom of Belgium....
, or if it is a decision which affects only a limited number of people, within 60 days after he gets notified of it.
In some cases, it is unclear whether a case should be heard before administrative courts or judiciary courts. In this case, Court of Cassation
Court of Cassation (Belgium)
The Court of Cassation is the main court of last resort in Belgium.It was originally modelled after the French Cour de cassation. Its jurisdiction and powers are similar to those of its French counterpart....
decides who has jurisdiction.
Advisory capacity
In principle, whenever federal Acts or Decrees are drawn up by the federal parliaments (federation, communities or regions) or Decrees by the federal government (Royal or Ministerial Decrees) or by a regional government, these must first before being adopted and published in the Belgisch Staatsblad/Moniteur Belge be sent to the Legislative Section for its advice. Normative texts coming from the executive power must be submitted for advice in draft form whereas for normative texts originating from a member of parliament, the advice is optional. The Council of State's advice will contain arguments with regards to the competence of the organ proposing the act or regulation, the legality vis-a-vis hierarchical rules as well as linguistic arguments.See also
- Constitutional Court of Belgium
- Court of CassationCourt of Cassation (Belgium)The Court of Cassation is the main court of last resort in Belgium.It was originally modelled after the French Cour de cassation. Its jurisdiction and powers are similar to those of its French counterpart....
External links
- Raadvst-Consetat.be Official website
- Raadvst-consetat.be, Article about the workings of the Council of State