The Ability to Deviate from the Principle of Retroactivity: A Well-Established Practice Before the Constitutional Court and the Council of State in Belgium
© Springer International Publishing Switzerland 2015Eva SteinerComparing the Prospective Effect of Judicial Rulings Across JurisdictionsIus Comparatum – Global Studies in Comparative Law310.1007/978-3-319-16175-4_4
4. The Ability to Deviate from the Principle of Retroactivity: A Well-Established Practice Before the Constitutional Court and the Council of State in Belgium
Faculty of Law, University of Antwerp, City Campus, Venusstraat 23, office SV. 172, Antwerp, 2000, Belgium
Faculty of Law, University of Antwerp, City Campus, Venusstraat 23, office SC. 126, Antwerp, 2000, Belgium
Doyen de la Faculté de droit, Université Saint-Louis, Boulevard du Jardin Botanique, 43, Bruxelles, 1000, Belgium
In Belgium, every judicial decision has, in principle, retroactive effect. Parliament gave the Constitutional Court and the Council of State the ability to deviate from this initial retroactive effect when the Court or Council deems this necessary. It appears from the Constitutional Court’s case law that the Court repeatedly makes use of this ability to attach prospective effects to its decisions. A variety of reasons is given to justify a temporal modulation, such as the protection of legal certainty, the prevention of financial and/or administrative difficulties and the possibility for Parliament to revise the annulled norm. Similar considerations are invoked before the Council of State, but the latter is much more reluctant to deviate from the initial retroactive effect and it imposes a higher burden of proof on to the requesting parties. Since the recent law reform of 2014, the Council is moreover deprived of the power to modulate ex officio the retroactive effect of its annulment decisions.
When writing this report, Sarah Verstraelen was a PhD fellow on a project on the temporal effects of judicial decisions financed by the Flemish Scientific Fund (FWO). She is now an FWO Postdoctoral Fellow at the University of Antwerp. Patricia Popelier is professor at the University of Antwerp. Sébastien Van Drooghenbroeck is professor at the Université Saint Louis. The case law in this contribution was updated until 1 July 2014.
In Belgium, judicial decisions as a rule have retroactive effect. This rule applies to both decisions of the ordinary courts, and those of specialized courts such as the Constitutional Court and the Council of State.1 The regime applying to both categories of courts, however, differs in many respects. For ordinary courts, retroactive effect results from declaratory theory, according to which courts do not create law (Roubier 1960). In the case of abstract review by specialized courts, it was considered that if the court finds that an administrative decision or Act of Parliament violates the law or the constitution, the norm was afflicted with this irregularity since its coming into force. It was felt that for this reason, the norm should be removed from the legal order ex tunc (par. 2).
In the case of annulment decisions pronounced by the Constitutional Court or the Council of State, Parliament provided for the possibility to deviate from the principal rule of retroactivity (Art. 8(3) Special Law on the Constitutional Court (SLCC); Art. 14ter Coordinated Laws on the Council of State (CLCS)). This allows the court to find a balance between legality, which is affected by the irregular norm, and legal certainty, which may be affected if the norm is annulled with retroactive effect. The respective provisions provide that where the Court or the Council so deems necessary, it shall, by a general ruling, specify which effects of the nullified provisions are to be considered maintained or be provisionally maintained for the period appointed by the Court. Parliament did not provide for a similar provision in the case of referral decisions, but this did not retain the Constitutional Court from appropriating this power for itself. The Council of State, for its part, has a similar competence to maintain the effects of a nullified provision. Until recently, however, it was not allowed to deviate from the principal retroactive effect where the annulment concerned an individual act.
Similar powers for ordinary courts to deviate from the principal retroactive affect is neither provided by law nor developed in established case law. Such power was considered to imply a particular acknowledgment that courts in fact do have a creative role in the development of the law. In only two cases did the Court of Cassation2 decide to limit the retroactive effect of its decision. This reluctant stance stands in sharp contrast with the case law developed by the Court since 2007 regarding the temporal effect of referral decisions pronounced by the Constitutional Court (par. 3).
The Constitutional Court frequently makes use of the possibility to definitively or provisionally maintain the effects of an annulled provision. The reason-giving for such decisions, however, often leaves much to be desired. The Council of State is a less frequent user of this possibility, but provides a more elaborated reason-giving. An analysis of the case law of both courts, nevertheless, reveals that they rely on similar reasons for deviating from the principal retroactive effect of their decisions (par. 4).
Retroactivity as the Principal Rule
As mentioned above, declaratory theory explains the retroactive effect of judicial decisions of the ordinary courts. According to this theory judges merely explain the meaning of legal texts as they always were and always should have been interpreted (Roubier 1960; Haazen 2001; Dirix 2008–2009; Velu 2011). Robespierre established that “Le mot de jurisprudence ce doit être effacé de notre langue; dans un pays qui a une constitution, une législation ce n’est autre chose que la loi” (Scholten 1954). Likewise, Blackstone, eighteenth-century lawyer and fervent adherent of the declaratory theory, asserted that judges merely determine pre-existing law: “For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law, that is, that it is not the established custom of the realm, as has been erroneously determined” (Blackstone 1796). In this theory, syllogisms suffice for the judge to settle a judicial dispute. Applying the general rule (maior) to the concrete facts of a case (minor) is supposed to lead to the one possible conclusion (Scholten 1954; Merryman 1969; van Gerven 1973; Wiarda 1999; Lasser 2004; Schollen 2011).
Labeling the temporal effects of judicial decisions as ‘retroactive’ seems at odds with this theory. According to declaratory theory, there is no question of transitory issues, as the old precedent is deemed inexistent (Scholten 1954; Haazen 2001; Molfessis 2005). If the court determines the law as it always existed, the decision has a declaratory instead of a retroactive effect. The different approach taken under each of these labels, however, cannot conceal that declaratory and retroactive decisions create the same effects.
In the end, it may come as no surprise that judgments of the ordinary courts are characterized by a retroactive effect, as judicial decisions are necessarily pronounced after the events which lead to the judicial procedure or after the adoption of the act at issue (Husserl 1955; Rivero 1968; Ost 1998; Rigaux 1998; Le Berre 2000; Ost and Van Drooghenbroeck 2002; Dirix 2008–2009; Tulkens and Van Drooghenbroeck 2011; Verstraelen 2015).
The Constitutional Court
The Constitutional Court has the power to review federal and subnational Acts of Parliament against rules allocating powers between the federal and the subnational authorities, against title II of the Constitution regarding fundamental rights, and against the Articles 143 (federal loyalty), 170 and 172 regarding taxes and Article 191 regarding the protection of foreigners on Belgian soil (Art. 142 Belgian Constitution; Art. 1 and 26 Special Law on the Constitutional Court).
Parliamentary acts can be challenged before the Belgian Constitutional Court in two different ways: through an annulment procedure or by way of a preliminary reference.
The annulment procedure implies an abstract control of the Parliamentary Act. The annulment request must be lodged before the Court within a period of 6 months after publication of the Act in the Official Gazette. The federal government, the subnational executives, the presidents of parliamentary assemblies at the request of two-thirds of their members, as well as every person with an interest have access to the court (Art. 2 and Art. 3, § 1, SLCC). A decision to annul applies erga omnes and is final as from its publication in the Official Gazette.
Annulment decisions are given retroactive effect. Reports of the parliamentary debates concerning the 1983 law on the Court of Arbitration, as the Constitutional Court was initially named, reveal that this was considered the obvious outcome of the annulment procedure (Parl.Doc. No 579/2). According to the Legislative Branch of the Council of State, which gives non-binding advice on bills and proposals of laws and regulatory acts, it was “logical” that annulment decisions should have effect ex tunc (Parl.Doc. Senate No 704/1, No 246/2). Subsequent doctrine affirmed that retroactive effect was self-evident (Gillet 1985; Krings 1985–1986; Rigaux 1986; Simonart 1988a). Nevertheless it is hard to argue that a Parliamentary Act is unconstitutional from its coming into force, especially since the Constitutional Court, in ninety percent of the cases, reviews acts against the equality clause.3 If circumstances change, a difference in treatment may no longer be justified or, conversely, it may become necessary to differentiate if certain categories are no longer comparable (Popelier 2008; Dubuisson and Van Drooghenbroeck 2011).
The annulment ex nunc, implying a prospective effect from the date of the decision, was rejected as an alternative, because this was considered similar to an abolishment by Parliament and therefore bore too much resemblance to an Act of Parliament. Nevertheless, an annulment ex tunc is undeniably more far-reaching than an annulment ex nunc, in particular since, as explained below, the annulment ex tunc opens a new term to challenge final decisions made on the basis of the Act before its annulment. Interestingly, a comparative study reveals that the majority of Constitutional Courts within the European Union pronounce judgments with, as a principle, a prospective effect (Hufen 2008 Partie 2).
The retroactive effect of the Constitutional Court’s judgments aims at wiping out the irregular norm, as if the latter never existed. This is a fiction, since the annulled norm undeniably did create legal effects, such as administrative acts enacted or judicial decisions pronounced on the basis of the irregular norm. The annulment does not automatically eliminate these consequences from the legal order; this takes additional actions by the parties and/or the Public Ministry. The Special Law on the Constitutional Court provides the possibility to lodge an action to retract a final judicial decision or to challenge an administrative act (Art. 10–18 SLCC). The former possibility is, from a comparative point of view, rather exceptional. Usually the judgments of constitutional courts do not impact upon final judicial decisions, except in penal cases (Verstraelen 2013).
Every court has the duty to refer a preliminary question to the Constitutional Court if, in a concrete case, the constitutionality of a parliamentary act is questioned (Art. 26, § 2 (1) SLCC). The Special Law on the Constitutional Court, however, provides for exceptions to the principal duty to refer (Art. 26 §§ 2–4 SLCC). Even though a concrete case triggers the preliminary reference, the Constitutional Court exercises an abstract norm control as it does not decide the given case, but only deals with the constitutionality issue (Simonart 1988b; Melchior 1994–1995; Alen and Muylle 2008; Martens 2009).
Initially the referral decisions were said to come into force inter partes, as Article 28 of the Special Law on the Constitutional Court provides that the referral decision is binding upon the referring court as well as any other court passing judgment in the same case. Nevertheless, in reality, the effects of the referral decision go beyond the boundaries of that concrete case. Courts, including the supreme courts, are not obliged to refer a preliminary question to the Constitutional Court if the latter court already ruled on a question or appeal on an identical subject (Art. 26 §2 (1) 2° SLCC). Moreover, if the Constitutional Court in its referral decision finds that a parliamentary act is unconstitutional, this opens a new term for an annulment request (art. 4(2) SLCC), resulting in an annulment erga omnes.
Referral decisions, like annulment decisions, have an effect ex tunc. The unconstitutional provision is considered to have violated the constitution since its coming into force (Krings 1985–1986; Popelier 2008). As the referral decision was presumed to have merely an effect inter partes, little attention was paid to its temporal effects. When bearing in mind that Acts of Parliament can be challenged through preliminary references without time limits, and that the consequences of the referral decision go beyond the concrete case, fact that the referral decision does exceed the limits of the concrete case, it becomes clear that the finding of unconstitutionality, and in particular its retroactive effects, may seriously affect legal certainty.
The Council of State
The Administrative Litigation Branch of the Council of State4 is the supreme administrative court in Belgium. It has the power to annul individual and regulatory administrative acts of (mainly) administrative authorities (Art. 14 CLCS).
The Council’s decisions also have a retroactive effect. This issue was discussed only incidentally throughout the parliamentary debates in 1939, preceding the establishment of the Council of State. It was merely asserted that the annulled act was considered irregular from the beginning (ab initio) (Parl.Doc. Senate No 80; House Nos 281/1, 341/1, 644/4). Article 14 of the Council of State, regarding annulment requests, does not explicitly give retroactive effect to annulment decisions (Boes 2012). Only in 1996 did an amendment provide for clarity by inserting Article 14ter in the coordinated laws on the Council of State, which allows for deviations from the principal rule of retroactivity.
Again, the retroactive effect of the annulment decisions rests upon a fiction. The annulment does not lead to a tabula rasa; it is not always simple to radically wipe out the effects of a decision if it has already been executed (Lust 2012).
In some cases the retroactive effect of an annulment is toned down for reasons of legal certainty, equity and continuity of public service, so that certain effects of the annulled norm are maintained. For example, the public servant whose appointment to office is annulled, will preserve the salary he received for his services (Wirtgen 2004; Mast et al. 2009; Lefranc 2012). However, the coordinated laws on the Council of State do not leave open this possibility for acts based upon the annulled act (compare Art. 10–18 SLCC), which creates ambiguity. For example, it is uncertain whether an administrative act based upon a basic act retroactively disappears when the basic act is annulled. Neither doctrine nor case law provide for a univocal answer (Lefranc 2012).
The Possibility to Deviate from the Principal Rule
The declaratory theory was abandoned and replaced by the constitutive theory which acknowledges that judicial decisions may constitute (new) law (De Page 1961; Haazen 2001; Lagerde 2006). Society’s increasing complexity gave evidence that the legalist approach favored by declaratory theory was no longer tenable (Van Gerven 1973; Maris 1996; Schollen 2011; Verstraelen 2015). Moreover, judicial norm creation is encouraged by Article 5 of the judicial code, which prohibits the denial of justice, even in the case of silence, ambiguity or incompletion of the law.
Once it is acknowledged that judges can create law, the problematic nature of retroactivity becomes apparent, as a new jurisprudential rule will be applied to facts which arose before the creation of this new rule. If parties are confronted with a rule the existence of which they could not know, this affects legal certainty and legitimate expectations.
Parliament did not provide for the ordinary courts, including the Court of Cassation, to mitigate the retroactive effect of their decisions, nor did the Belgian courts adopt the practice of prospective overruling developed in US case law. It is argued that such evolution would be incompatible with Article 6 of the Judicial Code, which explicitly states that judges are not to pronounce judgment by way of general rule (Rivero 1968; Ost and Van Drooghenbroeck 2002; Molfessis 2005).
Nevertheless, the claim that courts cannot mitigate the temporal effects of their own judgments is untenable, since the temporal effect is a substantial part of their decision (Verstraelen 2015). The Belgian Court of Cassation mitigated (more or less) the temporal effects of its judgments in only two decisions. This poor record is remarkable especially since in its latest year reports the Court explicitly mentions that contributing to the unity and finding of law constitutes its core business, and explicitly acknowledges that it contributes to law creation (Year Report 2011, 2012, 2013).
The first judgment dates from 9 September 1993 and concerns a case regarding marriage in international private law (Cass. AR 9426). Before the recent codification, international private law was mainly of a jurisprudential nature. According to the old reference rule, the nationality of the husband determined the legal system regarding marital property that was to apply in case the spouses had different nationalities. The Court of Cassation reversed this rule in 1993, ruling that the first marital residence determines the applicable legal system. It hereby confirmed the national (and international) striving for equality between spouses, which lay at the basis of the Belgian national legal framework adopted in 1976 (Coipel 1994; Liénard-Ligny 1994; Watté 1994; Popelier 2001; Ost and Van Drooghenbroeck 2002; Verstraelen 2014a). The case concerned a Belgian woman and an Italian man married on 26 April 1952. Considering the retroactive effect of judicial decisions, the new rule should have applied to their case. Nevertheless, the Court ruled that in this case the Italian legal system remained applicable, thereby mitigating the retroactive effect of its decision. It referred in general wordings to the system of transitional law applicable to written laws and reasoned that the legal marital property regime, applicable in the absence of a marriage settlement, is so closely linked to marriage that the spouses must have certainty about the applicable legal system at the moment of marriage. Hence, in 1952, the spouses knew that the Italian legal system would determine their marital property regime, and new rules were not to interfere with this acquired right. It remains, however, unclear why legal certainty was so important in this case, since nothing prevented possible modifications of the substantial laws within the Italian legal system confronting the couple with different rules by the end of their marriage. There is no indication, then, why the Court of Cassation tempered the retroactive application of its decision in this case, while legal certainty is also – and often more – at stake in other cases. One possible explanation is that, at the time, international private law was essentially of a jurisprudential nature, exposing very clearly the creative role of the court.
About a month later the Court of Cassation ruled for the second and last time on the temporal effects of its decision. The Marckx judgment, pronounced by the European Court of Human Rights, precedes this case (ECtHR Marckx 1979). In the Marckx judgment of 13 June 1979, the Strasbourg Court found that the Belgian law and in particular art. 756 of the Civil Code, violated the Articles 8 and 14 of the Convention, because it abridged the inheritance rights of so-called ‘illegitimate’ children, born out of wedlock. The Strasbourg Court, however, considering the principle of legal certainty inherent to the Convention, dispensed the Belgian State from re-opening legal acts or situations that antedated the delivery of its judgment (§ 58). This was, for that matter, the first judgment where the European Court of Human Rights explicitly limited the retroactive effect of its decision (Tulkens and Van Drooghenbroeck 2011; Popelier 2014).
The Court of Cassation referred to the Marckx judgment in its judgment of 15 May 1992, concerning a succession that devolved to the heirs on 22 May 1983, and in its judgment of 21 October 1993, concerning a succession that devolved to the heirs on 30 April 1984 (Cass. AR 6583; Cass. AR 9616). It established in both decisions that the succession occurred after the Strasbourg judgment and therefore confirmed the court of appeal’s decision to not apply the discriminating Belgian provisions to this case. As the Court of Cassation simply adopts the ruling of the European Court of Human Rights, it cannot be inferred from these judgments that the Court, as a rule, accepts its competence to modulate the temporal effect of its decisions (Popelier 2001; Ost and Van Drooghenbroeck 2002; Verstraelen 2014a).
In order to tone down legal uncertainty that may arise from the retroactive annulment of laws, the Constitutional Court is given the power to maintain the consequences of the annulled provisions. Article 8, third sentence, of the Special Law on the Constitutional Court, provides that “Where the Court so deems necessary, it shall, by a general ruling, specify which effects of the nullified provisions are to be considered maintained or be provisionally maintained for the period appointed by the Court.”
It should be noted that if the Court finds a violation, it has to annul the unconstitutional provision (Art. 8(1) SLCC). Hence, the Court maintains the consequences, but not the annulled provision itself (Rosoux 2007). Therefore, these effects acquire a new legal foundation: they are now based upon the judgment of the Constitutional Court that pronounces their maintenance instead of the annulled provisions (Lust and Popelier 2001–2002).
The words ‘by a general ruling’ were only afterwards inserted in Article 8 by the Law of 10 May 1985 regarding the effects of annulment judgments pronounced by the Constitutional Court (Art. 1, Official Gazette 12 June 1985). Parliament intended to avoid arbitrariness by prohibiting the Constitutional Court to maintain the legal effects of some particular individual judicial decisions or administrative acts (Parl.Doc. Senate No 579/3; Velaers 1990). The Court itself would violate the principle of equality if it were to make exceptions for very specific and individual cases (Parl.Doc. Senate No 483/2). This, however, does not prevent the Court from distinguishing between subject matters or between judicial decisions and administrative acts dependent upon the date of their pronouncement or enactment (Parl.Doc. Senate No 579/3; Moerenhout 1999).
The Court can definitively or provisionally maintain the effects of the annulled provision. Inspiration for maintaining definitively was found in the then Article 174 EEC Treaty and Article 31 of the Additional Protocol to the Treaty concerning the establishment and statute of a Benelux Court of Justice (Parl.Doc. Senate No 246/1). Article 174, second sentence, EEC Treaty stated: “In the case of a regulation, however, the Court of Justice shall, if it considers this necessary, state which of the effects of the regulation which it has declared void shall be considered as definitive.” The similarity with Article 8, third sentence, of the Belgian law on the Constitutional Court is striking.
A definitive maintenance implies that although the unconstitutional provision was annulled, its effects remain final (Simonart 1988a). Hence, the application of the Articles 10–18 of the Special Law on the Constitutional Court is excluded: administrative acts and judicial decisions based upon the annulled provision remain valid, with the Constitutional Court’s judgment as their new legal foundation (Lust and Popelier 2001–2002; Rosoux 2007).
Another option is the provisional maintenance for the period specified by the Court. In this case, the Court enables Parliament to adopt a new regulation within the given period of time (Parl.Doc. Senate No 246/2, Moerenhout 1999). Inspiration for this alternative was found in the practice of the German Bundesverfassungsgericht (Parl.Doc. Senate 246/2; Velaers 1990). The German Court, instead of annulling a norm with retroactive effect, has the power to merely declare it unconstitutional, so that the norm does not immediately disappear from the legal order. This gives the lawmaker time to remedy the unconstitutionality (Schroeder 2014).
With the possibility to maintain provisionally, the Constitutional Court is granted a far-reaching power: the Court is not only a ‘negative lawmaker’ in that it removes norms from the legal order, it acts in fact as a ‘positive lawmaker’ by imposing the continued application of an irregular norm (Behrendt 2006; Rosoux 2007; Brewer-Carias 2011; Verstraelen 2015).
For a long time it was debated whether provisional maintenance measures could also cover new effects, established after the annulment (Critically: Velaers 1990; Beirlaen 1991; Debaedts 1994; Storme 2004). During parliamentary debates it was underlined that an annulled norm cannot create new legal situations (Parl.Doc. Senate No 246/2; Parl.Acts 26 April 1983). Nevertheless, in its case law the Constitutional Court evolved in another direction: in 36 out of 47 judgments in which the Court provisionally maintains the effects of an annulled provision, the maintenance measures – sometimes implicitly – seem to encompass new effects (Moerenhout 1999; Rosoux 2007; Popelier 2008; Verstraelen 2015). For example, in 2011 the Court found that consumers and employees alike are exposed to harmful substances in restaurants and bars. Therefore, it considered that excluding bars that only served pre-packed food from the smoking prohibition violated the constitution (Constitutional Court (CC) No 37/2011). The Court maintained the consequences of the unconstitutional norm for several months, to enable bars to bring themselves into lines with the general smoking prohibition. During these months, smoking in these bars was still allowed, despite its unconstitutional nature. The Court, moreover, sometimes explicitly refers to the necessity to continue the application of an unconstitutional norm as a reason for maintenance (CC No 79/92, CC No 132/2004).
Parliament did not provide for similar powers to mitigate the temporal effects of referral decisions (Parl.Doc. Senate No 246/2). This is striking, since Article 8, third paragraph of the Special Law on the Constitutional Court, regarding maintenance in the case of annulment decisions, was inspired by the European Court of Justice. Apparently it went unnoticed that this Court had, at the time of the parliamentary discussions in Belgium, already modulated the temporal effects of referral decisions. This is remarkable because the Defrenne judgment, in which the Court of Justice proceeded in this way for the first time, was a case against the Belgian airline SABENA (Court of Justice (CJ) 43/75, CJ 61/79, CJ 66, 127 and 128/79, CJ 4/79, CJ 109/79, CJ 145/79).
In practice, however, it soon became clear that if the Court is to exercise its preliminary task properly, it must be able to modulate the consequences of its referral decisions. Throughout its case law the Court looked for ways of circumventing the prohibition to modulate the temporal effects of its referral decisions (Popelier 2008). For example, the Court declared that a particular parliamentary act was still constitutional, but warned that the same act would be considered unconstitutional in the future (CC No 53/93, CC No 56/93).
In 2003, when the Special Law on the Constitutional Court was amended, the issue was discussed in depth in parliament (Parl.Doc. Senate No 2-897/6). Melchior and Arts, then presidents of the Constitutional Court, appealed to Parliament to extend the maintenance competence to referral decisions, considering their far-reaching effects (Parl.Doc. Senate No 2-897/6). The most important counter-argument was that third parties have limited possibilities to intervene in preliminary procedures (Parl.Doc. Senate No 2-897/6). This problem, however, could have been solved by imposing an interest requirement similar to the one applied in annulment procedures. In that case, a third party would have to give evidence of a justifiable interest affected by the challenged law instead of a justifiable interest in the case pending before the referring court. In any case, the Court decided, for the first time in case No 44/2008, to soften the interest requirement in a preliminary procedure in this direction (CC No 44/2008; CC No 89/2008; CC No 117/2008; CC No 13/2009; CC No 171/2009; CC No 17/2010).
With its notable judgment of 20 December 2007, the Court of Cassation also takes position in the discussion about the temporal effects of referral decisions. According to the Court of Cassation, if the Constitutional Court establishes in a referral decision that the constitution is violated, it is for the judiciary to determine the temporal consequences thereof. The Court of Cassation confirmed this thesis in subsequent judgments. In each of these judgments the Court of Cassation concluded that the judge had to apply the challenged Act to facts which occurred before the referral decision was pronounced, as if the latter decision did not exist. Hence, while the Court of Cassation is reluctant to modulate the effects of its own judgments, it does consider itself competent to limit the retroactive effect of referral decisions, although the lawmaker purposefully denied this competence to the Constitutional Court (Cass. AR C070227N; Cass. AR C060019N; Cass. AR C070642N; Cass. AR C090570N).
One may assume that the Constitutional Court wished to convey a powerful message when, in 2011, it analogously applied, for the first time, Article 8, third sentence, of the Special Law on the Constitutional Court to the preliminary procedure (CC No 125/2011). Considering our analysis above, this reversal in the Court’s case law may not come as a surprise (Verstraelen 2011–2012). The Court used broad and general considerations, enabling the analogous application in future referral decisions (§§ B.5.1.-B.5.6.). In subsequent judgments, the Court explicitly emphasized that it will only apply this maintenance power in exceptional circumstances, namely when the benefit flowing from setting aside the provision that was declared unconstitutional by the Constitutional Court, is disproportional to the distortion this would cause to the legal order (CC No 1/2013; CC No 3/2013; CC No 48/2013). In its case law the Court upholds a strict interpretation of this requirement. Until now, the Court has, besides decision No 125/2011, decided in only two other preliminary reference procedures that such exceptional circumstances were present and, consequently, that Article 8, third paragraph, of the Special Law on the Constitutional Court, should be analogously applied (CC No 60/2014; CC No 67/2014).
Council of State
Although the Council of State was established in 1946, art. 14ter of the coordinated laws on the Council of State was only inserted in 1996. Article 14ter introduced a maintenance competence with the purpose to prevent a legal vacuum and to avoid legal uncertainty caused by the retroactive annulment of administrative decisions (Parl.Doc. House Nos 281/1, 341/1, 644/4). During the parliamentary proceedings an overview of the maintenance judgments pronounced so far by the Constitutional Court was provided. Article 8, third sentence, of the Special Law on the Constitutional Court clearly served as a source of inspiration: it was almost literally repeated in Art. 14ter.
Article 14ter of the coordinated laws on the Council of State stated: “Where the Council so deems necessary, it shall, by a general ruling, specify which effects of the nullified provisions of administrative regulations are to be considered maintained or be provisionally maintained for the period appointed by the Council.” Hence, one important alteration was added: the Council could only maintain the consequences of regulatory provisions. During the parliamentary debate, individual acts were explicitly excluded. It was considered recommendable to first make the Council familiar with its new maintenance power and, if need be, to extend the system to annulled individual administrative acts after an evaluation (Parl.Doc. House No 644/4).
The exclusion of individual administrative acts was remarkable, in particular considering the parliamentary debates leading to Article 8, third sentence, of the Special Law on the Constitutional Court. During these debates, the building permit, i.e. an individual administrative act, was used as an ideal example to demonstrate when it could be necessary to annul a norm, in casu the permit, but to maintain its consequences, in casu preventing the demolition of the building that was already raised (Parl.Doc. Senate No 246/2). Moreover, the Council of State decided already in 1985 to maintain the consequences of an irregular individual administrative act (Council of State (CS) No 25.424). In this judgment, it annulled the appointment of a lecturer on May 31, but, considering the disturbing effect of the annulment on the examination proceedings of that academic year, the Council maintained the consequences of the appointment until 1 October 1985. Recently the Council confirmed this case law by annulling an allocation decision on 9 June 2009, but maintaining the consequences until 1 August 2009. The Council considered that the potential harm for the applicant of having to function another several weeks in the primary school in question, did not outweigh the certain harm that the disruption would cause to the providing of education by this school following from the retroactive application of the judgment (CS No 194.015).
The Constitutional Court was asked whether Article 14ter of the coordinated laws on the Council of States violated the equality principle by only allowing for the maintenance of regulatory provisions, to the exclusion of individual administrative acts (CC No 164/2012). According to the Court reasonable considerations justified this limitation, as in the case of regulatory provisions, which by definition are addressed to an undetermined number of persons, the risk of disproportional consequences is higher.
Although an official evaluation of the maintenance power by the Council of State, as announced during parliamentary debate, has not been conducted, Parliament recently amended Article 14ter of the coordinated laws on the Council of State. Article 3 of the Law of 20 January 2014 regarding the reform of the competences, procedure and organization of the Council of State extended the possible application of article 14ter to all acts and regulations annulled by the Council, including individual administrative acts (Official Gazette 3 February 2014). This Article 3 amended the first paragraph of Article 14ter as follows: “On the request of the defending or intervening party, and if the Council so deems necessary, it shall specify which effects of the annulled individual administrative act, or, by a general ruling, of the nullified provisions of administrative regulations, are to be considered maintained or be provisionally maintained for the period appointed by the Council.”
The extension to individual administrative acts, however, may give rise to an unequal treatment of persons challenging the legality of an administrative act before the Council of State, which may maintain the consequences of an irregular act, and those who challenge its legality before an ordinary court, which does not have such power. In case No 73/2013, the Constitutional Court assessed the absence of any power for the Brussels’ Court of Appeal to maintain when using its power to annul acts of the Belgian Institute for Postal services and Telecommunication (BIPT). It did not consider the difference in treatment unconstitutional, because the lawmaker could take into account that the risk of disproportionality is higher in the case of regulatory provisions, as prescribed by Article 14ter, compared to individual acts, as those enacted by the BIPT. Inversely, this implies that the current extension of Article 14ter to individual administrative acts indeed constitutes an unjustified difference in treatment.
The law of 20 January 2014 did not only extend the scope of Article 14ter of the coordinated laws on the Council of State to individual acts; it also added a paragraph. According to this paragraph, the decision to maintain the effects of an annulled norm can only be imposed when exceptional reasons justify an infringement on the principle of legality. Furthermore, the Council can only maintain after an adversarial procedure and must do so in a reasoned decision, in which the Council may take the interests of third parties into account. In what follows, we shall discuss this reform when relevant.
Like the Constitutional Court, the Council of State can maintain definitely or provisionally. As for the difference between both measures, we refer to our explanation regarding annulment decisions by the Constitutional Court. In the case of provisional maintenance, the Council, like the Constitutional Court, accepts the emergence of new consequences after annulment. This is illustrated in a judgment from 1 April 2005. In this case, the French Community (one of the federated entities in the Belgian federal system) made it possible to obtain a degree as geometrician-real estate surveyor in after-hours education for which employees get study leave, through a so-called ‘integrated test’. According to the Council of State, this infringed upon the exclusive competence of the federal government to regulate access to a specific profession. The Council, however, decided to maintain the consequences of the annulment until the end of the school year. This way, degrees obtained by the end of that year, months after the annulment decision, still gave access to the said profession (CS No 142.753).