Abstract
The successive state reforms in Belgium since 1970, which have transferred numerous policy areas to the Communities and Regions, as well as the lack of a general administrative law act, result in a very complex system of legal protection against the government action. All central governments (on federal and federated levels, or in practice eight entities) may legislate on administrative appeal. In practice, this means a uniform system of administrative appeals in federal matters while seven autonomous legislators can regulate administrative appeals in the matters assigned to them.
The Belgian state and federated legal protection is characterized by a system of non-, quasi-, and fully organized administrative appeals; citizens can lodge an appeal in reconsideration and a hierarchic appeal against all administrative decisions, as well as an appeal to the supervisory authority. Organized appeals differ in appellate body, procedure, and result of the appeal. With respect to ADR tools regarding government action, there are few developments. In the Belgian public law, the Ombudsman is not a settler of disputes but a mediator. The empirical data show, however, that in the majority of the admissible and well-founded complaints the citizen gets his/her rights restored; in addition, with its general and specific recommendations to the Government, the Ombudsman stimulates hopefully more legitimate and good governance in the future.
All in all, the Belgian system of administrative dispute resolution can be characterized as a little transparent system, where only high-skilled and qualified lawyers in administrative law can find in their way, so often as a simple citizen you cannot see the wood for the trees.
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Notes
- 1.
The Court of Cassation considers the unemployment compensation as a political right.
- 2.
Under this concept, both regulations of the Executive—but not that of the Legislature and of the Judiciary—as individual decisions are understood.
- 3.
Recently, for example, the Aliens Litigation Council.
- 4.
For example, the Council of electoral disputes (at municipal and provincial levels), the Council of disputes concerning progress decisions in the Flemish higher education system. See also Veny et al. (2012).
- 5.
Article 14, §1, CoS-act.
- 6.
Appeal against the decisions of the Council of electoral disputes; see article 16 CoS-act.
- 7.
Article 14, §2, CoS-act.
- 8.
I.e., Court of Cassation March 1, 1993, Journal des Tribunaux 1993, 156 regarding compensation for accidents at work; also Fagnart, no. 45 en 48.
- 9.
Council of State, March 19, 2007, no. 169,068, Bilterys.
- 10.
- 11.
Lust (2007), p. 36.
- 12.
Idem, p. 37.
- 13.
Ibidem.
- 14.
For example in Flemish educational matters: internal administrative appeal for disciplinary matters against pupils and examination decisions. External administrative appeal for refusal of enrollment of learners and disciplinary matters against or evaluation decisions of teachers.
- 15.
Council of State, May 2, 1958, no. 6,243, Vanwynsberghe.
- 16.
Article 2.4 Federal Act and article 35 Flemish Decree.
- 17.
Council of State, 4 May 1995, no. 53,131, City of Aalst.
- 18.
Council of State, 23 February 2006, no. 155,470, Van Rousselt; Council of State, 12 March 2004, no. 129,175, City of Huy; Council of State, 9 February 1982, no. 21,992, Seunens.
- 19.
Council of State, 9 February 1982, no. 21992, Suenens; Council of State, 13 December 2000, no. 91611, Jacobs.
- 20.
Council of State, 14 November 1961, no. 8954, Van Coillie; Council of State, 12 December 1961, no. 9023, Schuermans; Council of State, 23 January 1962, no. 9123, Vertongen; Council of State, 26 October 1972, no. 15530, Klein; Council of State, 5 June 1973, no. 15904, Tegelhof; Council of State, 3 December 1981, no. 21633, Meertens en Moermans; Council of State, 23 June 1992, no. 39774, Sebreghts; Council of State, 28 January 1994, no. 45862, Quinet; Council of State, 17 January 2002, no. 102.580, Van De Voorde.
- 21.
Lust (2007), p. 36.
- 22.
An exception constitutes the contestation of examination decisions in higher education in the Flemish Community, where the internal appeal body should come to a ruling within 15 days. This term is an expiration term and no term of order as with other administrative appeal procedures.
- 23.
Opdebeek (2006), p. 397.
- 24.
Administrative authorities in Belgium are bound by strict rules on language use; therefore, a Flemish appeal body or a federal appeal body located in the Dutch language area may, in principle, only use Dutch as language of proceedings.
- 25.
The same obligation is imposed by article 19, §2, CoS-act.
- 26.
Under my supervision, a master student during the academic year 2010–2011 carried out an empirical research into some administrative appeals in Belgium and the Flemish Region—Buytaert (2011).
- 27.
The research also focused on persons’ income tax; interviews with some civil servants of the tax administration showed that this authority does not keep statistics concerning the number of admissible and well-founded complaints. From the most recent annual report available in 2011, it could be deduced that only 16,062 complaints were submitted in 2007. In case of an appeal, this must be submitted within a period of 6 months; the appeal must be in writing, dated, and motivated. The appellate body is the regional director of the tax administration; it concerns consequently an internally organized administrative appeal.
- 28.
A request for recognition of the right to court, the request for annulment of the unlawful decision at the Council of State.
- 29.
The main reason for that increment: 93 reviews were submitted with respect to the same file.
- 30.
This body is composed of the political majority parties and is the Executive Board of the province; it acts as an administrative authority and not as administrative tribunal (as with disputes concerning some local taxes).
- 31.
Some files from 2009 were just dealt with in 2010.
- 32.
On the legal appeal in first and last instances, a specialized administrative tribunal for the Flemish Region is established, in particular, the “Council for license disputes”; an appeal in cassation against the verdict of this specialized tribunal is possible before the Council of State.
- 33.
While a first initiative was already taken in 1965.
- 34.
Cf. article 11 and following.
- 35.
By Decree of July 7, 1998, a Flemish parliamentary Ombudsman was created.
- 36.
The decision he made could be challenged at the Council of State.
- 37.
Article 32 of the Belgian Constitution on the right to consult any administrative document empowers the Federal State, the Communities, and the Regions to regulate the right to consult and the right to obtain a copy; this means that the federal acts of parliament, as well as the federated decrees, stipulate the conditions and the exceptions on these constitutional rights. On openness of administration, see Veny and De Munck (2011), pp. 277–293.
- 38.
Chapter X, Federal Act of March 21, 1991 on the reform of certain economic public companies.
- 39.
I.e., the City of Antwerp, the City of Ghent, the City of Bruges, the City of Leuven and the City of Mechelen.
- 40.
Including police forces!
- 41.
Hubeau and Blero (2011).
- 42.
For which to date no implementing law or Royal Decree has been issued.
- 43.
It should be observed that conflicts in the administrative practice relates mostly to the way in which citizens are treated rather than to legal issues.
- 44.
Lancksweerdt (2010), pp. 229–259.
- 45.
Art. 5.3.2., §1 Flemish Codex of Urban Planning.
- 46.
Art. 5.3.2., §2 Flemish Codex of Urban Planning.
- 47.
The terms vary between 75 and 150 days. Cf. art. 4.7.18, §1 Flemish Codex of Urban Planning.
- 48.
Council of State, 28 November 2007, nr. 177,326, Bernaert; Council of State, 10 August 2007, nr. 173,955, Carron en Callewaert; Council of State, 19 November 2007, nr. 172,417, nv Prima; Council of State, 14 February 2007, nr. 167,789, Collaert; Council of State, 4 August 2008, nr. 183,773, nv D.M.P.
- 49.
Instead, the usefulness of internal administrative appeal may be doubted.
- 50.
Unless already in this phase a recourse to a lawyer is done.
- 51.
See Commission Recommendation no. 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes; Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes.
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Veny, L.M. (2014). The Complexity of Administrative Appeals in Belgium: Not Seeing the Woods for the Trees. In: Dragos, D., Neamtu, B. (eds) Alternative Dispute Resolution in European Administrative Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-34946-1_6
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