Judgments

Under Article 11 of the Constitution, the power to decide on the cases and manner in which property may be expropriated on public interest grounds lies with the federal legislator. The Communities and Regions may only intervene in this domain if the institutional reform laws have expressly given them special powers to do so (B.1).

The basic objective pursued by the legislator in adopting the law of March 31, 1987 was to put an end to inequality between children, notably in respect of determining their descent and its consequences, particularly for succession; by acknowledging that the children born to a woman other than their father's spouse have, in principle, an entitlement to their father's succession which is equal to that of the other children, the legislator sought to comply with Articles 8 and 14 ECHR, as interpreted by the European Court of Human Rights, notably in its Judgments in the Marckx (Special Bulletin ECHR [ECH-1979-S-002]), Vermeire and Johnston cases (Special Bulletin ECHR [ECH-1986-S-006]). Consequently, former Article 756 of the Civil Law Code violates Articles 6 and 6bis of the Constitution which guarantee the principles of equality and non-discrimination, to the extent that it excludes the right of children born to a woman other than their father's spouse to succeed their father (B.4 to B.5.1).

Although fines for reckless or vexatious appeals are of a civil nature in judicial terms, it appears that they must be considered as relating to criminal law within the meaning of Article 6 ECHR. Consequently, they come under Article 7 ECHR, which prohibits the retrospective effect of criminal law (B.6.5).

The identical treatment of real situations which are not identical can only be judged to be a breach of the constitutional principles of equality and non-discrimination in so far as certain categories of persons in totally different situations in respect of the norms under consideration receive identical treatment without there being an objective, reasonable justification. The divergence between rental value increases in different parts of the country since the last overall adjustment of cadastral revenues cannot be considered as having resulted in totally different situations which would oblige the legislator, under Articles 4 and 5 of the law of 28 July 1992, to draw up several re-evaluation coefficients (B.3.3).

When assessing the flat rate for a tax, the Court must consider whether or not the legislator by decree has exceeded his discretionary powers, bearing in mind, on the one hand, the fact that taxation laws must classify the full range of situations in categories which are only a simplified and approximate reflection of reality and, on the other hand, the difficulties involved in calculating tax, in terms of both the effectiveness of criteria and the resulting administrative and infrastructure-related costs for the taxpayer and the fiscal authorities (B.7.2).

Under Article 26 of the special law of 6 January 1989 on the Court of Arbitration, a judge submitting a question to the Court concerning the constitutionality of a law is to consider the need for a reply to this question in handing down his decision and may even, in cases where appeal against his decision is likely, refrain from referring the matter to the Court if the question is irrelevant. It frequently happens therefore, that a judge submits, with his question to the Court, a norm for the interpretation placed by him on the case in hand. The Court then decides on the constitutionality of the norm for this interpretation, although it sometimes goes on to indicate an interpretation of the norm which would more closely comply with the Constitution (B.1).The law of July 26, 1962 on the emergency expropriation procedure enables the expropriator to dispose of a building although a later judgment might find that the expropriated person was in fact illegally dispossessed. This situation may have irreversible consequences in cases where the expropriator undertakes demolition or construction work in the interim, making it impossible to return the property in the state in which it was illegally expropriated.However, these consequences cannot be considered as manifestly disproportionate to the objective pursued, particularly as there is judicial supervision of the internal and external legality of the procedure and a possibility of compensation for any damage suffered in the event of negligence or tortious intent on the part of the expropriator, either in kind or by equivalent.

Articles 52 and following EEC, which guarantee the right of establishment, do not preclude the drawing up of rules, in the public interest, governing organisation, jurisdiction, professional ethics and supervision, on condition that these professional rules be applicable to all persons established on the territory of the State where this system operates (B.8.3).

In cases where a preliminary question regarding compliance with the constitutional principle of equality (Article 10 of the Constitution) concerns a provision that provides for a number of distinctions, the Court of Arbitration limits its examination to the distinction which, having regard to the facts of the case and the wording of the preliminary question, constitutes the subject-matter of the case.In other words, the Court does not rule in an abstract manner on the constitutionality of the contested provision but answers a preliminary question in relation to the case pending before the court below.

Articles 14 and 20 of the Constitution, guaranteeing freedom of expression and association, do not preclude the possible imposition of certain restrictions on civil servants in respect of those freedoms, but such restrictions must meet the requirements set out in Articles 10.2 and 11.2 ECHR and in Articles 19.3 and 22.2 of the International Covenant on Civil and Political Rights.The statutory provision which provides that active staff members of the operational corps of the gendarmerie must «refrain in all circumstances from publicly manifesting their political opinions and engaging in political activities», a provision which concerns political stances and activities of a distinctly public nature, is not manifestly disproportionate to the objective pursued, which is to guarantee an efficient police service that is undeniably impartial, on behalf of the authorities and the citizens, in order to safeguard the proper functioning of democracy.However, the statutory provision which prevents these persons from belonging to or assisting political parties, or movements, bodies, organisations or associations pursuing political objectives is, by reason of its general character, manifestly disproportionate to the objective pursued, since membership of a political party, a movement or an organisation pursuing political objectives, and other non-public forms of cooperation, are not such as to threaten the neutrality of the force or impair its preparedness (B.3.3-B.3.6).Article 11.2 ECHR and Article 22.2 of the International Covenant on Civil and Political Rights authorise lawful restrictions on the exercise, by members of the police, of the right to freedom of association, including the right to form and to join trade unions for the protection of their interests. The content of Article 8.2 of the International Covenant on Economic, Social and Cultural Rights and Article 5 of the European Social Charter is similar. Likewise, Article 20 of the Constitution, which guarantees freedom of association, does not prevent restrictions being imposed on the exercise of the right to form and belong to trade unions in the case of civil servants in general and, in particular, active staff members of the operational corps of the police, primarily by reason of the requirements imposed by the proper operation of the public service. Such restrictions are only admissible, however, in so far as they are necessary in a democratic society (B.3.8).Under Article 6 of the European Social Charter, Belgium has undertaken to guarantee the «right of workers and employers to collective action in cases of conflicts of interest, including the right to strike (...)». Under Article 31 of the European Social Charter, the effective exercise of the rights and principles, including the right to strike, may be subject to restrictions other than those specified in Part II which are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of the public interest, national security, public health, or morals. The statutory provision which prohibits any form of strike by active staff members of the operational corps of the gendarmerie meets a need in a democratic society to protect the rights and freedoms of others and to protect the public interest (B.3.11 and B.3.12).

In order to assess the compatibility of the regulations at issue with Articles 6 and 6bis of the Constitution which guarantee the principles of equality and non- discrimination, the Court must first examine whether the categories of people between whom inequality is alleged are sufficiently comparable (B.7 and B.10).The Companies Act provides that the dismissal of protected workers (trade union representatives) for economic or technical reasons is subject to the authorisation of an equi- representative body made up of representatives of employers and workers, which must take a unanimous decision within two months. If the said body has not taken a decision by the statutory deadline, the employers and protected workers may take the matter to the industrial tribunal. If the said body takes the decision by the statutory deadline, no legal remedy is provided for. The distinction complained of has an objective and reasonable justification; there is however a disproportion in that there is a discriminatory infringement of the right, guaranteed to everyone by virtue of Article 6 ECHR, to have a decision determining his civil rights brought before a Court (B.11 and B.13).

Under Section 87.1 of the Special Law of 6 January 1989, when the Court of Arbitration hands down a preliminary ruling, anyone with an established interest in the case pending before the court which requests a preliminary ruling may, providing they submit a memorial to the Court of Arbitration within the prescribed time-limit, be joined to the proceedings.Parties with an established interest in similar cases, however, do not have this possibility of being joined to the proceedings.In the event of an application from such parties, the Court of Arbitration must check that the Act governing its own organisation does not breach the principles of equality and non-discrimination laid down in Articles 10 and 11 of the Constitution. The court found that it was competent to carry out this check on an interlocutory basis and ruled the aforementioned Section 87.1 to be compatible with the constitutional principles of equality and non-discrimination.

Although discrimination must be assessed in relation to Belgium's specific situation, the current state of European law, the outcome of which is that no directive on equal treatment between men and women in social security matters is applicable to the legal survivor's pension, is an indication that, by ending discrimination from 1 January 1984 between widows and widowers with regard to entitlement to a survivor's pension under the social security scheme for employees, the legislator has not taken a measure such as to maintain the effects of this discrimination beyond a reasonable length of time.

Article 3 ter, 59bis and 107 quater of the Constitution and Sections 4 to 11 of the Special Act of 8 August 1980 on institutional reform gave the decree legislators of the communities and regions the power to regulate a number of matters by decree. Section 19.1, of the Special Act of 8 August 1980 stipulates however that «the decree regulates the areas with which Sections 4 to 11 are concerned, without prejudice to the areas of jurisdiction which the Constitution assigns to the law». Consequently, unless special, express authority is given by the special and ordinary institutional reform Acts, the decree can regulate those matters assigned to it only on condition that they do not infringe in any way on the areas of jurisdiction assigned to the law by the Constitution (B.2).The possibility given to the Legislative Councils of the communities and regions, by virtue of Section 10 of the special Act of 8 August 1980, to adopt statutory provisions relating to matters for which they do not have jurisdiction, may not apply to areas of jurisdiction which the Constitution assigns to the law (B.2).

By legislating on the special social security contribution which was the subject of the royal decrees challenged before the Conseil d'Etat, the legislator's intention was to regulate by law an area of jurisdiction the delegation of which had been contested (B.7).However, at the same time, the statutory provisions in question prevent the Conseil d'Etat from taking a substantive decision on the possible unlawfulness of the said royal decrees and create a distinction, where access to the Conseil d'Etat is concerned, between the category of citizens to whom these royal decrees applied and other citizens (B.4).The fact that the provisions adopted by the legislator concerning the special social security contribution pursue a markedly different purpose from the royal decrees that were challenged before the Conseil d'Etat can nevertheless justify the difference of treatment (B.8 and B.9).

Difference of treatment in matters in which the Communities and Regions have their own jurisdiction is the possible consequence of different policies permitted by the autonomy afforded to them by or pursuant to the Constitution. It cannot in itself be deemed contrary to Articles 6 and 6bis of the Constitution which guarantee the principles of equality and non-discrimination. This autonomy would have no implications if the mere fact that there were differences of treatment between those governed by the rules applying to the same matter in each region was judged contrary to Article 6 and 6bis of the Constitution (B.3).

Unlike ordinary regulations, which in principle are unilaterally drawn up as well as unilateral in their effects, a collective labour agreement concluded within an equi-representative body is the result of negotiations between one or more organisations of employees and one or more organisations of employers.Traditionally, in several European countries labour disputes are given specific judicial treatment. A provision which prevents the interested parties from directly challenging collective labour agreements concluded within an equi-representative body by bringing proceedings for annulment before the Conseil d'Etat and which deprives the Conseil d'Etat of the jurisdiction to annul erga omnes such agreements would be disproportionate if the legislator had not provided for a substantive review of the lawfulness of the collective agreements.By virtue of the existence of the review machinery provided for in the Act of 5 December 1968, which gives courts constituted in a specific, equi-representative manner, viz. industrial tribunal - which the Act of 20 July 1991 does not call into question - responsibility for setting aside collective agreements through an interlocutory review of lawfulness, the denial of the jurisdiction of the Conseil d'Etat does not appear to be a measure manifestly disproportionate to the objective pursued (B.7 and B.8).

A provision of law whose sole purpose is to prevent the Conseil d'Etat from deciding on the possible unlawfulness of a royal decree relating to dues which contribute to the financing of a public institution infringes Article 6 and 6bis of the Constitution, which guarantee the principles of equality and non-discrimination, in that it deprives the category of citizens to which this royal decree applies of a judicial guarantee afforded to all citizens and this difference of treatment cannot be justified by the alleged objectives of expediency and certainty of the law. In the absence of exceptional circumstances, the consideration of expediency is not sufficient to justify this process of legislative confirmation (B.1 and B.2).

If the immediate application of a law would have the effect of bringing about a state of affairs entailing a risk of major changes in the operation of a public institution, if these changes could cause considerable damage and if it would be extremely difficult or even impossible to restore the original situation by a decision to set aside, there is a risk of serious damage which it would be difficult to make good.When, moreover, the grounds relied upon to support the application for setting aside are good, in other words if on initial examination they appear to be well founded, the legislative provision applied should be suspended.

When a non-profit association claiming to represent a collective interest wishes to have access to the Court, the requirement is that the social purpose of the association should be of a particular nature and, hence, distinct from the public interest; that the collective interest should not be limited to the individual interests of its members; that the purpose in question should be subject to the influence of business standards; that the social purpose is genuinely pursued, as should be made clear by the specific activities of the association; and that the association should show proof of sustained activity, both in the past and in the present. (B.1.3)The distinction between asylum seekers in general and applicants from a country which, during the preceding year, accounted for at least 5% of asylum seekers, in respect of whom less than 5% of decisions resulted in the granting of refugee status (a distinction which results, in the case of the latter category, in a reversal of the burden of proof in considering the admissibility of such applications for refugee status), is based on objective findings and is consistent with the aim pursued, viz. quicker action to dismiss applications for asylum which totally fail to fit the definition contained in the Geneva Convention relating to the status of refugees.However, this distinction is not relevant to someone who may be covered by other provisions of the law relating to refugees, which apply to all foreigners claiming refugee status.Foreigners may rely on the principles of equality and non discrimination enshrined in Articles 6 and 6bis of the Constitution, on two conditions: that they are present on the territory of Belgium and that they are not legally excluded from the operation of this rule (B.2.2)It follows from Article 31 of the Geneva Convention of 1951 relating to the Status of Refugees, an article which has direct effect in the domestic legal system, that foreigners who apply for refugee status must be considered resident in Belgium as long as no final decision has been taken with regard to the admissibility of their application. They must therefore be considered resident on the territory of Belgium for the purposes of the application of Article 128 of the Constitution. (B.2.3)

The educational freedom guaranteed by Article 17.1 of the Constitution implies that private individuals may - with no prior authorisation and subject to respect for fundamental freedoms and rights - organise and see to the provision of education in accordance with their own way of thinking, as regards both the form and the content of such education.Freedom of education extends to a freedom in the organising authority to select the staff who will be called upon to fulfil specific educational objectives. (B.3.3)An entitlement to grants for religious education may be made subject to intervention by a body independent of the public authorities which guarantees the legitimacy of such entitlement. It is then exclusively a matter for the religious order concerned to determine which body is competent to confirm the said legitimacy.The decree-making authority was reasonably empowered to require, on the part of all religions eligible for subsidies in respect of education, that they comply with minimum standards of organisation with a view to the appointment of a body potentially qualified to contribute to the recruitment of teachers to provide the religious education concerned.

Neither Section 26.1 of the Special Act of 6 January 1989 on the Court of Arbitration nor any other statutory provision confers on the Court the power to make a preliminary ruling on the question whether a royal order is at variance with Articles 6 and 6bis of the Constitution.

It is for the judge raising a preliminary point of law to ascertain in advance whether that point has to be settled before he can give his decision. Following lawful referral of the case, the Court is not required to consider whether its reply will be of benefit to the defence of the person facing prosecution before the lower court. Its only task is to state whether or not the provision at issue gives rise to discrimination. (B.1)

The rights and freedoms guaranteed by Article 6 and 6bis of the Constitution concerning the principles of equality and non-discrimination include those arising out of the provisions of international conventions binding Belgium which are made applicable in the domestic legal system by an act of assent. This is true at least of the rights and freedoms arising out of provisions having direct effect, which is the case with Article 8 ECHR and Article 17 of the International Covenant on Civil and Political Rights of 19 December 1966. (B.2.7)

In order for proceedings for annulment to be admissible, it is not enough for the applicant to establish that the contested provision is applicable to him; he must further show that the provision in question unfavourably affects him or, in other words, that it might cause him damage. (B.2)

Commercial and industrial freedom cannot be conceived as an unlimited right. In many cases, a law or a decree - whether in the economic sector or other sectors - will limit the Freedom of action of the persons or firms concerned and will thus necessarily have an impact on commercial and industrial freedom. Legislation may be said to infringe commercial and industrial freedom if it limits such freedom unnecessarily or if the limitation in question was manifestly disproportionate to the aim pursued.Nor does the Freedom of association guaranteed in Article 20 of the Constitution prevent private organisations which wish to co-operate closely with a public law institution from being subject to operational and supervisory procedures justified by this particular relationship and, more especially in this case, by the use of public resources. (B.8.3)In accordance with the fundamental principle of legal certainty the legislator cannot, without objective and reasonable justification, interfere with the interest of legal persons in being able to foresee the legal consequences of their acts.Because Section 90 of the Act of 17 June 1991 itself clearly states which principles must be respected, professional credit institutions can clearly establish, when submitting their application for approval by the National Professional Credit Fund, what the effects of such approval will be. Particular arguments based on alleged violations of the principle of equality and non-discrimination in connection with the fundamental principle of legal certainty are not well-founded. (B.9.3)

When parties submitting an application rely on provisions of international law in conjunction with Articles 6 and 6bis of the Constitution providing for guarantees of equality and non-discrimination respectively and they do not refer to those provisions for arguments separate from the ones based on Articles 6 and 6bis, reliance on such provisions cannot lead to the annulment of the provision at issue (A.1.1 and B.5)

Article 107ter of the Constitution and Section 2.2 of the Special Act of 6 January 1989 on the Court of Arbitration require any natural person or corporate body submitting an application to show proof of an interest in bringing proceedings before the Court. The required interest exists as an attribute of those whose situation could be directly and unfavourably affected by the disputed rule. (1.B.1)2