Judgments

The freedom of education guaranteed by the Constitution implied that the authorities of privately run schools could under certain conditions claim grants from the linguistic community (ie the federal body competent for education). The right to claim grants was limited, firstly, by the linguistic community's power to tie grants to conditions considered to be necessary in the general interest, including good quality education and observance of certain standards for pupil numbers and, secondly, by the need to divide available funds between the linguistic community's various responsibilities. Freedom of education was therefore subject to limitations and did not prevent legislation from imposing conditions for funding and grants which restricted the exercise of this freedom, provided that they did not entail an essential infringement.Conditions for grants for private education, in particular that co- management bodies be set up, consisting of associations representing pupils and students, teachers and employees and in certain cases, representatives of social, economic and cultural groups, did not infringe the freedom to establish schools nor did they prevent organising authorities from freely determining the school's religious or philosophical nature, its teaching methods or orientation. The provisions complained of left heads of schools the power to decide; they did not interfere to an unreasonable or disproportionate degree in the organisation and running of schools awarded funding and thus left the freedom of education more or less intact. The same applied for the power of co-decision given to student representatives in non-profit associations, which were compulsorily set up (in certain limited cases) for social benefits.

Under the Constitution, the army's recruitment methods should be determined by a deliberative and democratically elected assembly: in this instance, the federal legislature. As a result, the legislature was not able to delegate to the monarch the essential element of a power granted it by the Constitution.Articles 4.2 and 4.3 ECHR, as interpreted by the European Commission of Human Rights in the light of the «travaux préparatoires» of the Convention, excluded from the notion of «forced or compulsory labour» all service of a military character, without distinguishing between voluntary engagement and compulsory service.Individual freedom and freedom of employment prohibited that a person be required, under threat of any kind of penalty, to enter employment for which he or she had not freely volunteered, unless such employment could be justified on the grounds of the general interest.With respect to tasks performed by the army in the general interest, some constraints could be imposed on persons who have chosen a military career. However, it was important to examine whether the challenged measures relied on admissible criteria, whether they were in the general interest and whether they were not disproportionate to the aims sought.The rule stipulating that a soldier who has resigned was liable for active service if he had been paid during his period of freely provided training was not an unjustified infringement of the individual freedom of persons who had decided to pursue a military career. It was the return for training funded by the appropriate linguistic community and met the army's need for officers. The rule was sufficiently widely known for it not to impose an unforeseeable constraint on those subject to it. The length of service set by law (one and a half times the training period or five years after appointment to the rank of second-lieutenant) did not seem manifestly disproportionate to the aim sought.On the other hand, measures whereby a candidate officer or reserve officer who has completed his contractual term of active service was obliged to serve as a «short-term volunteer» for a maximum period of three years were an excessive infringement of individual freedom.Because of the limited nature of the constraints and the special nature of a military career, temporary measures which obliged several categories of soldiers to serve about three weeks per year at most as a reserve following their period of active service could not be considered a disproportionate infringement of the individual freedom of those concerned.

By requiring, in the area of social security (services of clinical biology laboratories relating to disability/sickness insurance), a specific form of security (a specific form of preventative attachment), which departs from some aspects of the (provisionally) binding judgments of courts and which can be implemented without effective judicial review, the legislature is infringing the right of a person to submit any request for payment made by or against him or herself or any seizure of their goods to effective judicial review.

The Court set aside a legislative provision authorising the executive power to set the level of a tax. This decision was based on the fact that there was a difference of treatment between those targeted by the tax and other taxpayers as regards the authority competent to determine the tax base and the level of tax, given that the Constitution guarantees that no citizen shall be liable for a tax unless it has been decided by a deliberative and democratically elected assembly.

The regional legislature, which is competent in matters of protection of the environment and, on an economic level, for safeguarding natural resources is also entitled to decide, by virtue of its powers, to dismantle gravel pit facilities so as to bring to an end the environmental damage caused by the increasing number of pits being excavated and the proliferation of the resulting bodies of water. It is for the regional legislature to weigh the environmental advantages and disadvantages arising from use of gravel pits and to take any necessary decision requiring that this activity be terminated as quickly as possible.The desire to ensure that there continues to be uniform basic legislation organising the economy in an integrated market is reflected in the rules laid down pursuant to the Constitution which share powers between the Federal government, the communities and the regions. The existence of an economic union essentially means that there should be free movement of goods and production factors between the State's different components. Such economic union is not jeopardised by provisions which, in order to protect the environment, aim to exclude materials buried underground from the economic system by forbidding their extraction and thus preventing them from qualifying as business assets.In exercising their powers, regions must at the same time uphold freedom of trade and industry. To ensure that the environment is suitably protected against the threat posed by use of gravel pits, the regional legislature is entitled to impose restrictions on the freedom of trade and industry of the companies concerned, in so far as this freedom is not restricted disproportionately. Such a disproportionate restriction did not occur in the case under consideration.

In providing that copies of case files shall be made available on payment of a fee, the law must not lead to what amounts to discriminatory treatment of certain defendants, regard being had to the nature of the principles involved. These principles are respect for the rights of the defence and the right to a fair trial, as secured in Article 6 ECHR. They entail a right for defendants to have adequate time and facilities for the preparation of their defence and submissions, a right covered by the constitutional principles of equality and absence of discrimination. By preventing defendants who receive legal aid and who by definition do not have sufficient resources from obtaining copies of case files free of charge under any circumstances, in that it does not even provide that the cost of copies should be advanced to them subject to its later reimbursement if they are found guilty, the legislature disproportionately impedes the exercise of the rights of the defence.

Although policy in matters of the environment and waste management is the responsibility of the regions, the federal government may by virtue of its own power in matters of taxation introduce «ecotaxes» on goods put on the market on account of the ecological damage those goods are deemed to cause. When exercising its power in matters of taxation with the aim of changing manufacturers' and consumers' behaviour and thereby pursuing a policy in the environmental and waste management fields, the federal legislature must ensure that it does not make it impossible or unreasonably difficult for the regions to avail themselves of their own powers. The federal legislature's use of its powers of taxation is justified by the need to establish a uniform framework in the field of environment taxes, a framework which is consistent with economic union.It is for the legislature to determine whether and, if so, to what extent concern for protection of the environment makes it necessary to impose sacrifices on economic agents. The choice of products subject to such taxes, fixing of the rate of taxation, deciding which taxpayers will be exempt and the date on which the new legislation comes into force are also matters for the legislature's discretion. However, the legislature would be breaching the constitutional rules of equality and absence of discrimination ( Articles 10 and 11 of the Constitution) if, in deciding who was or was not liable for these taxes or in making certain taxpayers subject to different treatment, it made manifestly arbitrary or unreasonable distinctions. The rules on «ecotaxes» laid down in the Act of 16 July 1993 are not at variance with Articles 10 and 11 of the Constitution as such or with those articles taken together with Articles 30 and 95 of the EC and with EC Council Directive no. 83/189/EEC.Freedom of trade and industry cannot be regarded as boundless. It does not prevent the law from regulating the economic activity of individuals and undertakings. Although the legislation on «ecotaxes» will require companies producing and distributing mineral water to adapt to a new situation, the restrictions on freedom of trade and industry resulting from the impugned legislation have objective, reasonable grounds and are not disproportionate in view of the legislation's purpose.