Judgments

The presumption of full-time coverage of part-time workers in respect of whom the formalities regarding welfare documents have not been complied with, to the extent that it is irrebuttable, has a general and absolute character that is disproportionate towards the employer concerned as it denies the latter the right to substantiate that the amount of the social security contributions paid by him corresponds to the work actually performed by the worker he employs under a part-time employment contract.

Integration allowance beneficiaries who cohabit with a foreigner residing illegally in the territory and lacking means so as to be prevented from contributing in any way to the household expenses are placed in an essentially different situation from those beneficiaries who derive an economic or financial advantage from such cohabitation. It is contrary to the constitutional rules of equality and non-discrimination to treat these two categories of persons alike.

The legislator is able, in accordance with the Constitution and notwithstanding freedom of trade and industry for insurance companies and freedom of contract, to establish regulations on the medical questionnaires to be completed by applicants for a loan on mortgage with insurance for the balance remaining due, in order to prevent irrelevant or inordinate questions from being asked during the conclusion of an insurance contract and thus disproportionately interfering with the right to respect for the privacy of the persons concerned.

The Court, at a party's request, limits his or her identification to his or her initials.It is contrary to the principle of equality and non-discrimination (Articles  10 and 11 of the Constitution) that judicial service candidates should have no possibility of bringing an appeal before the Council of State against decisions of the Higher Council of Justice on the entrance competitions, when candidates in a civil service entrance competition have a remedy before the Council of State against decisions taken in respect of them by the board that organises the civil service entrance competitions.

Women of the Muslim faith living in Belgium and wearing the full veil, who are asking the Court to suspend and set aside the law of 1 June 2011 on the prohibition of wearing any garment that completely or predominantly conceals the face, have a demonstrable interest in bringing an action before the Court at the stage of the request for suspension.The prejudice pleaded by these women in support of their request for suspension, in that allegedly they are either compelled to remain at home or run the risk of being reported if they appear in a place accessible to the public, does not constitute a risk of grave prejudice difficult to redress which may justify suspension of the law.

The rights secured by Article  22bis of the Constitution to children do not extend to embryos and foetuses.

It is not contrary to the Convention that illegally obtained evidence in criminal matters can withstand being deemed null and void unless under certain circumstances, e.g., where its use infringes the right to a fair hearing.

When cases are referred to the Court, it must strike a fair balance between the interest of remedying any situation contrary to the Constitution and the concern, after a certain lapse of time, of not jeopardising the existing situations and expectations that have been created. Despite the declaratory nature of any finding of unconstitutionality in a preliminary judgment, the principles of certainty of the law and legitimate confidence can thus justify restricting any retroactive effect stemming from such a finding.Retaining the effects must be considered as an exception to the declaratory nature of judgments given in preliminary proceedings. Before deciding to retain the effects of such a judgment, the Court must find that the advantage accruing from the effect of the unqualified finding of unconstitutionality is dispropor-tionate to the disruption it would cause to the legal system.

The possibility of authorising (temporally unlimited) gender differences for setting premiums and benefits in life insurance policies, where gender is a decisive factor in risk evaluation based on relevant and precise actuarial and statistical data, is contrary to the fundamental principle of gender equality.After the European Union Court of Justice declared the invalidity of a provision in a European directive, further to a preliminary question put on this subject by the Constitutional Court, the latter repealed the Law transposing this rule of European law, while retaining the effects of the Law for a limited period.

When formulating regulations that involve public authorities interference in private life, the legislature has a margin of discretion to ensure that the competing interests of the individual and of society as a whole are fairly balanced.The margin of legislative discretion is not unlimited, however. Whether a legislative rule is compatible with the right to respect for private life depends on whether the legislature has fairly balanced all the rights and interests at issue. To achieve this, it is not enough for the legislature to strike a balance between the competing interests of the individual and of society as a whole: it must also balance the contradictory interests of the persons concerned, otherwise the measure it adopts is liable to be disproportionate to the legitimate aims pursued. This balance of interests must guarantee that biological and social realities prevail over any legal presumption that clashes with the established facts and the wishes of the persons concerned, without actually benefiting anyone.

The Constitutional Court referred a preliminary point of law to the Court of Justice of the European Union in order to determine whether Articles 21, 45, 49, 56 and 63 of the Treaty on the functioning of the European Union concerning personal freedom of movement and establishment and Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 «on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [...] » should be interpreted as signifying objection to a legislative system making the transfer of land and construc tions upon it subject, in certain municipalities, to the buyer or lessee furnishing proof of sufficient ties with those municipalities.

Article  24 of the Constitution enshrining the right to and the freedom of education, and expressing the will of the constituent assembly that it be left to the appropriate legislature to adopt regulations, under the law, on the essential aspects of education (principle of legality), does not run counter to the power of the Flemish Community's Autonomous Education Board, in accordance with the declaration on the neutrality of the community's education system, to order a general and fundamental prohibition, applicable to pupils, on wearing visible signs of religious and philosophical conviction in schools within the community's education system.The community is charged with organising unbiased education. The principle of neutrality carries not only a duty of restraint for the competent authority, in the sense of being forbidden to discriminate against, to favour or to impose philosophical, ideological or religious convictions, but also in some circumstances a positive obligation, deriving from the freedom of choice for parents secured by the Constitution, to organise community education in such a way as not to imperil «positive recognition and appreciation of the diversity of opinions and attitudes».

On 1 January 2010 the legislator introduced a ban on smoking in order to protect non-smokers and the staff of catering establishments (hotels, restaurants and cafés). However, it is not justified and thus contrary to the principle of equality and non-discrimination (Articles  10 and 11 of the Constitution), to the right to protection of a healthy environment (Articles  23.3 and 23.4 of the Constitution) and to the right to private life, secured by Article  22 of the Constitution and by Article  8 ECHR, to institute a temporary exemption from the entry into force of the smoking ban for liquor outlets also offering pre-packed foods with a storage period of over three months (crisps, etc.) as well as for casinos.

Where supernumerary enrolment in certain schools for the first year of secondary education occurs, a system that takes account not of the parents' sole preference, but also of several other factors such as the distance between home and school, is not contrary to the principle of equality and non-dis-crimination (Articles  10 and 11 of the Constitution), or to the right to free choice of education (Article  24 of the Constitution). The legislator may also establish a priority for the less privileged pupils with a view to fostering «social mix».

The Court has jurisdiction to supervise, via the principle of equality and non-discrimination (Articles  10 and 11 of the Constitution), provisions with force of law affecting the right to a fair trial as secured by Article  6.1 ECHR and Article  14 of the International Covenant on Civil and Political Rights.Where a criminal court finds that the reasonable time stipulated by Article  6 ECHR is exceeded so that a penalty may no longer be imposed, only a «simple declaration of guilt» is delivered. The right to a fair trial and the right to private life (Article  22 of the Constitution) are not infringed by the mention of this decision in the central criminal record, nor is the right to free choice of employment (Article  23 of the Constitution).Nor is it contrary to the aforesaid constitutional provisions for a special extract originating from the criminal record to mention, with a time restriction, particulars of offences committed against minors, or for institutions or organisations where activities intended for minors are held to be permitted to request this special extract from applicants for employment.