Judgments

In not allowing the authorities responsible for determining how sentences were to be executed to consider, in the light of the specific administrative, family and social circumstances of the foreign applicant, whether there was any justification for denying him his requested enforcement method on the ground that according to a notice from the Aliens Office, he was not authorised to remain in the country, the legislature had acted disproportionately.

In introducing the requirement that there be a certain age gap between adopter and adoptee, the legislation seeks to secure the place of each generation within the family, so as to establish a close parallel between biological parentage and adoptive parentage. An age difference of fifteen years between adopter and adoptee is in principle appropriate in order to achieve this aim. Having regard to the close personal ties which must be protected and secured if they point to the existence of an effective family life, there is no valid reason why the fifteen-year age gap rule should be an absolute bar to adopting a child in cases where there is a long-term emotional relationship between the prospective adopter and adoptee, with no opportunity for the judge to take into account the existing family relationship between the parties concerned.

The right to respect for the home applies not only to private households but also to premises used for professional or commercial purposes. Interference by the legislature may be more substantial, moreover, in the case of professional or business premises or activities. On-site tax inspections of business premises and house searches in connection with criminal investigations have fundamentally different purposes. In order to strike a fair balance between, on the one hand, the rights of the taxpayers concerned and, on the other hand, the need to be able to carry out efficient audits or investigations concerning the levying of income tax or value added tax, the legislator must ensure that on-site inspections are accompanied by sufficient safeguards against abuse.

Trade union organisations which are de facto associations do not, in principle, have the capacity required to lodge an appeal for annulment with the Court. The situation is different, however, when they act in matters for which they are legally recognised as forming distinct entities and when, though they are involved by law as such in the functioning of public services, the very conditions of that involvement are called into question. When a legislative provision favours certain categories of trade union organisations, the others have a sufficiently direct interest in challenging that provision.By reserving strike notice and consultation procedures in the framework of industrial disputes with the Belgian Railways for representative and recognised trade unions, the legislator introduced a restriction which was not compatible with freedom of association and the right to collective bargaining, including the right to take collective action. By reserving the possibility of participating in union elections for those trade unions, the legislator violated the right to participate in a democratic process enabling the workers concerned to elect their representatives in conformity with trade union pluralism.

The Order of French- and German-speaking Bars may have an interest in taking direct action to defend the collective interest of persons subject to jurisdiction of the court as subjects of court decisions affecting fundamental freedoms. In this respect there may be no discrimination in relation to other associations claiming a collective interest linked to the protection of fundamental freedoms which are authorised to lodge proceedings before courts and tribunals by claiming this collective interest.

The audi alteram partem general principle of good administration makes it incumbent upon a public authority to give a prior hearing to an individual against whom a serious measure is envisaged on grounds linked to their character or conduct.This principle is binding on a public authority owing to the latter's special nature, as it necessarily acts as a guardian of the public interest and it must take decisions with complete knowledge of the facts when taking a serious measure linked to the conduct or character of the person addressed.The audi alteram partem principle implies that an employee at risk of a serious measure as a result of a negative assessment of their conduct is informed beforehand and has the opportunity to effectively put forward their views.

A ban on enrolment imposed on higher education establishments in respect of a student having been excluded by another establishment, during the five preceding academic years on grounds of fraudulent enrolment or assessment-related fraud, does not constitute a disproportionate restriction of the right (of access) to education. Similarly, the resulting difference in treatment between students who commit fraud and students who commit (other) serious misconduct is reasonably justified. Significant restriction of the right of fully equal access to higher education, as a result of a ban on enrolment, is justified on grounds of public interest. The provision is not contrary, therefore, to the standstill obligation arising from Article 13.2.c of the International Covenant on Economic, Social and Cultural Rights.

The organisational autonomy of religious communities is an integral part of the protection of freedom of religion, which comprises, among other things, the freedom to express one’s religion, alone or together with others; this freedom is protected by both Articles 19 and 21.1 of the Constitution and by Article 9 ECHR.The principle of the separation between the Church and the State, which derives from Article 21.1 of the Constitution, is not absolute and is not incompatible with all forms of interference by the State in the autonomy of religious communities.

It is of fundamental importance in a democratic law-based state that members of the public, and in particular the parties to a hearing, have confidence in the courts and tribunals. To this end, Article 6.1 ECHR requires that the courts to which this provision applies should be impartial.With regard to objective impartiality, it is necessary to consider whether, irrespective of the judges’ behaviour, there are verifiable facts engendering doubt with regard to their impartiality.When the Court of Cassation rules on the lawfulness of a decision handed down by a civil court concerning the State’s responsibility for an error by the said court in the performance of its judicial functions, doubts may arise as to its objective impartiality on account of the composition of the Court. The general principle of the subjective and objective impartiality of the judge, which also applies to the Court of Cassation, implies that the Court should take steps to determine the composition so that the judges who rule on an appeal against decisions concerning the liability of the Court of Cassation are not the same judges as those who allegedly made the original error.

The law at issue, which has the effect of submitting lawyers’ services to 21% value-added-tax, is a direct follow-up to Directive 2016/112/EC, which the Court of Justice did not, in its Judgment C-543/14 of 28 July 2016, consider incompatible with Article 47 of the Charter of Fundamental Rights of the European Union.Although the costs relating to this law are not in themselves the cause of the breaches to the right to an effective remedy because of the inequality of arms alleged by the applicant parties, they nevertheless have the effect of increasing the financial burden entailed in exercising these rights.