Jurisdiction of the Constitutional Court

1. General

a) Regulations reviewed by the Constitutional Court

        The Constitutional Court is exclusively competent to review regulations that have force of law. By regulations having force of law are meant both substantive and formal rules adopted by the federal parliament (statutes) and by the councils (parliaments) of the communities and regions (decrees and ordinances). All other regulations, such as Royal decrees, decrees of governments of communities and regions, ministerial decrees, regulations and decrees of provinces and municipalities, as well as court judgments fall outside the jurisdiction of the Court.

b) Regulations constituting the yardstick for review by the Constitutional Court

        Article 142 of the Constitution gives the Constitutional Court the exclusive authority to review regulations that have force of law for compliance with the rules that determine the respective powers of the State, the communities and the regions. These power-defining rules are set forth in the Constitution and also in laws (usually passed by a special majority) that are enacted with a view to institutional reform in federal Belgium.

         The Constitutional Court also has the authority to pronounce judgment on any violation by a regulation having force of law of fundamental rights and liberties guaranteed in Section II of the Constitution (Articles 8 to 32) and of Articles 170 (legality principle in tax-related matters), 172 (equality in tax-related matters) and 191 (protection of aliens).

2. Method of referral

         A case may be brought before the Constitutional Court in two ways. Firstly, a case may be brought before the Court in the form of an action for annulment that may be instituted by any authority designated by statute or by any person who has a justifiable interest. Secondly, any tribunal may refer preliminary issues to the Court of Arbitration.

a) Actions for annulment

        The following authorities and persons may bring an action for annulment before the Constitutional Court:

the Council of Ministers and the governments of the communities and regions;-
the presidents of all legislative assemblies, at the request of two-thirds of their members;
natural or legal persons, both in private law and public law, Belgian as well as foreign nationals.

        The latter category of persons must declare a justifiable interest. This means that those persons must demonstrate in their application to the Court that they are liable to be personally, directly and unfavourably affected by the challenged regulation.

        The “arguments” must be set out in the application. In other words, it must be specified which of the rules of which the Court guarantees compliance have been violated, as well as which provisions are thought to violate those rules. It must also be explained in which respect those rules have been violated by the provisions in question.

        As a general rule, with certain exceptions, actions must be brought within six months of the publication of the challenged regulation in the Moniteur belge.

        The action for annulment does not suspend the effect of the challenged regulation. In order to guard against the possibility that the challenged regulation may cause irrevocable prejudice during the period between the introduction of the action and the judgment of the Court, and that a subsequent retroactive annulment may no longer have any effect, the Court may, at the applicant’s request and in exceptional circumstances, order the suspension of the challenged regulation pending a judgment on the merits of the case within three months following a suspension decision. Such an action for suspension must be brought within three months following the publication of the challenged regulation in the Moniteur belge.

b) Preliminary issues

         If a question comes up in a particular tribunal about the correspondence of laws, decrees and ordinances with the rules laying down the division of powers between the State, the communities and the regions or with Articles 8 to 32, 170, 172 or 191 of the Constitution, that tribunal must in principle address a preliminary question to the Constitutional Court. “Preliminary” means before the tribunal passes further judgment. When a tribunal addresses a question, the proceedings before the tribunal in question are suspended pending the answer of the Court. If the Constitutional Court decides that the regulation in question conflicts with the rules mentioned above, the referring judge must no longer take this regulation into consideration in the further adjudication of the case. The regulation in question, however, will be maintained in the legal system.

         It should be pointed out in this connection that the courts themselves can rule against the violation of power-defining rules and fundamental rights by acts of administrative authorities.

3. Effects of judgments

         The effects of the judgments differ according to whether they have been pronounced in respect of an action for annulment or in respect of a preliminary issue.

         If the action is well-founded, the challenged regulation will be entirely or partially annulled. Judgments annulling a challenged regulation have absolute binding force from the moment they are published in the Moniteur belge. Such annulment has retroactive effect, which means that the annulled regulation must be deemed never to have existed. If necessary, the Constitutional Court may moderate the retroactive effect of the annulment by upholding the effects of the annulled regulation.

         Acts, regulations and court decisions based on the annulled regulation will still stand. However, in addition to the use of the ordinary legal remedies where this is still possible, the law provides that court decisions or administrative measures that are founded on a statute subsequently annulled may be rendered unenforceable, insofar as this is requested within six months after the publication of the Court’s judgment in the Moniteur belge. For this purpose, special legal remedies are available to the prosecuting authorities and the interested parties.

        Judgments delivered by the Constitutional Court dismissing actions for annulment are binding on the courts in respect of the points of law settled by such judgments.

        The effects of rulings given on preliminary issues are somewhat different. In cases which raise preliminary points of law, courts delivering judgment in proceedings with the same litigants (including courts of appeal) must comply with the ruling given by the Court of Arbitration on the preliminary point of law in question. Moreover, where the Court finds a violation, the regulation will remain part of the system of law, but a new six-month term commences in which an action for annulment of the regulation in question can be brought.

        Judgments of the Constitutional Court are legally enforceable and not open to appeal.