1. Establishment of the Court of Arbitration
The Constitutional Court owes its existence to the development of the Belgian unitary state into a federal state.
The unitary Belgian state has undergone thoroughgoing reforms since 1970. Those reforms, which took place in several stages, resulted in the establishment of a federal state where the legislative power is divided between the federation and the federated regions according to a system in which each legislative body has exclusive powers. The laws of the federation and the decrees and ordinances of the federated regions have the same force of law.
The division of the legislative power between different legislative assemblies brought with it the risk of conflicts of competence, and the need to find a solution to this problem led the Constitutional legislator in 1980 to decide ‑ in the then Article 107ter of the Constitution ‑ to establish a new judicial body, the Court of Arbitration, which was given the task of demarcating the boundaries of each authority’s jurisdiction. For this purpose, the Court could review laws, decrees and ordinances for compliance with the division of competences that have been established by or in pursuance of the Constitution.
The aforementioned constitutional provision was implemented by the Act of 28 June 1983, which defined the composition, competence and functioning of this new court. The Court of Arbitration was officially inaugurated in the Senate on 1 October 1984. On 5 April 1985 it delivered its first judgment.
2. From Court of Arbitration to Constitutional Court
By the constitutional amendment of 15 July 1988, the competence of the Court was extended to include the supervision of the observance of Articles 10, 11 and 24 of the Constitution guaranteeing the principles of equality, non-discrimination and the rights and liberties in respect of education.
By the same constitutional amendment of 1988, it was left up to the special legislator to grant the Court of Arbitration competence to review compliance with other articles of the Constitution. This facility has so far been used twice: the Special Act of 9 March 2003 extends the competence of the Court to all provisions of Section II of the Constitution, which relate to rights and freedoms (Articles 8 to 32), as well as to Articles 170 (the legality principle in tax matters), 172 (the equality principle in tax matters) and 191 (the protection of foreign nationals) of the Constitution; the Special Act of 6 January 2014 extends this competence further to Article 143, § 1 (the principle of federal loyalty) of the Constitution.
When the Constitution was coordinated in 1994, the provision concerning the Court of Arbitration was incorporated in Article 142.
When the Constitution was amended on 7 May 2007, the name of the Court of Arbitration was changed into ”Constitutional Court”.
3. Legal (constitutional) foundations
The present Article 142, first paragraph, of the Constitution stipulates that for the whole of Belgium there is one Constitutional Court, the composition, jurisdiction and functioning of which are determined by statute. The Court rules, by means of judgments, on conflicts of authority, on violations of Articles 10, 11 and 24 of the Constitution, and on violations of such articles of the Constitution which the law designates (the articles of Section II of the Constitution as well as Articles 143, § 1, 170, 172 and 191). A case can be brought before the Court by any authority designated by statute, any person who has a justifiable interest, or, in a preliminary issue, any court of law.
Article 142 of the Constitution was implemented by the (repeatedly amended) Special Act of 6 January 1989, which regulates the organization, jurisdiction, functioning and procedure of the Court and the effects of its judgments. An (ordinary) Act of 6 January 1989 regulates the emoluments and pensions of the judges, legal secretaries and registrars of the Court.
The constitutional amendment of 6 January 2014 extended the jurisdiction of the Court to an a priori review of regional referendums and the review of decisions of the House of Representatives or its bodies concerning the election expenditure for the election of that legislative assembly. Those new provisions were implemented by two special acts of 6 January 2014 amending the Special Act of 6 January 1989.
Finally, there are several Royal Decrees, regulations and guidelines relating to various aspects of the competence and operation of the Court.
All these texts can be found on the website of the Constitutional Court under the heading “Basic Texts”.