The jurisdiction of the Constitutional Court is determined, on the one hand, by the type of regulations that can be reviewed and, on the other hand, by the type of regulations that constitute the yardstick for review.
a) A priori jurisdiction
The Court rules by way of decisions on all regional referendums which the regions may organize in most matters that fall within their remit. It is the mission of the Court to examine, before the referendum is organized, whether that referendum complies with the organic provisions regulating regional referendums, and with the other constitutional and legal provisions against which the Court carries out its review (see under (b)(2) below). The referendum cannot be organized as long as the Court has not delivered a favourable decision.
b) A posteriori jurisdiction
1. Regulations reviewed by the Constitutional Court
The Constitutional Court is competent to review legislative acts. By legislative acts are meant both substantive and formal rules adopted by the federal parliament (statutes) and by the 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, and court decisions fall outside the jurisdiction of the Court.
The Court is also competent to review decisions of the House of Representatives or its bodies concerning the election expenditure for the election of that legislative assembly.
2. Regulations constituting the yardstick for review by the Constitutional Court
Article 142 of the Constitution gives the Constitutional Court the exclusive authority to review legislative acts for compliance with the rules that determine the respective competences of the federal State, the communities and the regions. These rules are set forth in the Constitution and in laws (usually passed by a special majority vote) that are enacted with a view to institutional reform in federal Belgium.
The Constitutional Court also has the authority to pass judgment on any violation by legislative acts of the fundamental rights and liberties guaranteed in Section II of the Constitution (Articles 8 to 32) and of Articles 143, § 1 (the principle of federal loyalty), 170 (the legality principle in tax matters), 172 (the equality principle in tax matters) and 191 (the protection of foreign nationals) of the Constitution.
In reviewing decisions of the House of Representatives or its bodies concerning certain election expenditures, the Court verifies the substantial forms or forms prescribed on pain of nullity, as well as the excess or abuse of power, and not just the aforementioned reference standards.
1. Method of referral
a) Constitutional review of legislative acts
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 questions to the Constitutional Court.
- 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 the regions;
- the presidents of all legislative assemblies, at the request of two-thirds of their members;
- natural or legal persons, both private and public, 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 act.
As a general rule, with certain exceptions, actions must be brought within six months of the publication of the challenged regulation in the Official Journal.
The action for annulment does not suspend the effect of the challenged act. In order to guard against the possibility that the challenged act may cause prejudice that is difficult to repair during the period between the institution of the action and the pronouncement of the judgment, 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 act pending judgment on the merits of the case, which has to be given within three months following a suspension decision. Such an action for suspension must be brought within three months following the publication of the challenged act in the Official Journal.
- Preliminary questions
The Constitutional Court has the exclusive authority to review legislative acts for compliance with the Constitutional and statutory provisions for which it has jurisdiction.
If a question comes up in a court of law regarding the compatibility of laws, decrees and ordinances with the rules governing the division of competences between the federal State, the communities and the regions or with Articles 8 to 32, 143, § 1, 170, 172 or 191 of the Constitution, that court must in principle address a preliminary question to the Constitutional Court. When a court of law addresses a question, the proceedings before that court are suspended pending the ruling of the Constitutional Court.
b) Other competences
It is the president of the regional parliament concerned who can seize the Court prior to the organization of a regional referendum.
Actions for annulment of decisions taken by the House of Representatives or its bodies concerning certain election expenses may be brought by elected candidates against whom a penalty has been pronounced. The action must be brought within thirty days after notification of the penalty.
2. Judgments and decisions
a) Constitutional review of legislative acts
Judgments of the Constitutional Court are enforceable by law and not open to appeal.
- Pronouncement and publication
The judgments of the Court are drafted in Dutch and in French. Judgments in actions for annulment and in cases that were instituted in German are also drafted in German. They may be pronounced by the presiding judges in public session; alternatively, publication on the website of the Court will count as pronouncement. In addition to this publication (in Dutch and in French (in full), and in German (in excerpt form)), keyword indexes are provided to facilitate consultation of the case-law. The judgments are also published in the Official Journal.
- Effects of judgments
The effects of the judgments of the Constitutional Court differ according to whether they have been pronounced in respect of an action for annulment or in respect of a preliminary question.
If the action for annulment is well-founded, the challenged legislative act will be entirely or partially annulled. Annulment judgments have absolute binding force from the moment they are published in the Official Journal. Such annulment has retroactive effect, which means that the annulled act 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 act.
Where the Court fails to do so, the administrative acts, regulations and court decisions based on the annulled legislative act will still stand. In addition to the use of the ordinary legal remedies where this is still possible, the special Act provides that final court decisions or administrative acts and regulations that are founded on a legislative act that is subsequently annulled may be rendered unenforceable or be challenged, provided this is requested within six months after the publication of the Court’s judgment in the Official Journal. 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 questions are somewhat different. The court of law that referred the preliminary question, and any other court passing judgment in the same case (for instance on appeal) must, in settling the dispute that gave rise to the preliminary question, comply with the ruling given by the Constitutional Court on the preliminary point of law in question. Where the Court finds a violation, the legislative act will remain part of the legal system, but, bearing in mind that the judgment has an effect that reaches further than the case that is pending before the referring court, and given that a fair balance must be preserved between the concern that every situation that conflicts with the Constitution is remedied and the concern that existing conditions and raised expectations are not jeopardized in the course of time, the Court considered that the opportunity offered by the special Act to uphold the effects of provisions that have been nullified by an annulment judgment also applies to judgments delivered on a preliminary question. Furthermore, a new six-month term commences in which an action for annulment of the relevant legislative act concerned can be brought forward.
b) Other proceedings
Decisions preceding the organization of a regional referendum must be taken within sixty days after the petition has been filed. Regional referendums which the Court has considered incompatible with the regulations that the Court is required to enforce, or in respect of which the Court has not been seized, cannot be organized; this also applies as long as the Court has not given a decision.
In disputes over certain election expenses, if the action for annulment is well-founded, the Court will nullify the decision of the House Committee against which the action was brought; the Committee will consequently revert to the situation that existed before the annulled decision.