1. Recommendations for the attention of the courts that refer a question to the Constitutional Court for a preliminary ruling
This document contains recommendations for the attention of courts that refer questions to the Court for a preliminary ruling. In view of the growing number of cases which the Court is called upon to deal with, these recommendations are intended to promote more efficient handling of cases in the interests of the proper administration of justice.
They do not replace either the Constitution or the Special Act of 6 January 1989 on the Constitutional Court (hereinafter: the Special Act of 6 January 1989).
Recommendations
Before referring a question for a preliminary ruling
The referring judge is invited to:
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check whether he is obliged to ask the question (cf. article 26, §§ 2 to 4, of the Special Act of 6 January 1989). He is exempted in particular when the Court has already ruled on a question or application with an identical subject matter;
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to ascertain whether the answer to the question is useful or necessary for its decision, after having decided questions of admissibility and jurisdiction which may be decided independently of the answer to the question.
In formulating the question referred for a preliminary ruling
The referring judge is invited:
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not to question the Court on the interpretation of the law to be adopted, since the preliminary question has to concern the compatibility of a legislative provision with a regulation which the Court must ensure compliance with, if necessary, in an interpretation suggested by the judge;
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to identify precisely, in the question referred for a preliminary ruling, the provision or provisions whose constitutionality or compliance with the rules allocating jurisdiction is in question, in the version applicable to the dispute submitted to the referring judge;
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to identify precisely, in the question referred for a preliminary ruling, the relevant rules constituting the yardstick for review by the Court, and not to invoke rules which are obviously inapplicable or whose observance the Court has no jurisdiction to review;
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to formulate the question for a preliminary ruling in such a way as to invite the Court to check the compatibility of the provision in question with the reference regulations selected ("Does rule A violate rule B, in that ...?"), indicating, where appropriate, their interpretation of the provision in question;
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to clearly identify in the preliminary question the categories of persons to be compared and specify whether the referring judge intends to submit to the Court a difference or an identity of treatment, where the question concerns the compatibility of a legislative provision with articles 10 and 11 of the Constitution.
In giving reasons for the decision to refer
The referring judge is invited:
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to include a statement of the facts and a statement of the legal context (including, where appropriate, any legislative developments);
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to specify how the provision in question might or might not violate the reference regulations cited;
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to specify how the answer to the preliminary question is useful or necessary for solving the dispute;
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to cite the version of the provision(s) in question applicable ratione temporis to the case pending before the referring judge in its entirety. Moreover, it must be clear from the order for reference that the provision in question applies to the dispute before the referring judge;
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to specify whether the question referred for a preliminary ruling is raised on the initiative of the judge or of one of the parties;
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to state, where appropriate, why the case is urgent or why the normally applicable deadlines for proceedings should be shortened (article 89bis of the Special Act of 6 January 1989).
2. Recommendations to the parties to proceedings before the Constitutional Court
This document contains recommendations for the attention of parties to preliminary ruling or annulment proceedings before the Court. In view of the growing number of cases which the Court is called upon to deal with, those recommendations are intended to promote more efficient handling of cases in the interests of the proper administration of justice.
They do not replace either the Constitution or the Special Act of 6 January 1989 on the Constitutional Court (hereinafter: the Special Act of 6 January 1989).
I. Recommendations concerning the submission of written pleadings
1.1 General recommendations
In general, the Court invites the parties to file clear, structured and concise written pleadings.
To that end, the parties are invited:
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to cite only the preparatory works, the case law, the opinions of the Legislation Section of the Council of State and the doctrine relevant to the development of their arguments, avoiding lengthy and superfluous theoretical developments;
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to set out in the application for annulment or the pleading, as the case may be, the factual and legal context (mentioning, where appropriate, the legislative developments that have taken place);
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not to reproduce in the response or reply to the application for annulment what has already been set out in the previous written pleading. The response and the reply are not summary pleadings.
1.2 Recommendations specific to the annulment proceedings
The Court invites the applicant and, if appropriate, the intervener:
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to provide all relevant information concerning their interest in bringing proceedings;
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to identify precisely the contested provisions, i.e. the norms whose constitutionality or compliance with the rules allocating jurisdiction is contested, and the relevant rules constituting the yardstick for review by the Court, and not to invoke rules which are obviously inapplicable or whose observance the Court has no jurisdiction to review;
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to structure the plea(s) of the application for annulment rigorously and avoid overlap between pleas (and subdivisions of pleas). Under a plea, it is appropriate to set out how the contested regulation infringes a specific reference rule;
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to refrain from raising objections of inadmissibility and pleas that are obviously unfounded;
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to respect the exceptional nature of the procedure initiated by an action for suspension. The submission of an action for suspension of a legislative provision must remain exceptional and is reserved for cases in which immediate application of the contested legislative provision would cause serious prejudice that is difficult to repair, which the party has to demonstrate.
1.3. Recommendations specific to the procedure initiated by a preliminary question
The Court invites the parties:
- to specify whether the question referred for a preliminary ruling was asked on the initiative of the judge or of the parties.
2. Other recommendations
The Court invites the parties:
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to request a hearing only in the event of new developments which they could not have included in their written pleadings or when they consider that an oral explanation would offer real added value. The repeal of systematic pleadings is intended to avoid wasting time and unnecessary costs when the hearing simply consists of repeating what is already contained in the pleadings;
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to keep the Court informed of any changes made during the proceedings to the provision at issue or contested;
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to keep the Court informed of possible events that change the situation of the parties, which may affect their interest, the usefulness and/or the relevance of the Court's response (e.g. death of a party, obtaining a residence permit, etc.);
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to give reasons in the application for annulment or in the pleading, if any, for the request for anonymization made by the party or interested third party on the basis of article 30quater of the Special Act of 6 January 1989 (see the Court's anonymization policy);
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to explain in a pleading, where appropriate, why the party considers that the Court should maintain or not maintain the effects of the provision annulled or declared unconstitutional, in accordance with articles 8, paragraph 3, and 28, paragraph 2, of the Special Act of 6 January 1989.