Bias in Belgian Administrative law: Analysis of the Effectiveness of Judicial Protection.

A construction company that participated in a public procurement procedure but lost, learns that the beneficiary has a close personal relationship to some of the members of the contracting authority. A candidate for a nomination as a public servant hears that a member of the jury is the former employer of the candidate that was ranked first and will be appointed. A public servant of a local authority that is subject to a pending disciplinary procedure reads in the newspaper that his mayor already considers him to be guilty and believes that he should be severely punished. In all these situations, the person affected could challenge the final decision via the administrative courts, relying on the prohibition of bias that the administration is subject to. A short preliminary study, however, reveals that the success rate of such claims in Belgium is low. The proposed research aims to assess what the explicit and implicit reasons for this high number of failures are and what the relative importance of those reasons is. It relies on a systematic analysis of the case law of the Council of State and the Raad voor Vergunningsbetwistingen ('Council for Disputes on Permits') in a period of 8 years. The research will reveal where precisely the duty of impartiality has its 'Achilles heel', being the factors that impede an effective judicial enforcement. Via the legal comparative method, possible solutions for the identified problems will be looked for in other legal systems.

Keywords:BIAS, COURT, ADMINISTRATION

Disciplines:Administrative law, Comparative law