The Belgian constitutional court and the administrative loop: a difficult understanding

1. In the Netherlands, the task of the administrative courts has shifted during the past decades from merely upholding the objective law towards providing a final dispute resolution.2 This evolution was induced by the criticism that the administrative courts, whose primary aim was to review the legality of authority decisions, only established how the authority should not have decided, without indicating how it should have decided or should decide in the future. Hence, upon the annulment of an authority decision by the administrative court, neither the authority nor the private parties knew how the dispute had to be settled and remediation had to be offered. This often resulted in endless proceedings, with new decisions being taken by the authority and being attacked again by the private party concerned, who was still not satisfied.3 In order to remedy this lack of judicial protection, the central point of focus of the Dutch administrative judicial procedural law has shifted towards the protection of the subjective rights of the litigants and the final resolution of disputes. This evolution finds its reflection in additional powers granted to the administrative courts, such as the possibility to ignore a defect (‘een gebrek passeren’), to maintain certain legal effects of an annulled decision (‘gedektverklaring’), to decide instead of the authority by substituting the annulled decision by the judgment (‘zelf in de zaak voorzien’) and to order the authority to take a new decision. In 2010, the administrative loop was added to the Dutch administrative courts’ toolbox as an additional instrument to achieve a final dispute resolution. 2. Inspired by this evolution in the Netherlands and confronted with similar criticism on the cumbersome and inefficient administrative procedures, the Belgian legislators also intended to achieve a shift in the task of the administrative courts by attributing additional tools to the administrative courts with the aim to increase suitability, efficiency and expediency of administrative judicial procedures. One of these new tools is the administrative loop, which has in the meanwhile been well received and implemented in the Netherlands. In Belgium, however, this new instrument – which was given a considerably more limited scope – has given rise to fundamental objections from the perspective of the rule of law and fundamental (procedural) rights. These objections amounted in proceedings before the Belgian Constitutional Court, that agreed with some of the arguments of the applicants and annulled the Flemish and federal statutes introducing the administrative loop up to three times. 3. This contribution clarifies the annulled Flemish and federal administrative loop and analyses the rulings of the Constitutional Court. Furthermore, it assesses whether the latest version of the administrative loop, which was introduced by the Flemish legislator taking into account these rulings, succeeds in meeting the fundamental objections of the Constitutional Court.

Jaar van publicatie:2016

BOF-keylabel:ja

Toegankelijkheid:Open