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Reform of the Belgian State Council: some remarkable changes

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van Thuyne Gauthier
Gauthier van Thuyne

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12 February 2014

New legislation reforming the Belgian State Council (Conseil d’Etat/Raad van State), the Supreme Administrative Court of Belgium, was published on 3 February 2014. The new legislation aims to shorten the length of proceedings before the State Council and to increase their flexibility.

Some changes will only affect proceedings commenced on or after 1 March 2014, while others have immediate effect and affect proceedings that are currently on-going. In this contribution we provide a short overview of some of the most important reforms.

Action for annulment - the State Council’s arsenal to sanction a breach is currently limited to suspension or annulment. For proceedings commenced on or after 1 March 2014, the State Council will have more options, including the possibility of:

1. limiting the consequences of the annulment in terms of time;

2. suggesting how the illegality may be remedied; and

3. using an "administrative shortcut" to allow an administrative authority to remedy procedural defects in the course of on-going proceedings.

In addition, and since 3 February 2014, it has become more difficult to obtain an annulment for purely procedural defects that do not affect the plaintiff’s interests. The new legislation has also given the State Council the power to modify an administrative authority’s decision as an alternative to a plain annulment.

Summary Proceedings – a request for a preliminary decision, such as a request for suspension or other provisional measures, in proceedings commenced on or after 1 March 2014 will now be able to be made at any stage in the proceedings. The current condition for suspension, ie that a plaintiff must prove serious damage that is difficult to repair, will be abolished. However, plaintiffs will still have to prove the urgency of their request.

Power of attorney – requirements in relation to powers of attorney have been reduced to bring them in line with the requirements in civil proceedings. Previously, a lawyer had to provide a power of attorney from the competent body of his or her client. This requirement has been abolished under the new legislation.

Procedural compensation payment – another change is that the successful party will be able to receive procedural compensation from the losing party. The procedural compensation payable will be set at a fixed rate.

Effective deadlines for rulings – new procedural rules will be introduced to ensure that the State Council gives its rulings within reasonable deadlines (for example, 45 days for a ruling on a request for suspension, and subsequently six months for a request for annulment if the suspension was granted).

Further changes are expected as part of the future sixth state reform, including the possibility for the State Council to award damages.

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