Henri Velge, l'artisan du Conseil d'Etat belge (1911-1946)

Abstract

Cette contribution est un résumé de notre mémoire de licence "L'institution du Conseil d'Etat en Belgique: le combat d'un homme, Henri Velge" défendu en 2003 à l'ULB (Prix Suzanne Tassier). Elle revient sur le long et difficile processus de création de cette institution, débattu depuis l'Indépendance en 1830. ; The Council of State, created in 1946, results from an extremely long process of gestation which proceeded in three phases: a failed legislative (1832-1857), a doctrinal (1857-1911) and a legislative phase which succeeded after an inversion of jurisprudence concerning the responsibility of the State (1911-1946). Only the latter will hold our attention. One sees the confrontation of two competitor systems: the legal solution (extension of competences of the judicial power to the administrative dispute) and the administrative solution (creation of a higher administrative jurisdiction: the Court of the administrative dispute). The legal solution, which dovetailed more with the national traditions, met with strong opposition on behalf of the executive powers and legislature that viewed it as an inadmissible extension of the judicial power. Confronted with this invincible opposition, the administrative solution was essential after having been the subject of several academic workshops, of bills and of press campaigns. Even King Albert I had been favorable to the institution. By the end of the year 1935, the question seemed ripe and the creation of the Court imminent. The situation changed abruptly in 1936 with the second government Van Zeeland. The national and international situation, which induced an extension of the capacities of the executive, was not favourable to the creation of an institution likely to cancel acts even if they were illegal. The prime minister proposed, in total opposition with legal doctrine, the introduction of a Council of State – including a section of legislation and a section of administration – deprived of any jurisdictional capacity. From 1936 to 1946, a long parliamentary process lead to a compromise: a single institution with two sections equipped with a broad jurisdictional competence. Henri Velge, "the man of the Council of State in Belgium", will be the guide of this dense story. We will follow him, during thirty-five years, from the time he was a young student in law protesting the awkward situation of private individuals in front of the administration, to his position of first First president of the Council of State.