Suchergebnisse

In this article, the author aims to illustrate how a Constitutional Court can contribute to the implementation of the Aarhus Convention. To this end, he uses two judgements of the Belgian Constitutional Court dating from 14 September 2006 as examples.

Belgian Constitutional Court ? Conflicts between regions, communities and the central government ? Allocation of competences ? Decisions with high political content ? Degree of political alignment between the parties in litigation and judicial behaviour at the Court ? Empirical testing ? All decisions of the Belgian Constitutional Court, 1985-2012 ? Alignment between the alleged political preferences of the judges and the political affiliation of the Petitioner increases the rate of success of the latter

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.

Traditionally, legal scholarship on judicial review is predominantly normative, concentrating on how courts should decide cases and to what extent they should show deference towards the legislative branch. Political scientists, on the other hand, seem more interested in what motivates judges and which factors influence their decisions. In contrast to the extensive body of literature on judicial behaviour in countries with a common law tradition (especially on the US Supreme Court), there is little systematic, empirical knowledge relating to European constitutional courts. Focusing on the Constitutional Court of Belgium, the approach of this book is to combine normative ideas on how the Court should act with an empirical case law analysis. It explores the extent to which the Court performs as a deliberative institution, while operating within a consensual political system: Does the Court employ deliberative 'judicial good practices'? Is the Court's performance affected by strategic considerations? And if the Court's rulings reflect strategic actions, does this behaviour correspond to the deliberative expectations weighing on the Court? The answers to these questions contribute to a fundamental discussion about the appropriate role for judicial institutions in a democratic society. The book shows that the Court's case law is (in part) shaped by strategic considerations. In salient cases, the Court prudently adapts various aspects of its decision in order to stimulate acceptance and compliance. The analyses reflect the fact that the Court is willing to engage in dialogue and that a consensus must be found amid a pluralist group of judges in each case. In addition, by continuingly taking into account the anticipated behaviour of its audience, the Court protects its institutional legitimacy for future cases. Due to this interdisciplinary focus, the book provides essential insights to both legal scholars and political scientists. Josephine De Jaegere is an advisor at the Belgian Ministry of Justice and an associated researcher at the University of Antwerp.

The relationship between Europe's legal orders is frequently depicted in terms of "constitutional pluralism". Constitutional pluralists maintain that the EU legal order and the legal orders of the Member States are distinct but interacting, and that they stand in a non-hierarchical relation to one another, allowing regional autonomy. The significance of the pluralist theoretical perspective for judicial adjudication, however, has not been sufficiently assessed. For instance, does constitutional pluralism accommodate or, rather, oppose the supremacy claims currently made by the ECJ and national constitutional courts respectively? And, in the latter case, what alternative decision-making techniques are available to courts facing constitutional issues with an aspect of EU law? What are the consequences for protection of nationally entrenched fundamental rights? Those are the major questions being addressed in this article. Building upon a detailed analysis of three preliminary ruling procedures initiated by the Belgian Constitutional Court, this article purports to formulate some general recommendations to judges who wish to adjudicate in a truly "pluralist" manner. The cases at issue are Advocaten voor de Wereld, Ordre des barreaux francophones et germanophone et al., and Government of the French Community and Walloon Government v. Flemish Government, each of which contains germs of pluralist judicial adjudication.

AbstractAn urgent question in contemporary federal theory is how institutions impact upon the centralization grade of multi-tiered systems. This article focuses on constitutional courts as one of such institutions. It constructs a classification for measuring a court's position in federalism disputes and tests hypotheses about what determines variation across decisions within one court. The case study is Belgium, as a model of contemporary fragmenting systems. We find that if the defending party is the federal government, the probability of a centralist outcome increases compared to when a sub-state government is the defendant, and vice versa. Evidence suggests that legal merit plays a role to this effect. We further find that each state reform decreases the probability of a centralist outcome. This appears to be a consequence of strategic considerations. We finally find suggestive evidence that the organization of the court does not fully succeed in playing down judges' ideological preferences.

This contribution presents an overview of the Belgian Constitutional Court and its activities during 2016. Two constitutional controversies that were at the forefront of political discussions and attracted much media attention are discussed, namely the separation of powers and the refugee "crisis" as well as the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. Moreover, the article gives an overview of the main cases of the Belgian Constitutional Court of the past year that may be of interest to an international audience. These cases are divided into the following categories: the Belgian Constitution in Europe and the world, separation of powers, justice and order, ethical issues and hot topics.

This contribution presents an overview of the Belgian Constitutional Court and its activities during 2016. Two constitutional controversies that were at the forefront of political discussions and attracted much media attention are discussed, namely the separation of powers and the refugee "crisis" as well as the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. Moreover, the article gives an overview of the main cases of the Belgian Constitutional Court of the past year that may be of interest to an international audience. These cases are divided into the following categories: the Belgian Constitution in Europe and the world, separation of powers, justice and order, ethical issues and hot topics.

Dans cette intervention, l'auteur rappelle la dialectique de l'histoire institutionnelle de la Belgique entre 1831 et 2006 et la montée de l'antagonisme entre les peuples qui la constituent. Il met en lumière les racines de ce "mal congénital" de l'État belge et décrit le passage progressif d'un modèle unitaire, vers un fédéralisme unique au monde. Le modèle belge n'est pas transposable tel quel. Mais plusieurs de ses principes le sont. La Belgique est en effet confronteé à une question existentielle que connaissent de nombreux États: comment faire cohabiter harmonieusement dans un même espace politique des peuples différents? Quel statut accorder aux minorités?