Since 2014, the Council of State has been authorised to grant compensation for damage to an applicant. To date, the case law has remained divided on the question of the conditions to be fulfilled in order to grant such compensation. Unlike the Council of State, which adopts a rather pragmatic, flexible approach, the Court of Cassation has shown more reluctance. In order to ensure the uniformity of its own case law, the General Meeting of the Council of State has put forward its view on the matter in two judgments dated 21 June 2018.


Background

Article 11bis of the Acts on the Council of State requires the existence of a (previous) judgment "finding an illegality [in the contested administrative act]", in order to grant compensation for damage. The Council of State and the Court of Cassation each seem to interpret this requirement in their own way, though.

The case law of the Court of Cassation only acknowledges an annulment judgment by the Council of State as a judgment "finding an illegality" in the sense of Article 11bis (see Eubelius Spotlights December 2017). This case law limits the rather pragmatic and flexible approach which the Council of State had previously developed. According to earlier case law of the Council of State, a "finding of an illegality" could not only consist in an annulment judgment, but also in, for example, a withdrawal of the contested administrative act by the authority or the subsequent judgment taking note of that withdrawal. The Court of Cassation limits this flexible approach.

However, the Council of State's pragmatism had its limits. For example, the Council repeatedly ruled that there is no "finding of an illegality" when it declares the appeal inadmissible due to the absence of an interest. The claim for damages is an accessorium to the annulment appeal. According to the aforementioned case law, the dismissal of the annulment appeal due to absence of an interest therefore results in the dismissal of the claim for damages, as there is no "finding of an illegality". This jurisprudence continued to apply, even after the judgment from the Court of Cassation.

The Council of State's General Meeting intervenes: towards uniform case law?

The General Meeting of the Council of State did away with this recurrent case law on 21 June 2018 in its judgments no. 241.865 and no. 241.866, because the Council was of the opinion that this case law was not in line with the intention of the legislator.

In the process leading up to enactment of Article 11bis, the Legislative Division of the Council of State had pointed out that an applicant who loses his interest during the annulment procedure cannot be awarded compensation for damage. In response to this position, the legislator explicitly confirmed in the parliamentary preparatory documents that the Council of State rules on the legality of the contested act, even when the annulment of the contested act cannot (or can no longer) generate a benefit for the applicant.

It is in the light of that ratio legis of Article 11bis that the Council of State's General Meeting ruled on 21 June 2018. In both cases, the General Meeting determined that the applicant had lost his interest in the annulment of the contested act. However, according to the General Meeting, this does not mean that the Council of State will not have to examine the claim for compensation for damage when it finds an illegality in the contested act. However, in order for this to be done, the annulment claim must have been admissible on the day it was lodged, and the claim for compensation for damage must already have been lodged before the Council of State declares the annulment appeal inadmissible.
The General Meeting reopened the debates in both cases, unlike in prior cases (as discussed above) where the Council of State dismissed the claim for damages because it could not determine an illegality in the contested act due to the inadmissibility of the annulment claim. 

A concession to the applicant

This twist in case law can be seen as a concession to an applicant who is disadvantaged by the contested administrative act but has lost his interest in the annulment thereof.

In its former case law, the Council of State would dismiss the appeal for compensation for damage in such a case, as there was no judgment "finding an illegality". The una via electa principle, which requires an applicant to make his claim for compensation before either the Council of State or the judicial judge, however, leads to a situation where the applicant could not turn to the judicial judge for compensation after dismissal of his claim by the Council of State. In other words, under those circumstances, the applicant could not be awarded any kind of compensation.

The General Meeting has put an end to this situation, which obviously works to the applicant's advantage.