The powers of the Constitutional Court will soon be slightly broadened. The legislator, ruling by special majority, wants to grant the Constitutional Court the power, henceforth, to uphold the effects of provisions that have been held unconstitutional in a preliminary ruling procedure. The Special Act on the Constitutional Court currently only offers this possibility under the annulment procedure.
Upholding the effects of annulled legislation
When the Constitutional Court annuls a legal provision, the annulment has retroactive effect. However, the Special Act of 6 January 1989 on the Constitutional Court offers the Court the possibility to attenuate the effects of the annulment, which can have far-reaching consequences. The Constitutional Court can point out the effects of the annulled provision that have to be upheld for the past, as well as for a term which the Court grants the legislator to enact new legislation.
By doing so, the Court guarantees the prevalence of the Constitution, while safeguarding legal security and the continuity of government, as these principles could be affected by retroactive removal of an act, decree or ruling from the legal order.
Upholding the effects of legislation found unconstitutional in preliminary rulings?
The Constitutional Court can also, at the request of a court or tribunal, preliminarily assess the constitutionality of legal provisions. Such declarations of unconstitutionality also work retroactively.
However, a mirroring provision to allow the Constitutional Court to uphold the effects of provisions found unconstitutional in preliminary rulings, in the same way as it is allowed to in relation to annulment procedures, does not yet exist. Moreover, the legislator, ruling by special majority, deliberately chose not to include such a provision during a previous modification of the Special Act in 2003.
The Constitutional Court takes the lead
Although no explicit legal provision was at hand in the Special Act, the Constitutional Court nevertheless deemed itself competent to uphold the effects of legal provisions deemed unconstitutional. The first and most famous example is ruling no. 125/2011 of 7 July 2011 regarding the difference in treatment of white collar and blue collar workers.
The Court found the difference in treatment discriminatory, but immediately attenuated the effects of the unconstitutionality for the past and for the near future. The Court ruled, among other things, that it is up to the Court "to strive for a fair balance between the interest of remedying each situation that is contrary to the Constitution and the concern that existing situations and the expectations created over time are not put at risk. Although establishing unconstitutionality in a preliminary ruling has declaratory effect, the principle of legal security and of legitimate expectations can therefore justify limiting the retroactive effect following such a finding."
It took until 2014 for the Court to use this technique again. Since then, its use has remained limited.
The legislator, ruling by special majority, confirms the case law of the Constitutional Court
A recent draft special act, introduced in the Senate, aims to explicitly confirm this evolution of the case law of the Constitutional Court.
With their initiative, the senators aim to amend the Special Act of 6 January 1989 on the Constitutional Court to include explicitly the above-mentioned power of the Constitutional Court. The draft act adds a new second paragraph to the existing article 28 of the Special Act, which is almost exactly aligned with the existing article 8, paragraph 3 of the Special Act. The draft has already been adopted by the plenary session of the Senate.
On 8 December 2016, the draft was approved by the plenary session of the Chamber of Representatives. The approved draft, which still needs to be validated and promulgated, does not contain an entry into force clause. The modification of the Special Act of 6 January 1989 on the Constitutional Court will thus enter into force 10 days after its publication in the Belgian Official Gazette.
Consequences for legal practice
Although the legislator, ruling by special majority, may seem at first sight only to be confirming the existing practice of the Constitutional Court, this may nevertheless have consequences for legal practice. It is to be expected that, in future, the Constitutional Court will more often uphold the effects of provisions that have been declared unconstitutional in preliminary rulings.
The annual reports of the Constitutional Court show that in 2014 and 2015 the Court decided to uphold the effects of provisions annulled by an annulment decision in no less than 25% of these cases. Over the period 2011–2015, the numbers rose to a little over 30%.
However, the Constitutional Court only upheld the effects in less than 10% of the cases where provisions were declared unconstitutional by preliminary ruling over the period 2014–2015. The Court appears to have used this possibility – which, after all, was only provided for in annulment procedures – rather exceptionally. As this possibility will now be explicitly enshrined in the Special Act for preliminary rulings, and under the same conditions as in the annulment procedure, it is to be expected that the Court will now uphold such effects more often. The necessity to uphold the consequences of a legal provision which the Constitutional Court finds unconstitutional will depend on its content, scope and consequences, rather than on the question whether the incompatibility of that provision with the Constitution was found in a preliminary ruling or in an annulment procedure.