An act of 20 January 2014 made extensive changes to the jurisdiction of the Council of State, as well as to the Council's procedural rules. Several royal decrees (dated 13, 28 and 30 January 2014) also modified the procedure for cases brought before the Administrative Litigation Division of the Council of State, and specifically the General Procedure Regulation.
This reform aims at providing the Council with the power to order measures other than solely the annulment of the acts that are challenged before it. Other provisions are intended to improve procedures, by making the Council more accessible to litigants and by providing it with a greater capacity to rule on the merits of the cases it has to decide.
The most important features of this reform are discussed below.
The administrative loop ("bestuurlijke lus"/"boucle administrative")
Until now, the sole power the Council of State had in an action for annulment was to determine whether or not to annul the disputed administrative act. For instance, if the public authority had forgotten to comply with the duty to give the reasons for its administrative act, this omission could not be remedied. The Council of State had no other choice but to annul the administrative act, whereupon the public authority had to start the administrative procedure again. This resulted in a waste of time and resources for the public authority, as well as for any person with an interest in the challenged administrative act. This was the case, for instance, for a company whose building permit had been cancelled, causing building works to be substantially delayed.
The administrative loop technique tries to address this issue. In an action for annulment, the Council of State is now entitled to issue an interlocutory judgment proposing the public authority (whose administrative act is being challenged) to remedy the illegality during the procedure. If the public authority does this correctly, the annulment is avoided.
The administrative loop applies to regulations and individual administrative acts. However, the administrative loop can only be used to remedy breaches that do not affect the content of the regulations or acts. Accordingly, failure to obtain a mandatory opinion prior to adopting an administrative act cannot be remedied using the administrative loop: the public authority concerned could always change its decision after the opinion was requested. This condition substantially reduces the scope of illegalities to which the administrative loop can be applied.
The new rules also set other conditions for the administrative loop. First of all, the administrative loop cannot be used to overcome illegalities that cannot be remedied within three months, except where it is demonstrated that this can be done within a reasonable time. Secondly, the administrative loop cannot be used when the public authority does not have sufficient jurisdiction to remedy the illegality. Moreover, the agreement of the public authority is required. Finally, the administrative loop can only be used provided that the dispute can be settled definitively after the illegality is remedied. In concrete terms, this means that the administrative loop can only be used by the Council when it has not pointed out other illegalities which prevent the use of the administrative loop. When, for instance, an illegality appears in connection with the internal justification for the challenged administrative act, the administrative loop cannot be used to overcome other illegalities. Another consequence of the latter condition is that, prior to using the administrative loop, the Council has to make a full analysis of all the pleas for annulment.
The administrative loop can only be used after the litigants have had the opportunity to make their comments concerning its proposed utilisation. This debate can take place at two different stages during the course of the procedure: Either the auditor's report suggests that the administrative loop be used; litigants are then entitled to make their comments about this in their final response. Or the Council (the Chamber) suggests ex officio in an interlocutory judgment that the administrative loop should be used. In the latter case, the litigants are granted an extra 15-day period as from notification of the judgment to express their opinion concerning the use of the loop. An extra issue arising when the use of the administrative loop is suggested by the Council itself is that the interlocutory judgment then has to discuss all the pleas for annulment raised in the claim for annulment, and the pleas which cannot be covered by the administrative loop will have to be dismissed by the Council. This also necessarily means that the auditor will have had to assess all the pleas for annulment. If the first auditor's report failed to do so, the Council will have to ask for a supplementary report.
The final feature of the administrative loop deals with monitoring of the action taken by the public authority to apply it. The public authority must inform the Council in writing regarding how it has remedied the illegality. Thereafter, the other litigants are granted a 15-day period to make their comments. Then, the auditor issues a report upon the way the administrative loop was used, after which the Council issues its judgment. If the illegality has been fully remedied, the results of the administrative loop apply with retroactive effect. Accordingly, the action for annulment is dismissed. If the Council deems the illegality not to have been fully overcome, or if new illegalities arise, the remedied administrative act is annulled. Finally, the challenged decision will also be annulled if it is not remedied within the period of time specified in the interlocutory judgment.
Reform of the administrative short proceedings
The regulations on the administrative short proceedings have been reformed in-depth.
First, the system of the unique petition has been set aside. In the new system, an action for suspension or seeking provisional measures can be introduced by a separate petition, before or simultaneously with the action for annulment, but also after the action for annulment has been lodged, provided that the action for annulment is still pending and the urgency has been demonstrated. In principle, the suspension and the provisional measures can henceforth be ordered at any stage in the proceedings. The boundary that has been set is that the petition for suspension can be lodged until the filing of the auditor's report on the action for annulment.
The severity of this rule is mitigated since every party demonstrating an interest can submit a reasoned request to the president of the Council's Chamber to establish the urgency of the case. An action for suspension lodged between the filing and the communication to the parties of the auditor's report is treated equally with the reasoned request. The president of the Chamber will decide upon this request in an ordinance. Should the urgency seem justified, the case will be placed on the agenda for treatment on the merits within two months of the request. The president is also entitled to amend the terms for the filing of the final memoranda.
The second change is the replacement of the criterion of serious damage which is difficult to repair ("moeilijk te herstellen ernstig nadeel"/"préjudice grave, difficilement réparable") by the condition of urgency. The suspension or the provisional measures can now be ordered at any time, if the case is too urgent to await handling at the time of the action for annulment and provided that at least one ground is put forward that would, prima facie, justify the annulment of the administrative act or regulation. The draft act devotes a great deal of attention to the actual meaning of the notion of "urgency". The concept is stated to be in constant evolution and needs to be assessed with an eye to the usual turnaround time of an action for annulment. The urgency can be determined when the petitioner cannot await the result of the annulment proceedings to obtain a decision because this would expose the petitioner to a situation with irrevocably damaging results.
It is further the express intention of the legislator that the Council of State would take inspiration from the meaning given to the notion of urgency by the courts in the judicial summary proceedings, it being understood that the proper circumstances of the objective litigation ("objectief contentieux"/"contentieux objectif") before the Council of State need to be taken into account. Hence, the legislator tempers the abolition of the condition of serious damage which is difficult to repair, through the obligation for the Council of State to balance the interests at stake. At the request of the defence or the intervening parties, the Council of State will take into account the presumable consequences of the suspension or the provisional measures for all interests that may be damaged, as well as for the general interest, and can decide to refuse the suspension of the provisional measures if their negative consequences would manifestly unreasonably outweigh the advantages. This way, the existing technique of the balancing of interests in the administrative summary proceedings is now ratified by the legislator.
The last important change relates to cumulation, referring to the possibility of simultaneously or consecutively lodging actions for suspension, whether "regular" actions or actions in situations of "extreme urgent necessity". The former prohibition in principle of cumulation of actions for suspension is replaced by a much more flexible approach. Henceforth, in principle, it is possible to lodge several actions for suspension or provisional measures during annulment proceedings.
Two limitations are set on the in-principle possibility: First, following a refusal by the Council to order suspension or provisional measures because of a lack of urgency, a new action can only be filed if it is based on new elements justifying such urgency. Hence, the existence of new elements in connection with the urgency will determine whether a new action is admissible. Secondly, the Council can determine a time period during which no new actions for suspension or for provisional measures can be introduced, if the only new element that is invoked is the lapse of time. This means that it will nevertheless be possible to introduce a new action during this period, if new elements can be demonstrated which can alter the viewpoint of the Council regarding the urgency.
Performance of judgments – court orders – private penalties
When the Council annuls an administrative act, the precise consequences of this for the administrative authority are not always exactly clear. This is why a party can now, until its last memorandum, ask the Council, in the considerations of its judgment, to clarify the measures to be taken by the administrative authority to remedy the nullity which led to the sanction of annulment of the act. The legislator thus envisages facilitating the correct performance of the Council's judgments, whilst at the same time the introduction of pointless new actions seeking annulment of the new administrative act, presumably affected by the same nullity, can be avoided.
The annulation judgment of the Council of State can result in an obligation for the administrative authority to take a new decision. The new rules enable the Council to fix the time-frame within which the administrative authority has to take a new decision. Conversely, the annulment judgment can entail the authority being prohibited from taking a decision. In such a case, the judgment can include the ordering of such prohibition. Should the administrative authority not comply with the Council's orders, the party at whose request the decision was initially annulled can ask the Council to impose a private penalty for as long as the authority does not take the new decision or does not revoke it, as the case may be.
Damages
An administrative act annulled by the Council of State disappears from the legal order. Needless to say, the mere annulment will not necessarily compensate for all the damage the claimant suffered because of the act. If the claimant wishes to be granted damages, the claimant has to bring legal proceedings before the civil judge, as, until now, the Council had no jurisdiction to rule concerning this matter.
These provisions have now been fundamentally changed: The Council of State is granted jurisdiction to order payment of damages linked to claims for annulment introduced on or after 1 July 2014 or judgments handed down as from the same date.
Each claimant for annulment or intervention who seeks the annulment of a decision of the public authority (a challenged act, a regulation or a decision implicitly rejecting a request) is entitled to ask the Council of State to order the authority to pay damages to the claimant for the damage suffered as a result of the unlawful decision. There is no need to prove that the involved public authority has committed a civil wrong. A causal link between the unlawful decision and the damage is sufficient.
The Council can compensate for the damage only partially, by taking into account all circumstances of public and private interest. The precise meaning of this provision is not clear at this stage and will need to be clarified by the Council's case law.
The claim for damages must be introduced within 60 days after notification of the judgment finding the administrative act unlawful. The Council then rules on the claim within 12 months. The compensation can also be granted within the process of the administrative loop.
A claim for damages before the Council cannot be combined with an action for damages introduced before the civil judge for the same damage. Litigants will thus have to make a choice.
The advantage of bringing the claim for damages before the Council is that the Council already knows the details of the case and will thus need to expend less time and energy assessing the claim for damages than the civil judge, who would be acquainting himself with the case for the first time only after the annulment. In addition, a claimant for annulment or intervention before the Council is not required to prove that the public authority has committed a civil wrong by passing the annulled administrative act. On the other hand, a judgment by the Council concerning a claim for damages cannot be appealed, and it remains to be seen how the Council will, in practice, assess the balance between private and public interests when estimating the amount of damages. Given that the claimant has the choice of whether to introduce his claim before the civil judge or before the Council, it is unlikely (at least according to the Legislation Division of the Council of State) that the Council will grant damages considerably lower than damages granted by the civil judge. In any case, the accuracy of this assumption will have to be shown by the Council's case law.
Full judicial powers in certain matters
The great majority of appeals before the Council of State are applications for suspension or annulment, in which the Council ultimately either annuls or refuses to annul the appealed administrative act. In those cases, the Council cannot alter the appealed decision.
In addition, there are a number of matters concerning which the Council has full judicial powers ("volle rechtsmacht"/"pleine juridiction"). Certain of these matters are listed in article 16 of the Act on the Council of State, but others are contained in more specific legislation.
Article 16 has now been amended in such a way that all matters concerning which the Council has full judicial powers will now be treated through the same procedure, unless there are specific provisions to the contrary. The same article also clarifies what the full judicial powers entail: they entitle the Council of State to change the administrative act against which the appeal has been lodged.
Electronic proceedings
The Royal Decree of 13 January 2014 opened up the possibility for parties and their attorneys, as from 1 February 2014, to opt for electronic litigation before the Council. Electronic litigation means that parties and their attorneys may transfer petitions and all subsequent procedural documents through a secure website. Users must pre-register on the website. The identification of the user takes place by means of the electronic identity card. The choice in favour of electronic litigation can be made up until the moment when the file is transferred to the auditors' office for the drafting of the auditors' report. The users are notified by e mail of new procedural documents, notifications, notices and summonses. These documents can be consulted in the electronic file on the Council's website. The regulation determines that the time limits starting on the basis of these documents will start to run when the user consults the document for the first time. If a document is not consulted by the user within three business days after the e mail was sent, an electronic reminder is sent. Then, if the document is still not consulted, it is deemed to have been notified at the end of the third business day after the electronic reminder was sent.
The regulation takes into account possible technical difficulties arising when using electronic litigation. If on any given day the website is unavailable for more than an hour, all time limits expiring on that day are extended until the end of the business day following the day on which the unavailability ended. Furthermore, a person who is experiencing technical hindrance with his computer equipment may provisionally file documents by post. Subsequently, however, the documents must be filed electronically as soon as possible. Finally, documents that are difficult to convert into one of the formats supported by the website can be sent by post within three business days after the filing of the petition.
Those who do not wish to use the electronic litigation can continue to communicate with the Council in the traditional way, on paper. The Report to the King states that the traditional method of communication will continue to exist in parallel with electronic litigation "at least in the first stage". Generalisation of electronic litigation in the future is thus not ruled out. It is therefore advisable to start becoming familiar with it already.
Mandate ad litem
Under the previous system, the attorney who acted on behalf of a legal entity had to present evidence that the competent organ of the legal entity had given prior consent for legal action before the Council to be taken. This strict rule imposed a heavy administrative burden on the requesting party, and regularly led to an appeal being declared inadmissible.
The previous system also differed from the more flexible rule which applies for cases before the civil courts. On the basis of article 440 of the Judicial Code, there is a rebuttable presumption that (i) an attorney appearing before the civil courts acts on a mandate from his client to engage in legal proceedings; and (ii) the decision to engage in legal proceedings is taken by a natural person who is legally competent, or by the legally competent organ of a legal entity.
The legislator has now also opted for a more flexible system for representation before the Council. An attorney is now presumed to be mandated by the legally competent person that he acts to represent, unless proof to the contrary. Thus, an attorney is no longer required to submit documentation confirming that a prior decision has been taken by the competent body of a legal entity. However, the presumption can be rebutted. Therefore, at this time it is not clear which changes the presumption of the mandate ad litem will bring about in practice.
Legal entities not represented by an attorney remains required to submit the evidence that the competent organ has decided to engage in legal proceedings before the Council, together with a copy of the deed of appointment of its organs (e.g. an extract from the Official Gazette). Finally, all legal entities – including those represented by an attorney, must still add a copy of their published articles of association and their consolidated articles of association, to their petitions.
Miscellaneous
Finally, the following amendments should be mentioned:
The time limit for bringing an action for annulment before the Council will be suspended under certain conditions during the handling of a complaint about the disputed administrative act by an ombudsman recognised by act, decree or ordinance.
Henceforth, in order to submit a petition, a fee of EUR 200 must be paid. The Registry of the Council will send the applicant a transfer form. In the absence of payment in due time (within eight days), the procedural act for which the payment was due is considered not to have taken place.
The Council may grant an indemnity for legal representation costs to the party in whose favour it has ruled. This indemnity is a lump-sum intervention in the costs and fees of that party's attorney. The amount of this indemnity for legal representation costs has yet to be determined by the King, after taking advice from the Belgian bar authorities (Orde van Vlaamse Balies and Ordre des barreaux francophones et germanophone respectively).