The Belgian Constitutional Court’s approach towards the European courts in 2016
In 2016, the BCC was less active than the ItCC: it pronounced 170 decisions following either an annulment request (whether or not accompanied by a request to suspend the challenged act) or a preliminary question. It is relevant to note that the BCC can only decide on Parliamentary acts. Also, it has limited jurisdiction as to reference norms. Until 1988 it could only resolve disputes concerning the allocation of powers to the federal state or the state authorities (Communities and Regions). From 1988 on, it could also review Acts of Parliament against the equality and non-discrimination clause (currently Art. 10-11 of the Belgian Constitution) and the rights and duties concerning education (currently Art. 24 of the Belgian Constitution). As the BCC, through the equality and non-discrimination clause, covered all fundamental rights issues, its jurisdiction was, in 2003, extended to (most) fundamental rights clauses in the Belgian Constitution. The Belgian constituent deliberately excluded international acts as reference norms, as the Belgian Supreme Court (Court of Cassation) established in 1971 that all courts have the power to review Acts of Parliament against European and international norms with direct effect. This, however, did not dissuade the BCC from indirectly reviewing acts against such norms, linked with the equality or non-discrimination clause or with fundamental rights provisions.
For the sake of comparison, in what follows, this section adopts the structure of the Italian paper for a quantitative description of the use of European law in the case law of the BCC in 2016.
The demand side for europeanisation
In 74 out of 170 judgments, the requesting parties or the referring court claimed a violation of either EU law (9 judgments) or ECHR law (47 judgments) alone or both (19 judgments). At the level of pleas, violation of EU law alone was claimed 22 times, ECHR law 91 times, and a combination of both 20 times. In 3 judgments, the requesting parties asked the Constitutional Court to refer a preliminary question to the Court of Justice, which was refused in all cases.
Hence, parties in Belgium are more inclined to turn to European law to support their claims, compared to Italian litigants (43,5% vs 31%). ECHR law is more often invoked than EU law (22% vs 35%). Two reasons may explain this. First, the Constitutional Court has for the large part turned into a fundamental rights court. This makes the ECHR a more obvious reference document. Increasingly, the Court invokes the EU Charter of fundamental rights. Invoking the ECHR, however, has the advantage of securing access to the European Court of Human Rights. Second, the application of EU law requires a cross-border element that is often not present in the case at hand.
Graph 1. Share EU/ECHR.
Judgments 2016: Demand Side
Of these 74 judgments, 39 were pronounced following an annidation request, 32 following a preliminary question, and 3 following a suspension request. Most of the preliminary questions were raised by first-instance tribunals (23), followed by courts of appeal (11), with the Supreme Court (3), the Council of State (1) and another administrative court (1) rounding off the rest. The types of petitioners of annidation (or suspension) requests varied. In most cases (21), the petitioners were NGOs, followed by individuals (20). Business undertakings were petitioners in 8 cases. Finally, in 3 cases, the petitioners were decentralized public bodies: a local town, or an autonomous agency. Most often, they came in groups of 2 to more than 20. In several cases (18), the petitioners were a mix of types.
The domains are varied, with Labor and social security law on top (12) together with and Judicial organization and procedure, including procedures in administrative courts (11); followed by Tax law (9), Environment, energy, spatial planning and other administrative law (9), Substantive and procedural criminal law (8); Persons and family law (7) and Commercial and financial law (5); and at the tail Fundamental rights and privacy (4); the Law of property, special contracts and tort (3); Educational law (2); Public health (2); Migration law (1) and Animal protection (1).
Graph 3. Domains.
These figures depict a high sensitivity of European law in society and industry, especially with regard to the Convention system, to a lesser degree with regard to EU law.