The Belgian Constitutional Court’s approach towards the European courts in the long-term

In what follows, we look for signs of respect, pride and resistance in the entire set of judgments, based on qualitative and quantitative analysis. The dataset which we established at the University of Antwerp for the period 1985-2015 was already analyzed and interpreted by Josephine De Jaegere for our project on the strategic behavior of the Belgian Constitutional Court. I refer to her results with regard to the BCC’s quotation behavior.

Respect

The BCC started to refer to European law in 1990. This is linked with its jurisdiction: before that time, the Court was a Court of Arbitration, limited to intra-federal conflicts of competence. Despite the fact that the Court can only review directly against domestic provisions and only indirectly against international and European law, the BCC explicitly presented itself in one of its judgment as a ‘guardian of EU law’.[1]

Still, until 2000, the BCC was rather reluctant to cite ECtHR and ECJ case law. A shift came first in 2000 for ECtHR case law and next in 2006-2007 for both European courts. Overall, in the period 1985-2015, the Court quoted the ECJ in 5% and the ECtHR in 10% of the cases. However, over time, the BCC increasingly refers to both European law and European case law. 14 By the end of this period, the ECHR was referred to in 40% and the ECtHR in 35% of the cases; EU law in 20% and the ECJ in 10% of the cases.

The ECtHR is most abundantly quoted in domains of persons and family law, criminal law and - less visible in the 2016 sample - migration issues, whereas the ECJ is mostly quoted in domains of environmental and energy law.2 This, of course, is linked with the respective jurisdictions of the European courts. De Jaegere finds an additional explanation in the behavior of petitioners. Interest groups build their claims with references to the

ECHR, whereas business companies, often involved in cases concerning the environment and energy, are more likely to refer to EU law.[2]

De Jaegere also confirms the results of the 2016 sample with regard to highly salient cases. In these cases, the Court takes more care of substantiating its reasoning with references to advisory opinions of the Council of State, political agreements and scientific evidence, but also to case law of the European courts: the ECJ and the ECtHR are cited three times as often as in regular cases. In almost all these cases, the scrutiny against European law was demanded by the litigants. Even the factor of deliberation in plenary session alone, already leads to a higher reference rate to European courts and especially the ECtHR. Reversely, if parties invoke EU and ECHR law, the Court is more likely to refer the case to the plenary' session. This means that the Court not only tends to quote European Courts more often in politically salient cases, but also in cases that are salient from a purely legal point of view: if petitioners refer to European law, judges may prefer a broader legal deliberation.

Another indication of the Court’s commitment to European law is its referencing behavior. The Belgian Constitutional Court refers the most preliminary questions to the ECJ compared to other constitutional courts - 28 in the period 1985-2017 and was the first of its kind to do so.

Finally, specific examples chronicle the Court’s positive attitude towards European law as well as the European Courts. For example, the BCC reversed its jurisprudence following the ECtHR’s case law, adding a proportionality test where earlier it argued that the legislator may freely determine the amount of a criminal or administrative fine. In a doctrinal article, Paul Martens, then President of the BCC, noted that the Court ‘without even the slightest inclination to resist’ reverses its case law if necessary to comply with the ECtHR and has already suspended its decision to await the outcome of a pending case before the Strasbourg Court.

Specific examples also show how the BCC tries to link domestic and European constitutional law. For example, while the BCC considered inadmissible requests to review Acts of Parliament against the EU Charter of Fundamental Rights (linked with the equality clause in the Constitution) as long as the Charter did not have binding force,[3] it did take into consideration that document in so far as it confirmed values shared by both the EU and the national constitution.

  • [1] ■’Const. Court No 151/2003, 26 November 2003. H J. DEjAEGERE, Judicial Review and Strategic Behaviour, supra note 9,246-250. 2 Ibid 249-250.
  • [2] Ibid 249-250. 2 Ibid 274. 3 Ibid 274. 4 Ibid 271. 5 Ibid 155. 6 See Court of Justice of the European Union, Annual Report 2016 - Judicial Activity, Luxembourg, 2017, 109-111. 7 Compare Const. Courts No 60/2002, 28 March 2002, No 138/2006, 14 September 2006 and No 8/2007, 11 January 2007 with Const. Court No 81/2007, 7 June 2007. For 8 another example, concerning the inclusion of social security rights in the notion of 9 property: Const. Court No 8/99, 28 January 1999. 10 P. MARTENS, L’influence de la Cour européenne des droits de l’homme sur la Cour constitutionelle, in Chroniques de Droit Public 350 (2010), 356.
  • [3] 2 3 Const. Court No 10/2008, 23 January 2008; No 58/2009, 19 March 2009. 4 Const. Court No 167/2005, 23 November 2005; Const. Court No 101/2008, 10 July 2008. 5 See J. De JAEGERE, Judicial Review and Strategic Behaviour, supra note 9,275. 6 P. VAN NUFFEL, Het Europees recht in de rechtspraak van het Arbitragehof (European law in the case law of the Constitutional Court) in A. ALEN (eds.), 20 jaar Arbitragehof, Antwerp, Kluwer, 2005, 43-45. 7 C-236/09, Belgische Verbruikersunie Test-Aankoop, 1 March 2011.
 
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