Conclusions

Our goal in this chapter was to investigate whether the Constitutional Court, in its recent case law, tends to concur with or depart from the advisory opinions of the Council of State and how it references those advisory opinions in its judgements.

We narrowed down the scope of our research to a substantive number of cases involving federal law. We found that in 10% of the cases, there was no advisory opinion for the Court to refer to. In half of the remaining cases, there was an advisory opinion, but for various reasons it turned out irrelevant for the case the Court was supposed to solve. In the other half, the advisory opinion proved relevant, although in some cases, it was inconclusive with regard to the point of law it discussed. It appeared that, even taking into account our selection criteria, only in a minority of them the advisory opinion effectively contained legal analysis that directly dealt with the legal question the Court faced. This means that at the level of individual cases, the review activity of the Council is less connected to that of the Court as might be expected.^[311]

Still, in many cases, the advisory opinion of the Council of State discussed the relevant points of law in a sufficiently conclusive way for the Court to have to answer the question: is the advisory opinion convincing or not, and should it be referred to in the judgement?

If the Council delivered a critical advisory opinion (which is the large majority), the Court in most cases either concurred in that position or gave Parliament a pass only after investigating whether it had meaningfully amended or substantiated the norm under scrutiny. Of course, in that latter category, it can remain open for discussion whether that parliamentary interaction was sufficient to take away all doubts, but for our purposes it is relevant to note that this was a point of importance to the Court.

For the reasons explained, the Council delivering an enabling advisory opinion appeared much rarer. In a clear majority of those, the Court later concurred in its position and in doing so it mostly referred to the advisory opinion. It appears that the only (small) category of cases in which the Court refrained more ostensibly from referring to the Council of State’s position, was when the Court disagreed and found a violation of the Constitution. This may be because arguably, it is the most uncomfortable position for the Council to be put in: that of not having been sufficiently critical.^[312]

In sum, it appears that in the cases where a sufficiently relevant advisory opinion of the Council of State is available, its position gives an important warning to litigants before the Constitutional Court. If it is critical, counsel for the government better hope that Parliament or the Cabinet have acted upon it, because otherwise they face an uphill (albeit not unwinnable) battle. If the advisory opinion is enabling, the tables turn and the applicants have to work their way ‘around’ the position of the Council of State. Here again, however, this is not an impossible task. In any case, it will mostly, but not always, be clear from the judgement that the Court considered the advisory opinion of the Council of State.

In this chapter, we have of course not been able to answer all questions relating to the relationship between the Council of State as an advisor on constitutional matters and the Constitutional Court as an adjudicator of those issues. For example, we cannot conclude anything about causality. From our analysis, we cannot know if the Court finds a violation of the Constitution because of the intrinsically persuasive or de facto authoritative nature of the critical advisory opinion of the Council of State, or whether their conclusions merely correlate.

It would also be interesting to delve deeper into why the Court sometimes does not refer to certain relevant advisory opinions, or does so only in a limited way. This is even more so because there are judgements in which the litigants mobilize the advisory opinion of the Council of State to their benefit, but where the Court remains silent on it. Although it is likely that prosaic motives (such as readability and length of the decision) or simple coincidence come into play too, empirical research might further unearth patterns.

The fact that the Constitutional Court seems to take into account the relevant advisory opinions of the Council of State in some way or another—if only because it mostly refers to them explicitly—does not put it beyond criticism. As we explained, the actual engagement with the advisory opinions in the Court’s judgements is limited. Very often, it does not go beyond pointing to the existence of a position taken by the Council of State, but it is left up to the reader to do most of the work in connecting the dots and to assume that the advisory opinion had some sort of rele­vancy for the Court. This taps into a more general attitude we have criticized the Court for, which relates to the motivational style of the judgements. Too often, the Court merely juxtaposes the ‘ingredients’ of its reasoning, and then not even necessarily all of them. The lack of motivational consistence and argumentative detail can in certain circumstances by explained by the need to find a majority of the judges to agree (in the absence of separate opinions) and by a tendency to minimalism.^[315] However, we see no harm for the Court or for the Council in spelling out more explicitly what role the advisory opinions play in the adjudicative process and to help its audience understand better where and why there is (dis)agreement. After all, institutions may reasonably disagree about the application of the Constitution. There is no shame or loss of authority in helping the reader find their way through that puzzle.