Findings
In a limited number of cases, we found that there were no advisory opinions available for the Court to rely on or refer to (Sect. 5.3.1). In a large number of cases, an advisory opinion existed, but appeared irrelevant for the case before the Court (Sect.
5.3.2). An equally sizable group of advisory opinions contained a pertinent analysis (Sect. 5.3.3).[262]5.3.1 No Advisory Opinions
In a limited group of 16 cases (amounting to about 10%), Acts of Parliament were litigated in the Constitutional Court for which the Council of State had not issued any advisory opinion.[263] Of course, the Court in those cases cannot rely on or refer to such an opinion. In those cases, the Constitutional Court could still refer to other, potentially much older, advisory opinions, which may (still) be relevant. That is because the question of law raised before the Court is not necessarily new. This happened for example in a case concerning the legal context in which abortion can take place. To support its analysis, the Court referred to the 1989 advisory opinion of the Council of State regarding the original Act legalizing abortion under certain circumstances.[264]
In most cases, however, there was an advisory opinion concerning the bill that eventually led to the adoption of the Act of Parliament that was later disputed before the Constitutional Court. In what follows, we delve deeper into the nature of those advisory opinions and examine whether the Court has referred to them in its judgement(s).
5.3.2 Irrelevant Advisory Opinions
In a larger group of 69 cases (amounting to about 45%), researching the congruence between the advisory opinion of the Council of State and the decision of the Constitutional Court was impossible because none of the points of law discussed in the advisory opinion (if any) were sufficiently similar to the ones later raised in the Court.
In other words, in those cases, the Council of State had delivered an advisory opinion, but it was not useful for the Court. Of course, here too, it comes as no surprise that the Court does not refer to such advisory opinions.[265]As said, advisory opinions deal with more than the constitutional concerns the Constitutional Court can adjudicate. In many cases, the Council simply did not touch upon (all) the points of law that would later be raised in Court. It may not even have commented on the legal provisions that are disputed before the Court, but on others. On the occasion of an advisory opinion concerning the prolongation of the lifespan of the nuclear power plants in Belgium (which we will come back to below), the Council issued the following warning: “The investigation by the Legislation Section is an ‘open’ investigation, during which it cannot be guaranteed that all thinkable objections against a particular text are discussed in the advisory opinion and that afterwards [...] no additional insights can develop, especially when the original advice is asked within a very short time frame.”[266] The time pressure already mentioned above is a concern the Council knows all too well, as was attested often in advisory opinions on bills concerning tax reform. For example, in a case concerning company tax exemptions for government entities, the Court could only find that the Council of State had indicated that it lacked the time to investigate further the potential problem it had spotted.[267] Similarly, the Council complained about the speed at which fiscal measures were rushed through in its advisory opinion concerning the abolishing of the VAT-exemption for attorneys. As for many people it implied a steep rise in attorney fees, the Act was later disputed in the Constitutional Court in view of access to justice rights, but the Council had not been able to investigate the bill properly.[268] The Council also indicated not having had enough time to investigate the federalism repercussions of a gambling tax bill, which was subsequently struck down by the Court.[269]
As a result of criticism by the Council, moreover, Parliament may have solved some issues, but that does not mean all potentially meritorious issues were spotted.
In a case concerning the use of cameras by the intelligence services, Parliament made corrections subsequent to criticism by the Council of State, but that did not withhold applicants to raise another issue with regard of the same part of the Act in the Court.[270] Sometimes, a potential point of criticism is raised in the preliminary report by the auditor (which is not a public document), but it can still be reframed or omitted from the final advisory opinion after deliberation among the judges. In view of that, generally, the Council remaining silent on an issue in and of itself does not always imply that it confirms the constitutionality of a legal provision.[271]There are other reasons why an advisory opinion may be ultimately not relevant for the Constitutional Court. Especially in the case of voluminous Acts dealing with various topics, it is not unlikely that an advisory opinion was issued at some point during the adoption process, whereas the norms disputed before the Constitutional Court were, at that time, not yet part of the bill. They may have been the result of later amendments, which were not subjected to advice anymore. For example, in a case concerning foster care, this gave rise to complications with regard to federalism.[272] Also, the Constitutional Court is sometimes confronted with claims that have little merit. It is unlikely that the Council of State would anticipate and comment on legal objections that in view of existing constitutional doctrine have little prospect of success.
For the sake of completeness, we can mention that the advisory opinion of the Council of State technically turned irrelevant too if the point of law discussed in it becomes moot. This happens for example when the Court annuls the Act under scrutiny for other reasons.[273]
5.3.3 Relevant Advisory Opinions
From the above, it follows that in the remaining 69 cases (equally amounting to about 45%), the Council produced an advisory opinion that might on one or more points of law subsequently be relevant for the Constitutional Court.[274] Some of those eventually turned out inconclusive (Sect.
5.3.3.1). What did the Court do in the remainder of cases?[275] There are a few in which the Court referred to the advisory opinions of the Council of State (partly) for informative purposes, in order to clarify a relevant legal issue.[276] Mostly, however, the advisory opinion of the Council could perform a critical (Sect. 5.3.3.2) or enabling (Sect. 5.3.3.3) function. Very often, the Court referred to those advisory opinions,[277] although it did not always do so.5.3.3.1 Inconclusive Advisory Opinions
In twelve cases, the analysis undertaken by the Council of State ultimately was (on at least one point of law) not sufficiently conclusive in view of the question of law it concerned. The Court also did not refer to it. For example, it happened that the Council delivered an advisory opinion based on a certain interpretation of the legal context, with which the Court subsequently disagreed. In a case concerning advertising for medical services, the Council of State found that a difference of treatment of doctors and dentists risked to emerge, which “could be considered discriminatory”. The Court, interpreting the law, later concluded that there was no difference of treatment and did not refer to the advisory opinion.[278] In the same case, with regard to other points of law, the Council limited itself to merely warning the legislator that certain conditions of European Union law were to be observed, or that Parliament had to “have an eye” for the principles governing freedom of speech in the context of advertising. The Court later rejected arguments criticizing the Act in that sense and did not refer to the advisory opinion.[279] Conversely, the Court did find a violation in a social security case involving EU law, and in which the Council of State had (merely) remarked that an unequal treatment was created (but without concluding whether it violated the equality principle).[280] In a case in which the retroactive application of a law concerning employment conditions was at stake, the Council recommended to “investigate further” the need for this retroactive application.
The bill was not amended, and when the Court was later asked to adjudicate it for reasons of legal certainty, it found no violation and did not reference the advisory opinion.[281] Also, in a case concerning restrictions for blood donations by men who have sex with men, the Council concluded that balancing fundamental rights in this matter “requires medical insight the Council of State lacks”. The Constitutional Court later, after a careful examination of scientific records, found the regulation to a limited extent overbroad.[282]Relatedly, it happened that the Council of State set out a number of important general principles, but eventually did not present an analysis that was readily usable for the Court if that was faced with different or more specific questions.[283] The Council might have given comments closely related to the issue, but which were ultimately not conclusive enough in view of the point of law before the Court. For example, in a controversial case concerning tax and social security exemptions in the hotel, restaurant and bar sector, the Council of State observed many potential sources of discrimination with other economic sectors and concluded that the proposed system violated the equality principle. It invited Parliament to “reconsider” it, and made a “serious reservation” as to the constitutionality of the plan. The Court was subsequently invited, however, to assess other forms of unequal treatment—within the hotel, restaurant and bar sector.[284]
Finally, sometimes the advisory opinion is not pertinent enough because the Court chooses to develop existing legal doctrine. In one high profile case concerning the 2012 European Fiscal Compact, the Constitutional Court developed its doctrine concerning the interplay between Belgian constitutional law and European Union law by establishing that Parliament could not ratify treaties that go against the Belgian ‘national identity’ as found in the political and constitutional basic structures, or against the core values of the Constitution.[285] It made its point without reference to the position of the Council of State.
The Council had touched on the general issue of hierarchy of norms, but it could not anticipate the new nuance the Court added to the traditional approach of this question.5.3.3.2 Critical Advisory Opinions
Mostly, if the Council of State touched upon a point of law, its purpose was to criticize. This seems inherently connected to its advisory function, which is to alert Parliament or the Cabinet to legal problems. It does not exist to identify issues that do not raise concerns or to congratulate the political branches with the sophistication of its legal documents. The Council is there to give advice. Whenever possible, its advisory opinions do not say that a bill cannot be adopted at all, but rather suggest that certain choices need further consideration, reconsideration, or better motivation. Nevertheless, when the objections against a text are manifest, the Council is clear in indicating that it cannot be adopted.
In many cases, the Constitutional Court acknowledged the existence of such critical advisory opinions. First, the Court often quoted from them or referred to them in a matter-of-fact style and subsequently sided with their logic. The Court did not explicitly approve of or engage with the Council of State’s analysis or attached express authoritative value to it. It merely pushed the advisory opinion to its logical end regarding the unconstitutionality of the disputed Act. The Court for example found a violation of fundamental rights after the Council of State had concluded that a bill increasing court fees needed “fundamental reconsideration”.[286] More justification was also argued for by the Council of State in cases concerning the tightening of social benefits for non-citizens. The Court found the additional justifications put forward in Parliament unconvincing.[287] In a case concerning the limitation of union freedoms in the national railway company, the Court quoted at length from the critical advisory opinion of the Council of State and agreed that there was a violation of the constitutional rights of association and collective bargaining.[288] Again, in a politically salient case about the fiscal treatment of company cars, the Court quoted from the advisory opinion of the Council of State for pages on end, then to find that the parliamentary attempt to rebuke its “fundamental objections” failed.[289] The Court was similarly not impressed by the additional justifications given in a case concerning a controversial financial products tax, which had repeatedly been criticized by the Council of State.[290]
The Court reached similar conclusions in cases where Parliament had amended the bill subsequently to the Council’s advisory opinion, but only partly, or ineffectively.[291] Sometimes, on its way to finding a violation, the Court also expressly noted that Parliament had not followed up on the advisory opinion. For example, in a case concerning the choice between the paternal or maternal family name for new-borns, the Court observed that the Council of State had found that Parliament’s solution did not “fully realize” gender equality and that it had pointed out alternatives. The Court found a violation of the equality principle.[292] Sometimes, a selective reference can reveal that the Court agreed with some but not all elements of the advisory opinion, even if it finally found a violation.[293]
At times, the Court went further in using the Council of State’s critical advisory opinion by adopting more recognizing language. This happened for example in a case concerning a major overhaul of criminal procedure. Parliament had tried, among other things, to minimize the number of criminal jury trials, notwithstanding existing constitutional principles. The Court started off its reasoning by finding that the legal technique to make that happen was inappropriate, “as the Legislation Section of the Council of State has remarked”, and came back to the Council’s advisory opinion repeatedly in deciding that point of law. In the same case, the Court took issue with a relaxation of the rules limiting home searches, a reform the Council of State had “equally” questioned.[294] This modestly more approving fashion of referring was present as well in a politically salient case concerning the tax and social security status of volunteer workers, where it was accompanied by long quotes from the advisory opinion.[295] In one case, the Court found support for a violation in the advisory opinion of the Council of State and referred to it as “see in the same way”.[296]
Exceptionally, the Court shared the critical position of the Council of State, but did not refer to the advisory opinion. In a case concerning VAT exemptions for aesthetic surgery, the Court silently confirmed criticism already aired in the Council of State’s advisory opinion.[297] This lack of reference may be explained by the fact that the case law of the Court of Justice had a controlling influence.
As could be expected, a critical advisory opinion by the Council of State did not automatically lead the Constitutional Court to finding a violation of a constitutional rule. In a considerable number of cases, the Court found no violation after observing (among other things) that Parliament had taken into account the advisory opinion before the final adoption of the bill. In those cases, often the Court referred at varying lengths to the advisory opinion and to the fact that Parliament or the Cabinet had acted upon it (either by amending the bill or by clarifying aspects of it). This happened for example in a case concerning the increase of the legal retirement age, in which the Council of State had insisted on a better substantiation of certain policy choices.[298] This approach was also an important part of the reasoning of the Court in a case concerning judicial reform.[299] The Court, however, did not always refer to the interaction between the Council and Parliament: in a case concerning professional secrecy in the fight against terrorism, the Council of State asked that certain choices be clarified in the parliamentary record to avoid unconstitutional vagueness. Parliament did so, and the Court later rejected an argument in that sense, albeit without referencing the Council’s advisory opinion and the parliamentary reaction.[300] The same happened in a case concerning the digitalization of justice, where the advisory opinion questioned the level of digital access and skills required from citizens.[301]
In some cases, finally, the Constitutional Court referenced the critical—or at least probing—advisory opinion of the Council of State, but concluded that there was no violation,[302] even if at times the Court only found no violation by restricting the possible interpretations of the law under scrutiny.[303] Interestingly, in a few additional cases the Court was more lenient than the Council of State, but without expressly referring to the advisory opinion. In a case concerning the constitutionality of tax exemptions for public utilities companies, for example, the Council qualified a distinguishing criterion as unconstitutionally vague. Without referencing the Council’s advisory opinion, the Court later found the opposite.[304]
5.3.3.3 Enabling Advisory Opinions
Given the role of the Council of State, we can expect to find fewer examples of advisory opinions in which a point of law is discussed but finally dismissed as unproblematic. However, it is logical that the Council sometimes digs into controversies, even if that does not lead to criticism that would require changes to the proposed norms. In some cases, the Constitutional Court was found to refer to such advisory opinions again in a matter-of-fact kind of style in support of its reasoning not finding a violation.[305] Here, too, the Constitutional Court sometimes did so in a somewhat more recognizing fashion by discussing legal questions “as remarked by” the Council of State.[306] In a few cases, the Court sided with the Council’s position finding no violation, but did not mention the advisory opinion.[307]
It is interesting to note that when the Court disagreed with the Council of State, it did so silently. In a case concerning the formalities of pretrial detention, the Constitutional Court proved stricter than the Council of State on a point of judicial oversight, but without mentioning the (at least partly diverging) advisory opinion.[308] Also, the Court disagreed with—or, at least, went beyond—the less critical advisory opinion of the Council in a case concerning access to pro bono legal support.[309] The same happened in a case in which the Council of State left an opening for eviction in squatting cases without prior judicial oversight. The Court disagreed.[310]
5.4