Introduction
Constitutional advisory bodies play an important role in democracies. At first, their contribution to upholding the rule of law seems more modest than the contribution of politically accountable actors or that of adjudicatory institutions.
Often, however, advisory body have a characteristic that compensates for their lack of power or final authority. It is a characteristic that makes them uniquely well-placed to weigh in: they come into action early in the decision-making process. At a time when deliberation is still going on and nothing is (politically or legally) carved in stone yet, taking the first bite of a constitutional issue as an advisor can decisively set the stage for its final determination, sometimes many years later.In this chapter, we examine the Belgian Council of State in this regard. We do so by analysing a recent segment of the case law of the Constitutional Court—the body of constitutional interpretation that usually makes its contribution last—and its connection with the advisory opinions the Council of State delivers. Before we do that, we explain what the position of the Council of State (and particularly of its Legislation Section) is in the constitutional order (Sect. 5.1.1) and illustrate its relation to the Constitutional Court in general (Sect. 5.1.2).
5.1.1 The Legislation Section of the Council of State
As De Visser rightly puts it, “processes of constitutional interpretation and protecting the constitution against infringements are multi-actor endeavours.”[238] In Belgium, too, different political and judicial actors are involved. Within the judicial arena, since its establishment, the Constitutional Court has increasingly moved centre stage. In individual cases, the Court can interpret and apply the Constitution with finality. However, an older—and also wider—advisory role is assigned in this regard to the Council of State.
Established in 1946 and constitutionalized in 1993, the federal Council of State (Raad van State/Conseil d’Etat) performs a crucial role in upholding the rule of law in two ways: through the adjudication of decisions of the executive branch and through advising on legislative and executive norms.[239] It is a sui generis institution, belonging neither to the ordinary judicial branch nor to the executive or legislative branches. One section of the Council adjudicates petitions for annulment of (most) administrative decisions. This is the Administrative Litigation Section. This section also performs the role of court of cassation for lower administrative tribunals. Another section of the Council sits as an advisory body to the governments and legislatures of Belgium. This is the Legislation Section. Both sections are composed of judges and auditors. The latter perform their function independently from the judges and deliver reports about the pending cases or requests for advisory opinions.
Although it does not perform adjudicative functions, the Legislation Section too is a judicial body composed of independent magistrates. It consists of four chambers (two Dutch-speaking, two French-speaking) of three judges each. The judges are assisted by a member of the auditor’s office, who makes up a report, and by two external assessors (usually academics), who can take part in deliberations. Occasionally, the Legislation Section also invites additional experts. When a complicated or politically salient problem of federalism arises, a Dutch-speaking and a Frenchspeaking chamber consider the matter together. In the most important cases, all judges and assessors of the Legislation Section deliver the advisory opinion together. The auditor preparing the report can interact with the political body requesting the advisory opinion, for example by referring questions for clarification.[240]
With regard to the object of its advisory opinions, the competence of the Council of State is broad.
All governments, except the local, and legislatures can consult it concerning texts containing abstract legal norms. For bills introduced in the federal parliament or the parliaments of the federated entities at the initiative of one or more MPs, an advisory opinion can be asked for by the chairperson or at the request of a certain number of representatives. If the bill originates within the government (and more generally if executive norms are considered), requesting an advisory opinion is even mandatory. An exception to this rule is only available for executive regulations in cases of urgency. At the same time, requesting an advisory opinion is impossible in some cases, such as budget bills.[241] Whereas in most cases, at some point or another in the legislative process, an advisory opinion will (have to) be requested, it is entirely possible that Acts of Parliament are adopted without the Council of State having investigated them.With regard to the scope of its opinions, the Council can cast a wide net. It advises on the constitutionality of the proposed norms (including the rules of federalism and fundamental rights) and on their compatibility with international law (including the full scale of European Union law). It also considers whether all necessary formalities, if applicable, have been met, and keeps an eye on the observation of the rules of legislative technique (such as wording and structure) and on the consistency of the proposed norms.[242] In principle, the Council delivers a legal advisory opinion and does not comment on political expediency. The advisory opinions are also not binding.
As a standard, the Council of State is not required to deliver its advisory opinion within a specific time frame. The requesting body can however impose one. This can vary from 75 days to as little as five office days. In virtually all cases, nowadays, the Council is requested to respect a deadline. If the Council of State only has five office days, which has become a common practice, it limits its examination to the bare necessities, such as compliance with the rules of federalism and the risk of violation of norms higher up in the hierarchy.[243] As we will see below, such time constraints (in addition to workload and the increasing complexity of the legal order) do not allow to produce an advisory opinion containing a full appraisal of the issues.[244]
The fact that requesting an advisory opinion is mandatory in a number of cases does not mean that to disregard this obligation can always be sanctioned.
This is possible when executive regulations are concerned (the Administrative Litigation Section of the Council of State can, for example, annul a regulation for want of an advisory opinion). The adoption of Acts of Parliament without the necessary advisory opinion does not, however, come with a legal sanction. Legislative procedure, including the obligation to request an advisory opinion, does not fall within the scope of review of the Constitutional Court, which is the competent body for the adjudication of Acts of Parliament.[245]5.1.2 Relation with the Constitutional Court
The fact that the Council of State’s advisory analysis is not binding does not mean that a government or legislature can simply decide to ignore it. It does so at its own peril. This is because even if formally the Legislation Section’s function is defined as an advisory body for the political branches, its influence radiates well beyond that. Rather than an actor in a bilateral relation with the political branches, the Council is a node in a network and performs signalling functions towards other actors, notably the courts. This is the case with regard to executive norms, which can be adjudicated by the Administrative Litigation Section (which is part of the same Council of State) or by the ordinary judiciary, but also with regard to legislative norms, which can be adjudicated by the Constitutional Court.
As is the case in many other European countries, review of the constitutionality of Acts of Parliament is possible in Belgium, but only through a specialized court. The Constitutional Court, established in 1984, fulfils this task.[246] Originally, its responsibilities were limited to enforcing the rules of federalism. Through its case law and subsequent legislative enlargements of its powers, today it can also review the compatibility of legislation with fundamental rights. Typically, the Court interprets the rights in the Constitution in light of their counterparts under international law.
It de facto also enforces the compatibility of Acts of Parliament with European Union law.[247] [248]It is noteworthy that the Constitutional Court is composed in a particular way. Like some other federal institutions, half of its 12 members are Dutch-speaking and half are French-speaking. In addition, half of them are career lawyers (being a judge in the Council of State can be an entry ticket), whereas the other half are former members of the federal parliament or the parliaments of the federated entities. When the Court was established, this was how the political branches wanted to avoid a so-called gouvernement des juges.n
Access to the Court is available in two ways. The first is through a petition for annulment. The federal government, the governments of the federated entities and the chairpersons of all parliaments can bring such a claim. Individuals with standing can do the same. The second is through a preliminary referral. As said, other Belgian judges cannot review the constitutionality of an Act of Parliament themselves, but they can refer the questions that arise in that regard during litigation to the Constitutional Court. Its answer subsequently allows them to determine the outcome of their case.[249] Both the Legislation Section of the Council of State and the Constitutional Court engage in an abstract review exercise, although this is even more outspokenly so for the (pre-enactment) Council’s advisory powers than for the more tailored (post-enactment) review questions the Constitutional Court faces.[250]
Clearly, the Legislation Section of the Council of State and the Constitutional Court perform different roles in upholding the rule of law. For scholars of constitutional interpretation, this institutional set-up is extremely interesting. In theory, there is no hierarchy between the Constitutional Court and the Council of State. Their interpretations of the Constitution are not binding upon each other, which means diverging visions and conflicts could co-exist.
In practice, however, both institutions appear to interact on two levels.Firstly, on a macro level, there is little disagreement that the Constitutional Court plays a central (if not the central) role in the determination of constitutional meaning. Its case law is continuously analysed in the opinions of the Council of State, which tries to offer advice according to what can be learned from it.[251] Although the advisory practice of the Council is not always fully aligned, it has been argued that it is logical for the Council of State, in general, to adapt its interpretive practice to the case law of the Constitutional Court.[252]
Secondly, on a micro level, the Court may look into the advisory practice of the Council of State when applying those constitutional principles to individual cases. Very often, the Council of State simply has already looked into the constitutionality of an Act of Parliament before the Court is asked to adjudicate the same text. This means that the Council gets the first bite of the issue, thereby orienting constitutional interpreters down the road—Parliament and the Cabinet, but also litigants (who appear keen to operationalize the Council’s advisory opinions), and eventually the Court itself. Indeed, the Court frequently finds itself faced with the choice to follow the primary analysis by the Council of State or to depart from it. As such, the Council of State provides a primer of constitutional interpretation and dispute settlement guidance that, whichever the result, appears hard for the Constitutional Court to simply disregard. Nevertheless, the contextual and institutional differences between both actors are not irrelevant. For example, it has been claimed that the Council of State sometimes sets stricter boundaries for the political branches in its advisory opinions than the Court eventually does in its judgements.[253]
Of course, the macro and micro levels of interaction are intertwined. The relationship between the Legislation Section of the Council of State and the Constitutional Court on the micro level is the focus of this chapter. We answer the question whether the Court in its recent case law tends to concur with or depart from the advisory opinions of the Council of State, and, relatedly, whether it has developed a specific practice with regard to referencing those advisory opinions in its judgements.[254] Our findings may be of interest to scholars in other systems in which a constitutional court can interact in comparable ways with the work of a council of state or a similar advisory body.[255]
5.2