Scope of the Analysis
From 1 January 2016 until 31 December 2020, the Constitutional Court issued a total of 879 judgements.[256] For this chapter, we selected the judgements concerning federal law.
Major overhauls of civil and criminal procedure, as well as a number of controversial fiscal and social laws, fall within this scope. There are no reasons to assume the Court treats advisory opinions concerning the law of the federated entities differently.[257]We limited our examination to cases concerning applications for annulment. This excludes cases concerning preliminary references from other judges in the Belgian legal system. This choice entails an important caveat: contrary to applications for annulment (which are due within six months after publication of the Act of Parliament concerned in the official gazette), preliminary references by other judges can be made indefinitely in time. This means that changes of legal perspective due to the lapse of time, the interference of other legislation, and the specificity of the legal question raised before the referring court (which, by definition, adjudicates particular and concrete applications of the law) can reduce the relevancy of the advisory opinion of the Council of State. As a result, relatively speaking, the impact of the advisory opinions on the work of the Constitutional Court in this contribution is likely to appear more pronounced than an examination of the full body of case law would suggest.[258]
A choice that may have a similar effect is the exclusion of most cases that do not touch on the merits. Those include judgements answering applications for the interpretation of previous judgements, judgements in cases that were dealt with summarily for reasons of admissibility and judgements concerning applications that were withdrawn or the object of which no longer existed.[259] Those can be expected to be of no interest for the purposes of this research, as the Council of State’s advisory opinion could not be relevant for the points of law decided by the Court.
However, not alljudgements that did not decide the merits were excluded. Sometimes the Constitutional Court referred preliminary questions to the Court of Justice of the European Union. Despite the fact that the Constitutional Court in many of those did not decide on any point of law with finality, we have included those judgements in the research scope anyway because the Council of State’s advisory opinion may serve to frame the legal debate in the Court’s referring judgement (sometimes even more so than in its final judgement, after receiving the European Court’s answers).[260] We did the same for cases in which first an immediate suspension of the legislation was petitioned (which is possible under certain conditions) and the Court only in a later judgement dispensed with the case by annulling the Act (or by rejecting the petition).[261]
This further selection leaves a total of 154 cases—which may for the reasons explained consist of more than one judgement—in which the Court adjudicated federal Acts of Parliaments.
5.3