* Quote from ‘Lawrence of Arabia’
Codification of administrative law in Belgium: status quaestionis
Our contribution to Felix Uhlmann’s edited volume (Codification of Administrative Law. A Comparative Study on the Sources of Administrative Law (2023 Hart Publishing)) reveals that Belgian general administrative law has only been codified (i.e. laid down in binding written law) to a very limited extent. Many of the most important rules and principles still flow from the case law of the administrative courts and especially the Council of State. There are important exceptions though, such as the statutory act that enshrines the duty to give reasons and the legislation (at both federal and subnational level) on freedom of information.
Moreover – Belgium being a federal state – the subnational entities, after multiple reforms of the state, enjoy today considerable autonomy to issue their own legislation on (general) administrative law. The Flemish Parliament has increasingly used this power in the past few years, issuing, for instance, framework legislation on administrative enforcement.
Reasons for codification thus far
Our research revealed that, in the past, there have been nine primary reasons for the legislature(s) in Belgium to enact legislation in the area of general administrative law.
Firstly, the Belgian Constitution or other legislation with a special value have sometimes obliged the legislature to intervene. This is the case for instance in the area of freedom of information, where article 32 of the Constitution provides that statutory law lays down the exceptions and conditions to which the right to consult ‘administrative documents’ and to receive a copy is subject. Secondly, EU law may make a legislative intervention mandatory. EU law has, for instance, given rise to (detailed) legislation on public procurement and to provisions in the Belgian Code on Economic law transposing the Services Directive. Thirdly, the Constitutional Court’s judgements may sometimes also lead to an obligation for the legislature to act. A recent example are the Constitutional Court’s judgements with respect to the lack of statutory legislation offering civil servants employed via contract a right to know the reasons for their dismissal.
These three reasons all refer to obligations for the legislature. Sometimes, however, the legislature enacts legislation on its own initiative.
In this respect, a fourth reason may be that the legislature wishes to introduce new rights or guarantees for citizens that have not yet been recognized by the case law, as general principles. This happened when, in 1991, the statutory act on the duty to give reasons was enacted. Sometimes – and this is a fifth reason – the case law has already recognized a principle, but the legislature wishes to confirm this (constant) case law and to make it permanent. There are not many examples of this behaviour. One is found in art 14, § 1, second indention of the Coordinated Acts on the Council of State, which requires a claimant before the Council to demonstrate an interest in the grounds for review that they raise. This requirement was already well-established in the Council of State’s case law before being enshrined in the legislation in 2014. The opposite, however, may also happen, which brings us to reason number six: the legislature wishes to go against constant case law. In the past, it occurred that the legislature intervened when the Council of State had annulled an administrative act or was about to do so with the aim of ‘validating’ the act and thus preventing or undoing the annulment. This technique is highly controversial and its compatibility with the Constitution is subject to conditions.
Reason number seven is that the legislature wishes to compensate for lacunas in specific legislation, by creating a general statutory framework with supplementary rules, which then acts as a ‘safety net’ should no specific (sectoral) legislation apply. The previously mentioned Flemish framework legislation on administrative enforcement is an example of this. The eighth reason covers the legislature’s desire to compile or coordinate legislation. The Flemish Bestuursdecreet is an example of this: it allowed the Flemish legislature to abolish several decrees, such as the decree on freedom of information, and integrate them into a single statutory framework. Finally, reason number 9 is the legislature’s wish to enact a general framework for its own future intervention. Here, the legislature intends to make its own future decisions in the field of administrative law subject to conditions. An important example were the provisions in the Kaderdecreet Bestuurlijk Beleid on the valid reasons behind the creation of and delegation of executive tasks to Flemish agencies with legal personality. These provisions were, however, abolished, when this decree was integrated into the previously mentioned Bestuursdecreet.
Codification undoubtedly has its advantages. It arguably increases both administrations’ and citizens’ knowledge of general administrative law. It moreover contributes to the democratic legitimacy of general rules and principles of administrative law. Codification, however, may not always have the desired results.
Pitfalls to consider when calling for more codification
In our contribution, we argue, for instance, that codified administrative law may be a ‘pull factor’ for judicial review. When the legislature enacted the statutory act on the duty to give reasons, for instance, it expected the number of appeals or requests for judicial review to fall, since knowing the reasons behind a decision would often make citizens refrain from seeking redress. In practice, however, the very opposite happened: citizens started challenging administrative acts because the duty to give reasons had not been (sufficiently) respected.
Codification does not necessarily reduce the workload of courts as lawmakers either. Again, Belgium’s statutory legislation on the duty to give reasons offers a fine example of this. The Act dates back to 1991 and contains only seven (short) articles, but it has given rise to an impressive body of case law of the Council of State and the specialised administrative courts that gives further content to the statutory provisions.
Moreover, codification requires follow-up and evaluation in order to keep up with new developments in the law and society. There is not always a guarantee that this will happen, since this also depends on who will hold political power in the future and whether they believe this to be a priority.
Concluding remarks
Even more than other areas of the law, administrative law will often require a difficult balancing exercise, since both the general interest and individuals’ interests are at stake. This often makes it particularly challenging to adopt written legislation: a single rule may hold the promise of clarity, but it may not offer the adequate solution for every case and may thus even lead to injustice. Unwritten principles may therefore often be preferable, as long as there is a coherent judicial interpretative practice and a tradition of legal doctrine critically analysing that case law.
Despite our belief in the continuing importance of unwritten law, our contribution ends with two arguments in favour of the development of a General Act on Administrative Law, which we currently lack. First of all, this exercise would force the legislature to face inconsistencies in prevailing law and to update and simplify the body of rules and principles where this is possible. Second, the challenges originating from the fast-evolving possibilities offered by automated decision making call for legislative intervention. A thorough revision of the whole of (general) administrative law seems preferrable to the hurried introduction of a set of specific rules only governing the use of artificial intelligence in administrative decision making.
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Posted by Stéphanie De Somer, associate professor of administrative law at the University of Antwerp, Faculty of Law (https://www.uantwerpen.be/nl/personeel/stephanie-desomer/) & Ingrid Opdebeek, retired professor of administrative law at the University of Antwerp, Faculty of Law (https://www.uantwerpen.be/nl/personeel/ingrid-opdebeek/).
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Suggested citation: S. De Somer and I. Opdebeek, “Codification of Belgian Administrative Law: ‘Nothing is Written’”, REALaw.blog available at https://realaw.blog/?p=3161.
