Law reforming the Council of State finally adopted

On 9 January 2014, the Belgian Federal Government passed the law reforming the Council of State’s competency, procedure and internal organisation (1).

This law implies some important changes when bringing an action before the Council of State:

  • Whilst the Council of State could already limit the retroactive effect of its regulatory decision annulments, it can now do the same for individual decision annulments.
  • The law introduces a new mechanism (so called “administrative loop”) through which the Council of State can give public authorities the opportunity to correct formal legal errors in the contested act in order to prevent an annulment and the far-reaching implications thereof.
  • From now on, the request for suspension can be filed at any given moment in the proceedings. This is a change to the former procedure where such request could not be filed later than the annulment request. In order to increase legal certainty, the requirement of “serious and difficult to repair disadvantage” has been replaced with the “urgency” requirement.
  • Upon timely request by one of the parties, the Council of State can indicate in its decision the measures to be taken to repair the raised illegality.
  • The new provisions also introduce the possibility of mediation before bringing an annulment action before the Council of State.
  • The Council of State can now grant litigation costs compensation to the winning party.
  • The Council of State can impose a periodic penalty payment in order to force the public authority into making a new decision within a certain timeframe.
  • Furthermore, several changes have been made to the Council of State’s internal organisation.

This law entered into force upon its publication in the Official Journal on 3 February 2014, with the exception of several provisions indicated by two Royal Decrees which will enter into force on 1 March 2014 (2).