The League of Human Rights, Liga voor Mensenrechten, Brussels-Nature, Greenpeace Belgium, Bond Beter Leefmilieu Vlaanderen, Inter-Environnement Bruxelles and Inter-Environnement Wallonie jointly introduced an action for annulment before the Belgian Constitutional Court against the reform of the Council of State. The applicants consider that this reform is a step backward for the rights of the defendant as well as for the environmental protection.
On January 20, 2014, the Parliament passed a law that has the objective of reforming the jurisdiction, procedure and organization of the Council of State. While some aspects of the reform are to be welcomed (including relief from certain administrative formalities for legal entities to appeal), other mechanisms are subject to criticism.
After careful consideration of the reform, the seven humanitarian and environmental organizations have decided to challenge the Constitutional Court on five issues that seem problematic with the new reform:
- the risk to defendants of not being able to avail themselves of legal protections to file grievances over issues that affect them personally when the environment is common property;
- the ability to maintain the effects of an act yet canceled by the Council of State (i.e., considered illegal);
- the risk that irreversible damage occurs to the environment during the implementation of a contested measure, the suspension of which is rejected after a balance of interests (new mechanism under the reform);
- the payment of compensation for the public procedure, in case of loss through trial;
- administrative loophole that allows the Council of State to charge the authority to correct a defect in the contested measure (this loophole, provided for in Flemish law, has recently been overturned by the Constitutional Court).
Undermines citizens’ rights
Among the essential complaints against these mechanisms, these seven associations consider that these regressions are sensitive to the rights of the defendants in terms of environmental protection, which, it must be remembered, falls within our common heritage. This reform undermines the rights and principles of citizens, such as the right to effective access to court, the existence of effective remedies, the absence of prohibitive costs of legal proceedings, or the principle of independence and impartiality of judges.
It disregards certain points of the European Convention on Human Rights, the Fundamental Freedoms and the Aarhus Convention on Access to Information. It also cripples public participation in decision making and access to justice over environmental matters, as well as several provisions of European law and the Belgian Constitution.
The approach of the seven organizations is far from isolated. Several actions have been brought against this reform, making it clear that the reform is open to criticism and is a real concern for society.
Find attached a brief summary of the main arguments about the reasons for the appeal.