In a judgment of 29 October 2015 (case 152/2015, I.T. et al., H.B. et al., "Ademloos" et al. v. the Flemish Government, www.const-court.be), the Belgian Constitutional Court disallowed - for the second time - the use of the administrative shortcut before the Flemish Council for Permit Disputes.

This ruling is the latest in a series of similar decisions by the Constitutional Court. The Constitutional Court first disallowed the use of the administrative shortcut before the Flemish Council for Permit Disputes in May 2014 (case 74/2014), and again in July 2015 (case 103/2015) for use before the Council of State.

A new decree amending the use of the administrative shortcut before the Council for Permit Disputes will enter into force on 1 January 2016.

Brief introduction to the administrative shortcut

The administrative shortcut (bestuurlijke lus/boucle administrative) was introduced by way of the Flemish Parliamentary Decree of 6 July 2012 on proceedings before the Flemish Council for Permit Disputes (Belgian State Gazette 24 August 2012) and before the Council of State by the Act of 20 January 2014 reforming the jurisdiction, procedural rules and organization of the Council of State (Belgian State Gazette 3 February 2014).

This mechanism allows an administrative authority to rectify minor formal or procedural irregularities during administrative proceedings, without the court having to set aside or suspend the administrative act in question. 

The main incentive for the federal and Flemish legislatures was thus to expedite dispute resolution.

The Constitutional Court's position

In May 2014 (case 74/2014) and July 2015 (case 103/2015), the Constitutional Court found the use of the administrative shortcut before the Flemish Council for Permit Disputes and the Council of State, respectively, to be unconstitutional.

In both cases, the Constitutional Court found that the administrative shortcut violates the principles of independence and impartiality of the judiciary, as the Council of State and the Flemish Council for Permit Disputes make their position on the outcome of the dispute clear when proposing application of the administrative shortcut to the administrative authority.

According to the Constitutional Court, the administrative shortcut also violates the right of access to the courts, as no possibility exists for all parties (including interested third parties) to express their views on the proposed use of the administrative shortcut and no appeal is possible against the decision taken by the administrative authority using the administrative shortcut, i.e. the "by-passed" or reformed decision.

Furthermore, the Constitutional Court found that the obligation to provide reasons was violated. Indeed, by way of the administrative shortcut, the administrative authority can add reasons to its decision after the applicant has appealed to the Council of State or to the Flemish Council for Permit Disputes, without it being possible for the applicant to appeal the amended decision.

Finally, as concerns the Flemish Council for Permit Disputes, the Constitutional Court stated that the decree should provide for an obligation (not only a possibility) to charge court costs to the administrative authority if the appeal is dismissed due to application of the administrative shortcut.

After the judgments of May 2014 (case 74/2014) and July 2015 (case 103/2015), a new action was brought before the Constitutional Court, this time against the amended provisions on the administrative shortcut in Flanders (i.e. Articles 33 and 34 of the Flemish Decree of 4 April 2014 on the organization and procedure of certain Flemish administrative courts, Belgian State Gazette, 1 October 2014). 

Given the limited changes introduced by the Flemish legislature, the Constitutional Court disallowed once again, in its judgment of 29 October 2015, the use of the administrative shortcut before the Council for Permit Disputes, for the reasons mentioned above.

What's next?

In the meantime, a new decree amending the administrative shortcut before the Council for Permit Disputes has been published in the Belgian State Gazette (Decree of 3 July 2015 amending article 4.8.19 of the Flemish Zoning Code and the Decree of 4 April 2014 on the organization and procedure of certain Flemish administrative courts, Belgian State Gazette 16 July 2015). On 5 November 2015, the Flemish government stated that the new version of the administrative shortcut would enter into force on 1 January 2016, together with the amended rules of procedure (Article 17 of the Decision of the Flemish Government of 2 October 2015 amending the Decision of the Flemish Government of 16 May 2014 concerning the organization and procedure of certain Flemish administrative courts with regard to the administrative shortcut and other provisions, Belgian State Gazette, 5 November 2015).

The new decree introduces several changes in answer to the objections of the Constitutional Court.  For the first time, the Flemish legislature stipulates that the administrative shortcut can only be used if all parties have had the possibility to express their views in writing, after which a hearing will be organised. The decree also provides for the possibility to set aside the "by-passed" decision. Moreover, in order to allay concerns regarding violation of the principles of independence and impartiality, the requirement that the contested decision be maintained after application of the administrative shortcut has been abolished. Finally, the administrative authority is now obliged to pay all or a portion of the court costs.

Unlike in Flanders, the administrative shortcut before the Council of State was abolished on 1 September 2015 (i.e. the date of publication of judgment 103/2015 in the Belgian State Gazette) with retroactive effect from 20 January 2014 (i.e. the date of the act amending Article 38 on the administrative shortcut before the Council of State). 

It is currently unclear whether the federal legislature will follow the lead of its Flemish counterpart and whether the concessions made by the Flemish legislature will be sufficient to withstand future scrutiny by the Constitutional Court. To be continued.