Abstract

The Belgian Constitution dates back to 1831 but became more prominent with the introduction of the Constitutional Court in 1980. While initially tasked with adjudication of federal competences, the Court gradually turned into a fundamental rights court. The protection of fundamental rights is predominantly based on the ECHR. The Belgian constitutional system demonstrates a singular openness towards international influences and, in particular, the European integration project. A monist approach, adopted by the Supreme Court in 1971, ensures the smooth implementation and priority of international and EU law, whereas only few instruments exist to temper their impact on constitutional values and fundamental rights or to ensure legitimacy. The disintegration of the Belgian State weakened the concept of national sovereignty, referendums for the approval of treaties are unconstitutional, and ratification of a treaty is not subjected to specific requirements other than a majority vote in Parliament. Overall, the Belgian Constitutional Court gives evidence of a strikingly Europe-friendly attitude, in line with attitudes at the political level and in society. Consequently, both the Europeanisation of constitutional rights and the implementation of international and EU law that potentially restrict fundamental rights, hardly trigger public debate. This approach, however, may change in the future. Surveys demonstrate that confidence in the European integration project is in decline amongst young adults. In 2016, after the submission of this paper, the Constitutional Court for the first time adhered to the constitutional identity doctrine, so far without further consequences. Also, it can be expected that the Constitutional Court would not easily accept external interference that would upset the delicate linguistic balances that are crucial for the stability of a divided Belgian State. Already, (Flemish) political parties are hesitant to join international treaties that they perceive as a threat to such balances.

Highlights

  • The Belgian Constitution dates back to 1831 but became more prominent with the introduction of the Constitutional Court in 1980

  • In its 2007 judgment Advocaten voor de Wereld the European Court of Justice (ECJ) decided on the preliminary questions referred by the Belgian Constitutional Court regarding the compatibility of the European Arrest Warrant (EAW) Framework Decision and the legality and equality principles

  • The ECJ accepted that the Framework Decision was to respect fundamental rights, in particular those guaranteed in the European Convention on Human Rights (ECHR) and as they result from the constitutional provisions common to the Member States

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Summary

Constitutional Culture

1.1.1–1.1.2 Belgium was created in 1830, when the southern region separated from the United Kingdom of the Netherlands. The Constitutional Court’s power was initially limited to the competence to allocate rules between the federal state and the regional entities, but was widened in 1988 to include ensuring the equality clause and the clause protecting the rights and freedoms concerning education While this situation lasted up to 2003 before Parliament conferred on the Court the right to directly review legislation for compatibility with fundamental rights and freedoms set out in the Constitution, this intervention only confirmed the powers that the Court had already assumed by linking the equality and non-discrimination clause with fundamental rights as protected by the Constitution or international treaties. Whereas the idea of a ‘Nation’ presupposes the notion of a single and undivided country, the Constitution recognises that Belgium is a multinational federation It enumerates four linguistic regions, divides the federal Parliament into two language groups and requires linguistic parity in the federal Government. The Constitution does allow for local advisory referendums and, since 2014, for advisory referendums organised by the subnational Regions

The Amendment of the Constitution in Relation to the European Union
Conceptualising Sovereignty and the Limits to the Transfers of Powers
Article 34 of the
The Reasons for, and the Role of, EU Amendments
The role of the Belgian Constitution in a multilevel environment
The Belgian Constitution clusters the constitutional rights and freedoms in
There is no general limitation clause in the Belgian Constitution
The Belgian concept of the rule of law, influenced by the classic
The Balancing of Fundamental Rights with Economic Free Movement Rights
Constitutional Rights, the European Arrest Warrant and EU Criminal Law
Other Relevant Issues in Fundamental Rights and Criminal Law
The annulment procedure regarding the implementation of the Data Retention
The question of secret legislation by EU institutions has not risen in Belgium
These issues have not been discussed at length in Belgian jurisprudence
The ESM Treaty and the Belgian Constitutional Order
Indirect Judicial Review and the Belgian Judiciary
The approach towards indirect judicial review The
For constitutional review by, and statistical data of, the Belgian Constitutional
Other Constitutional Rights and Principles
2.10 Common and Individual Constitutional Traditions
2.11 Article 53 of the Charter and the Issue of Stricter Constitutional Standards
2.12 Democratic Debate on Constitutional Rights and Values
2.13 Experts’ Analysis on the Protection of Constitutional Rights in EU Law
Constitutional Rules on International Organisations and the Ratification of Treaties
The Position of International Law in National Law
43. Most recently
The Belgian
Findings
Judicial Review
Full Text
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