Proposition 50K0101

Projet de loi sanctionnant le recours manifestement abusif à la section d'administration du Conseil d'Etat.

General information ¶

Authors

CD&V Tony Van Parys, Jo Vandeurzen, Servais Verherstraeten

Submission date

Sept. 16, 1999

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

administrative court

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

N-VA

Abstained from voting

Groen FN VB

Party dissidents ¶

• Alfons Borginon (Open Vld) voted to reject.
• Els Van Weert (Vooruit) voted to reject.

Contact form ¶

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Discussion ¶

Jan. 23, 2001 | Plenary session (Chamber of representatives)

Full source

At its meetings of 14 December 1999, 11 January, 3 May and 21 June 2000 and 10 and 17 January 2001, the Internal Affairs Committee examined the bill that is presented to you today for discussion.

The proposal for a bill to remedy the complaint at the Department of Administration of the State Council was submitted by colleague Verherstraeten and was submitted twice to an opinion of the State Council which delivered its opinions on 29 March and 27 September 2000.

The proposal aims to reduce the great backwardness that the Department of Administration of the Council of State has encountered by establishing a compensation for those who abuse their right to appeal in a sharp and reckless manner. Such a system already exists for ordinary courts and the present proposal aims at a similar regime within the administrative judicial procedure. Both the minister and a large part of the commissioners supported the objective of the bill to discourage a plethora of apparently unlawful professions. Among other things, following the opinions of the State Council, several amendments were submitted by the government and members of the committee. For the more technical discussion on this subject, I refer further to the written report.

In the end, the following principles were adopted. A new article 37 is reintroduced in the Coordinated Laws on the Council of State, which is housed in a new chapter 4, entitled: "The fine for apparently unlawful appeal". This gives the State Council the opportunity, after consulting the auditor’s report, to judge that a fine may be due for apparently unlawful appeal. It then determines a hearing on a near date after which a fine may be imposed which is deemed to have been "in contradiction". The fine ranges from 5,000 to 100,000 francs. The penalty shall be deposited in the Fund for the Management of the Penalty amounts and the amounts may be adjusted by the King to the evolution of the index of consumer prices.

Compared to the original bill, therefore, a number of technical improvements have been made that are more compatible with the administrative procedure. Thus, no compensation was provided, but a fine, and the "tenth and reckless appeal" was replaced by the "evidently unlawful appeal". The sole purpose of the "evidently unlawful appeal" is to delay the execution of a clearly legal administrative decision. Finally, the new regulation will only apply to the procedures initiated after the entry into force of the law.

The text was adopted on 17 January 2001 in the Committee on Internal Affairs with 7 votes in favour and 3 abstentions.

Mr. Speaker, I would like to briefly formulate some concerns about this bill, which has a very good purpose in mind. I have been moderately positive in the committee on this bill. It is clear that colleague Verherstraeten submitted this bill from the desire of all of us to eliminate the backwardness in many judicial bodies and make it impossible in the future. The question is, of course, whether punishing access to a particular judicial authority is the best way to overcome the downturn and make it impossible in the future.

As far as the State Council is concerned, colleague Vanpoucke has already cited it, it is indeed a considerable downturn. However, if we look at the published figures, we can see exactly where the backwardness lies. The downturn today, dear colleagues, is largely driven by the influx of appeals filed in foreign matters.

Mr. Minister, I think that, if I remember it correctly, currently within the Council of State, the number of foreign affairs represents about 60% of the total of matters they deal with. This is therefore very important. At that time, a management plan was also drawn up with the General Meeting of the State Council in order to remove this gap, in particular with regard to foreign affairs. Therefore, we must still nuance, colleague Verherstraeten, when we talk about a significant backwardness in the Council of State. We need to examine where that backwardness is concentrated.

Mr. Minister, I think that in the future, with your imminent reform of the new asylum administration, we should examine to what extent that influx to the State Council continues at the current pace. Colleague Verherstraeten, I think that today we should not address the backwardness of the State Council on the basis of a time-related data, even if it extends over several years. Moreover, we do not know how to estimate the remaining 40%, which are related to administrative legal acts directly facing the citizen. I think first of all of the important contentious jurisprudence on spatial planning, which will undoubtedly become even more important with the new decree on this subject. I recently attended a colloquium on the subject, this evening, by the way, a second session is scheduled. This is a ⁇ incomprehensible matter of deadlines, procedures, forms and the like. In my view, the contentious jurisprudence on spatial planning will therefore be very large. The principle of the administrative legal act is that, when one as a legal entity does not agree to a decision of an administration, one has only one legal course. You can only appeal to one judicial body, namely the Council of State. Should we further complicate this entry into law with the possibility of a compensation for an initially pending and unreasonable appeal? This has already been nuanced into a clearly unlawful profession. However, I advocate for any reservation in this matter, although we are all positive about the intention of removing the backwardness through this bill. I also refer to the report presented by the first president of the Court of Cassation to the Committee on Justice last week. Colleague Verherstraeten, I do not know if you were present, but there were some members of your group. You recall that at some point it was also considered the possibility of providing the Court of Cassation with a clause for delayed and reckless appeal. The first chairman stated in the committee last week that this is not a good practice to curb the flow of affairs in Cassation.

Permit me, Mr. Speaker, to refer to the meeting of the Committee on Home Affairs last week, where the hearing was held of the candidates for the State Councils, who will be nominated in the plenary session next Thursday and of which I regret the small number of members present. Mr. Tant stood in front of the committee and in addition to two members of EcoloAgalev and myself on behalf of the VU, no one was present.

When asked by Mrs. Grauwels van Agalev to the four candidates for the State Councils - and referring to the bill proposed by Mr. Verherstraeten - whether this was, in their opinion, the ideal way to remove the backwardness, we heard a rather nuanced answer, in the sense that they considered it a good means, but that it would be insufficient.

Following the nuances and refinements applied after the discussions held on the subject, the ordinary, well-known provision evolved into an apparently unlawful appeal that is much more nuanced and does not provide for an automatic imposition of the fine. Well, if the bill is adopted, it will not be sufficient to remove the backwardness, both in the Council of State and in the other courts. Other means will need to be used to remove the backwardness and to give the citizen what he wants, in particular an easy right entry with a low threshold and a quick process.

Why are foreign affairs so often addressed to the State Council? Well, when at a given moment a certain paragraph of the Foreigners Act was abolished, the Arbitration Court determined that OCMW benefits could be claimed as long as the proceedings before the State Council are ongoing. This is the reason for the number of foreign-related proceedings that are ongoing before the Council of State, which provided for the backbone we are currently facing.

Mr. Speaker, I am nuancedly positive to this bill and will continue to conduct extensive consultations with the CVP before adopting a final position. Nevertheless, I would like to formulate a reservation in the sense that we must ensure that the citizen has a legal entrance with a low threshold. It does not appear to me appropriate to penalize access to this by means of fines if his appeal or appeal before the State Council would be declared inadmissible and rejected.

I wanted to draw attention to this nuance in order to place the proposal in its proper context.

Mr. Speaker, Mr. Minister, I did not intend to speak, but following the speech of Mr. Van Hoorebeke, whom I would like to thank for that, I would like to say something briefly. It is ⁇ not my intention to throw this child away with the bath water.

First, I would like to thank the reporter and the minister for the constructive way in which we have been able to cooperate in the discussion of this proposal.

The nuances and amendments that have been made, I call them improvements. Ladies and gentlemen, in this respect, I would like to address you a little. It was and is the last of my intentions to complicate the process.

I must conclude with you on the ground that there is a lot of abuse of the procedure, which costs a lot of money and, in addition, does nothing to our society. Other cases, such as those related to spatial planning, are the victims of this. It is no longer reasonable that today we have to wait four years before we get a decision in an administrative contentieux before the State Council.

Is this proposal the answer and the final solution to that file? No, this pretension has never been given to this child. It can provide a solution to a little more economical to jump with the use and abuse of these procedures.

Last week, in a meeting with the first president of the Court of Cassation and the Attorney General himself, I asked to what extent it makes sense or does not make sense to take this measure also before the Court of Cassation. They answered it in a nuanced way. However, they said that the number of cases before the Court of Cassation should also be curtailed. They choose a different path, in particular that of the court court. It works in civil affairs, they say. In criminal cases, they see the influence. In fact, this should also be treated through the court of cassation. I do not share that opinion. I would regret that we will soon also receive a bill in the Council of State to act as a treader. I think the legal profession in its entirety, along with the legal subordinates, has a lot of responsibility in that. This can be a means.

You get files that prevent abuses. According to the latest figures that I have at my disposal, every year eleven thousand cases are brought to court by the State Council. Eight thousand of them are foreign records. Your numbers are constantly tightened.

There is process abuse in all types of files. I think of appointments or promotions whose destruction or postponement is requested in order to inflict the devil on one another, and so on. These motives to be laid down are also in foreign file files. For me, abuse of legal rights can not be found in any file, therefore not even in this type of files. If the Council of State applies this measure in a cost-effective manner, it may be a limited means of preventing certain situations. Of course, there will also be other resources.

You say that the State Council is sometimes the only legal way, which we should not complicate, but in addition to the legal contentieux there is also the administrative contentieux. First, a number of administrative courts have been able to pass the review before one can go to the State Council. I don’t think it’s the first right entrance that we have. That does not prevent us from improving some unity and clarity in that jungle of administrative contentieux. With regard to foreign law, we may need to look at a number of issues in order to solve the problem at the Council of State along these sides.

This proposal is, in any case, a limited possibility to demonstrate efficiency already. In the field of the civil contentious, through the 1992 law amendment, it has been demonstrated that the means to a little more economy can give rise.

Mr. Speaker, I would like to say here that I welcome the quality of the debate that took place in the committee following the proposal submitted by Mr. Speaker. by Verherstraeten.

This discussion allowed us to reconcile your proposal, Mr. Verherstraeten, with administrative law. Indeed, if I fully understood the reference to the appeal for a timely and vexatory procedure resulting in the payment of damages and interests, as provided by the Judicial Code, this could only concern civil rights and therefore the jurisdiction of the courts of the judicial order. The fine for manifestly abusive appeal is therefore, in my opinion, more consistent with the requirements of administrative law.

We also had a very interesting background discussion. It is clear that it is in no way about depriving citizens of the possibility of a legitimate remedy. That is why we have verified the compatibility of this proposal, in particular with regard to the requirements of the European Convention. The Commission had the opportunity to take a decision on this subject, following a similar provision provided for in French law. It noted that Article 6 of the Convention does not prevent Contracting States from issuing regulations governing the access of legal persons to a court of appeal, provided that such regulations are intended to ensure good administration of justice.

The regulation concerning the appeal to a court of appeal is ⁇ aimed at the good administration of justice.

What is not admissible are appeals whose purposes are merely dilatory. It is true that they cause a significant backwardness. It should be added that they also represent a social cost that is not negligible and that they prejudice the exercise of the rights of the party who must bear them. There are many reasons for this type of reaction. This is reasonable, Mr. Van Hoorebeke, to provide a partial answer. In fact, if we want to go further in the fight against backwardness, we will need to take additional measures. I have given an example of a measure that could be considered. Thus, one could give the State Council the possibility to have a kind of admissibility procedure with regard to appeals, and to see whether it is not possible, on the basis of an accelerated procedure, to provide, from the outset, the possibility for the court to exclude a appeal. This exists in other countries, including at the level of the judiciary. This is the case, for example, in France before the Court of Cassation. You referred to the inconvenience of the Council of State with regard to the dispute of foreigners. I even believe that we have reached 65 or 67% of the total dispute. It is clear that many appeals are only justified by the possibility offered by this appeal to continue to receive financial assistance in accordance with a decision that has been made by the Arbitration Court.

One of the means to combat this overload of roles is not to refer to the Court of Cassation too many litigation in full jurisdiction and make it truly an administrative cassation. This raises the very important principle question of the possibility of having administrative courts of first instance. This is ultimately the choice we have chosen within the government with regard to the asylum issue. In fact, the State Council will no longer have a role of administrative cassation. It should therefore be seen to decrease the importance of the contentious that is currently handed over to it.

In any case, I would like to thank Mr. Verherstraeten have submitted this issue to the Interior Committee and I welcome the agreement reached on a good text that will - I am convinced - be applied with moderation by the State Council. It is not about preventing citizens from exercising legitimate remedies, but about punishing abuses.

The committee has met six times. I have requested two opinions from the State Council, one on the proposal itself and another on the amendments. In one of these opinions, the State Council says and I quote: "... not having an interlocutor able to clarify the section of legislation on the will of the authors of the texts examined, it is not possible to propose a text more adequate. I quote this text because there may be a small problem here. I have the custom, today even more than before, to send texts for advice to the State Council. I do not want to create exaggerations and impose strict deadlines. However, if the Government requests an opinion, a representative of the Government may explain the draft law to the State Council. We need to think about a way to provide this explanation on bill proposals. Nevertheless, I felt attracted by this understandable comment from the State Council and would like to exchange opinions with my colleagues on this subject in an appropriate manner.

Mr. Speaker, I agree with your argument. Honour to whom honour belongs. In the hallways of the Chamber, I hear that the State Council, following an opinion on a bill, occasionally takes the initiative to contact the applicant of the proposal. This has not happened with this bill, but I think that is a good thing.

I will make arrangements with the State Council and the Chamber in this regard, but this must not lead to exaggeration and delays. If no one can be found in the State Council to provide explanations, it becomes obviously difficult, even for the State Council itself.

I think your observation is relevant. In this case, I took up amendments on which I did not mark my agreement, to have the opportunity to send someone to the Council of State in order to express the concern of those who would have wished to file it.