Belgium, Constitutional Court, 19 May 2022, Judgement 69/2022

According to Art. 160 of the Constitution of Belgium, the federal authority is the competent body for determining the composition, competence, and functioning of the Council of State which, among other things, has the authority to provide for the rules of procedure. However, the special law of August 8, 1980 allows federated governments to adopt measures which are not within the competence of the Parliaments and which are, nevertheless, within the framework of their own regional competences. The requirements to invoke those implicit competences are the following: that the regulation adopted is necessary to exercise the competences of the region, that the subject is likely to have a differentiated legal regime and that the incidence of that regulation on the subject concerned is marginal. This being so, the Constitutional Court considered that the Walloon regulation on the suspension of time limits infringed upon the division of powers between the federal and federated authorities, as the mechanism of the implicit competences was not applicable. First, the Constitutional Court argued that the suspension of time limits for appeals applicable to annulment proceedings before the Council of State, which was a relevant subject of federal authority, was not necessary for the Walloon Region to exercise its competences. This was confirmed by the fact that the former had also adopted a measure consisting of the extension of the suspension of time limits for proceedings of annulment before the Council of State. Second, the subject was not likely to be the object of a differentiated regime by the sole fact of being applicable only to acts created by administrative authorities and regulations of the Walloon Region. The federal measure of suspension pursued the same objective: avoiding the health crisis and detrimental effects on citizens with regard to proceedings before the Council of State. In addition, the Court also highlighted that the Walloon regulation created legal uncertainty since there were different procedural regimes, especially for those who had proceedings before the Council of State with acts or regulations of the Walloon region involved. Third, the Court underlined that even though the measure was only temporary, its impact was not marginal since it affected fundamental rules about the calculation of time limits.