Belgium, Council of State, 7 January 2022, No. 252.586
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
- State Court
- Federal Court
Instance
Area
Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
The claimants asked the Council of State to suspend a decision of December 23, 2021 by urgent necessity in which the inside areas of establishments belonging to the event and cultural sector were closed to combat the spread of COVID-19. The claimants mainly objected to the closure of bowling centers and argued that the decision to close bowling centers breached the principle of proportionality, the principle of equality, and other principles of good administration.
The Council of State considered that a suspension by urgent necessity requires claimants to provide ground for the suspension and explain why it is needed immediately and why claimants could not wait for an ordinary procedure. The Council of State concluded that no principles were breached because the measures were necessary and proportional to stop the spread of COVID-19. Moreover, the claimants did not prove that the principle of equality was breached. The decision to close bowling centers was not suspended by the Council of State.
Facts of the case
Two claimants asked to suspend a decision of December 23, 2021 by urgent necessity in which the inside areas of establishments belonging to the event and cultural sector were closed to combat the spread of COVID-19. The defendant was the Government. The claimants mainly objected to the closing of inside bowling areas because, as a result of the closing, they were not able to play their sport and were not able to organize bowling events.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Conclusions of the deciding body
The Council of State rejected the claim and the decision of December 23, 2021 was not suspended by the Council of State.
Reasoning of the deciding body
The Council of State considered that a suspension by urgent necessity requires claimants to provide grounds for the suspension and explain why it is needed immediately and why claimants could not wait for an ordinary procedure. The grounds for suspension, according to the claimants, was that bowling centers had been closed and, consequently, they could not bowl or organize bowling events. The defendant, however, explained that the decision did allow the use of inside areas for sports. Consequently, bowling as a sport was still permitted and only recreational bowling by the public was not allowed. According to the Council of State, the defendant’s argument demonstrated that the grounds providing for a suspension were not severe.
The Council of State, furthermore, concluded that no principles of good administration were breached because the measures were necessary and proportional for stopping the spread of COVID-19. Moreover, the principles of equality and non-discrimination in Articles 10 and 11 of the Belgian Constitution were not considered to have been breached by the Council of State. The claimants did not sufficiently prove why the principle of equality was breached but only mentioned their consideration that these Articles were breached. The defendant, however, explained in-depth that people move around and talk to each other in bowling centers while people in theatres, for example, sit still which reduces the chance of being infected by COVID-19. Therefore, bowling centers cannot be compared to theaters and the principle of equality was not considered breached by the defendant. The Council of State found the argument of the defendant convincing.
The decision of December 23 was not suspended by the Council of State.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom to conduct a business
- Freedom to play and organize sports
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
General principle applied
- Equality
- Non-discrimination
- Proportionality
- Reasonableness
- Principles of goof administration
Balancing techniques and principles (proportionality, reasonableness, others)
The Council of State discussed how the principles of good administration and the principle of proportionality were not breached because the measure to close bowling centers and other event establishments was necessary to stop the spread of COVID-19, which was confirmed by expert opinion. Furthermore, the principles of equality and non-discrimination were not breached because the defendant explained in-depth why bowling centers were not similar to other establishments that were allowed to remain open.
