Proceedings before the Council of State

Council of State building, Brussels 1.Conducting proceedings before the Council of State is very delicate in the sense that there are many rules that function as "hatchets". If a response is not given in time (usually 60 days) against an administrative decision, it is possible that it cannot be questioned later. When you are affected by such a decision, this should be checked as soon as possible.

2. Once the proceedings have started - and for which the intervention of a lawyer is not strictly required, although it is appropriate, at least for advice - the proceedings must be followed closely, under penalty of a decision establishing that you are deemed to have stopped the proceedings (even if it was absolutely not your intention). A resumption cannot happen. In this way, one runs the risk of losing one's rights.

3. Lodging an appeal is also subject to a number of conditions. For example, it must be ascertained whether it is actually an "administrative legal act", whether the person has "an interest" in the claim, whether there is no "organized administrative appeal", ...

4. The possibilities of appeal must be stated in the decision. If this is not the case, the appeal period starts after the notification. If the government fails to take a decision, a maximum period of 3 years is available. So sometimes no decision is also a decision.

5. Various proceedings can be conducted before the Council of State: an application for annulment, an application for suspension, an application for suspension in the event of extreme urgency, or an appeal in cassation.

6. An application for annulment seeks to have the contested decision annulled, while an application for suspension seeks to prevent the decision from being enforced, pending the assessment of the nullity. An appeal for annulment does not have a suspensive effect, so that the contested decision continues to apply.

7. In urgent cases, one can use the suspension procedure in case of extreme urgency. This procedure is invoked if a claim for suspension cannot intervene quickly enough.

8. Furthermore, the Council of State acts as cassation judge for appeals against the rulings of the lower administrative courts (eg Council for Permit Disputes).

9.A few years ago (2014), the Council of State was given the power to also award damages in the event of an administrative decision that had been annulled and has caused damage.

10. In the meantime, a case law has developed at the Council of State stating that even in the event of losses of interest during the course of the procedure (e.g. the counterparty has taken a compensatory measure), or even when applying the "accelerated hatchet procedure" (by not asking for continuation of the procedure after negative opinion of the auditor) compensation can still be requested.[1]

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(1) RvS (AV) 21.6.2018, no 241.865, Lenglez; RvS (AV) 14.12.2018, no. 243.249, Pirom; RvS 22.3.2019, no. 244,015, Moors; E.Mees; The development of the claim for damages at the Council of State, Magazine for contracting law, 229