Doing Business in Belgium
Legal, Judicial and Institutional System
The Belgian revolution takes place in 1830, a provisional government is created, it proclaims an independent Belgium. Elections are organized in order to elect a "national congress" in charge of drawing up the constitution and establishing the monarchy. This National Congress chooses a king, Leopold of Saxe-Coburg and Gotha.
The King is the head of State, his role, however, is symbolic. The king reigns but does not govern.
Since as early as 1830, Belgium unites two peoples, in the North the Flemings, in the South the Walloons.
At that time, Belgium is subdivided into provinces and municipalities. The official language is solely French.
This situation is denounced by some Flemings, and the first laws on the use of languages will be passed in 1873 in order to allow the use of Dutch in justice, later in administrative matters (1878) and in education (1883).
A major crisis shakes the country during the winter of 1960-1961. Both the North and the South wish to deeply modify Belgium so that each region may take its own decisions alone. A language frontier is drawn in 1962. It is established according to the language spoken by the majority of the inhabitants of the municipality as reported within the framework of the census. There are still four language regions in Belgium, the French language region, the Dutch language region, the bilingual region of Brussels and the German language region.
Brussels, where most inhabitants are French-speaking, is enclosed within the Flemish part of the country.
At the time of the 1947 census, Brussels expands with 3 municipalities because of the increased number of people declaring to speak French in these municipalities. Six municipalities located in Flanders, adjacent to Brussels and mostly French-speaking, are called municipalities with "language facilities" for the many French speakers who live there.
Until 1970, the Belgian State is unitary. By that time, the federalization process starts, Belgium consists of three regions (the Flemish region, the Walloon region and the Brussels-Capital region) and three communities (the Flemish community, the French community and the German-speaking community).
The communities and the regions then receive a certain number of competences, which used to be national, and a budget to manage these competences. In 1993, the Belgian constitution is modified, Belgium becomes a federal state.
The Belgian state is a parliamentary democracy. The national Parliament consists of the House of Representatives and the Senate. The government enforces laws and proposes bills to Parliament. The Parliament may of course take the initiative in proposing legislation.
Each Community and Region (the Flemish Region and Community having merged) has its own Parliament and its own government. We thus have a federal parliament and government, a parliament and a government for the Flemish Region and Community; a parliament and a government for the Walloon Region; a parliament and a government for the Brussels-Capital Region; a parliament and a government for the French Community, and a parliament and a government for the German-speaking Community, that is to say no less than 6 parliaments and governments.
That is not all, there are additional institutions for Brussels where both the Flemish Community and the French Community intervene via their institutional bodies: Cocof, VGC and Cocom for common matters. Belgium counts no less than 589 municipalities and 10 provinces under the supervision of their respective Region.
Laws are passed at the federal level, decrees and ordinances have the same legislative value but are passed at the regional level and are only in force in that territory.
Orders are acts of the executive power specifying and implementing a law, a decree or an ordinance.
Fortunately, there is a hierarchy of norms, the Constitution is the reference norm. In order to decide on the matter, you must know that lower norms may never be contrary to higher norms, which themselves must be in conformity with the Constitution. The Constitutional Court settles the conflicts of competence between the State, the regions and the communities. It has an annulment power. It also examines whether the laws, decrees and ordinances are not contrary to the Constitution.
Any person (private or public) establishing an interest therein may initiate proceedings for annulment.
The Council of State has two fundamental tasks, it gives legal advice to the country's governments on preliminary draft bills, decrees, ordinances, orders. This opinion is advisory, it is not binding.
The Council of State also decides on appeals against administrative decisions and acts. In case of illegality, abuse or misuse of power in administrative matters, the Council of State may suspend or annul the administrative act. In this way, it controls the action of the administration.
As for the Court of Audit, it performs an audit of the accounts and examines whether the expenditures are legal and have been budgeted for both at the level of the federal State and at the level of federated entities and other public authorities. Belgians must thus obey several legislations, those passed at the national level as well as those passed at the regional level (in town planning and inheritance matters for instance) or at the community level (in education matters among others).
This is not all, Belgium is indeed a party to many international and supranational organizations. The European Union regulations are directly applicable.
In a judgment delivered on 27 May 1971, the Court of Cassation has confirmed the primacy of all norms of international and supranational law over all norms of national law, including the Constitution. In case of a conflict between a European Union Regulation and the Belgian Constitution, the community regulation thus prevails.
However, certain formalities must sometimes be complied with, the parliamentary assent for treaties or, in certain matters, the approval and ratification of texts by the legislative bodies are necessary.
Now, there are six legislative bodies, which sometimes leads to very long proceedings, in particular concerning the incorporation of European directives into Belgian law. Judicial courts and tribunals are organized according to a hierarchical structure.
Court hearings are in principle public and every judgment must be reasoned and delivered in open court. Normally, the plaintiff brings the case before the judge of the place of residence of the defendant or of one of the defendants. Usually, the lawyer asks the bailiff to summon the defending party or parties to appear before court.
The ordinary method of initiating proceedings is the summons, but sometimes proceedings are or must be initiated by application inter partes, by unilateral application or by voluntary appearance.
Court of Cassation
The Court of Cassation, the supreme judicial court, heads all the judicial courts in the country. There is only one Court of Cassation for the whole of Belgium. It comprises three chambers: one for criminal cases, one for social cases and one for civil and commercial cases.
The appeal before the Court of Cassation is only lodged against final decisions, in all cases, delivered at last instance, or after having exhausted all other modes of appeal.
Consequently, the special appeal before the Court of Cassation does not constitute a third instance or a third degree of the judicial system. The Court of Cassation monitors observance of the law and does not examine the facts of the case submitted to it. Decisions are referred to the Court of Cassation on grounds of infringement of law or of a failure to comply with procedural requirements, whether material or prescribed under penalty of nullity.
The Court of Cassation does thus not deal with the substance of cases, only with the form, and refers a decision contravening the law or the rules of procedure before a court of appeal otherwise constituted after quashing the judgment. The Courts of Appeal and the Labour Courts are the "second instance" in which the appeal of the decisions delivered by the Courts of First Instance, the Commercial and Labour Courts, is examined.
Courts of Appeal
There are five Courts of Appeal and the territorial jurisdiction is defined by the Constitution. The Courts of Appeal consist of different divisions: criminal divisions, civil divisions (also in charge of commercial cases and attachments) and the juvenile division. There are 27 judicial districts with Courts of First Instance, Commercial Courts and Labour Courts. The Courts of First Instance comprise civil, criminal and juvenile divisions as well as the council chamber. Examining magistrates and judges of attachments also belong to the Courts of First Instance.
It should first be pointed out that the presidents of the Courts of First Instance may issue interim measures in all urgent cases that are within their jurisdiction under colour of law.
The Civil Court has jurisdiction in any dispute involving amounts exceeding EUR 1,860 as well as in family law matters in particular divorces, filiation and inheritances. The judge of attachments is mainly in charge of oppositions to attachments, claims and collective debt settlement, and all requests concerning pre-judgment attachments and means of enforcement.
The Juvenile Court is competent when a minor commits an offence or when a minor is in danger. The Juvenile Court judge also decides on the main accommodation and the maintenance payments for minor children after the divorce of their parents. The examining magistrate is in charge of conducting an investigation with incriminating and exculpating evidence at the request of the public prosecutor. The examining magistrate may order searches, request for telephone tapping or take a suspect into custody. He is in charge of the inquiry. As soon as the investigation is completed, he remits the case to the Public Prosecutor who writes an indictment of dismissal or of referral to the Council Chamber (for the Criminal Court) or to the Chamber of Indictments (for the Assize Court).
The Public Prosecutor and his deputies are the representatives of society in court, they are designated by the term Public Prosecutor's Office or Parquet. The Council Chamber is linked to the criminal division of the Court of First Instance. It is in charge of the rules of procedures or of the possible referral of the accused to the criminal court after investigation.
It also has jurisdiction in preventive detention, deciding every month on the extension of the detention if necessary. Within the Court of First Instance, the criminal court has jurisdiction in offences or crimes that have been correctionalised, that is, re-classified as lesser offences or crimes. There is an Assize Court in every province where crimes are tried.
The President of the Court is assisted by two assessors, the registrar, the counsel for the prosecution who represents society, and 12 judges called jurors who are ordinary citizens. The Assize jury is a "popular" jury consisting of Belgian adult citizens in charge of deliberation at the end of the trial. It is not possible to lodge an appeal against the decision of the Assize Court. Only an appeal before the Court of Cassation can be contemplated.
The Labour Court has jurisdiction in disputes between employees and employers both in individual conflicts and in conflicts concerning the whole company. It has also jurisdiction in social security matters and in disputes concerning accidents at work and occupational diseases. It is presided over by a professional judge assisted by two social judges representing the trade unions and the employers' organizations.
The Prosecutor is called Labour auditor and the Prosecutor's office Labour office. An appeal against the decision may be lodged with the Labour Court.
The Commercial Courts are presided over by a professional judge assisted by two consular judges. The Commercial Court has jurisdiction in all disputes between traders, bankruptcies, judicial compositions and in any other commercial dispute with more than EUR 1,860 at stake. It is also possible for a non-trader bringing an action against a trader to choose to bring the case before the Commercial Court, but a trader may not initiate proceedings against a non-trader before the Commercial Court.
An appeal may be lodged with the Court of Appeal, commercial divisions. Appeal is the procedure allowing the party that considers itself to have been wronged by a decision, to apply for that decision to be reversed by a higher court. The case is then tried again.
On the other hand, any judgment by default (in the case of a defendant failing to appear) can be the subject of an application to set aside. These ordinary appeals are in principle always open to parties. The main means of special appeal is the appeal in cassation.
Police courts have jurisdiction in traffic accidents, traffic offences and fines. There are 32 police courts (one in each judicial district and several in larger districts).
The police magistrate holds hearings and sits as a single judge. He is assisted by a clerk.
The Justice of the Peace is the local justice, there are 187 Justices of the Peace in Belgium. The Justice of the Peace is assisted by his clerk.The Justice of the Peace has general jurisdiction in all claims amounting to less than EUR 1,860, except those which the law has expressly assigned to the jurisdiction of another court.
The Justice of the Peace is also assigned several special and exclusive powers, regardless of the amount of the claim. These special powers include for instance matters of leases, joint ownership, easements and maintenance payments. He is also competent in matters of adoption and recognition deeds. Urgent expropriations and affixing of seals also belong to the exclusive competence of the Justice of the Peace.
Like most European systems, the Belgian legal system is complex. In Belgium, the tangle of norms seems all the more spectacular in particular since regions are competent, in certain matters, to create new offences which are solely reprehensible in the regional territory and since, for the last few years, at the regional level, we have seen extremely important regulatory and legislative discrepancies (in inheritance and town planning matters for instance).
We have attempted to give you a global approach to our complex legal, institutional and judicial system.