Research team

Government and Law

Expertise

Expertise in Belgian and comparative administrative law in general and in the following topics in particular: - the law of administrative organization (autonomous public bodies, independent agencies etc.); - administrative decision-making and procedure; - administrative enforcement; - economic public law (regulation and public contracts); - planning law; - European administrative law and relation to national law.

Towards a theory on general principles of proof in administrative law. 01/10/2019 - 30/09/2023

Abstract

Numerous administrative decisions are taken every day in Belgium by a variety of administrative bodies. Some of these decisions rely on facts that are fairly easy to determine (date of birth, residence etc.). Others, however, require a more thorough and intensive investigation and proof of all the relevant facts in order to ensure that the administration can take a well-informed decision. Decisions on planning and environmental permits, for instance, require a precise, technical knowledge of the location of the planned construction, the dangers posed by certain activities, the expected nuisance with respect to mobility, the environment etc. Imposing a disciplinary sanction on a civil servant who denies the facts, may require the administration to have recourse to certain investigatory acts. Which methods of investigation and proof can the administration use in those cases? And who carries the delicate and complex burden of proof in asylum cases? Many administrative decisions are annulled by the administrative courts because the facts were not established or assessed in a proper and correct way. Sometimes, however, the question also arises whether the intensity of review that the administrative courts adopt in this matter is sufficient. Fundamental rights are at stake here, too. The question arises whether the right to a court that exercises 'full jurisdiction' (guaranteed by article 6 of the European Convention on Human Rights) does not require a more active role of the courts in these matters, which goes beyond a mere control of the investigation carried out by the administration. For citizens, administrative bodies and administrative courts, the lack of a comprehensive theory on proof in administrative law is problematic. Who carries the burden of proof in which circumstances? What has to be proved? Which types of evidence are permissible? And what is the role of the courts in the litigation phase? An answer to these questions would fill an important lacuna in legal academic knowledge. The aim of this research is to develop a general theory on proof in administrative law, both in the administrative phase and in the phase before the administrative courts. To that end, we study the case law of the Council of State and a selection of specialized administrative courts and we engage in comparative research to look for inspiration in other jurisdictions. Knowing who has to prove what, which types of evidence can be used for that purpose and how a judge has to evaluate and control this process is essential for legal certainty and, hence, for the rule of law. Both the scientific and social relevance of this research are therefore certain. The results of this research will not only offer handholds to citizens, administrative bodies and courts; they could also be an inspiration for the legislature to develop a statutory framework on proof in administrative law.

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Research team(s)

Bias in Belgian Administrative law: Analysis of the Effectiveness of Judicial Protection. 01/10/2019 - 30/09/2020

Abstract

A construction company that participated in a public procurement procedure but lost, learns that the beneficiary has a close personal relationship to some of the members of the contracting authority. A candidate for a nomination as a public servant hears that a member of the jury is the former employer of the candidate that was ranked first and will be appointed. A public servant of a local authority that is subject to a pending disciplinary procedure reads in the newspaper that his mayor already considers him to be guilty and believes that he should be severely punished. In all these situations, the person affected could challenge the final decision via the administrative courts, relying on the prohibition of bias that the administration is subject to. A short preliminary study, however, reveals that the success rate of such claims in Belgium is low. The proposed research aims to assess what the explicit and implicit reasons for this high number of failures are and what the relative importance of those reasons is. It relies on a systematic analysis of the case law of the Council of State and the Raad voor Vergunningsbetwistingen ('Council for Disputes on Permits') in a period of 8 years. The research will reveal where precisely the duty of impartiality has its 'Achilles heel', being the factors that impede an effective judicial enforcement. Via the legal comparative method, possible solutions for the identified problems will be looked for in other legal systems.

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The Architect and the Law in a Context of Collaborative Design. 01/04/2018 - 31/03/2019

Abstract

The architect of today no longer designs buildings 'in splendid isolation'. He acts and interacts with various other professionals, such as experts in mobility, sociology and engineering. His accountability moreover extends beyond the relationship with his client, and also involves policymakers and planning authorities, as well as the users of the public space (citizens). In a first step, this project is aimed at mapping these developments and relies on close cooperation with researchers in the Faculty of Design Sciences to achieve that aim. Subsequently, it is aimed at confronting this altered professional context within which architects operate with the legal framework that determines architects' legal status in Belgium. The project focusses on urban planning law, construction law and intellectual property law and assesses whether and to what extent, in each of these domains, the law is 'lagging behind'. Finally, in those instances where the law fails to meet the topical challenges identified, how could / should it evolve? In order to identify solutions and best practices, we look at foreign law, using the comparative legal method.

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Defining and Designing Executive Discretion in Urban Planning Law: 'Aesthetic value' as a Material Consideration. 01/10/2016 - 30/09/2019

Abstract

It is a truth universally acknowledged that 'beauty is in the eyes of the beholder'. If this is true, can governments legitimately regulate the aesthetics of the built environment? Research in psychology has revealed that the way in which we perceive the beauty of our environment has important effects on our well-being as individuals and as a society. If an aesthetically pleasing environment indeed serves the public interest, it seems legitimate for governments to control the beauty of buildings and neighbourhoods. Planning authorities typically enjoy considerable room for appreciation (discretionary power) in matters of 'aesthetic regulation'. But precisely because aesthetic taste is often regarded as highly subjective, not everybody agrees that this is desirable. This raises the question of who is to (co)decide on what constitutes 'beauty' in this context. Architects, as experts? The public? This is also important because 'aesthetic regulation' affects fundamental rights. Whereas owners point to their right to protection of property, architects argue that they should be free from censorship, relying on their right to freedom of expression. The public, on the other hand, may well argue that it has a right to enjoy an agreeable neighbourhood, which could be subsumed under the right to an effective enjoyment of private life. The project studies the way in which Flemish urban planning law deals with these questions and seeks inspiration the US, the UK and the Netherlands.

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The creation of autonomous public bodies from a European comparative legal perspective: international impulse, national restraint and how to reconcile these trends. 01/10/2014 - 30/09/2016

Abstract

The law on the creation of autonomous public bodies in the administrative organization of European states is currently characterized by two trends. On the one hand, international or supranational law obliges or encourages states to create autonomous public bodies. Various national regulatory authorities which find their legal basis in different directives of the European Union on the liberalization of utilities sectors are the most apparent examples of this trend towards the internationalization of the law on autonomous government. On the other hand, one notices an attempt on the national level to restrain the evolution towards autonomous government. The question arose whether and to what extent autonomous government can be reconciled with fundamental constitutional principles governing administrative organization. Attempting to put a brake on the unlimited rise of autonomous public bodies, states have come up with framework regulation, determining the conditions for their establishment. How do these two trends determine the law on autonomous public bodies? To what extent do these trends conflict and – if need be – (how) can they be reconciled? The research studies these questions from a European comparative perspective.

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The creation of autonomous public bodies from a European comparative legal perspective: international impulse, national restraint and how to reconcile these trends. 01/10/2012 - 30/09/2014

Abstract

The law on the creation of autonomous public bodies in the administrative organization of European states is currently characterized by two trends. On the one hand, international or supranational law obliges or encourages states to create autonomous public bodies. Various national regulatory authorities which find their legal basis in different directives of the European Union on the liberalization of utilities sectors are the most apparent examples of this trend towards the internationalization of the law on autonomous government. On the other hand, one notices an attempt on the national level to restrain the evolution towards autonomous government. The question arose whether and to what extent autonomous government can be reconciled with fundamental constitutional principles governing administrative organization. Attempting to put a brake on the unlimited rise of autonomous public bodies, states have come up with framework regulation, determining the conditions for their establishment. How do these two trends determine the law on autonomous public bodies? To what extent do these trends conflict and – if need be – (how) can they be reconciled? The research studies these questions from a European comparative perspective.

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Research team(s)

The Creation of Autonomous Public Bodies from a European Comparative Legal Perspective: International Impulse, National Restraint and how to reconcile these trends. 01/10/2011 - 30/09/2012

Abstract

The law on the creation of autonomous public bodies in the administrative organization of European states is currently characterized by two trends. On the one hand, international or supranational law obliges or encourages states to create autonomous public bodies. Various national regulatory authorities which find their legal basis in different directives of the European Union on the liberalization of utilities sectors are the most apparent examples of this trend towards the internationalization of the law on autonomous government. On the other hand, one notices an attempt on the national level to restrain the evolution towards autonomous government. The question arose whether and to what extent autonomous government can be reconciled with fundamental constitutional principles governing administrative organization. Attempting to put a brake on the unlimited rise of autonomous public bodies, states have come up with framework regulation, determining the conditions for their establishment. How do these two trends determine the law on autonomous public bodies? To what extent do these trends conflict and – if need be – (how) can they be reconciled? The research studies these questions from a European comparative perspective.

Researcher(s)

Research team(s)