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Carine Knapen

By its judicial decision of 2 March 2023, the Belgian Constitutional Court dismissed the claims of several applicants for annulment of the law of 14 August 2021 on the measures of administrative police during an epidemic emergency, better known as the " pandemic law ", as not founded and declared that said law is constitutional and providing a robust basis for taking measures in the event of an epidemic emergency.

The Court considers that a mere restriction of a fundamental right does not in itself violate Article 187 of the Constitution, especially as the judicial review provided for in the Constitution remains unaffected.

(*) Art.187 provides that the Constitution can never be suspended or abrogated.

The Constitutional Court states that the Royal Decree which declares or maintains an epidemic emergency can be challenged before the Administrative Jurisdiction Division of the Council of State and can also be challenged before the ordinary courts as long as the Royal Decree in question has not yet been ratified by the Chamber of Representatives.

After such ratification, the Constitutional Court becomes competent. Decrees issued by the King or his ministers, provincial governors or mayors can be challenged before the Council of State and contested before the ordinary courts.

In short, do you not like any of this? Then reach deep into your purse and go to court.

The Court is also of the opinion that, although the measures of the administrative police can have a far-reaching impact on policy areas which fall under the competence of the communities and/or regions, the Pandemic law only provides for this possibility by way of authorization to other authorities and, where appropriate, it is up to the Council of State and the ordinary courts to verify whether the measures of the administrative police actually which are taken respect the limits of competence (or not).

In other words, if another pandemic or epidemic were to be declared, citizens would only be able to assert recourse before the Council of State or ordinary courts AFTER freedom-restricting measures are issued by Royal Decrees.

By the time a decision is rendered by these jurisdictions, at least 9 to 15 months have passed and the proceedings instituted are devoid of purpose, as we have seen so many times during the Covid pandemic where Ministerial Decrees and subsequently Royal Decrees succeeded each other rapidly, with one being superseded or amended by the other so that even instituting proceedings against a specific Ministerial or Royal Decree was not useful.

Several applicants argued that the Pandemic law does not define the conditions that have to be met in terms of the number of infections, illnesses and deaths in order to be able to speak of an epidemic, but that it is very vague on this point, which means that the law can be declared applicable to any situation in which a few people are affected by a viral illness.

The Court did not resist these arguments, stating in this regard that :

(a) the first part of the law describes, according to the Court, an epidemic as a special situation that can actually or potentially affect a large number of people in Belgium and seriously affect their mental and/or physical health.

According to the Court, the situation itself or its cause must not necessarily take place on the ( entire ) Belgian territory. This means that the emergency can also be declared BEFORE there is a large number of victims in Belgium.

The previous draft of the law assumes that the proportionality principle will be applied together with the precautionary principle, but ... this has not been adopted in the law itself. The draft has no merit on this point.

(b) The second part of the law, according to the Court, refers to the actual or potential impact of the situation on the health-care system. The impact may be felt in several aspects of the system but must be felt in at least one of them. It may involve a serious overload of certain healthcare practitioners and facilities and/or the need to strengthen, relieve or support them so that an implosion of the healthcare system can be avoided. In addition, according to the Court, the situation may also give rise to a need for faster availability of medicines ( vaccines ? ), medical devices or personal protective equipment ( mouth masks ).

(c) The third part of the law, according to the Court, establishes the link with the federal phase ( 4 ) and the need, in that case, to put in place coordination and management of the competent actors at national level in order to eliminate the threat or mitigate the adverse consequences of the event.

d) According to the Court, the fourth part concerns the possible assessment of the situation by international organizations of which Belgium is a member or partner (this clearly refers to the WHO). According to the Court, an epidemic does not stop at national borders. Recognition of the situation by the WHO or by the European Union may be an additional element for declaring an epidemic emergency in Belgium.

Point B.23.3. : in order to allow the King to declare or maintain an epidemic emergency, points (a), (b) and (c) must be cumulatively satisfied. Thus, according to the Court, an epidemic emergency cannot be declared in Belgium

when Belgium itself has not been affected by an epidemic.The legislator has indicated that recognition by the WHO or the European Union can only be an additional element and that what happens abroad will not always have an impact in Belgium. According to the Court, the definition of "epidemic emergency" is therefore clear and the essential elements have been determined by the legislator itself.

Furthermore, the Court considers that from the examination of the constitutionality of the delegation to the authorities concerned to take the

measures of administrative policing-delegation provided for in Article 4 of the Pandemic law -that delegation does not affect the matters reserved to the legislature by the Constitution.

Several applicants have raised that the epidemic emergency should be based on an objective analysis of the scientific data and not on simple predictions of the epidemic data. An assessment report afterwards (Article10 of the Pandemic law) would not be sufficient; a prior analysis should take place.

This argument was however declared inadmissible by the Court for not being sufficiently specified which shows a certain unwillingness to ( want to ) assess this pertinent argument.

Other arguments were invoked but are not relevant in the context of the present reporting.

The fact is that the counsels for the Council of Ministers tried in every possible way to have the plaintiffs' claims declared inadmissible and unfounded on the form rather than on substance, by stating that they did not demonstrate the requisite interest and that the claims raised were insufficiently clear which made it allegedly impossible for them to develop a defense in any useful way.

In short, the Council of Ministers left no stone unturned in order to strike a home run. The Court rejected all these exceptions but took a clear position on the merits that leaves nothing to the imagination.

The first 51 pages of the judgment discuss all the raised exceptions. The Court's reasoning on the merits can be read from page 52 onwards.

You can find the full judicial decision, which runs over 108 pages, in this link.

Minister of the Interior Annelies Verlinden posted the judgment on 2 March 2023 together with a press release on her website. The newspaper HLN and De Morgen ( both part of DPG Media ) reported on the matter. The national state-run channels VRT and RTBF as well as the commercial channels VTM and RTL, on the other hand, shrouded themselves in silence.

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