The sources of law are the sources where we ascertain what the law is. A distinction is made between formal and material sources. Unlike the formal sources, the material sources do not contain actual rules of law. Examples of material sources include good faith, equity and reasonable conduct.
There are five distinct categories of formal sources. Three of these categories are mandatory formal sources – legislation, customary law and the general principles of law. The other two are non-mandatory but merely “persuasive” – case-law and academic writings.
Legislation is considered in greater detail under the hierarchy of norms below. It is by definition the written rules enacted by an authority. Customary law is by definition unwritten law that operates in the customs and usages of people in general and tradespeople in particular. The general principles of law express the superior values that a particular society wishes to respect, such as the principle of the equality of all citizens, the proportionality of rules and measures taken and the principle that the authorities must function in accordance with the law. Many of these principles are set out in what are known as maxims of the law, such as the “non bis in idem” in criminal law and the principle that “lex posterior derogat legi priori”.
Case-law and academic writings are persuasive sources of law. A judgment is binding only on the parties to the case; in Belgium there is no system of precedent. The only judgments that are universally binding are those given by the Court of Arbitration (the Constitutional Court). The other superior courts are the Council of State (the highest administrative court) and the Court of Cassation (the highest court dealing with the ordinary law).
See question 1.
Persons residing in Belgium are subject to a variety of categories of rules of law. Not only the rules issued by the Belgian federal authorities but also the rules issued by lower-level units such as the provinces and local districts are applicable to them (1). Belgium is also a member of a variety of international and supranational organisations such as the United Nations, the European Union, the Council of Europe and NATO. Rules issued by these organisations also apply to the Belgian authorities and population.
Not all law-making authorities have strictly demarcated areas of jurisdiction, and not all categories of rules have the same status, so conflicts can arise. Consequently there is a hierarchy of norms, the principle being that lower-level norms can never be in conflict with higher-level norms.
Regarding Belgian internal law, the Constitution is the highest-ranking norm. In a judgment given on 27 May 1971 the Court of Cassation held that all international and supranational instruments ranked higher in the hierarchy than any internal instruments and thus higher than the Constitution. If a European Regulation were in conflict with the Constitution, the Regulation would prevail.
Below the Constitution there are three categories of norms: legislation, implementing provisions and pseudo-legislation, and the legislation prevails over the implementing provisions. Pseudo-legislation, which mainly means Circulars, is binding only on the authorities but not on the citizen.
The internal legislative instruments in Belgium are found mainly at two parallel levels: the federal level (basically the national level) and the component level (the communities and regions). Each is sovereign in relation to the other. Federal legislative instruments are known as Acts or laws, whereas instruments issued by the three Communities – the Flemish, French and German-speaking Communities – and by the Flemish and Walloon Regions are called Decrees. Instruments issued by the Brussels Capital Region are called Ordinances. The implementing instruments for Acts are Royal or Ministerial Decrees, whereas the implementing instruments for Decrees and Ordinances are governmental or ministerial decrees.
Belgium has further territorial units beyond the Communities and Regions. The most important are the provinces and the local districts. They are not sovereign. The instruments they issue are regulations and decisions, and they do not have full legislative status (see article 159 of the Constitution).
European Union Regulations are directly applicable, and the Belgian legislature is not directly involved in their implementation. But internal legislation is needed to approve and ratify international treaties. In certain areas all the legislative bodies in Belgium have to approve and ratify treaties, which can involve cumbersome and time-consuming procedures. The domestic legislatures are also involved in implementing European Union Directives, for these always require internal legislation.
The initiative for federal legislation can come from one or more members of the House of Representatives, one or more members of the Senate or the King (in practice that means his Ministers or State Secretaries). These, at any rate, are the three components of the legislative authority in Belgium.
Acts are based on one of two types of Bill – the private member’s bill (wetsvoorstel/proposition de loi, moved by a member of the House or the Senate) or the Government Bill (wetsontwerp/projet de loi, moved by the King). Instruments to implement federal legislation are prepared by the executive authority, headed by the King. Powers can be delegated to a minister. Hence the distinction between Royal and Ministerial Orders.
Proposed or draft decrees and ordinances are moved by one or more members of the relevant council or by the government of a sub-unit of the state, as the case may be. Implementing instruments are issued by the government of a sub-unit or by one of its ministers.
See question 5.
Federal legislation comes into existence when it is enacted and promulgated by the King. In principle it come into force ten days after publication in the Belgische Staatsblad/Moniteur belge (Belgian State Gazette), unless otherwise specified(2).
Legislation of sub-units of the state – decrees and ordinances – is brought into force and published by the government of the relevant sub-unit. It comes into force ten days after publication in the Belgische Staatsblad/Moniteur belge (Belgian State Gazette), unless otherwise specified.
Where legal instruments that have been properly enacted come into conflict, conflict-resolution techniques will have to be used. The hierarchy of norms means that most conflicts can be avoided, but where conflicts arise none the less, they will have to be resolved.
Article 142 of the Constitution confers on the Court of Arbitration the sole jurisdiction to review legislation for compatibility with the rules governing the powers of the State, the Communities and the Regions. These rules are in the Constitution and in the legislation reforming the institutions in the federal state of Belgium.
The Court of Arbitration is also empowered to rule in cases where it is alleged that legislation violates the fundamental rights and freedoms secured by Title II (Articles 8-32) of the Constitution. These include the principle of equality (article 10) and the ban on discrimination (article 11). The Court of Arbitration can also review legislation for compatibility with article 170 (principle of legality before the tax law), article 172 (equality before the tax law) and article 191 (protection for foreign nationals) of the Constitution.
The Council of State(3), acting on the basis of article 159 of the Constitution, settles all conflicts between implementing instruments (orders and regulations) and legislative instruments. And there is a Parliamentary Review Committee that looks into conflicts of interest.
(1) See Federale Overheidsdienst Justitie - - , consolidated legislation, Constitution 1994 and Special Institutional Reform Act of 8 August 1980; see also Federal portal site and click on the “the state” in the left column.
The Flemish Community with the Flemish Council (also known as the Flemish Parliament)
The French Community with the Council of the French Community
The-German speaking Community with the Council of the German-speaking Community
The Flemish Region with the same Flemish Council
The Walloon Region with the Council of the Walloon Region
The Brussels Capital Region Brussels with the Council of the Brussels Capital Region (organised also as Flemish and French Committees for Community affairs)
The Communities have powers over:
1° cultural affairs;
2° education except (…);
3° cooperation between the Communities, and international cooperation, including treaty-making powers in matters covered by points 1° and 2°.
The Councils of the Flemish and French Communities, each in their own area, issue decrees dealing with personnel matters and, in such matters, cooperation between the Communities and international cooperation, including treaty-making powers. The Council of the German-speaking Community holds similar powers.
The Regional Councils have powers in matters of land-use planning, monuments and the countryside, the economy, agriculture etc.
(2) See in Federale Overheidsdienst Justitie - - , consolidated legislation, Act of 31 May 1961 on the use of languages in legislation, the drafting, publication and entry into force of legislation and regulations.Top
Last update: 25-05-2006