2 April 2021

Belgian Covid-19-measures declared illegal by the judge

What will happen now?

Since the start of the pandemic, the Belgian government has taken several measures in order to protect the population from the effects of the Covid-19 virus. The currently applicable measures are provided by the Ministerial Decree of 28 October 2020, which has been modified several times since its initial version. Among others, the government has imposed a mandatory closing of non-essential businesses, mandatory home-working for employees, a curfew, the prohibition for individuals to gather in public and private space and the closing of schools and cultural spaces. The non-compliance with most of these measures is criminally sanctioned.

These measures encompass far-going and unseen restrictions of fundamental rights guaranteed by the Belgian Constitution and international treaties, such as the right to individual liberty, the right to education, the right of gathering, the protection of the domicile, the right to work, etc.

The method by which these measures have been introduced has been constantly criticized by many lawyers, in essence due to the lack of a sufficient legal basis for the ministerial decree. On 31 March 2021, the Court of first instance of Brussels, in the framework of summary proceedings, has declared the Ministerial Decree of 28 October 2020 and its subsequent Decrees illegal. On the following link you will find a copy of this ruling and below, we provide you with our first findings with regard to this decision.

I. Who has launched the procedure and what was the object of the procedure?

The procedure has been initiated by the Belgian League of Human Rights and an individual against the Belgian State, represented by the Ministry of Internal Affairs and the Ministry of Justice.

In the framework of this action, the claimants asked the judge, among others, to prohibit the Belgian State to take any measure in order to enforce the Ministerial Decree, to withdraw the measures which have already been taken in application of the Royal Decree and to take the necessary measures in order to end the violation of the essential rights.

II. What is the content of the ruling?

In the ruling, the judge comes to the conclusion that the Ministerial Decree of 28 October 2020 and its subsequent decrees violate a number of fundamental rights guaranteed by the constitution and certain international treaties.

Consequently, the judge has decided to set aside the application of the Ministerial Decree, on the basis of article 159 of the Belgian Constitution, which provides that the courts are only held to apply decrees insofar as they are in accordance with the law.

III. Why is the court’s ruling so important?

The judge in summary proceedings has investigated whether the corona measures had a sufficient legal basis. Constitutionally guaranteed rights can only be limited or suspended via a law, voted in the parliament. The Ministerial Decree is not a law, but a unilateral document, established by a minister, which is not discussed, neither approved by the parliament.

In the Ministerial Decree, the minister has invoked several laws, in order to justify the measures taken in the decree. One of these laws is the law of 15 May 2007 on the civil security, which allows the government to intervene briefly (such as requisitions and evacuation measures) in order to save and assist people in case of sudden disasters, such as a chemical plant exploding or a train derailing. With regard to the Ministerial Decree, the judge has decided that this law does not constitute a sufficient legal basis in order to justify the far-going restrictions of the fundamental rights mentioned above. According to the judge, these measures cannot be considered as “requisition or evacuation measures” covered by the law of 15 May 2007.

IV. What will happen now?

A first consequence of the ruling is that the Belgian State is forced to take actions.

In the decision, the judge condemns the Belgian State to take all appropriate measures in order to put an end to the illegal restriction of fundamental rights, resulting from the Ministerial Decree of 28 October 2020.

According to the judge, these measures must be taken within a time period of 30 days, i.e. at the latest on 1 May 2021.

The government is already working since several months on a “pandemic law”. This law should provide for a sufficient legal basis for the Covid-19 measures, since it will be discussed and approved by the parliament. The project of the law is however already strongly criticized by many specialists.

A second consequence relates to the validity and the consequences of the covid-19-measures which have been applied until the ruling. These measures have caused an important prejudice to many actors in our society: economic actors had to shut down or reduce their activity, employers had to take far-going measures, numerous public events were canceled, etc.

The whole question is whether those who were disadvantaged due to the (illegal) Covid-19-measures could claim compensation from the Belgian State. Another question is whether the fines, which were imposed by the authorities until now can be challenged.

Such arguments have been advanced, not only on the basis of the illegality as such of the Ministerial Decree, but also because of the inaction of the Belgian State to provide timely a legal and democratic basis for these measures, measures whose necessity cannot be disputed.

Do not hesitate to contact us, should you have any further questions.


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