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Verdussen, Marc --- "Belgium" [2016] ELECD 662; in Bell, John; Paris, Marie-Luce (eds), "Rights-Based Constitutional Review" (Edward Elgar Publishing, 2016) 346

Book Title: Rights-Based Constitutional Review

Editor(s): Bell, John; Paris, Marie-Luce

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784717605

Section: Chapter 9

Section Title: Belgium

Author(s): Verdussen, Marc

Number of pages: 28

Abstract/Description:

In Chapter 9 on Belgium (‘The Belgian experience of rights-based review: has the Constitutional Court become a body subordinated to the European Court of Human Rights’), Verdussen explains that, having established a fully-fledged Constitutional Court on the Kelsenian model, Belgium has witnessed a progressive extension of the jurisdiction of its court. The jurisdiction of the Constitutional Court now includes fundamental rights as enshrined in the Constitution, though not comprising those rights guaranteed under international treaties and conventions. Verdussen analyzes the ways in which the court has adapted to the influence of international and European norms by elaborating on two specific interpretative judicial methods in rights-based litigation, namely the ‘combination method’ and the ‘reconciliation method’. The other focus of the analysis is on the articulation in the Belgian legal system of the different review mechanisms, featuring a dichotomy between a centralized constitutional review operated by the Constitutional Court against rights protected under the Constitution, and a decentralized form of review operated by ordinary courts against mainly rights guaranteed under the European Convention on Human Rights. The Belgian example vividly illustrates the adaptability of the Constitutional Court and the responsiveness of its review system to external standards. However, it also illustrates the difficulties that the court faces in determining its primary role—whether the protection of rights or the protection of the operation of the federation—as it has arguably become involved in a relationship of quasi-subordination with the ECtHR.