The legal bases of the measures enacted in Belgium since the beginning of the health crisis have been the subject of intense debate for months. Paraphrasing Victor Hugo in Les Misérables, a cloud had been forming in the Belgian legal system for the space of 12 months. After 12 months, it burst with a thunderbolt: a Court order giving the government 30 days to adapt the legal bases of the health measures.

Since the beginning of the health crisis in March 2020, Belgium has been living under a de facto regime of exception. As the Belgian Constitution does not provide de jure for the possibility of a state of emergency, Belgian authorities have had to be creative about the law in order to respond to the challenges of the pandemic. As explained in the Compendium, the health measures adopted in Belgium to fight the spread of the pandemic (lockdowns, social distancing, etc) have all been enacted in ministerial decrees from the Minister for Home Affairs and are based on three legislative acts: the Civil Protection Act 1963, the Police Force Act 1992, and the Civil Security Act 2007. However, over time, lawyers, civil society, and some first instance judges have increasingly doubted the suitability of the legal bases relied upon by the government for the health measures. These doubts have led the government to prepare a Pandemic Act, which is currently discussed in the Belgian federal Parliament and should give a firmer legal basis to the health measures, while increasing the role of Parliament in the management of the pandemic (see C. Lanssens, “Belgian Federal Parliament ‘comes out of quarantine’: current debates around the adoption of a new ‘Pandemic Act’”).

On 31 March 2021, however, the French-speaking Court of First Instance of Brussels ruled, in emergency proceedings, in favour of the ‘Ligue des droits humains’ and the ‘Liga voor Mensenrechten’ – two Belgian non-profit organisations defending human rights – which argued that the health measures adopted so far lacked sufficient legal basis. According to the judge, the three acts relied upon by the Minister for Home Affairs for her ministerial decrees did not allow the Minister to decide, for example, the closure of hotels, restaurants, or bars. A Belgian musician, previously fined for having given public concerts in violation of the health measures, is also a party to the case.

In her decision, the Brussels Court of First Instance further decided to set aside the ministerial decrees enacting the health measures and ordered the Belgian State to take all appropriate measures to put an end to the situation of apparent illegality resulting from the lack of legal basis for the health measures in place. In short, the Court gave the Belgian State 30 days to provide a new legal basis to the health measures or face a penalty of €5,000 per day of delay, with a maximum amount of €200,000. In so judging, the Court has put pressure on the legislature to speed up the process of adopting the abovementioned Pandemic Act. A similar decision was later adopted by the same Court in another case.

Three main comments can be made regarding this decision from the Brussels Court of First Instance.

Firstly, Belgium’s current health measures remain applicable despite the decision from the Court. They have not been repelled by the Court.

Secondly, the decision from the Court was adopted in summary proceedings, which means that the decision is based on a prima facie assessment of the merits of the case. Furthermore, the decision is not binding on other judges. Other judges could therefore, in theory at least, decide that the legal bases currently used by the Belgian government to adopt health measures are sufficient. It should also be noted that the amount of €200,000 that the Belgian State might have to pay if it does not comply with the decision is a limited incentive, as it is relatively low.

Thirdly, while the decision has been welcomed by some observers who had been disappointed by the case law of the Council of State so far, it has also been criticised. The decision was said to lack clarity, to have an inadequate reasoning, to have erred in law and, overall, to step on the toes of the Council of State which is the natural judge of administrative action. Dimitri Yernault, for instance, criticises the reasoning of the Court according to which the health measures would have ‘lost’ their legal basis over time, with the evolution of the sanitary situation and the length of the pandemic: according to him, 'there is or there is not a legal basis for an administrative act such as a ministerial decree.'

Relying on the fact that the Council of State as well as several courts had previously ruled that the current legal bases of the health measures were sufficient, the Belgian State filed an appeal against the decision of the Court of First Instance and asked the Brussels Court of Appeal to overturn the decision. Under emergency proceedings, the appealed decision remains applicable during the appeal proceedings. This means that the daily penalty payments could be requested by the claimants by the end of April if no new legal basis is provided for the health measures before then.

Initially, the Court of Appeal was expected to decide on the case by 30 April 2021. However, on 27 April, the Court decided to reopen the proceedings to hear the parties’ submissions on an opinion issued by the Council of State on the most recent health measures (Ministerial Decree of 24 April 2021). In the same decision, the Brussels Court of Appeal further ruled that the Belgian State should put an end to the discriminatory treatment to which the Belgian musician party to the case was subject, under a penalty of a fine of €250 in the event of violation of that injunction. Relying on Articles 19 and 23 of the Belgian Constitution as well as on the case law of the European Court of Human Rights (the 1988 case of Müller and others v Switzerland), the Court decided that the health measures were discriminatory given that members of the clergy were authorized to celebrate service in front of up to 15 people (with social distancing), while it was not possible for musicians to give public concerts under similar conditions. The Court found that no scientific reason had been advanced by the Belgian State to justify the difference of treatment between these two categories of people.

The next hearing before the Court of Appeal is scheduled on 18 May 2021. The dice has not (yet) been cast…