The administration of justice before the Council for Permit Disputes is changing. By doing so, the Flemish decree maker aims to achieve a more solution-oriented jurisdiction. The amending decree was published on June 14, 2021, in the Belgian Official Gazette; the amendments came into effect (for the most part) on June 24.
THE MAIN MODIFICATIONS
- the permit holder (or the person making the notification) is automatically considered a full litigant and not merely a potentially interested third party. This makes sense since the permit holder has the closest link to its application and, typically, wishes to defend it.
- the interest in the plea on the part of the requesting party is refined. Specifically, the amendment intends that a requesting party must be aggrieved by the illegality it invokes. In addition, the illegality invoked must manifestly serve to protect the interests of the person invoking it. Finally, there is a “duty of care” on the requesting party: the requesting party must not have manifestly failed to invoke the illegality invoked at the useful time when it could be invoked (and thus possibly rectified) during the administrative proceedings.
While the Flemish decree maker is tightening the interest requirement through the current decree, the Constitutional Court, in a very recent judgment of June 17, 2021, ruled that a mere “commercial interest” can suffice to initiate an appeal to the Council for Permit Disputes (GWH June 17, 2021, no. 92/2021, from recitals B.11 et seq.)
The Constitutional Court articulates this as follows:
“B.16. From what has been mentioned in B.13 to B.15, it appears that neither the text of the provision at issue, nor its parliamentary preparation, allows one to conclude that the decree-maker intended to deny access to the Council for Permit Disputes in a generalized manner to persons who make it appear that they have a purely commercial interest.”
Wonder if this case law holds up in light of the amending decree.
OTHER ADJUSTMENTS, BUT NO LESS RELEVANT
- the mediation process is simplified.
- The Council’s power of substitution, which already exists, is further extended. Whereas previously the Council could only substitute itself in case of a bound power, it is now given the possibility to substitute itself, in case a legality obstacle exists which de facto reduces the discretionary power of the licensing authority to a bound power.
- the requesting party will now have to pay the rolling fees simultaneously with the filing of its petition whereas currently it has to do so only after filing the petition and after being invited to do so by the Council within a period of 15 days.
- Even in a suspension procedure it will already be possible to award a procedural indemnity. Under the old rules, this was only possible in the context of a decision on the merits (i.e. on the annulment appeal). This also reduces the risk of ill-considered suspension proceedings.
Do you already have an environmental file with LAWTREE and wonder if these changes will affect your file or would you like more information on the changes an sich?
