Authors: Joost Peeters, Ruben Brosens en Simon Geens at STUDIO | LEGALE Advocaten in Belgium

A summary order was issued in this regard on March 31, 2021. The Frenchspeaking court of first instance in Brussels ruled in the aforementioned order that the Belgian state had no valid legal basis for issuing the ministerial decrees imposing the corona measures on all Belgians as of October 28, 2020. The corona measures are thus found to be unlawful!

The Belgian State has 30 days, counting from the service of the summary order, to put an end to this unlawfulness. This order is accompanied by a penalty of € 5,000.00 per day of delay in the event of non-compliance with the 30-day deadline, with a maximum of € 200,000.00.

Since the beginning of the corona crisis that affected our country, the Belgian State has taken a series of measures to limit the spread of the virus.

To this end, the Belgian State has adopted a series of ministerial decrees that have gradually curtailed the fundamental freedoms of Belgians.

The non-profit association Ligue des Droits Humains had therefore decided to initiate summary proceedings to stop the violations of fundamental rights and freedoms by the Belgian State, which it defends and maintains.

The court ruled that the measures taken by the executive power since March 2020 restrict the public freedoms enshrined in the Constitution and international human rights instruments through the obligation to work at home, a curfew, a ban on gatherings in public and private places, the closure of educational institutions, the closure of cultural sites and so-called nonessential professional activities, and that in many cases these measures are accompanied by criminal sanctions.

The legal basis on which the Belgian State relies to make these ministerial decisions is the law of May 15, 2007 on civil security and more specifically articles 181, 182 and 187.

It should be noted that this law of 15 May 2007 was adopted in response to the Gellingen disaster and aims to deal with the consequences of this disaster for the organization of emergency services, in order to significantly improve the assistance to citizens from emergency and fire stations by reorganizing emergency zones and operational units at the supra-local level through new legal entities.

The court decided that this situation related to the Covid 19 pandemic was not covered by the May 15, 2007 law. According to the Court, "the urgency of the initial phase of the epidemic could have explained the need to invoke the Law of 15 May 2007, but it no longer seems justified to invoke it months after the emergence of the health crisis, of which we recognize the more than complex difficulties for the Belgian State, without justifying the evasion of the principle of legality required for any restriction of fundamental rights for months and now for more than a year (...)" (free translation from French)

The Law of 15 May 2007 does not constitute a sound legal basis for restrictions on constitutional rights and freedoms. Article 4 of the Law of 31 December 1963 on Civil Protection and Article 11 of the Law of 5 August 1992 on the Police Service regarding police care were also not considered by the court as adequate legal bases!

Another legality issue concerned the stereotypical justification on the urgency of not waiting for the opinion of the Legislation Department of the Council of State (“Raad van State”), as it has been adopted since the Ministerial Decree of October 28, 2020.

In short, the court finds that the Ministerial Decree of October 28, 2020 and the subsequent decrees unlawfully infringe upon the fundamental rights and freedoms enshrined in the Constitution and in international instruments.

Because of their manifest unlawfulness, the application of these decision must be set aside.

The Belgian State has a period of 30 days from the notification of the decision to put an end to the current illegality, under penalty of a fine of €5,000.00 per day.

The State is thus obliged to enshrine the measures taken in a law. The government is already working on this, as a pandemic law is currently before the Chamber of Representatives (“Kamer van Volksvertegenwoordigers”).

This decision is very interesting for all Belgians, but one should not forget that the Belgian State still has the possibility to appeal this decision at the Court of Appeal in Brussels.

We will of course keep you informed of any appeal by the Belgian State, or of its compliance with this order. It became clear today that Minister Verlinden has announced that the Belgian State will appeal. Below you will find a number of references to press articles on this subject.

To be continued...

https://www.standaard.be/cnt/dmf20210331_94032383?_section=61281349&utm_source=standaard&utm_medium=newsletter&utm_campaign=breakingnews&adh_i=ca2711cb71635d345b09185cc29a14ea&imai=&M_BT=267225461311

https://www.vrt.be/vrtnws/nl/2021/03/31/reacties-op-vonnis-tegen-debelgische-coronamaatregelen/

https://www.hln.be/binnenland/minister-verlinden-gaat-in-beroep-tegenvonnis-huidige-coronamaatregelen-blijven-van-toepassing~ab670e61/

Do not hesitate to contact us for further questions and/or assistance. You can always reach us at telephone number: 03/216.70.70 or by e-mail at mail address: joost.peeters@studio-legale.be.

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