belgiquelex.be - Carrefour Bank of Legislation

19 JANVIER 2014. - Law reforming the competence, procedure and organization of the Council of State (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
CHAPTER 2. - Amendments to the laws on the Council of State, coordinated on 12 January 1973
Art. 2. Article 14, § 1^erthe following amendments are made:
1° in paragraph 1^er, the words "La section statue" are replaced by the words "If the contentious is not attributed by law to another jurisdiction, the section statue";
2° in paragraph 1^er, 2°, the words "of the Supreme Council of Justice relating to public procurement and staff members" are replaced by the words "of the Supreme Council of Justice, relating to public procurement, staff members, recruitment, designation, appointment in a public service or disciplinary measures";
3° a preambular paragraph is inserted between subparagraphs 1^er and 2:
"The irregularities referred to in paragraph 1^er only give rise to a cancellation if they have been likely to exercise, in this case, an influence on the meaning of the decision taken, have deprived the persons concerned of a guarantee or have the effect of affecting the competence of the perpetrator of the act. ";
4° in paragraph 2, which becomes paragraph 3, the words "to the acts and regulations referred to in 2°" are replaced by the words "to the acts and regulations referred to in paragraph 1^er2°.
Art. 3. Section 14ter of the same Acts, inserted by the Act of 4 August 1996, is replaced by the following:
"Art. 14ter. At the request of an opposing party or intervener, and if the administrative litigation section considers it necessary, it shall indicate the effects of the individual acts cancelled or, by way of a general provision, those effects of the cancelled regulations, which shall be considered final or maintained provisionally for the time it determines.
The measure referred to in paragraph 1^er may be ordered only for exceptional reasons justifying infringement of the principle of legality, by a specially motivated decision on this matter and after a conflicting debate. This decision may take into account the interests of third parties. ".
Art. 4. In article 15 of the same laws, the words "revocation" are replaced by the words "revocation".
Art. 5. In section 16 of the Act, last amended by the Act of September 15, 2006, the following amendments are made:
1° the single paragraph, which becomes paragraph 1^er, is completed by an 8°, written as follows:
"8° on any other recourse of full jurisdiction granted to the Council of State."
2° the article is supplemented by a paragraph written as follows:
"The decision of the administrative litigation section can reform the decision taken by the administrative authority or jurisdiction. In this case, the decision replaces this decision.".
Art. 6. Section 17 of the Acts, replaced by the Act of 19 July 1991 and amended by the Acts of 4 August 1996 and 15 September 2006, is replaced by the following:
"Art. 17. § 1^er. The administrative litigation section is only competent to order by judgment, the parties heard or duly called, the suspension of the execution of an act or regulation that may be cancelled under section 14, §§ 1^er and 3, and to order all necessary measures to safeguard the interests of the parties or persons who have an interest in the solution of the case.
Such suspension or interim measures may be ordered at any time:
1° if there is an emergency incompatible with the processing of the case in cancellation;
2° and if at least a serious means likely prima facie to justify the annulment of the act or the regulation is invoked.
Derogation from subparagraphs 1^er and 2, suspension or interim measures may not be requested after the filing of the report referred to in section 24. However, any party that has an interest may, in this case, send a reasoned request to the presiding officer of the request for the determination of the case in an emergency. The request for suspension or interim measures between the filing of the report and its notification shall be assimilated to the substantiated request. The President makes an order on this application. If the emergency appears to be justified, it shall set the matter short-term and no later than two months after receipt of the request, and may adjust the deadlines for filing the last submissions.
§ 2. The application for suspension or interim measures contains a statement of the facts which, according to its author, justify the urgency invoked in support of this request.
At the request of the opposing party or the intervening party, the administrative litigation section takes into account the likely consequences of the suspension of execution or interim measures for all interests that may be adversely affected, including the public interest, and may decide not to access the application for suspension or interim measures where its negative consequences may manifestly outweigh its benefits.
If the administrative litigation section rejects a request for suspension or interim measures due to an emergency deficiency, a new application may only be filed if it relies on new elements justifying the urgency of the application. The administrative litigation section may also set a time limit in which no new requests for suspension or interim measures may be filed if the only new element invoked is the flow of time.
§ 3. Decisions on a request for suspension or interim measures are not subject to opposition or third-party opposition and are not more subject to review.
Orders by which suspension or interim measures have been ordered may be reported or amended at the request of the parties.
§ 4. In extreme emergency cases incompatible with the time limit for processing the application for suspension or interim measures referred to in paragraph 1^erthe suspension or interim measures may be ordered, even prior to the introduction of a cancellation appeal, in a procedure that derogates from the suspension and interim measures referred to in paragraph 1^er.
Where appropriate, such suspension or interim measures may even be ordered without all parties being convened. In this case, the order ordering the provisional suspension or interim measures shall call upon the parties at short notice to the board that decides on the confirmation of the suspension or interim measures.
The suspension and interim measures that were ordered prior to the introduction of the application for the annulment of the act or the regulation will be immediately lifted if it appears that no request for annulment on the grounds that had justified them was filed within the time limit set out in the Rules of Procedure.
§ 5. The President of the Chamber or the State Councillor whom he designates shall rule within forty-five days on the request for suspension or interim measures. If the suspension or interim measures have been ordered, it shall be decided on the request for cancellation within six months of the decision.
§ 6. The administrative litigation section may, in accordance with an expedited procedure determined by the King, cancel the act or the regulation if, within thirty days from the notification of the order that orders the suspension or interim measures or confirms the provisional suspension or interim measures, the opposing party or the party who has an interest in the solution of the case did not apply for the continuation of the proceedings.
§ 7. There is in the head of the requesting party a presumption of discontinuance of proceedings where, as the application for suspension of an act or regulation or the application for interim measures has been rejected, the requesting party does not file a request for further prosecution within thirty days of the notice of the order.
§ 8. The order that orders the suspension, provisional suspension of the execution of an act or regulation or interim measures may, at the request of the requesting party, impose an obligation on the authority concerned. In this case, Article 36, §§ 2 to 5, is applicable.
§ 9. In the event that the suspension of execution or interim measures is ordered for the diversion of power, the case is referred to the general assembly of the administrative litigation section.
If the general assembly does not cancel the act or the regulation under attack, the suspension or interim measures immediately cease their effects. In this case, the case is referred for consideration of other possible means to the chamber that was initially seized.
§ 10. If the board competent to decide on the merits does not cancel the act or regulation that is the subject of the appeal, it shall lift the orderly suspension and the interim measures. ".
Art. 7. In section 19 of the Acts of 6 May 1982, 24 March 1994, 25 May 1999, 17 February 2005 and 15 September 2006, the following amendments are made:
1° in paragraph 1, the number "6°" is replaced by the number "8°";
2° in paragraph 2, the words "knowledged the act or the decision of individual scope" are replaced by the words "was notified of the act or decision within individual scope";
3° a paragraph written as follows is inserted between paragraph 2 and paragraph 3:
"Where a claim is filed against an act or regulation that may be appealed within the meaning of Article 14, § 1^er, with a person who has the function of mediator by law, decree or order, within one of the limitation periods referred to in paragraph 2, this period shall be suspended for the author of that claim. The unexpired portion of this period takes place either at the time the claimant is informed of the decision not to process or reject his claim, or at the expiry of a four-month period beginning with the introduction of the claim, if the decision has not taken place earlier. In the latter case, the claimant justifies it by a certificate from the mediator concerned."
4° in paragraph 4, which becomes paragraph 5, the words "paragraph 3" are replaced by the words "paragraph 4";
5° the article is supplemented by a paragraph, as follows:
"Unless proven otherwise, the lawyer is presumed to have been mandated by the person who is able to claim to represent."
Art. 8. Section 21 of the Acts, replaced by the Act of 17 October 1990 and amended by the Acts of 25 May 1999 and 15 September 2006, is replaced by the following:
"Art. 21. The deadlines for the parties to submit their submissions, administrative records or documents or information requested by the Administrative Disputes Section are set by a Royal Decree to be issued by the Council of Ministers.
When the requesting party fails to comply with the deadlines for the submission of the reply brief or the ampliative memory, the section shall decide without delay, the parties heard at their request, noting the required interest.
Where the opposing party fails to transmit the administrative record within the time limit, the facts cited by the requesting party are deemed to be proven, unless these facts are manifestly inaccurate.
When the administrative record is not in possession of the opposing party, it shall promptly notify the board of appeal.
The board, at the request of the member of the designated auditor or at the request of a party, may order the filing of the administrative record with a stay in accordance with section 36.
The submissions made by the opposing party are deviated from the debates on an ex officio basis when they are not introduced within the time limits set out in paragraph 1^er.
There is, in the head of the requesting party, a presumption of discontinuance of proceedings where the appellant does not file a request for prosecution within thirty days of the notification of the auditor's report or at the communication that article 30, § 1^er, paragraph 3, is applied and is proposed to reject or declare the appeal inadmissible. ".
Art. 9. Section 21bis of the same Acts, inserted by the Act of 17 October 1990, replaced by the Act of 25 May 1999 and amended by the Act of 15 September 2006, is replaced by the following:
"Art. 21bis. Those who have an interest in the solution of the case may intervene. The board may, ex officio or at the request of the member of the designated auditory or a party, call for intervention those whose presence is necessary for the cause.
The intervener in support of the request may not raise any other means other than those that have been formulated in the introductive request for a proceeding. ".
Art. 10. In section 30 of the Act, replaced by the Act of 17 October 1990 and amended by the Acts of 4 August 1996, 18 April 2000, 2 August 2002, 17 February 2005 and 15 September 2006, the following amendments are made:
1° in paragraph 1^erParagraph 1^erthe words "articles 11, 12, 13, 14, 16, 17, 18 and 36" are replaced by the words "articles 11, 12, 13, 14, 14ter, 16, 17, 30/1, 36 and 38";
2° paragraph 1^erParagraph 2 is replaced by the following:
"The royal decree referred to in paragraph 1 shall, in particular, determine the time limits for the introduction of requests and remedies provided for in articles 11 and 14, which must be at least sixty days; sets out the conditions for the exercise of interventions, oppositions and third-party oppositions, as well as remedies for review; it sets an amount beyond which no infringement is incurred; sets out the allocation of the means allocated to the budgetary fund referred to in Article 36, § 5; it sets fees, costs and fees, which may not exceed an amount of Euro225; it provides for the granting of second-line legal aid to the indigent; sets out procedures for the payment of costs, expenses and fees; it determines the cases in which the parties or their lawyers may jointly decide that the case should not be dealt with in public meetings. ";
3° in paragraph 1^er, a paragraph that reads as follows is inserted between paragraph 2 and paragraph 3:
"The Royal Order referred to in paragraph 1 shall determine the specific terms and conditions of the procedure for the examination of a request for cancellation after the suspension has been ordered and the cases where, after the suspension has been decided on the application for suspension, the member of the designated auditor shall not establish a new report, as well as the rules that must be followed in this regard. ";
Paragraph 2, paragraph 1^er, is supplemented by the following sentence:
"This particular procedure may be implemented if the auditor proposes it in his report or if one of the parties requests it, at the latest at the hearing, on the basis of the report tabled by the auditor during his examination of the suspension application. ";
5° Paragraph 2 is supplemented by a paragraph which reads as follows:
"The King shall, by order deliberately in the Council of Ministers, establish the special rules of procedure to avoid the cancellation of an act or regulation by the application of the administrative loop referred to in section 38, where the urgency invoked in support of the application for suspension is established and the auditor has examined all means. The administrative loop can only be applied if the opposing party has previously accepted its application. ";
6° in paragraph 3, the words "of article 17, § 4" are replaced by the words "of paragraph 1^er3";
Paragraph 5, paragraph 1^er paragraphs 6 to 9 are repealed.
Art. 11. In the same laws, an article 30/1 is inserted as follows:
"Art. 30/1. § 1^er. The Administrative Litigation Section may grant a procedural award that is a lump sum intervention in the legal fees and fees of the party who has been successful.
After taking the advice of the Order of French-speaking and German-speaking Bars and the "Orde van Vlaamse Balies", the King establishes by order deliberately in Council of Ministers the basic, minimal and maxima amounts of procedural compensation, in particular according to the nature of the case and the importance of the dispute.
§ 2. The administrative litigation section may, by a specially motivated decision, either reduce the allowance or increase it, without exceeding the maximum and minimum amounts provided by the King. In her assessment, she takes into account:
1° of the financial capacity of the succumbing party, to decrease the amount of the allowance;
2° the complexity of the case;
3° of the manifestly unreasonable character of the situation.
If the succumbing party benefits from second-line legal aid, the procedural allowance shall be set to the minimum amount determined by the King, except in cases of manifestly unreasonable situation. On this point, the administrative litigation section specifically motivates its decision to decrease or increase.
Where a number of parties are entitled to the dependant procedural allowance of one or more succumbing parties, the maximum amount of the maximum procedural allowance may be claimed by the recipient who is entitled to claim the highest compensation. It is distributed among the parties by the administrative litigation section.
No party may be required to pay compensation for the intervention of a lawyer of another party beyond the amount of the procedural allowance. Intervening parties may not be required to pay or benefit from this allowance. ".
Art. 12. Chapter III of title V of the same coordinated laws, entitled "De l'astreinte", reinstated by the law of 17 October 1990 and comprising section 36, itself amended by the law of 20 July 1991, is replaced by a new chapter III, comprising sections 35/1 and 36, as follows:
"Chapter III: Execution of arrests and confinement
Art. 35/1. At the request of one of the parties no later than in the last brief, the administrative litigation section specifies, on the grounds of its termination, the measures to be taken to remedy the illegality that led to this cancellation.
Art. 36. § 1^er. Where the decision implies that the authority concerned takes a new decision, the administrative litigation section, having an application in that direction, may order by this decision that this decision shall take place within a specified period of time. It may order it by a subsequent judgment, provided that the party to the request of which the cancellation has been made has, in advance and by a recommended letter, the authority remains to make a new decision and that at least three months have elapsed since the notification of the cancellation order.
When the new decision to be taken results from a related jurisdiction of the opposing party, the decision replaces it.
When its decision implies that the authority concerned refrains from making a decision, the administrative litigation section, having an application in that direction, may order such an obligation of forbearance.
§ 2. If the adverse party concerned fails to fulfil the obligation imposed under paragraph 1^er, the party to the request of which the cancellation has been pronounced may request the administrative litigation section to impose a breach on that authority or to order it, under penalty of a breach, to withdraw the decision that it would have taken in violation of the obligation of forbearance arising from the cancellation order.
The administrative litigation section may set the offence either to a total amount or to an amount per unit of time or per offence.
§ 3. The chamber that pronounced the offence may, at the request of the convicted authority, cancel the offence, suspend the term of the sentence for a period to be fixed by the convicted person or reduce the offence in the event of permanent or temporary or partial impossibility for the convicted authority to satisfy the main sentence. As long as the frame is incured before this impossibility, the room cannot cancel or decrease it.
The party to the request of which an infringement has already been imposed may ask to impose an additional cover or to increase the imposed cover in case the opponent remains in a persistent manner in default of performing the cancellation order.
§ 4. The provisions of Part 5 of the Judiciary Code relating to seizure and enforcement are also applicable to the enforcement of the order imposing an offence.
§ 5. The summons referred to in paragraph 2 shall be executed at the request of the party to the request for which it was imposed and to the intervention of the Minister of the Interior. It is allocated for half to a budgetary fund within the meaning of the Organic Law of 27 December 1990 creating budgetary funds. This fund is referred to as the "Framework Management Fund". The other half is paid to the party at the request of which the respondent was imposed.
The means allocated to this fund are used for the modernization of the organisation of administrative jurisprudence. ".
Art. 13. In title V of the same laws, after section 37, a chapter V entitled "Chapter V. From the administrative loop" including Article 38, re-established in the following wording:
"Art. 38. § 1^er. In the event of a cancellation appeal referred to in article 14, § 1^er, the administrative litigation section may charge the opposing party, by interlocutory arrest, to correct or correct a vice in the act or by-law under attack.
The use of this administrative loop is subject to the ability of the parties to comment on its use.
The interlocutory decision sets out the terms of the correction as well as the time limit in which it must intervene. This period may be extended at the request of the opposing party. If the correction requires a new act or regulation, the subject matter of the appeal shall be extended to that act or regulation.
The correction can only relate to defects in the interlocutory decision. Correction of these defects may not affect the content of the act or the regulation.
§ 2. The administrative loop cannot be applied when:
1° the vice is not likely to be corrected within a period of three months, except to demonstrate that it may be corrected within a reasonable time;
2° the decision-making power of the opposing party is not sufficient to correct the vice;
3° the opposing party expressly refuses the application of the procedure;
4° the correction of the vice cannot definitively end the current procedure.
§ 3. When the application of the administrative loop is proposed only in the interlocutory order, the parties have a fifteen-day period from the date of notification of the decision to communicate their views on the application of the decision.
The administrative litigation section then decides on the application of the administrative loop in accordance with paragraph 1^er.
§ 4. As soon as the opposing party has executed the interlocutory order referred to in paragraph 1^er, it immediately informs the Council of State in writing and specifies how the vice was corrected. If the Council of State has not received a notification within fifteen days of the expiry of the period of compensation set by interlocutory arrest, the act or settlement under attack is cancelled.
The other parties may, within fifteen days of the time when the Administrative Disputes Division notify them of the manner in which the Vice has been corrected, submit their comments on this point.
If the administrative litigation section finds that the defect has not been completely corrected or that the correction is entered into new defects, the deed or settlement corrected, or, where applicable, the new deed or the new regulation is cancelled.
If the vice has been completely corrected, the administrative loop operates with retroactive effects and the appeal is rejected."
Art. 14. In Article 70, § 2, the same laws, as amended by the laws of 24 March 1994, 6 May 1997, 8 September 1997, 15 September 2006 and 21 February 2010, the following amendments are made:
1° in paragraph 1^er, 1°, the words "the referendum contest to the Court of Cassation," are inserted between the words "the referendum contest to the Constitutional Court," and the words "the assistant auditor contest to the Court of Accounts";
2° in paragraph 1^er, 2°, the words "at least 15" are replaced by the words "class A4 at least";
3rd paragraph 1^er is completed by the 6th written as follows:
"6° having for at least twenty years worked as a lawyer as a principal professional activity or having exercised for at least twenty years a function whose exercise requires a good knowledge of the law, of which at least fifteen years as a lawyer. The requirement for a useful professional experience referred to in paragraph 1^er is satisfied by the compliance with this condition. ";
Paragraph 2 is repealed;
5° in paragraph 3, the words "of each linguistic role" are inserted between the words "State advisers" and the words "are, for at least half of their number,".
Art. 15. Article 72, § 1^erthe same laws, as amended by the laws of 17 October 1990, 25 May 1999 and 15 September 2006, are amended as follows:
1st paragraph 1^er is replaced by the following:
"The clerks are appointed by the King on a list indicating the order of their classification to a contest whose general assembly of the Council of State determines the conditions. The jury to examine the candidates includes two members of the Council of State, a member of the auditorium, the Chief Clerk or the person he designates, as well as a person outside the institution. The members of the Council of State and the foreign person to the institution are appointed by the General Assembly of the Council of State. The auditor is designated by the Auditor General or the Assistant Auditor General, according to the candidate's linguistic role. The duration of the contest is three years."
2° in paragraph 2, 2°, , the words "2+" are replaced by the words "B or 2+".
Art. 16. In Article 73, § 3, of the same laws, as amended by the Act of 31 December 1983, the following amendments are made:
1° in paragraph 1^er, the words ", two listeners" are inserted between the words "at least one member of the Council of State" and the words "and one member of the registry";
2° Paragraph 2 is repealed.
Art. 17. Article 74/2, § 5, paragraph 1^er, 2°, f), the same laws, inserted by the law of 15 September 2006 and amended by the law of 21 February 2010, the number "1" is replaced by the words "A or 1".
Art. 18. In section 74/3 of the same laws, inserted by the law of 15 September 2006, the following amendments are made:
1st paragraph 2, paragraph 2, is supplemented by the words "to the functions of first president and president";
2° in paragraph 2 a paragraph written as follows is inserted between paragraph 2 and paragraph 3:
"The auditorium's body assembly shall hear ex officio candidates for the functions of general auditor and deputy auditor general. For the purposes of this article, the body assembly is composed of all the members of the auditorium, with the exception of the assistant auditors. The first President and the President of the Council of State shall assist with an advisory vote."
3° in paragraph 2, paragraph 3, which becomes paragraph 4, the words "The General Assembly of the Council of State proceeds," are replaced by the words "The General Assembly of the Council of State or the Body Assembly of the Auditorate proceeds, each with respect to it,"
4° in paragraph 2, paragraph 4, which becomes paragraph 5, the words "or the body assembly of the auditorium" are inserted each time, in the first and third sentences, after the words "State Council";
5° in paragraph 2, paragraph 5, which becomes paragraph 6, the words "the State Council" are replaced by the words "the General Assembly of the State Council or the Body Assembly of the Auditorate";
6° in paragraph 3, paragraph 1^er, the words "of the State Council or the body assembly of the auditory" are inserted after the words "general assembly";
7° in paragraph 3, paragraph 2, the words "or the body assembly of the auditorium" are inserted after the words "State Council";
Paragraph 3, paragraph 3, is repealed.
Art. 19. In section 74/4, § 2, the same laws, inserted by the law of 15 September 2006, paragraph 1^er is replaced by the following:
"Deputies to Assistants are valid for a period of three years, renewed in full law, except in the event of insufficient assessment. After nine years of exercise of the function, the relevant mandate holders are, except in the event of an insufficient assessment, designated as a permanent right in that mandate.".
Art. 20. Section 74/7 of the Act, inserted by the Act of 15 September 2006, is replaced by the following:
"Art. 74/7. § 1^er. With the exception of the heads of bodies, the members of the Council, the auditory and the coordinating office, the Chief Clerk and the Clerks are subject to a periodic evaluation that takes place every three years.
This evaluation is conducted over the last four months of the evaluation period.
This assessment is based on criteria relating to the personality and organizational and professional capacities of the incumbent, including the quality of the services provided and the maintenance of knowledge in the subjects treated, without prejudice to his independence or impartiality.
The King determines, after the advice of the College of Chiefs of Body after hearing of all the holders of a Deputy Mandate, the evaluation criteria, taking into account the specificity of the functions and mandates, and defines the terms and conditions for the application of these provisions.
§ 2. During the evaluation period, operating interviews are held at least once every year. These interviews give rise to conclusions in a brief report.
The operating interviews take place between the individual and the room chair, if it is a member of his room, or the section head, if it is a member of his section. If it is a Clerk, the operational maintenance will take place between the individual and the Chief Clerk.
If the operating maintenance concerns a room chair, it takes place between the person concerned and the first president or president, who is responsible for the room concerned. If the person does not belong to the same linguistic role as the board chair and if he is not legally bilingual, he is assisted by a bilingual room president of the linguistic role of the person concerned. If it concerns a first Section Chief Auditor, the operation of the audit will take place between the individual and the Auditor General or the Assistant Auditor General. If it concerns a first deputy head or Chief Clerk, it takes place between the individual and the first president. If the Chief Referendum is not the same linguistic role as the first head of the section concerned or the Chief Clerk and if it is not legally bilingual, the working maintenance shall take place between the person concerned and the president.
§ 3. At the end of the evaluation period, a function holder, with the exception of body leaders, prepares an activity report that it transmits to its assessor. He indicates the activities he carried out for the Council of State during the evaluation period and how he took into account the conclusions made during the working talks.
The evaluation is based on the activity report and maintenance reports.
§ 4. The evaluators are the same as those in the presence of the operating interviews.
The evaluation results in the reference "good", "to be developed" or "insufficient". The mention "insufficient" can only be attributed in cases of manifestly inadequate operation.
§ 5. The evaluator prepares an evaluation project that can already include a reference proposal "to be developed" or "insufficient".
At least 10 days before the evaluation interview, the project is notified to the evaluated against acknowledgement of receipt dated. On the basis of this interview, the evaluator prepares a final assessment, unless the evaluator considers that the evaluator deserves the mention "to be developed" or "insufficient". In this case, the evaluation is only provisional.
In the event of a preliminary assessment, the first President or Auditor General, as it is a member of the Council, the Coordination Office or the Registry, on the one hand, or the Auditor General, on the other, sends a copy of the interim assessment to the individual against acknowledgement of receipt dated or by registered letter with acknowledgement of receipt.
The interested party may, under penalty of discontinuation, within 10 days of notification of the provisional assessment, make written comments, against acknowledgement of receipt dated or by registered letter with acknowledgement of receipt, respectively to the first president or to the Auditor General, who attachs the original to the assessment file and transmits a copy to the evaluator. Within thirty days of receipt of the copy of these observations, the latter shall conduct a written and final assessment in which it responds to these observations. Within ten days of the receipt of the final assessment, the head of body shall forward a copy of it to the person against acknowledgement of receipt dated or by registered letter with acknowledgement of receipt.
§ 6. A person who has obtained an "insufficient" statement and has applied paragraph 5, paragraph 4, may appeal against the final assessment within 10 days of the notification of the final assessment, subject to a penalty of loss, to:
1° of an assessment board composed of the first president or president as the case may be, and two chamber chairs of the same linguistic role as the individual who, in the first instance, did not conduct the assessment, if it were members of the Council, the coordination office or the Registry;
2° of an evaluation commission composed of the Auditor General or the Assistant Auditor General as the case may be, and two first auditors heads of section of the same linguistic role as the individual who, in the first instance, did not conduct the evaluation, if it were members of the auditor;
3° of an assessment board composed of the first president or the president who did not intervene during the evaluation and of two chamber chairs belonging to the same linguistic role as the interested party if the latter is a chamber president or a first section chief referendum;
4° of an assessment board composed of the first president or president who did not intervene during the evaluation and two bilingual chamber chairs belonging to a different linguistic role if the person concerned is the chief clerk;
5° of an evaluation commission composed of the Auditor General or the Assistant Auditor General who did not intervene during the evaluation and two other first section auditors belonging to the same linguistic role as the interested party if the latter is a first section auditor.
The appeal is filed with the first president against a receipt or a registered letter against acknowledgement of receipt or, with respect to the members of the auditory, with the Auditor General. A timely remedy suspends the performance of the final assessment.
The assessment board referred to in paragraph 1 shall hear the interested party, if the latter has made the application in its appeal. It has a period of sixty days from the receipt of the appeal, respectively, by the first president or the Auditor General to make a final decision on the evaluation.
§ 7. If a presiding officer, a first chief auditor, a first head of section, or the Chief Clerk, obtains an "insufficient" reference for one of the first three periodic evaluations, he shall, at the expiry of his term, resume the exercise of the position in which he was last appointed, if any overcrowded. Otherwise, his mandate is renewed. The first president or, for a first Chief Auditor, the Auditor General shall transmit to the Minister of the Interior a certificate by which the renewal of the mandate is established. Mandate holders who are appointed on a final basis are subject to the application of paragraph 2.
If another member of the Council, the auditorate, the coordinating office or the Registry obtains, at the time of the periodic assessment, the reference "insufficient", the latter shall, beginning on the first day of the month following the notification of the final assessment, result in the loss for six months of the last three-year increase referred to in Article 3, § 1^er, of the Act of 5 April 1955 on the treatment of holders of office in the Council of State, magistrates and members of the Registry of the Council of Litigation of Aliens.
In the event of an "insufficient" statement, the individual is subject to a new assessment after a period of six months. If it obtains a new "insufficient" reference, paragraph 2 is applied for a further period of six months.
§ 8. The evaluation files are retained by the first President with respect to the members of the Board, the Coordination Office and the Registry, and by the Auditor General with respect to the members of the audit. The evaluations are confidential and can be consulted at any time by the interested parties. They are kept for at least ten years.
During each appointment, presentation or renewal of terms of reference, the assessment file for the last six years of the individual is attached to the attention of the appointing authority. "
Art. 21. In section 76 of the Act, replaced by the Act of 4 August 1996 and amended by the Acts of 25 May 1999, 2 April 2003 and 15 September 2006, the following amendments are made:
1° in paragraph 1^erParagraph 4 is repealed;
2° in paragraph 1^er, paragraph 6, the words "and provided they have more than one year of service" are repealed;
3° in paragraph 1^er, paragraph 7, the third sentence beginning with the words "They also have" and ending with the words "legislative technique." is repealed;
Paragraph 3 is repealed.
Art. 22. In article 77, paragraph 1^er, of the same laws, 5°, repealed by the law of 2 April 2003, is reinstated in the following wording:
"5° to ensure the development and dissemination of the principles of legislative technique. "
Art. 23. In section 84 of the Act, replaced by the Act of 2 April 2003, the following amendments are made:
1° in paragraph 1^erParagraph 1^er, before the 1°, which becomes the 2°, it is inserted a 1°, written as follows:
"1° where the authority that seizes the section of legislation requests the communication of the notice within sixty days, extended to seventy-five days in the event that the notice is given by the General Assembly pursuant to section 85 or by the Chambers convened pursuant to section 85 bis;"
2° paragraph 1^erParagraph 1^er, 1°, which becomes 2°, is completed as follows:
"This period is extended in full 15 days when it takes place from July 15 to July 31 or when it expires between July 15 and August 15.
3° in paragraph 1^erParagraph 1^er"2°" is renumbered as "3°";
4° in paragraph 1^er, paragraph 2, the "2°" is replaced by the "3°";
5° in paragraph 3, paragraph 1^er, the "1°" is replaced by "1° and 2°" and the "2°" is replaced by the "3°";
6° in paragraph 3, paragraph 2, the words "1° or 2°" are repealed;
7° in paragraph 4, paragraph 1^erthe words "1° and 2°" are repealed;
8° in paragraph 4, paragraph 2, the words "1° and 2°" are repealed.
Art. 24. In article 84bis, paragraph 1^er, the same laws, inserted by the law of May 25, 1999, the words "1° and 2°" are repealed.
Art. 25. In article 84ter of the same laws, inserted by the law of 2 April 2003, the "1°" is replaced by "1° and 2°".
Art. 26. In Article 90, § 1^er, paragraph 2, 2°, of the same laws, replaced by the law of 15 September 2006, the words "§§ 4bis and 4ter" are replaced by the words "§ 6 and 7".
Art. 27. In Article 93, § 1^erParagraph 1^er, restored by the law of 19 July 2012, the "6°" is replaced by "8°".
Art. 28. The title of Chapter V of Title VII of the Acts is replaced by the following:
"Chapter V. From the General Assembly of the Council of State and the College of Heads of Body".
Art. 29. In the same laws, an article 101/1 is inserted as follows:
"Art. 101/1. The College of Heads of Corps consists of the first president, the Auditor General, the President and the Deputy Auditor General. The Chief Clerk and the Administrator shall attend meetings of the College with an advisory voice when it comes to their responsibilities. ".
Art. 30. In section 102bis of the same laws, inserted by the Act of 4 August 1996 and amended by the Act of 15 September 2006, paragraphs 5 and 6 are repealed.
Art. 31. Section 104/2 of the Act, inserted by the Act of 15 September 2006, is replaced by the following:
"Art. 104/2. If, in the month of the warning, the member of the Council of State, the Auditorate, the Coordination Office or the Registry did not request his retirement, section 117 of the Act of 14 February 1961 of economic expansion, social progress and financial recovery is applied.
The General Assembly of the Council of State shall decide on the follow-up to the final medical decision, rendered as a last resort, on the advice of the Auditor General or the Deputy Auditor General.
At least 15 days before the date fixed for the General Assembly, the interested party is informed of the day and time of the session at which it may be heard at its request, and is invited to provide its observations in writing.
The decision of the General Assembly shall be notified to the Minister of the Interior within fifteen days of his statement."
Art. 32. Section 119 of the Act, inserted by the Act of 24 March 1994 and amended by the Act of 4 August 1996, is replaced by the following:
"Art. 119. The Council of State shall prepare and publish an annual report of activity.
This report includes:
1° the statistics based on the nature of the litigation or the nature of the requests for advice, showing the number of new cases during that period, as well as the number of cases settled by final decision or by notice during the same period. The report also mentions the total workload of the sections, with the evolution of this work reserve also measured by the number of reports filed or notifications rendered by the auditorate;
2° a presentation of the implementation of the management plans of the heads of bodies;
3° a brief overview of the application in the past judicial year of the admissibility procedure referred to in Article 20;
4° the information relating to the management of the Council of State and its infrastructure and the impact of the evolution of the workload on the means available to the Council of State and a presentation of all measures that may have a budgetary impact. This information is presented according to a division between the management of central services, the auditory and headquarters services. Information on the management of the Council of State includes, at the very least, information relating to the evolution of pending cases and the judicial backlog, including the procedure for the admissibility of cassation appeals, and those relating to the personnel framework and the occupation of the staff.
This report is communicated, if any electronically, to the Minister of the Interior, to the Speakers of the Legislative Assembly, to the General Assembly of the Council of State and to the members of the Auditorate no later than 31 December."
Art. 33. In the same laws, the title IX, "Measures to Resolve Jurisdictional Surgery", inserted by the law of September 15, 2006, is supplemented by the words "and to face the increase in the number of requests for notice".
Art. 34. Section 122 of the Act, inserted by the Act of 15 September 2006, is replaced by the following:
"Art. 122. § 1^er. In order to recover or prevent delay in the administrative litigation section or to face the workload in the legislation section, the number set out in article 69, 1°, is increased from 44 to 50 and from 28 to 34 respectively, or increased by three State advisers by language role.
These incumbents are primarily responsible for contributing to the resorption or prevention of the delay of the administrative litigation section, or to the care of work in the legislative section, in the legal areas where the delay, existing or expected, and the workload are the most important. These legal areas are designated by the first president or president, according to the section concerned, after consultation with the chairs of the chambers concerned. Without prejudice to the possible application of section 86, paragraph 2, the first president or the president shall assign these incumbents of office to one or more rooms according to the needs of these chambers.
The temporary increase referred to in paragraph 1 is terminated^er December 31, 2015. However, on the motivated proposal of all heads of bodies, the number of state councillors referred to in Article 69, 1°, may, if necessary, be increased by royal decree deliberated in the Council of Ministers to the maximum of three state councillors by linguistic role for a renewable period of up to two years.
§ 2. The first president or president shall, in the annual activity report, report on the implementation of the additional number of advisors referred to in this article and on the progress made towards the objectives pursued.
§ 3. Those to whom a function of State councillor is conferred by application of this article, are appointed in this function and occupy it overnumbered. They are entitled to the jobs referred to in Article 69, 1°, when they are vacant, provided they demonstrate the language knowledge required to occupy the job that has become vacant.
Depending on the needs of the service, the first president, in consultation with the president, designates the state councillors in excess for the duration that he determines in one of the two sections of the Council of State.".
Art. 35. Section 123 of the Act, inserted by the Act of 15 September 2006, is replaced by the following:
"Art. 123. § 1^er. In order to recover or prevent delay in the administrative litigation section or to face the workload in the legislation section, the number set out in section 69, 2°, is increased from 64 to 76, or increased by six first listeners, auditors or assistant auditors by language role.
These incumbents are primarily responsible for contributing to the resorption or prevention of the delay of the administrative litigation section, or to the care of work in the legislative section, in the legal areas where the delay, existing or expected, and the workload are the most important. These legal areas are designated by the Auditor General or the Assistant Auditor General, each with respect to his or her skills, after consultation with the first section chief auditors concerned.
The temporary increase referred to in paragraph 1 is terminated^er December 31, 2015. However, on the motivated proposal of all heads of bodies, the number of members of the auditors referred to in section 69, 2°, may, if necessary, be increased by royal decree deliberated in the Council of Ministers to a maximum of six first listeners, auditors or assistant auditors by linguistic role for a renewable period of up to two years.
§ 2. The Auditor General or the Assistant Auditor General shall, in the Annual Activity Report, report on the implementation of the additional number of auditors on the basis of this article and on the progress made towards the objectives pursued.
§ 3. Those to whom a function of an auditory member is conferred by application of this article, are appointed in this function and occupy it overnumbered. They are entitled to the jobs referred to in Article 69, 2°, when they are vacant, provided they demonstrate the language knowledge required to occupy the job that has become vacant.
Depending on the necessities of the service, the Auditor General or the Assistant Auditor General, each with respect to it, shall affect the members of the auditorate appointed in the section of the auditorate that it determines."
Art. 36. Section 124 of the Acts of 15 September 2006 is replaced by the following:
"Art. 124. § 1^er. In order to recover or prevent delay in the administrative litigation section or to face the workload in the legislation section, the number set out in section 69, 4°, is increased from 25 to 31, or increased by three clerks by language role.
The temporary increase referred to in paragraph 1 is terminated^er December 31, 2015. However, on the reasoned proposal of all heads of bodies, the number of clerks referred to in article 69, 4°, may, if necessary, be increased by royal decree deliberated in the Council of Ministers, to a maximum of three clerks by linguistic role, for a renewable period of up to two years.
§ 2. Those to whom a clerkship is conferred by application of this article, are appointed in this function and occupy it overnumbered. They are entitled to the jobs referred to in Article 69, 4°, when they are vacant, provided they demonstrate the language knowledge required to occupy the job that has become vacant.
Depending on the needs of the service, the first president shall, in consultation with the president, appoint the clerks overnumbered for the duration that he determines in one of the two sections of the Council of State."
CHAPTER 3. - Amendment of the Act of 22 March 1995 establishing federal mediators
Art. 37. Section 13 of the Act of 22 March 1995 establishing federal mediators is replaced by the following:
"Art. 13. § 1^er. The review of a claim is suspended where the facts are subject to judicial review or an administrative appeal. The administrative authority shall notify the mediators of the appeal.
In this case, mediators inform the claimant without delay of the suspension of the review of his claim.
The introduction and examination of a claim shall not suspend or interrupt the deadlines for judicial or administrative appeals.
§ 2. Derogation from paragraph 1^er and without prejudice to Article 19, paragraph 3, of the Laws on the Council of State, coordinated on 12 January 1973, federal mediators may proceed with the examination of a claim when the act or facts are subject to a remedy for annulment to the Council of State. The authority shall notify the mediators of the appeal filed.".
CHAPTER 4. - Abrogatory provisions
Art. 38. In the laws of the Council of State, coordinated on 12 January 1973, the following provisions are repealed:
1° in title III, chapter III, the title "Section 1^re. Suspension", inserted by the law of 19 July 1991, and Section 2, inserted by the same law, which includes section 18, restored by law 16 June 1989 and replaced by the law of 19 July 1991;
2° Article 74/6, inserted by the law of 15 September 2006;
3° Articles 74/8 to 74/12, inserted by the law of 15 September 2006;
4° Articles 104/3 to 104/6, inserted by the law of 15 September 2006;
5° Article 120, inserted by the law of 4 August 1996 and amended by the laws of 8 September 1997 and 15 September 2006, and section 121, inserted by the law of 15 September 2006.
CHAPTER 5. - Entry into force
Art. 39. This Act comes into force on the day of its publication to the Belgian Monitor, with the exception of Articles 3, 6, 8, 9, 10, 7°, 11, 12, 13 and 38, 1°, which will enter into force on a date fixed by royal decree deliberated in the Council of Ministers and no later than 1^er March 2014. These articles will apply to any appeal or application filed on or after that date.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 January 2014.
PHILIPPE
By the King:
The Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Minister of Finance,
K. GEENS
____
Note
(1) Senate (www.senate.be):
Documents: 5 - 2277
Annales of the Senate: December 5, 2013
House of Representatives (www.lachambre.be):
Documents: 53-3233
Full report: 9 January 2014.