The lack of legal obligation to indicate judicial remedies against decisions of Belgian and Flemish administrative courts: a blind spot of transparency?

The paper starts with some observations concerning transparency of government and the obligations of administrative authorities and courts in Belgium and Flanders. Firstly, Belgian and Flemish legislation on transparency of... [ view full abstract ]

The paper starts with some observations concerning transparency of government and the obligations of administrative authorities and courts in Belgium and Flanders.

Firstly, Belgian and Flemish legislation on transparency of government obligates authorities to indicate, in their administrative decisions with an individual scope, the judicial or administrative remedies against that decision.

Secondly, civil courts of the one hand, and specialized administrative courts on the other hand settle disputes arising from administrative decisions. The most important administrative courts in Belgium and Flanders are the Council for alien law litigation, the Environmental Enforcement Court, the Council for Permit Disputes and the Council for Disputes about Decisions on Study Progress.

Thirdly, the legislator does not provide that these administrative courts inform the parties of their possibility to lodge a cassation appeal with the Council of State against their judicial decisions. However, the disputes the administrative courts settle always have an administrative decision as origin. This administrative legal dispute is therefore directly decisive for the citizen subjected to the original administrative decision. Yet, he does not enjoy the right to be fully informed by the administrative court concerning his legal remedies.

These findings lead to the following research questions: to what extent can the lack of legal obligation for administrative courts to indicate the possibility of a cassation appeal with the Council of State, be regarded as a “blind spot of transparency?” In other words, does this lack of legal obligation impair the judicial protection of the parties in the dispute, especially their right of access to (the cassation) court? If so, what steps should the Belgian and Flemish legislator take to remedy this impairment?

I will start by examining the relevant jurisprudence of the European Court of Human Rights concerning the obligation of courts to indicate judicial remedies. The ECHR has put forward some conditions which have to be fulfilled in order for a certain court to be obligated to indicate the legal remedy against its decision. Furthermore, I will assess to what extent the Belgian and Flemish administrative courts fulfil these conditions and consequently, if they are obligated on a European level to indicate the cassation remedy against their decisions. To this day, this research has not been conducted in Belgian or Flemish doctrine.

I will come to the conclusion that according to the European jurisprudence, only a very limited amount of cases require that the administrative courts indicate the possibility of the cassation appeal against their decisions. Only in those exceptional cases there is a “blind spot of transparency”. However, the legislator can easily provide for a general provision requiring administrative courts to indicate the cassation remedy in every single decision, as to completely rule out the risk of impairment of the right of access to court of the parties involved.