Belgian administrative law: Definition, characteristics and sources
- Characteristics of the Belgian administrative law
- A law designed to regulate an activity pursuing the satisfaction of needs which is identified as that of general interest
- A variance from the ordinary law?
- The Jurisprudential Right
- International law
- The Constitution
- Legal written standards (laws, decrees and orders)
- Written regulatory standards
- Ministerial Orders
- Provincial and municipal regulations
Administrative law is a set of legal rules other than constitutional law that establish the organization, functions and working procedures of the administrative structures of the state. It comprises all the legal rules, other than constitutional law. The Constitution is the foundation of administrative law. It institutes provinces and municipalities under the principle of equality.
The administrative law is the set of rules derived from this foundation. They set the organization, functions and operating procedures of the administrative structures of a state. These structures can be legal under public law or private law. Administrative law is designed to regulate an administrative activity which pursues the satisfaction of needs that are considered of general interest or multiple needs and diverse contingencies often at the mercy of social, political and economic considerations.
The legal concept of public interest means the goal towards which all government activities must necessarily reach. The interest appears as the keystone of the administrative action and therefore of administrative law. In a narrow sense, this concept may also designate any community needs deemed sufficiently newsworthy by the competent constitutional authority.
Under Belgian law, this authority is primarily the legislature, but there are the provinces and municipalities in the framework of autonomy recognized in the Constitution (articles 41 and 162). Administrative law will therefore govern all activities within the eyes of the legislature, that are needed to achieve the common good, whatever be the person's engagement in such activities.
It will set the criteria for these people to achieve general interest and respect for individual freedoms. In Belgium, administratives tend to argue that they have the right to over-rule a law under the private law. In France, these two rights are autonomous.
- Where does this conception of the administrative law come from?
It comes from the school of civil law. Moreover, defenders of basic freedoms try to apply the civil law in relation between citizens and administration, making the ordinary courts competent to decide such disputes (and thus no need to refer to the Council of State ). Finally, before 1946, the Council of State had not yet been established, the judge applied the judicial administrative law, while the law he knew best, was the private law.
In reality, it is not derogatory to ?common law'. It is rather a specific duty by itself.
The law is a law that generally applies to all persons and all businesses. Now private law is not the common law for administrative procedures. Indeed, there is no mechanical application of private law to administrative problems (see the legal system of contracts concluded by the administration) or general applications (see the importance of the general principles of laws, the main source of administrative law).
This right is made up of unwritten rules: the general principles of law. Generally less accurate than the written rules and modified by a decision of the judge, these principles provide a flexibility that is ideal for framing an activity which is inherently scalable.
The written rules that are found in administrative law are often based on notions of variable contents (for e.g. The concept of an efficient management in certain areas).
Tags: Legal rules, administrative structures, public interest, Belgian law, administrative law, common law
[...] - Strictly speaking, administrative authorities must comply with higher standards (principle of hierarchy of norms ; Constitution Article 159) and have no powers other than those which the Constitution (and its implementing legislation) recognizes him/her to have. The State Council also inferred (from this principle) the obligation of the administration, in case of disputes in the legality of actions, to produce evidence proving the legality of an action. It also relates this principle to the ?patere legem quam ipse fecisti' (obey the law that you have made) The principle of attribution of powers: It means that the administration can not hold its powers under the Constitution and legislative rules (Constitution, Article 105 and 78 of the Special Act of 1980). [...]
[...] III.Provincial and municipal regulations Administrative authorities have a statutory power granted by the Constitution or by the law (they may take individual application of the regulations). IVThe fragmentation of the regulatory power After the King, government, ministers and subordinate authorities, other administrative authorities may still make regulations - public interest organizations they are legal corporations who perform public services independently but under supervision (e.g. SNCB Belgacom) - Independent administrative authorities These are entities, with or without legal personality, which have a specific mission with the condition of high degree of independence as they are not subjected to guardianship or the power hierarchy, but only control the CBFA, the CSA etc.) - some senior officials The legislative section of the EC has long been based on the following arguments: - administrative authorities are nowhere mentioned in the Constitution and it does not grant them regulatory powers.This is a violation of the principle of non-availability of skills. [...]
[...] Moreover, defenders of basic freedoms try to apply the civil law in relation between citizens and administration, making the ordinary courts competent to decide such disputes (and thus no need to refer to the Council of State Finally, before 1946, the Council of State had not yet been established, the judge applied the judicial administrative law, while the law he knew best, was the private law. In reality, it is not derogatory to ?common law'. It is rather a specific duty by itself. [...]