Council of State

Regulations

What is the content and the scope of a Legislation Section's opinion ?

The Legislation Section's opinion is exclusively legal and technical. It does not interfere with policy issues or with the advisability of the regulation submitted for an opinion.

The opinions are not binding. The authority has complete freedom of choice and this choice is political. The authority may endorse the opinion, in whole or in part, disregard it or even abandon the draft, but then runs the risk of facing up to a possible appeal.

What does the Legislation Section examine in its opinion ?

The Legislation Section must always pay attention to the following three points :

Prior formalities
The Legislation Section checks whether the mandatory formalities have been completed (discussions in the Council of Ministers, opinion of various advisory bodies, trade union consultation, opinion of the Inspection of Finance , agreement of the Minister who is in charge of the Budget …). As a rule, these formalities must be completed before the consultation of the Council of State.
Lawfulness of the text
The Legislation Section verifies whether the principle of the hierarchy of norms has been respected, i.e. :
- compliance with supranational norms and with the constitutional law, in particular as regards the division of competences between the Federal Authority and the Communities and Regions;
- compliance with the Law, Decrees or Ordinances : in particular, with regard to draft regulatory decrees, the question is whether a superior norm provides a legal basis which is sufficient for the text examined.
Competence
The Legislation Section also checks whether the draft text does indeed originate from the competent authorities.

If need be, the Legislation Section's review may encompass aspects of legislative drafting technique. In particular, it assesses whether the submitted text is legally consistent. In this respect, the Legislation Section checks whether the draft actually reflects the intention of its author.

For the following articles of the Coordinated Laws, please refer to the French or Dutch version of this document: FR - NL.

Art. 84
Art. 84bis
Art. 84ter