Brussels ruling illustrates three cornerstones of (traditional) dispute resolution

A Brussels summary proceedings judge recently held that a citizen had “no subjective right” to request that the Belgian government declare an American ambassador persona non grata (under the Vienna Convention on Diplomatic Relations), meaning the court was unable to grant the measure. The ruling enables us to shed some light on three cornerstones of dispute resolution under Belgian (procedural) law: (i) legal entitlement (under Belgian law known as “subjective rights”), (ii) the trias politica principle and (iii) summary proceedings.

1. Legal entitlement

Not every grievance, frustration, or political disagreement entitles a legal subject to knock on the door of a civil court and demand a remedy. Articles 144 and 145 of the Belgian Constitution reserve the jurisdiction of the ordinary courts for disputes concerning legal entitlement.

A subjective right is a legal entitlement conferred by the legal order upon a legal subject, enabling that subject to claim or exercise something in their own interest. It exists whenever another party bears an actual obligation that can be enforced by a subject who can demonstrate an interest in its fulfilment.

The essence of a subjective right is thus the power to demand something of a third party, and that power to demand must be guaranteed by the existence of a judicial remedy.

2. Trias politica

Things may become more complex when the party being sued is a public authority. In legal relations between the government and citizens, the latter have legal entitlement only where there is a legal rule that directly grants the citizen the right to demand a specific conduct from the government, meaning the government’s power is bound. Where its power is not bound, the government chooses from several legally justified solutions the one it considers most appropriate (i.e. discretionary authority).

The judiciary is authorised to both prevent and compensate an unlawful infringement committed by the government in the exercise of its non-bound powers but may not thereby deprive the government of its policy discretion in the framework of non-bound powers. For instance, the government’s discretionary decision-making power cannot release it from the obligation, when making and implementing those policy choices, to respect the limits set by the fundamental rights of a citizen.

However, In the case at hand, the government did not commit any violation of fundamental right. The president of the Brussels court of first instance stated that the measure claimed by the citizen concerned an application of Article 9 of the Vienna Convention on Diplomatic Relations, which governs the right of a receiving State to declare a foreign diplomat persona non grata.  Granting the claim would have disregarded the full decision-making authority of the government in this matter, especially since the claimant himself is in no way prejudiced by the diplomatic measure.  

3. Summary proceedings vs. proceedings on the merits

Alongside alternative dispute resolution mechanisms, Belgian law provides two principal routes to court: summary proceedings and proceedings on the merits. They serve fundamentally different purposes.

Summary proceedings are governed by Article 584(1) of the Belgian Judicial Code, which stipulates that the president of the court of first instance, in cases he deems urgent, rules provisionally on all matters, except those which the law removes from the jurisdiction of the courts. Three cumulative conditions must typically be satisfied to successfully lodge such proceedings.

• Urgency: the situation must require an immediate judicial response that cannot await the normal (often lengthy) proceedings on the merits;
• Apparent legal entitlement: an infringement of an apparently existing and not (yet) seriously contested subjective right;
• Provisional character: the provisional nature of the summary proceedings is critical. The judge on the merits is in no way bound by the (prior) (provisional) decision in summary proceedings.

The summary proceedings judge provides a provisional arrangement while the judge on the merits decides definitively on the rights of the parties. They operate on a different level. More specifically:

• the decision in summary proceedings automatically ceases to have effect as soon as the judge on the merits has taken a decision on the disputed rights, without that decision of the judge on the merits having retroactive effect on the summary proceedings decision;
• the judge on the merits may not act as if the summary proceedings decision never existed, may not reform it, and may not rule that the circumstances did not require the measure sought in summary proceedings;
• where a sum of money was provisonally paid in summary proceedings, it must be returned from the date of the decision on the merits. However, penalty payments forfeited due to non-execution of the summary proceedings decision remain due, even after the summary proceedings decision has been contradicted on the merits.

The jurisdiction of the court in summary proceedings extends to ordering urgent and provisional measures necessary to put an end to an apparently wrongful infringement of a subjective right by a government measure, provided that the direct and actual subject matter of the summary proceedings claim aims at this. However, just like the judge deciding on the merits, the summary proceedings judge may not substitute himself for the government.

TheBrussels rulingillustrates this boundary vividly. Because the decision to declare a foreign diplomat persona non grata lies entirely within the executive’s discretionary power, it is a matter of foreign policy, not a legally bound obligation of the Belgian government. No citizen holds a subjective right to demand that the government exercise that power in any way. Since the claimant had no subjective right to request this legal remedy, the summary proceedings judge could not impose it either.

4. Practical takeaways

The Brussels ruling serves as a reminder of three essential points for anyone considering summary proceedings in Belgium:

• Legal entitlement: before approaching a court, assess whether you hold a specific, enforceable legal entitlement directed against another party. A political objection or a general interest in a government decision does not suffice.
• Discretionary government action cannot be dictated by courts: where the government enjoys policy discretion, courts can intervene to prevent or remedy a clear violation of an existing right, but they cannot replace the government’s judgment with their own.
• Summary proceedings are for emergencies: summary proceedings are designed for urgent, provisional relief. They are not a shortcut to a final judgment, and their outcome can be superseded in proceedings on the merits.

Our Dispute Resolution team has extensive experience in procedural strategy, including the conditions for summary proceedings and the interplay between provisional and final court decisions. Please do not hesitate to get in touch if you require assistance in that regard.

Written by

• Bart Heynickx

  Partner

  bart.heynickx@altius.com

• Roel Verheyden

  Associate

  roel.verheyden@altius.com