Council of State

Council of State

The Council of State is the highest jurisdiction of the administrative branch.

It sits as a court of cassation with the power to quash rulings from administrative appeal courts, first and last instance rulings from other administrative courts, and last instance rulings from specialist administrative jurisdictions (such as the Court of Audit and the National Court of Asylum).

As a court of cassation, it ensures that the lower courts are correctly applying the law, and abiding by all rules governing form and procedure. It also has a duty to verify that the facts of the case have not been misconstrued.

In some cases, the Council of State also has competence as a court of appeal or a court of first and last resort, especially when assessing the legality of decrees and ministerial acts.

The Council of State also deals with applications for interim relief. It is authorised to hear appeals relating to interim remedies to protect fundamental liberties. It also sits as a court of first and last resort for certain interim relief applications brought directly before it. In other cases, the Council of State has powers of cassation to quash interim relief orders delivered by the administrative courts.

Anyone appearing before the Council of State usually needs to be represented by a specialist Council Lawyer. Even when this is not a requirement, specialist legal representation is permitted and advised.

Although a Council Lawyer may not be a requirement during the written discovery stage of a case, these specialist lawyers are still the only ones with authority to represent people during the hearing.

Cassation procedure before the Council of State

The deadline for lodging an appeal is usually two months from when the ruling was notified, although some cases may carry specific deadlines.

The appeal must be made in the form of an ex parte application, usually followed by additional pleadings. It then undergoes a preliminary admissibility procedure. At the end of this preliminary stage, the appeal will be either admitted, or rejected without explanation if the Council of State believes that the case is inadmissible or the grounds of the appeal are not sufficiently credible.
Rejections are in principle preceded by a hearing, during which a reporting judge will read a statement to clarify the decision.
The length of this preliminary admissibility procedure varies greatly, but is currently usually between two and six months from when the additional pleadings have been filed, for cases that fall within ordinary law.

Once an appeal has been admitted, the matter becomes adversarial, and the respondents and any other parties with an interest in the case are invited to submit their arguments.
For appeals that are admitted, the total length of the Council of State procedure again varies widely, but is currently on average just under 18 months from when the appeal is lodged, for cases that fall within ordinary law.

At the end of the written discovery stage, and notwithstanding any dismissal orders, a hearing is held during which a reporting judge reads out a statement, proposing an appropriate solution for the judges. The judges do not have to agree to this proposal.
A specialist Council Lawyer will act on behalf of his or her client to handle all proceedings, which are mainly written. If necessary, the lawyer will give a short verbal report during the hearing, once the reporting judge has read his statement. Very occasionally, if justified by the points of law that have been raised and subject to having made a request in advance, the lawyer may make more lengthy pleadings.

If the Council of State decides to quash all or some of the lower court ruling, it then in principle remits the case back to the court that delivered it. However, the Council of State may also decide to issue its own appeal ruling on the merits of the case, which will serve as the final ruling. This almost always happens for interim relief applications. Except for cases involving interim relief, the parties are usually not informed before hearing the conclusions of the reporting judge, of whether the Council of State intends to settle the case itself, after quashing any of the disputed ruling.