Council of State

History of the institution

Today Councils of State with similar competences exist, amongst others, in France, in the Netherlands, in Italy, in the Great Duchy of Luxemburg.

The council of state of Belgium, functional since 1948, is based on an original concept and has no direct ties to the past. Nevertheless, it is not the first of its kind in our national history.

The Council of State of Charles the Fifth of Spain

Indeed, the most important of the three side councils which were created in our Provinces by Emperor Charles the Fifth in 1531, was in fact called "Conseil d'État".

It had twelve members who were appointed for life and were chosen from the most prominent personalities of the clergy and the nobility. This first Council of State was presided by Mary of Hungary, sister to the Emperor and General Governess of the Netherlands.

It was an instrument of government commissioned to deliberate on all major political, administrative or military matters.

Although but a consultative body, this Council of State played a foremost role in Belgian political life and its very existence represented at times a real protection against arbitrary rule.

The institution will survive until the end of the Ancien Régime, but its prerogatives will dwindle under the Habsbourg-Lorraine. By the middle of the XVIIIth century, the role of the "Conseillers d'État" will become purely honorary.

The 1831 Constitution

The principle of a Council of State was left out of the 1831 Belgian Constitution due to the fact that it was reminiscent of an "instrument of power". This was the case under the ancien régime since Charles the Fifth of Spain, during the French period (the Council of State created by Napoléon Bonaparte in 1799 during the Consulat) and the Dutch period (1815-1830 : the Council of State of the Kingdom of the Netherlands of William the First). Due to the disappearance of the old Council of State, the mining law of 21 April 1810 could not longer be applied and a special body, called Conseil des mines, had to be created. This body was suppressed when the present Council of State was founded and its competence was incorporated in the latter's.

The institution of a Council of State in Belgium

Charles Rogier had however vigorously defended the idea of a Legislative Council and by 1833, the Chevalier de Theux, who was the Minister of the Interior at that time, took up the idea while broadening its scope.
He did no longer only ask for the institution of a Legislative Council, but proposed the creation of a Council of State which, besides being in charge of preparing legislation, would assume a task in the field of administrative litigation.

This ministerial draft was rejected but a Legislation Council, predecessor to the Legislation section, was created in 1911 by Minister Carton de Wiart. After the 1914-1918 War, the question of the creation of a high administrative jurisdiction was brought up again by lawyers and members of Parliament as a result of the "Flandria" decision of the Court of Cassation, acknowledging for the first time the responsibility of the administration.

These initiatives were followed by a bill drafted by Carton de Wiart in 1934 and a draft by the Minister of the Interior De Schryver in 1937 as a result of the government's policy statement of 1936 set out by the Van Zeeland Government.

Discussion of the bill in Parliament was interrupted by World War II but was resumed as early as 1945 on the initiative of the Minister of the Interior Van Glabbeke. The result was the Act of 23 December 1946 published in the official gazette of 9 January 1947.

Further reading:

BOUVIER, Ph., La naissance du Conseil d'État de Belgique: une histoire française?, Brussels, Bruylant, 2012, 171-174.
MAGITS, M., "De Raad van State in historisch perspectief" in Wintgens, L. (ed.), De adviesbevoegdheid van de Raad van State, Bruges, Die Keure, 2003, 1-37.
MULLER, F., "Henri Velge, l'artisan du Conseil d'État belge (1911-1946)", Belgisch tijdschrift voor nieuwste geschiedenis, 2007, 143-174.