Nominations of top magistrates in danger after Council of State ruling
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Nominations of top magistrates in danger after Council of State ruling

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The Council of State have ruled that the nomination of Brussels labour tribunal’s new head magistrate was unlawful, and it looks likely that this judgement will have an effect on another senior judge’s nomination.

This week the Council of State struck down the nomination of Anne Sevrain as the new head of the tribunal on the grounds it was in breach of the language laws applicable to the judiciary. According to those rules, a French-speaking chief magistrate must be succeeded by a Dutch-speaking magistrate. The advertisement for the vacancy was drawn up by the justice ministry only in French.

The judgement gives a strong indication of the likely outcome of another procedure currently before the Council of State, where the circumstances are almost identical. That case concerns the nomination of Laurence Massart as chief magistrate of the Brussels court of appeal, one of the highest functions in the Belgian judiciary. Like her colleague at the labour tribunal, Massart is entirely qualified for the job, apart from one ting: she only speaks French.

Again, the publication of an advertisement in French and the subsequent nomination of a French speaker was, it was argued, in breach of the law on language succession. The procedure was contested in both cases before the Council of State by the association of Dutch-speaking magistrates.

The law is the law for everyone,” commented association chair Dirk Van Overloop in De Standaard. “The Council has confirmed that the law is not open to any other interpretation. That was explained to the minister immediately the vacancy was advertised. But minister [Koen] Geens carried on down the wrong road, and installed a French-speaking chief magistrate in the appeal court and the labour tribunal.”

According to the association, Geens had based his decision on a mistaken interpretation of the law, by assuming it required language parity between the chief magistrate of the court of appeal and the prosecutor-general of Brussels. In fact, language parity is only required in the Cassation Court. Elsewhere, the law of succession prevails.

The Council of State is likely now to strike down both nominations and force a new procedure in both cases, this time in search of Dutch-speaking magistrates. The labour tribunal has promised to respect the judgement, but complained that a new appointment procedure would disrupt the workings of the court at a time when their staffing and resources are already severely stretched.

It is a pity that no account has been taken of the concrete working situation of the tribunal,” a spokesperson said. “The tribunal will try to cope with the difficulties caused by this ruling as much as possible, in order to work towards providing justice of quality.”

Alan Hope
The Brussels Times