Constitutional Court: the administrative loop has not been cut
The administrative loop means that during an annulment procedure before an administrative court, an administration can remedy possible irregularities of the contested decision with a so-called reparation decision.
With its judgment no. 153/2016 of 1 December 2016, the Constitutional Court ruled that, after modifications by the Flemish legislator, in the opinion of the Environmental Enforcement Court and the Council for Permit Disputes, this legal concept is compatible with the Constitution.
Listed below are the most remarkable conclusions of the Constitutional Court:
the right to objection is guaranteed because the reparation decision can be challenged;
the new administrative loop does not violate the principle of equality because, among other reasons, the instalment scheme is provided for by a decree and not by a decision;
the instalment scheme to provide an answer to the question whether an administrative loop is necessary does not affect the rights of defence;
the rule implying that the Environmental Enforcement Court can only allow the preservation (whether partial and temporary or not) of a contested decision in exceptional cases does not affect the presumption of innocence.
With this judgment, it seems the administrative loop is inextricably entangled in Flemish environmental law.
Associated areas of specialisation: Environment