Overall, justiciability of ESC rights in Belgium is still very much a work progress. A major obstacle is that direct eff ect is typically denied to ESC rights provisions (treaty and onstitutional), so that the standstill principle has become the main doctrine in Belgium to address alleged violations of ESC rights in litigation. Th e latter doctrine entails a three-step test endorsed by the three highest Belgian courts and is probably the most unique feature of the Belgian approach to the justiciability of ESC rights. In this review, the judge compares the current level of protection of ESC rights with the previous level, and judges that there is a violation of the standstill principle when a signifi cant reduction of the level of protection off ered by the applicable law cannot be justifi ed by reasons of general interest. However, the standstill principle is usually applied in a rather restrictive way, in the sense that the judge will show a relatively high degree of deference and grant the legislator a wide margin of appreciation in balancing ESC rights and reasons of general interest such as budgetary reasons. Likewise, the legality principle is at least by some Belgian judges (in particular the BCC) interpreted in a minimalist way, so that powers can be delegated to the executive as soon as the subject matter has been identifi ed by the legislator. Strengthening the justiciability of ESC rights in Belgium can take place via several routes. Belgian judges could focus more on the question whether certain ESC rights provisions are suffi ciently clear and comprehensive to entail legal obligations rather than hiding behind the confusing concept of direct eff ect to deny the justiciability of all ESC rights. Th e standstill principle could be applied in a more rigorous way, with a more detailed analysis of every relevant legal step. Finally, a stricter interpretation of the legality principle could be adopted. Each of these points would help to strengthen the justiciability of ESC rights.
Source (book)
The justiciability of economic, social and cultural rights / Nussberger, A. [edit.]; Landau, D. [edit.]
Source (series)
Ius Comparatum - Global Studies in Comparative Law
Cambridge : Intersentia , 2023
p. 81-108
Full text (publisher's version - intranet only)
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Publications with a UAntwerp address
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Creation 22.12.2023
Last edited 09.01.2024
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