On 28 April 2016 the Constitutional Court ruled on the way the municipality, in the context of a so-called "prohibitory environmental injunction", can appear in court (decision no. 60/2016). In this decision, the Court established an important principle. It confirmed that if a citizen has applied on behalf of the municipality for a prohibitory (environmental) injunction, the municipal authorities themselves can still appear in court on behalf of the municipality to, if necessary, contest the position of the citizen.
The context is well known. Based on article 1 of the Act of 12 January 1993 establishing a claim to protect the environment, environmental groups, administrative governments (such as a municipality) and the public prosecutor can raise a claim in court to end actions that are a manifest violation of or constitute a serious threat of violating the legislation concerning protection of the environment.
Article 194 of the Flemish Municipal Decree of 15 July 2005, in turn, provides that if the board of the mayor and aldermen fail to make a claim in court, one or more citizens can raise a claim on behalf of the municipality. In that case, the citizen does not claim in his own name, but as a representative of the municipality. In doing so, he exercises a right of the municipality and defends a collective interest. The Municipal Decree provides explicitly that the municipality cannot settle such proceedings initiated by a citizen out of court or withdraw the claim without the consent of the person who initiated the proceedings in its name.
Taken together, the two provisions mean that a citizen can apply for a prohibitory environmental injunction on behalf of the municipality, if the municipality fails to do so itself. Often, citizens make use of the possibility to claim on behalf of the municipality because they believe that there is no justification for the municipality being idle. This inaction can, in fact, be the consequence of a "failure" by the municipal authorities to make a claim against an unlawful situation, but it is also easily conceivable that the municipality did not make a claim because it considered the situation not to be unlawful.
The Court of Cassation nevertheless ruled that, in that case, the municipality loses its free disposal of the right to make a claim in court. In its more recent case law, the Council of State, followed by the Council for Permit Disputes, has also ruled that the board of the mayor and aldermen can intervene in proceedings pursued by a citizen on behalf of the municipality, but only to support, continue, or resume the position of the citizen. This meant that the municipal authorities were forced to "agree with" the citizen who had, on his own initiative, initiated a claim on behalf of the municipality.
In connection with the Decree of 29 June 2012 modifying the Flemish Municipal Decree, criticism had been already aired in the Flemish Parliament with regard to the situations to which this case law had led, and the fact that this reduced the municipal authorities in practice to "the status of a mere observer", even when the proceedings involved projects supported by municipal policy.
The Antwerp court of first instance also questioned whether it is in accordance with the Constitution, whether or not read together with Article 6 ECHR and the general principle of the rights of defence, that the board of the mayor and aldermen in that case could only appear in court to support the claim of the citizen, and not to contest it.
After the Constitutional Court, in its decision no. 29/2011 of 24 February 2011, had already concluded that the board of the mayor and aldermen could, in any case, appoint counsel to intervene in the proceedings initiated by a citizen, the Court now had to rule on the question whether this counsel would also be allowed to defend a position deviating from the position of the citizen.
In its decision no. 60/2016 of 28 April 2016, the Court ruled that the legislator’s aim of offering the citizen the possibility of raising a claim on behalf of the municipality could not justify the board of the mayor and aldermen not being able to contest a claim made by a citizen on its behalf. The Court noted that the failure of the municipality to make a claim can be the result of a deliberate choice. In that case, the citizen acting on behalf of the municipality and the board of the mayor and aldermen have other interests, and it would constitute a disproportionate limitation of the rights of the board if it could not go against the claim of the citizen and defend its own prior decision(s). According to the Court, this is certainly the case given that the municipality could subsequently be confronted with damages claims.
At the same time, the Court also indicates in its decision that the Flemish Municipal Decree can (and therefore should) be interpreted in a different, constitutional way. Specifically, the board of the mayor and aldermen can in fact contest the position of the citizen. This possibility does not infringe the rights of the citizen who has acted on behalf of the municipality either, because the board of the mayor and aldermen does not have the possibility to end the proceedings (through settlement or withdrawal). Hence, in this kind of case, the judge will have to rule in favour of one of the two representatives of the municipality: the inhabitant or the board of the mayor and aldermen.