In three judgments issued on 21 May 2015, the Constitutional Court has altered its jurisprudence. Henceforth, public authorities pursuing the general interest before the jurisdictional bodies of the Judiciary, can, in principle, be ordered to pay a so-called "procedural indemnity" ("indemnité de procedure"/"rechtsplegingsvergoeding"), and can also claim and be granted a procedural indemnity.
Since the introduction of the procedural indemnity in the Judicial Code in 2007, the Constitutional Court established its case law confirming that any payment of a procedural indemnity is excluded for authorities pursuing the general interest. The exclusion of these public bodies defending the general interest was justified by the fact that they have to be able to exercise their claims without having to take the financial risk of the procedure into account. Such public authorities could not be ordered to pay a procedural indemnity, and, as a consequence, according to the principle of negative reciprocity, could not themselves claim or be awarded a procedural indemnity.
In three judgments on 21 May 2015, the Court changed its jurisprudence.
To explain this revolution, the Court refers to the changed judicial context, in particular the act of 20 January 2014 introducing the procedural indemnity before the Council of State. The Court deduces from the legal change that the legislator has explicitly accepted that the pursuit of the general interest by one of the parties does not exclude it from being ordered to pay a procedural indemnity when the judicial body rules against it. According to the Court, it follows that the legislator has recognised that the imposition of a procedural indemnity does not pose a threat to the independence of public authorities when acting in the general interest. This stance of the legislator is a clear cut-off line in the evolution of the system of procedural compensation and leads to the possibility of making public authorities which are plaintiff or defendant in a civil procedure subject to procedural compensation.
The Court then refers to its judgment 48/2015 of 30 April 2015, in which it ruled that it is not unconstitutional to impose a procedural indemnity on an authority which is acting as plaintiff or defendant before the Council of State and is found to be wrong.
Due to the evolution of the legislation and the aforementioned judgment, as well as in the interests of legal certainty, the Court re-evaluated procedural compensation as a whole.
The Court restores the principle that, before judicial bodies of the Judiciary, procedural compensation applies to all parties, whether they are private persons or public authorities pursuing the general interest.
The Constitutional Court indicates that the reciprocity in the application of the procedural indemnity favours the equality of arms between parties, both parties assuming the financial risk of the lawsuit. As a consequence, in civil procedures, it will not only be possible that public authorities will be ordered to pay a procedural indemnity. Henceforth, public authorities will be able to claim and be awarded a procedural indemnity in such civil disputes.
In the particular cases at hand, the Court rules that a registrar who is found to be wrong in a dispute before a civil court, following refusal to celebrate a wedding, can henceforth be ordered to pay a procedural indemnity. Also, a local authority in a dispute before a police court against a fine imposed by a civil servant in charge of municipal administrative sanctions can be ordered to pay a procedural indemnity. In a tax dispute before the civil court, the State or a local authority can be ordered to pay a procedural indemnity, even if the claim concerns the legality of an administrative fine in the context of a criminal offence.
At the same time, the Court clarifies that the public prosecutor's office, when acting before a civil court, can also be ordered to pay a procedural indemnity.
The Constitutional Court does not, however, alter the legal exception that is applicable in criminal prosecutions. Thus, when the criminal prosecution has been started by the public prosecutor's office or an inquiry jurisdiction, no procedural indemnity can be awarded to or imposed on the defendant. The Court also explicitly rules that when the labour prosecutor's office submits a claim for violation of the laws and regulations falling under the labour court's jurisdiction and concerning all or some of a company's employees, no procedural indemnity can be imposed. The Court justifies this difference by ruling that these judgments aim at establishing criminal offences, and not merely compensation of a civil nature.
For the time being, the Court remains silent regarding a criminal prosecution started by a plaintiff claiming damages, to which the rules of procedural compensation normally do apply.
It should be borne in mind that all the above leaves unchanged the principle that a party (whether a public authority or a private person) claiming a procedural indemnity will only be entitled to receive it if it is assisted by an attorney-at-law.
In its judgments, the Court warns that its new jurisprudence will not be reconcilable with an amendment of article 1022 of the Judicial Code which has not yet entered into force. In 2014, the legislator had added a clause to article 1022 of the Judicial Code, ruling that no procedural indemnity is due when a public legal entity, pursuing the general interest, acts as one of the parties in the claim. With this amendment, the legislator wanted to reflect the prior case law of the Constitutional court. This new rule appears to be obsolete even before it has entered into force, and will thus require new action by the legislator.
To conclude, it is to be noted that the system of procedural indemnity in administrative cases remains incomplete. Before the Council of State, public authorities can be ordered to pay or can be awarded a procedural indemnity under the statute of 20 January 2014. In the absence of a legal framework regarding other administrative judicial bodies, no procedural compensation applies to cases brought before these bodies. Likewise, in the absence of a legal framework, no procedural indemnity applies in procedures before the Constitutional Court.