In principle, the State can only be held liable for wrongful dispensation of justice if a decision having the force of res iudicata has repealed, amended, annulled or revoked the wrongful decision on account of breach of a legal rule. This principle was refined by the Constitutional Court in a judgment dated 30 June 2014 (no. 99/2014) with regard to judicial decisions rendered in last instance.
According to the Constitutional Court, a constitutionally correct interpretation of article 1382 of the Civil Code implies that the State may be held liable for a fault of a judicial body deciding in last instance, even if the decision is not repealed, amended, annulled or revoked. It is required that the fault consists in a sufficiently serious breach of the applicable legal rule and that, given the limited legal remedies available against the wrongful decision, it is not possible to obtain an annulment of the decision.
The judgment was rendered in response to a preliminary question in a case in which a municipality filed a liability claim against the Belgian State for alleged faults of the Council of State. In this case it was not possible for the municipality to obtain annulment of the judgment of the Council of State on the basis of the available legal remedies.
It is noteworthy that the Constitutional Court uses the term "sufficiently serious breach" from the jurisprudence of the Court of Justice of the European Union. Previously the Court of Cassation had left no room for this concept in the context of tortious State liability for damage caused by an administrative act which was contrary to European Union law.