The Council of State of Belgium : advising the political branches, and the Constitutional Court

The Legislation Section of the Belgian Council of State provides advisory opinions about, among other things, bills that are (about to be) introduced in the federal parliament or in the parliaments of the federated entities. Those opinions include an analysis of constitutional issues. Arguably, advisory bodies like the Council of State are well-placed to weigh in on constitutional interpretation. Even if their opinions are not binding or final, they have the advantage of coming into action early in the decision-making process. In this chapter, we provide evidence for that hypothesis by analysing the recent case law of the Constitutional Court. Often, the Council of State has already put forward conclusions with regard to the points of law the Court is later asked to adjudicate. Although in a surprising number of cases, and for all kinds of reasons, there is no (relevant) advisory opinion of the Council of State available for the Court to consider, it appears that when there is, the findings of the Court mostly correlate with those of the Council of State. The Court also mostly refers to the advisory opinions. However, the Constitutional Court could do more to make clear to its audience which effect the advisory opinion has actually had in its considerations, and to be explicit about when and why it (dis)agrees. Judicial bodies may reasonably disagree about the outcome of a constitutional question, so there is no reason to leave it to the reader to figure that out