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Decree amendment strengthens interest in remedy before administrative law courts

| Environmental Law team

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On 21 May 2021, the Flemish Parliament approved a decree amending the DBRC decree of 4 April 2014, which changes appeal procedures before administrative law courts in Flanders, such as the Council for Permit Disputes. This decree amendment aims to simplify, accelerate and in the end make the appeal procedure more efficient, but threatens to make access to justice more difficult.

The most important change concerns the concretization of the interest in the remedy, whereby the DBRC decree now defines three situations in which a remedy cannot lead to an annulment:

1) Firstly, the breach of a norm or general principle of law cannot be invoked if the requesting party in question is not adversely affected by it. This principle of damage to the interests already existed in case law before the decree change.

2) Secondly, the legislation that is invoked must be manifestly aimed at protecting the interests of the requesting party.

3) Thirdly, a duty of attention comes into effect. This means that the requesting party must have invoked the illegality that is being resorted to at the useful moment when it could have been invoked during the administrative procedure (e.g. during an earlier opportunity for public participation). An applicant must therefore present his arguments as early as possible in the procedure. Especially this last novelty increases the importance of submitting a thoroughly elaborated objection within the framework of a public inquiry.

In addition, the change in the decree ensures, among other things, that the permit holder automatically becomes a full-fledged litigant and that the fees for introducing an appeal must be paid at the moment of filing the request instead of after filing the request.

For further questions, you can always contact Astrea's environmental law team. This team is composed of Ciska Servais, Philippe Van Wesemael, Ilse Cuypers, Yannick Ballon, Nino Vermeire and Benoit Forêt.