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Belgium: Legal Response to Covid-19

Belgium [be]

Emmanuel Slautsky, Frédéric Bouhon, Camille Lanssens, Andy Jousten, Xavier Miny

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 13 June 2021

General editors: Prof. Jeff King; Dr. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

DOI: 10.1093/law-occ19/e1.013.1

Except where the text indicates the contrary, the law is as it stood on: 23 December 2020

I.  Constitutional Framework

1.  Belgium is a federal, parliamentary constitutional monarchy, with a codified Constitution first adopted in 1831 and amended regularly since the 1970s. The Constitution was renumbered in 1994. The Federal Parliament is bicameral.1 The House of Representatives comprises 150 elected members (MPs) and the Senate comprises 50 representatives from the Regions and Communities, and 10 co-opted members.2 Together with the King, the Federal Parliament has legislative authority in federal matters.3 The Belgian Constitution refers to the Monarch as ‘the King’ although women have been able to access the throne since 1991, however this has not happened yet and Philippe I is the current Belgian King. The Senate only intervenes in the adoption of a limited number of statutes, mostly related to the organisation of the state.4 In practice, the executive is the driving force behind the adoption of most legislative acts. Political parties and party discipline secure executive dominance in Parliament.

2.  The King is the Head of State.5 The King appoints and dismisses his ministers, including the Prime Minister.6 Together, the Ministers form the Council of Ministers, which comprises 15 members maximum. The number of Dutch-speaking ministers may not exceed by more than one the number of French-speaking ministers, and vice versa.7 The King also appoints and dismisses the federal Secretaries of State.8 Secretaries of State are deputies to a minister. The appointed Government must be able to command the confidence of the House of Representatives.9 In practice, the Prime Minister is chosen through an agreement between the several political parties that will normally be needed to form the Federal Government. The electoral system is proportional,10 and the political landscape is fragmented.

3.  The federal executive power belongs to the King.11 The King must always exercise his powers on ministerial advice.12 His powers are therefore largely symbolic: in practice, the constitutional powers of the King are exercised by the Federal Government. The King must implement statutes by enacting regulations and individual decisions. Parliament can confer powers upon the King that go further than the implementation of principles previously established by statutes.13 The Constitution also grants the King competence to organize the civil service and to enforce public order nationally.14 The King only has powers conferred by the Constitution. Residual powers lie with the legislature. Regulations and individual decisions from the King are enacted in the form of Royal Decrees

4.  As a federal state, Belgium is composed of two sorts of federated entities: three ‘Regions’—the Flemish Region, the Walloon Region, and the Brussels Region—and three ‘Communities’—the Flemish Community, the French Community, and the German-speaking Community.15 These Regions and Communities each have an elected assembly (Parliament) with legislative power and an executive (Government).16 The Regions have legislative and executive competences in matters such as the economy, the supervision of local authorities, planning, and the environment.17 The Communities have legislative and executive competences in matters such as education, culture, and person-related matters, which include elder-care and preventive medicine.18 However, the Flemish Region exists on paper only: its competences are exercised by the Flemish Community.19 The picture is further blurred as the result of secondary transfers of competences between the other federated entities. The federal level of government retains all competences not transferred to the Regions and Communities. These include social security and welfare benefits, the regulation of health professions, labour law, the justice system, civil protection, and the enforcement of public order.

5.  The Flemish Region, the Walloon Region, and the Brussels Region have jurisdiction in Flanders, Wallonia, and Brussels respectively. The Flemish Community, the French Community, and the German-speaking Community have jurisdiction, respectively, in the Dutch linguistic territory and in relation to Dutch-speaking institutions in Brussels, in the French linguistic region and in relation to French-speaking institutions in Brussels, and in the German-speaking linguistic region. In Brussels, the central government retains some responsibilities for cultural and education matters, while the ‘Joint Community Commission’ has significant responsibilities for person-related matters. The Joint Community Commission shares its institutions with the Brussels Region.20

6.  In the Regions and Communities, the executive power belongs to a regional or community government. Such governments are elected by and responsible to their own parliaments. Within the spheres of competence of the Regions and Communities, the powers of the regional and community governments are similar to the powers exercised by the King at the federal level. The regional and community parliaments are unicameral and are either directly or indirectly elected.21

7.  Each level of Belgian government has exclusive competence over matters within its constitutional responsibility. There is no priority of national rules over regional or community rules. The Constitutional Court, Courts, and the Council of State decide on conflicts of competences between levels of government.22 There are also several mechanisms for intergovernmental negotiation and interregional cooperation. The Comité de concertation/Overlegcomité (CCO) plays a crucial role in this respect. It is composed of Ministers from the different Belgian executives.23 Specialized platforms exist within the CCO, notably for public health matters, where the competent Ministers from the different levels of government meet to discuss issues of common interest.

8.  In addition to the Regions and Communities, the Constitution provides for the existence of municipalities and provinces.24 Municipalities and provinces enjoy autonomy, but they are not federated entities: they are decentralised entities with no legislative power. Municipalities and provinces may adopt measures on all matters which they deem to be of municipal or provincial interest,25 within the limits set by the legislatures and subjected to governmental control from the regional government. They may also receive additional (subordinate) responsibilities from the federal, regional, or community levels of government, in which case they operate under their control. The Brussels Region is not included in a province, but its institutions exercise some competences normally exercised at provincial level, including to ensure civil security and protect public order.26

9.  The management of all aspects of a pandemic is not a competence that belongs as such to the federal, regional, or community levels of government.27 Each level of government has responsibilities to handle certain aspects of the crisis. For example, the Belgian Regions have been active in adopting measures to mitigate the socio-economic effects of the pandemic, while the Communities have adopted measures in relation to the operation of culture houses and museums, nurseries, schools, or universities. In practice, however, the federal level of government has taken the lead in the fight against the spread of the Covid-19 pandemic in Belgium, relying on a broad reading of its responsibilities for civil security and the protection of public order. Such a reading has made it possible to develop a national response to the pandemic, and is aided by the Regions and Communities allowing the federal government to enact measures applying across the country, and across their areas of competence.28 The Regions and Communities have supplemented the measures adopted at the national level in their fields of competence. Municipalities and provinces have also played a role in the fight against the pandemic under the umbrella of federal legislation which has granted them responsibilities for the protection of public health at the local level.29

10.  This report focuses on the measures adopted by the Walloon Region and the Flemish Community to handle the Covid-19 pandemic, in addition to the measures adopted at the federal level. With 32% and 58% of the population respectively, the Walloon Region and the Flemish Community are the main Belgian sub-federal jurisdictions as far as size and population are concerned. Occasionally, measures adopted at the local level will also be discussed.

11.  Belgium has been one of the states most affected by the Covid-19 pandemic, both in the spring and autumn of 2020. When the pandemic first hit Belgium in March 2020, the country had been in the middle of a political crisis spanning months, with a caretaker Federal Government which had been in charge since December 2018. Until summer 2020, the sanitary crisis overshadowed the political crisis,30 leading most political parties to lend their support in March 2020 to a minority government in charge of tackling the pandemic.31 This minority government was later replaced by a majority government in October 2020.32 The response to the pandemic has not changed the basic constitutional structure of the Belgian state, but it has created tensions that have led to calls for the further transfer of responsibility between the levels of Belgian government and for more efficiency in state structures, notably in relation to the organization of the health sector. One of the recurring questions in public debate has been whether Belgium’s complex federal arrangements have prevented it from addressing the Covid-19 pandemic successfully. Reforms, which will consider broader perspectives than just remedying the weaknesses highlighted by the health crisis, are envisaged by 2024, the year in which the next federal elections are due to take place.33

II.  Applicable Legal Framework

A.  Constitutional and international law

12.  The Constitution does not provide for the possibility of a ‘state of emergency’ or a ‘state of exception’. On the contrary, Article 187 of the Constitution provides that ‘the Constitution may not be suspended in whole or in part’. The extraordinary measures adopted since March 2020 to limit the spread of the Covid-19 pandemic and the de facto suspension of several constitutional rights that they have entailed have reignited scholarly discussions on the desirability of organizing a constitutional state of emergency in Belgian law.34

13.  Belgium is a founding member of the European Union (EU) and a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Belgium has a monist legal order in respect of its international legal obligations. The EU framework has impacted the Belgian response to the Covid-19 pandemic in various ways. The King was empowered by the legislature to take the necessary measures to comply with the decisions taken by the EU in the framework of joint crisis management.35 The precautionary principle, enshrined in Article 191 of the Treaty on the Functioning of the European Union, is one of the legal bases relied upon by the Minister for Home Affairs to justify the measures adopted to limit the spread of the pandemic.36 Belgium is one of the participating Member States on behalf of which the EU Commission procures Covid-19 vaccines through the signing of EU-level Advance Purchase Agreements with vaccine manufacturers.37 Several subsidies granted by Belgian authorities were the subject of a Commission decision regarding their compatibility with State aid requirements.38 As a Schengen state, Belgium is involved in the attempts to coordinate, at the European level, national decisions on borders control and international travel.39 Finally, data from the European Centre for Disease prevention and Control (ECDC) is relied on in the official expert reports that form the scientific basis of the Belgian response to the Covid-19 pandemic.40

14.  There has been no decision to derogate from the ECHR, or any other international convention protecting human rights to which Belgium is a party. The provisions of these treaties have therefore remained fully applicable in Belgium.41 Courts have already set aside or suspended decrees from the Federal Government adopted to handle the Covid-19 crisis for breaching fundamental ECHR or constitutional rights.42

15.  The classification of Covid-19 as a global pandemic by the World Health Organization (WHO) on 11 March 2020, as well as the WHO decision to raise the threat level to its maximum level on 16 March 2020, were used by the Federal and Walloon governments to justify the urgency, scale, and severity of the measures adopted to fight the first wave of the pandemic.43 References to the WHO were also made to justify the pace of the scaling back of the measures in June 2020,44 and, again, to justify the measures adopted to handle the second wave of the pandemic in October 2020.45 WHO guidance is further referred to in the official expert reports that inform and guide the Belgian response to the Covid-19 pandemic.46 Finally, the structures in place to handle the crisis are organized by the Protocol of 5 November 2018 concluded between the Federal Government and the Regions and Communities. This protocol implements in Belgium the WHO’s International Health Regulations (IHR) as well as EU Decision No. 1082/2013.

B.  Statutory provisions

16.  On 13 March 2020, in accordance with pre-pandemic regulations,47 the Federal Minister for Home Affairs adopted a Ministerial Decree which transferred, according to existing law, the management and the coordination of the public response to the crisis to the Federal Government.48 There were then 369 reported cases of Covid-19 infection in Belgium. Although it was not put to a vote, and was not controlled by Parliament, the decision was enacted with broad parliamentary support.49 It was directly followed by a series of three Ministerial Decrees that enacted measures to slow down the spread of Covid-19, by prohibiting activities of a cultural, social, festive, sporting, or recreational nature and by providing for the closure of most shops.50 The three Decrees were enacted by the Minister for Home Affairs and were based on powers conferred on the Minister by the Civil Protection Act 1963, the Police Force Act 1992, and the Civil Security Act 2007.51 As explained in Part IV below, several other similar Ministerial Decrees have been adopted since March 2020 on the same legal bases. The 1963 and the 1992 Acts specify and define the aims of the measures that the Minister for Home Affairs may adopt (the protection of public order and public health and the protection of the population), but not the nature of these measures. Measures may be adopted by the Minister only when decisions at the local level do not suffice to protect public health. They may take the form of regulations or individual decisions. The 2007 Act grants the Minister for Home Affairs the power to restrict the freedom of movement of citizens when dangerous circumstances require it. There is judicial control of the use of these powers but none of the aforementioned statutes provide for an oversight role for the legislature. The breadth of the powers granted by these statutes to the Minister for Home Affairs, and their compatibility with constitutional requirements, are a matter of public debate.52

17.  Although enacted solely by the Minister for Home Affairs, the successive Ministerial Decrees establishing or relaxing the lockdown have all been extensively discussed within either the National Security Council (NSC) (until September 2020) or the CCO (since October 2020) before their adoption. The NSC is responsible for establishing general intelligence and security policy. It also coordinates and determines the priorities of the intelligence and security services. Chaired by the Prime Minister, it is composed of the Ministers for Justice, National Defence, Home Affairs, and Foreign Affairs, as well as all (other) Deputy Prime Ministers.53 During the health crisis, it also included the Minister-Presidents of the federated entities. This is because many measures adopted at the federal level to fight the pandemic have had an impact on matters pertaining to the Regions and Communities. The NSC remains, however, a federal entity in which the Regions and Communities can only take part upon invitation from the Federal Government. The replacement of the NSC by the CCO in October 2020 signalled a desire by the Regions and Communities to have greater influence in developing the Belgian strategy against the pandemic; in the CCO, the Federal Government and the regional and community executives sit on an equal footing.

18.  Belgian legislatures at most levels of government have granted ‘special powers’ to their respective governments to handle the Covid-19 pandemic. Special powers allow the executive to amend, repeal, or supplement existing statutes through delegated legislation. At the federal level, two Special Powers Acts were adopted on 27 March 2020,54 with broad parliamentary support.55 The legislation was fast-tracked (adopted in six days), but the opinion of the Legislation Section of the Council of State on the legality of the Bill was requested by the President of the House of Representatives. The Council concluded that the legislation essentially met the requirements for the use of special powers, but that some further clarification should be inserted, eg the precise scope of the conferred powers.56 Within civil society, leading human rights organizations did not oppose the use of special powers, given the exceptional circumstances, but did stress the continued need to protect human rights and uphold governmental accountability.57

19.  Parliament granted special powers to the Federal Government for three months (30 March–30 June 2020). The enabling statutes provide that Parliament must confirm the special powers decrees adopted by the executive within one year after they enter into force. If not, the regulations lose their validity.58 The enabling statutes also provide that the Government may only use its special powers to fight the Covid-19 pandemic and alleviate its consequences.59 It further specifies in more detail the aims that can be pursued by the Government. These include ensuring security of supply, providing support to the people and entities that have suffered from the pandemic, ensuring the continuity and the stability of the economy, adapting deadlines set by law, or ensuring the continuity of the Justice system.60

20.  The Walloon Parliament first granted special powers to the Walloon Government on 17 March 2020, by voting on a Private Member Bill tabled the day before.61 Special powers were granted for a period of three months.62 The Bill received broad parliamentary support, and the opinion of the Council of State was not requested.63 The Council of State was therefore unable to examine the constitutionality of the Bill. The powers granted to the Walloon Government are broader in scope than the special powers granted to the Federal Government. The Walloon Special Powers Act of 17 March 2020 (I) allowed the Walloon Government to adopt all useful measures to handle all problematic situations arising from the Covid-19 pandemic which required urgent action, as well as to adopt all urgent measures needed to ensure the continuity of activities of general interest in case the Walloon Parliament was adjourned because of the pandemic. In contrast to the Federal Government, the Walloon Government benefitted from the support of a stable (and disciplined) majority in Parliament, which did not challenge the executive on its willingness to receive such broad powers. The Walloon Parliament granted special powers a second time to the Walloon Government on 29 October 2020 for one month (renewed once), again to allow the Government to adopt all useful and urgent measures to handle the Covid-19 pandemic.64 Later opinions from the Legislation Section of the Council of State make it quite clear that the scope of the special powers conferred to the Walloon Government on both occasions went further than what is legally admissible;65 human rights organizations also expressed concerns the second time these powers were granted.66

21.  The Flemish Community is the only federated entity that has not granted special powers to its executive in the Covid-19 context. Pre-pandemic statutes already gave wide powers to the Flemish Government to handle a sanitary crisis.67 Nonetheless, on 20 March 2020, the Flemish Parliament authorised the Flemish Government to declare a state of civil emergency for a maximum period of 120 days.68 The state of emergency was declared on the same day.69 This allowed construction and activities to increase health care capacity in Flanders, and/or the production of medical material to be undertaken without the environmental permits normally required. The Flemish Government was also authorized to suspend, interrupt, or prolong deadlines and adapt procedural and administrative obligations set in primary and secondary Flemish legislation. The Flemish Government declared a new state of civil emergency on 30 October 2020.70

C.  Executive rule-making powers

22.  The bulk of all Belgian legislation is found in regulations adopted by the executives in the form of Royal, Governmental, or Ministerial Decrees. Decrees are not subject to specific parliamentary scrutiny, although Ministers remain accountable to Parliament in general terms. However, party discipline, lack of information, and lack of technical expertise from MPs weaken parliamentary accountability.

23.  Interested parties can challenge regulations and directions from the King, Governments, Ministers, or any administrative authority directly before the Administrative Litigation Section of the Council of State. The Council of State has jurisdiction to annul acts which are contrary to higher norms and to suspend their enforcement in case of emergency.71 Ordinary courts must also set aside administrative acts applicable to their case which are contrary to higher norms.72 The legality of regulations from the King, Governments, and Ministers is normally reviewed by the Legislation Section of the Council of State prior to their enactment.73 All three fora for legal accountability have played a role in the context of the Covid-19 pandemic. For example, more than 90 appeals have been filed before the Council of State under an emergency procedure to challenge public health measures adopted at the federal or local level. Most of these appeals so far have been unsuccessful, mainly for procedural reasons. Examples of courts’ decisions and of the role played by the Legislation Section of the Council of State are discussed elsewhere.

24.  The executive authorities have played a dominant role in the management of the Covid-19 crisis. Lockdown and social distancing measures adopted since March 2020 have been enacted by the Minister for Home Affairs in Ministerial Decrees. In addition, more than 160 Royal and Government Decrees exercising special powers have been adopted under the different Special Power Acts. The Federal State adopted 47 such decrees,74 while the Walloon Government adopted 53 of them during the first wave of the pandemic.75 For example, special powers decrees were enacted to prolong deadlines and restrict public hearings in judicial proceedings, to suspend deadlines in administrative matters, to mobilise additional financial means to help people affected by the pandemic, and to suspend home evictions. Ordinary Royal, Governmental, and Ministerial Decrees have also been adopted to deal with various aspects of the crisis. The adopted decrees relate to most areas of government. For example, the sale of certain medicines was further regulated by a Royal Decree of 24 March 2020 to avoid shortages.

25.  Local authorities also enacted regulations and adopted directions in the context of the Covid-19 pandemic. They have notably done so to enforce public order and protect public safety at the local level when national measures gave them leeway to do so.76 For instance, municipalities have regulated or prohibited access to certain public spaces, such as parks or beaches.77 They have also adopted directions regarding eg the possibility for specific events such as markets, shows, or demonstrations to take place.78

D.  Guidance

26.  Since the pandemic outbreak, official guidance has taken an extraordinary position in the fight against the Covid-19 pandemic. This shift has been criticized, eg by the Legislation Section of the Council of State when the use of guidance instead of formal legislation led to violations of rule of law requirements.79

27.  Specific guidance has been adopted for certain sectors, sometimes with far-reaching implications. For example, in the health sector, advisory groups such as the Risk Management Group (RMG) and the Comité Hospital & Transport Surge Capacity have ‘recommended’ that hospitals postpone all non-urgent medical activities to make space available for Covid-19 patients at the height of the pandemic. The Coordinated Act on Hospitals and Other Care Institutions of 10 July 2008 grants discretionary power to hospital authorities to impose organizational restrictions on the activity of hospital doctors (Article 16), making it possible for hospitals to follow up on the aforementioned ‘recommendation’. In doing so, however, they have also enabled actions such as restricting the right of patients to access medical care without a firm legal basis to do so.80

28.  Another example of the widespread use of guidance relates to the lockdown and social distancing measures adopted to fight the pandemic. Since March 2020, these measures have been communicated to the general public through two main information channels: press conferences from the Government and through an official intergovernmental website operated by the Federal Public Service Health, Food Chain Safety and Environment (FPS Public Health) and the Crisis Center.81 During the press conferences, Ministers have regularly announced the latest measures adopted to slow down the pandemic. Rapidly after, updated ‘guidelines’ have been made available online explaining the measures and their practical implications. However, these guidelines have not always made clear which requirements were legally binding and which were not. This has led to further confusion where, in some cases, published guidelines have been stricter or more lenient than the applicable regulation.

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

29.  Belgian Ministers at all levels of government are responsible before their parliament. At the federal level, Ministers are accountable to the House of Representatives and its select committees. There is a select committee for each government department and additional select committees can be created on an ad hoc basis. At the regional and community level, Ministers are accountable to the Parliament or the Assembly of the relevant federated entity. MPs can ask written or oral questions to Ministers, including regarding their use of delegated rule-making powers, or vote on motions of (non-) confidence in the Government. Government policy is typically debated once a week in a plenary meeting of the assembly. The response of the Belgian executives to the pandemic has been regularly debated in the several Belgian assemblies since March 2020. Statutory instruments are not normally subject to specific parliamentary scrutiny and the Ministerial Decrees, for example the one establishing the lockdown in March 2020, do not need to be confirmed or reviewed by the House of Representatives. However, legislatures may at any time repeal a statute conferring powers to the executive,82 or repeal a regulation adopted by the executive based on an enabling statute.83

30.  As explained in Part II above, most legislatures have granted special powers to the executives for a limited period to handle the Covid-19 pandemic. Special powers can only be granted or extended by the legislature.84 Granting special powers to the executive neither deprives MPs of their legislative powers nor relieves them from their responsibility to hold the government to account. In addition, in the context of the Covid-19 crisis, dedicated select committees, a posteriori legislative confirmation of the special powers decrees, and parliamentary inquiries into the executives’ management of the crisis have contributed to heightened parliamentary scrutiny of the executives’ use of special powers.

31.  Firstly, both the Walloon Parliament and the House of Representatives (the elected House from the Federal Parliament) created dedicated parliamentary committees to monitor the use of special powers by their executives in the spring of 2020.85 This contrasts with the situation in the French Community or in the Brussels Region, where parliamentary scrutiny was undertaken by the ordinary select committees. Overall, parliamentary scrutiny has been more extensive at the federal level than at the Walloon level. This can be explained by the weaker political position of the Federal Government, then a minority government supported by seven other political groups in Parliament. The groups were wary that the Federal Government would use its special powers for policies they disliked.86

32.  Furthermore, all special powers decrees adopted by the executives to handle the Covid-19 crisis need to be confirmed by the legislatures within the time limit set by the enabling act. This time limit is one year from the entry into force of the decrees as far as the Federal and the Walloon levels are concerned. Otherwise, the decrees will be deemed never to have produced any effects. This requirement creates a new opportunity for retrospective scrutiny by the legislature of the special powers decrees. In practice, however, experience shows that this form of scrutiny tends to be superficial,87 and such has also been the case in the context of the Covid-19 pandemic so far. This is because the control takes place months after the entry into force of the decrees, and because the consequences of non-confirming to the decrees are significant, as these are deemed never to have existed. Furthermore, it is not uncommon for the executive to request the joint confirmation of all the special decrees, rather than each individually, further weakening the scrutiny. In the context of Covid-19, the special decrees adopted at the federal level and at the Walloon level, for which confirmation was already requested by the executives, have all been confirmed by the relevant legislatures.88

33.  Finally, since June 2020, almost all Belgian parliaments have set up a special committee within their parliaments to start inquiries into the public response to the pandemic.89 The work of these committees is ongoing for most, except at the Walloon level where a report was adopted on 27 November 2020.90 The Walloon report is mostly forward-looking, listing recommendations and areas of improvement for the future as far as regional responsibilities are concerned.

B.  The functioning of the legislature where its ordinary business is disrupted

34.  The Covid-19 pandemic has affected parliamentary activities at all levels of Belgian government. As ‘essential activities’, parliaments could legally continue to operate even at the height of the first lockdown in March and April 2020. However, social distancing and online working had to be applied whenever possible.

35.  From mid-March to mid-April 2020, there was a considerable slowdown in parliamentary activity. Select committees of the House of Representatives, the Flemish Parliament, and the Walloon Parliament did not meet for three to four weeks from mid-March onwards. Plenary meetings took place at their usual frequency at the federal and Flemish levels, while no plenary meeting of the Walloon Parliament was held between mid-March and mid-April 2020.91 After this first period, parliamentary business progressively returned to normal but in a manner aimed at balancing the continuity of the activities with the requirements of public health.

36.  For example, in the House of Representatives, since April 2020, select committees have met either by video conference or in a hybrid format, with some MPs physically present and others attending online. From late May 2020, some meetings of select committees have also been held entirely physically. Plenary meetings have been held in a hybrid format, with only two members of each political group—a group of MPs belonging to the same party or to parties that decide to form a common group in the assembly—physically present.92 The voting and quorum rules were amended to provide for the possibility of MPs not physically present to vote electronically from the date of 26 March 2020.93 Exceptionally, the House of Representatives held its plenary meeting to conduct a vote of confidence in the new Federal Government in the beginning of October 2020, with all MPs physically present. The plenary meeting was held in the European Parliament in Brussels, a location where social distancing between MPs could be respected. Overall, the changes in the functioning of the House of Representatives seem to have been the result of a consensus between the different political groups represented in the House.

C.  Role of and access to courts

37.  Although their operations were severely disrupted when the Covid-19 pandemic hit Belgium in March 2020, the activities of the courts have been maintained throughout the crisis period. As of 18 March, the institutions of the judiciary, including the Council of State and the administrative courts, were classified as essential sectors, which meant that they could continue to operate even where other entities had to move either to online working or be shut down entirely.94 At the same time, however, the College of Courts of Appeal and of First Instance (Collège des cours et tribunaux/College van hoven en rechtbanken) required courts and registries to deal mostly with urgent cases or cases which could be handled through written proceedings.95 This decision was strongly criticised by legal commentators as weakening the continuity of the justice system.96 Two special powers decrees adopted by the King in April 2020 adapted these measures and were enacted against a background of distrust between the executive and the courts given previous tensions.97

38.  The first one, the special powers Royal Decree No. 2 of 9 April 2020 as amended on 28 April 2020, extended until 17 June 2020 the limitation periods that expired between 9 April and 17 May for bringing a claim before a civil court. In civil and commercial cases, procedural time-limits and those for filing an appeal were also extended by a month. Cases scheduled to be heard between 11 April and 17 June 2020 could be decided based on written submissions only, without a hearing taking place. Courts could, however, also decide to postpone the decision to allow for a hearing to take place at a later date, or could organize such hearing at the planned date, either through video conference or physically if social distancing could be maintained.98 The possibility of using videoconferencing in civil proceedings was criticised by some legal scholars.99 On 5 May 2020, the Brussels business court found the possibility to decide a case without a hearing to violate constitutional and ECHR rights protecting the publicity of judicial hearings.100 Concerns have also been voiced by High Council of Justice (Conseil supérieur de la Justice/ Hoge Raad voor de Justitie) as to the lack of computer resources of the Justice system and the impact thereof on the possibility to organize proceedings and run cases efficiently in times of pandemic.101

39.  In criminal matters, the Royal Decree No. 3 of 9 April 2020 generalized the recourse to written procedures before the Indictments Chambers. Lawyers could furthermore represent their clients even in cases where the presence of the client would normally have been required. The purpose of this measure was to limit the number of cases where prisoners needed to be transported to a court hearing. The limitation periods for prosecuting criminal infringements and limitation periods for penalties were extended by one month from 17 June 2020. To compensate for the physical absence of the detainees during judicial hearings, a pilot experiment was carried out at the end of March 2020 at the Criminal Court of First Instance of Mechelen. A videoconferencing system was set up to connect judges, lawyers, defendants, and interpreters.102 In November 2020, the Federal Government planned to make the use of videoconferencing in criminal matters permanent. This was strongly criticized by NGOs,103 as well as by the Legislation Section of the Council of State. The concerns raised related to the right to a fair trial or the need to protect the integrity of the sensitive data involved.104 This led the Federal Government to postpone this project.105

40.  On 19 June 2020, the council tasked with the oversight of the courts system—the High Council of Justice—announced it would audit how courts and prosecution services had handled the Covid-19 crisis.106 The results of this audit are not known yet.

41.  On 1 November 2020, as the second wave of the pandemic hit Belgium, the College of Courts of Appeal and of First Instance issued new guidelines aimed at ensuring the continuity of courts activities, while also encouraging videoconferencing, the use of written procedures, and other measures dictated by health concerns.107

42.  Proceedings before the Council of State and the Aliens Litigation Council were, firstly, the subject of two dedicated special powers decrees adopted by the King.108 In the context of the second wave of the pandemic, the Council of State issued new guidelines explaining how it would ensure the continuity and the safety of its activities.109 The Constitutional Court, which is competent to adapt its procedures, adopted special procedural measures through a ‘directive’ of 18 March 2020.110 Overall, these courts have favoured or reinforced the use of written procedures. Certain procedural deadlines were also extended.

43.  Finally, within the different courts, public access to registries and courtrooms has also been limited to the minimum necessary. The filing of pleadings and procedural documents was required (spring 2020) or encouraged (autumn 2020) to take place electronically.111

D.  Elections

44.  The Covid-19 crisis has not led to the postponement of any national, regional, or local elections in Belgium. The crisis has, nonetheless, interfered with the electoral calendar by excluding the option of elections at the federal level in the spring of 2020. This was one of the options explored by political actors and in public debate to put an end to the political deadlock in Belgium which had existed since December 2018.112

45.  Apart from the issue of legislative elections, two significant ballots were postponed due to the Covid-19 pandemic. Firstly, the election of judicial members of the High Council of Justice was postponed to 25 September 2020.113 Secondly, the social elections process was also disrupted. Social elections are held every four years to elect the workers’ representatives in the Works Council and/or Committees for Prevention and Protection at Work. These elections were due to take place from 11–24 May 2020 but were first suspended,114 and later rescheduled to 16–29 November 2020. Distance voting was used.115

E.  Scientific advice

46.  The Belgian response to the Covid-19 pandemic has followed the recommendations of health experts of different sorts: epidemiologists, specialists in infectious diseases, etc. This was particularly the case in spring 2020.116 Scientific advice from health experts was less influential in summer and early autumn 2020, until the second wave of the pandemic hit Belgium in October 2020. This is because disagreements between scientists became more public at the time and because, with the pandemic having slowed down in the summer, the need for restricting social and economic activities became less obvious. Health experts gained back a prominent role as the second wave of the pandemic hit Belgium hard in autumn 2020. Scientific expertise is fed into the decision-making process through a complex framework and a variety of advisory committees the composition of which is not always transparent and has furthermore changed over time. Some committees have a statutory basis. Others have been established informally by the Government. Their advice does not bind Government.

47.  Since January 2020, three bodies have been meeting to monitor the health situation and Covid-19 pandemic. The Risk Assessment Group (RAG) analyses the risk to the population by considering epidemiological and scientific data. It is coordinated by Sciensano,117 the Belgian Health Authority. Its members are permanent experts selected by the several Belgian governments and ad hoc experts appointed to cover all potential threats to public health.118 The role of the RAG is to make recommendations to the Risk Management Group (RMG). The RMG is a political body in which representatives of the federal and federated health authorities sit. It uses the advice of the RAG as a basis to formulate proposals for taking measures to protect public health. In addition to these two bodies, an ad hoc ‘Scientific Committee on Coronavirus’ has issued scientific opinions on the evolution of the pandemic to public authorities.119 This committee has been established informally by the Federal Government.120

Public health emergency organizational structure:

Source: H Rongxin et al, ‘Preparedness and Responses Faced during the COVID-19 Pandemic in Belgium: An Observational Study and Using the National Open Data’ (2020) 17(21) International Journal of Environmental Research and Public Health 5.

48.  Since 13 March 2020, advice from the RAG, the RMG, and the Scientific Committee on Coronavirus advisory bodies has been forwarded to the ‘Evaluation Unit’ (CELEVAL), which is placed under the chairmanship of the Federal Ministry of Public Health. The composition of CELEVAL has evolved over time. Experts from the government, from some sectors of activities impacted by the pandemic, and from academia currently sit in CELEVAL.121 CELEVAL advises the Federal Government on its reaction to the pandemic. During the exit phase of the first lockdown (from mid-April to late June 2020), the Federal Government was further advised by the Exit Strategy Expert Group (GEES), another informal advisory body. Members of this group had medical, economic, legal, or social policy expertise and came from academia, the medical world, civil society, or were civil servants.122

49.  In October 2020, the Federal Government appointed a commissioner and an adjunct-commissioner to coordinate the Belgian response to the pandemic. These commissioners also have, as part of their missions, the responsibility to manage and reorganise the existing expert groups.123 They are assisted in their work by experts from several disciplines.124 In December 2020, newspapers announced the creation of a new expert group to replace CELEVAL whose work had become difficult due to internal disagreements. This new group should be mainly composed of health experts.125 It is our understanding that this new group will operate under the umbrella of the Covid-19 commissioner. This will give it formal recognition.

50.  Other advisory bodies on health matters also formally exist at federal or regional level, and they have issued advice on specific aspects of the pandemic. The Superior Health Council serves as a prime example.126

51.  There are no special legislative or regulatory provisions requiring the publication of the reports adopted by the aforementioned committees. During the first months of the crisis, the advice of the RAG, RMG, and other committees was not published. Faced with refusal from the Federal Government to make the reports public, several citizens asserted their right to access administrative documents before the Commission for Access to and Re-use of Administrative Documents, invoking Article 32 of the Constitution and the Freedom of Information Act 1994. The Commission decided that the reports could normally not be withheld.127 This led to the publication of meeting reports and opinions of the RAG on the Sciensano website. The meeting reports and opinions of CELEVAL are available on the inter-federal coronavirus information website. The meeting reports of the GEES are available on another governmental website.

F.  Freedom of the press and freedom of information

52.  The media, journalists, and communication services have been considered as ‘essential activities’ and have therefore always been able to work throughout the crisis.128 An aid plan for the media and journalists amounting to nearly 5 million euros was adopted by the Government of the French Community.129 In the Flemish Community, the Government granted almost 6 million euros in aid to the media sector.130 It has not been reported that the press would have been obstructed in its reporting by the Government, although its day-to-day working has certainly been complicated by the sanitary situation and the need to respect social distancing measures. Laws on access to information have not been suspended or amended. On the contrary, as explained, they were used to obtain the publication of several scientific reports feeding the decision-making process. These reports have later been used to decipher and challenge government policy.131

G.  Ombuds and oversight bodies

53.  In the context of the crisis, the Legislation Section of the Council of State issued reasoned opinions prior to the adoption of many regulations by the executives at all levels of Belgian government. In its opinion, the Legislation Section of the Council of State advises on the conformity of the draft regulations with international and European law, and constitutional and statutory provisions; it also assesses whether the division of competences between levels of government has been respected; and it reviews the legislative quality of the project and whether all legally compulsory advice has been requested in the process of drafting of the regulation.132 For example, the new date for social elections in 2020 had to be set by the King after having requested the option from the National Labour Council.133 Another example of compulsory advice which has proved important in the context of the pandemic is the advice from the Data Protection Authority.134

54.  The 1973 coordinated Acts on the Council of State provide that, except for urgent matters and provided reasons are given, consultation with the Legislation Section of the Council of State body is compulsory for draft laws and draft royal and governmental decrees.135 Urgency has been invoked as a reason by the Ministry for Home Affairs for not submitting the successive decrees enacting or easing the lockdown to the Legislation Section.136 This choice has been accepted in one case by the Council of State acting in its judicial capacity.137 Consultation with the Council of State is also normally mandatory for draft special powers decrees,138 although specific provisions have relaxed this obligation in the context of the Covid-9 crisis. In practice, the Federal Government requested the advice of the Legislation Section of the Council of State for 80% of the special decrees it enacted, while the Walloon Government dispensed with the obligation to consult for more than three-quarters of its special powers decrees.139

55.  Other ombuds and oversight bodies, such as the antidiscrimination authority ‘Unia’ or the Federal Ombudsman, have further launched inquiries and issued public statements into certain aspects of the public response to the Covid-19 pandemic. The Data Protection Authority has also been active in monitoring the privacy and data protection dimensions of the response to the pandemic.

IV.  Public Health Measures, Enforcement and Compliance

A.  Public health measures

56.  Many public health measures adopted to fight the Covid-19 pandemic result from Ministerial Decrees enacted by the Federal Minister for Home Affairs. Despite having an impact on many regional and community competences, the Decrees have been adopted by the federal authority, after discussions with the Regions and Communities in the NSC or CCO.140 The Regions and Communities have supplemented the measures adopted at the national level in their areas of responsibility (eg schools, universities, care homes, etc). The relevant Ministerial Decrees have frequently been amended as the health crisis evolved. Hereafter, only the dates of the Ministerial Decrees, the references of which are included in the table below, are given. These decrees all have the same title: Ministerial Decree on emergency measures to limit the spread of Covid-19. Most Ministerial Decrees included in the table amend, sometimes significantly, a previous one. Other decrees have repealed previous Ministerial Decrees entirely and replaced them with new provisions. However, in many cases, the content of the repealed rules has partly been reincluded in the new instrument.

Date of the Ministerial Decree

Comments

13 March 2020

First version

18 March 2020

Repeals the Decree of 13 March

23 March 2020

Repeals the Decree of 18 March

24 March 2020

Amends the Decree of 23 March

3 April 2020

Amends the Decree of 23 March

17 April 2020

Amends the Decree of 23 March

30 April 2020

Amends the Decree of 23 March

8 May 2020

Amends the Decree of 23 March

15 May 2020

Amends the Decree of 23 March

20 May 2020

Amends the Decree of 23 March

25 May 2020

Amends the Decree of 23 March

30 May 2020

Amends the Decree of 23 March

5 June 2020

Amends the Decree of 23 March

30 June 2020

Repeals the Decree of 23 March

10 July 2020

Amends the Decree of 30 June

24 July 2020

Amends the Decree of 30 June

28 July 2020

Amends the Decree of 30 June

22 August 2020

Amends the Decree of 30 June

25 September 2020

Amends the Decree of 30 June

8 October 2020

Amends the Decree of 30 June

18 October 2020

Repeals the Decree of 30 June

23 October 2020

Amends the Decree of 18 Oct

28 October 2020

Repeals the Decree of 18 Oct

1 November 2020

Amends the Decree of 28 Oct

28 November 2020

Amends the Decree of 28 Oct

11 December 2020

Amends the Decree of 28 Oct

57.  Local authorities have also adopted measures in the fight against the pandemic.141 The articulation of the federal and local responsibilities in fighting the pandemic follows a logic of subsidiarity: municipalities and provinces adopt measures when required by local circumstances, while measures applicable across the country are taken by the Minister for Home Affairs. Local measures supplement the measures adopted at the national level but cannot contradict them.

58.  The Belgian approach to the pandemic has evolved over time. The very first reactions to the pandemic (early March 2020) were taken at the provincial level. From mid-March onwards, the Federal Government took the lead and adopted most of the measures, with the agreement of the Regions and Communities.142 The local authorities (provinces and municipalities) retained a complementary role, which increased during the summer, when the federal measures were eased and left more space for local measures. This responsibility was detailed and made explicit at the end of July 2020 (Ministerial Decree of 24 July 2020). In one case, the Council of State suspended a decision from a municipality aimed at prohibiting prostitution on its territory. The Council of State ruled that such a measure did not fall within the competence of the municipality.143 As more restrictive health measures were again taken nationally in October 2020 to handle the second wave of the pandemic, the space for local initiatives was also reduced.

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

59.  A first set of measures were formally in force between 18 March and 7 June 2020. Then, the Ministerial Decrees of 18 March 2020 and 23 March 2020 made it compulsory for people to ‘stay at home’. The practical scope of the obligation was loosened over the time of its applicability, before being revoked altogether by the Ministerial Decree of 5 June 2020.

60.  Until 3 May 2020, only outings justified by basic needs were allowed (going to grocery shops, accessing health care, etc). Going outside for a walk was also authorized, including with people living under the same roof, as well as with one other person (a ‘friend’). This person had to be the same person throughout.

61.  The Ministerial Decree of 30 April 2020 made the obligation to remain at home less stringent from 4 May 2020, by recommending online working instead of making it compulsory. The gradual reopening of diverse facilities also increased the possibilities to circulate.

62.  Since 20 October 2020, mobility restrictions have been re-enacted at the federal level, in reaction to a major upsurge of the pandemic (Ministerial Decree of 18 October 2020). These measures include a curfew which forbids circulating in public spaces between midnight and 5am, except in the case of essential travel, such as to access medical care or provide assistance and care for the elderly, minors, persons with disabilities, and vulnerable persons. The curfew was found to be prima facie valid by the Council of State.144 A similar curfew had already been applied in the province of Antwerp in August 2020.145 As during the first wave of the pandemic, the Ministerial Decree provides for mandatory online working, although with greater flexibility than in the spring. Since the end of October 2020, the five Walloon provinces have made the curfew on their territory applicable from 10pm–6am.146 They have done so on the invitation of the Walloon Government.

2.  Restrictions on international and internal travel

63.  Domestic travel restrictions have been implemented since March 2020. Once the first set of measures were enacted by the Ministerial Decree of 18 March 2020, most movement within Belgium was prohibited; the decree also specified that it was forbidden to circulate in the public space, except for those movements that were explicitly authorized. For example, it was not permitted to travel to a secondary residence—this ban was repealed by the Ministerial Decree of 20 May 2020. When travel was authorized, there were no distance restrictions on how far people could travel. With the repeal of the obligation to stay at home on 8 June 2020, limitations on internal movement were also removed.

64.  The ban on non-essential travel from Belgium was the main restriction on international travel, and was imposed originally by the Ministerial Decree of 18 March 2020. The Ministerial Decree of 3 April 2020 added that non-essential travel to Belgium was also prohibited. There were no exceptions to these rules until the end of May 2020. The possibility to visit one’s family in neighbouring countries was first opened by the Ministerial Decree of 30 May 2020. From 15 June 2020 onwards, travel to EU Member States, the Schengen area, and the United Kingdom was also allowed (Ministerial Decree of 5 June 2020). However, new restrictions were soon re-enacted: travel to areas designated as ‘red zones’ (areas with a high risk of infection) by the Federal Ministry for Foreign Affairs was restricted (Ministerial Decree of 10 July 2020). In practice, these red zones became increasingly numerous during the summer. Travel agencies brought legal action before the Council of State against these measures but the actions were found inadmissible on procedural grounds, the applicants not demonstrating the imminence of damage (a condition for the use of emergency proceedings).147 The Ministerial Decree of 25 September 2020 transformed the ban on travelling to red zones into a recommendation. Since 11 July 2020, travellers entering Belgian territory have been required to fill in a ‘Passenger Locator Form’, which allows for contact tracing to take place. Quarantine and testing obligations have also been imposed on people arriving in Belgium from certain areas, under the conditions set out below. The rules on international travel were not significantly revised during the second wave of the pandemic. However, due to fears linked to a new variant of the coronavirus discovered in the United Kingdom, Ministerial Decrees of 20 December 2020 and 21 December 2020 severely restricted travel to Belgium from the United Kingdom for two days.

3.  Limitations on public and private gatherings and events

65.  Significant limitations on public and private gatherings and events have been introduced since March 2020. In early March 2020, provincial governors adopted various decrees to prevent public gatherings of more than 1,000 people from taking place.148 Following the Ministerial Decree of 13 March 2020, ‘activities of a private or public nature, of a cultural, social, festive, folkloric, sporting or recreational nature’ were prohibited. The Ministerial Decree of 18 March 2020—superseding provincial measures—later added a general ban on ‘gatherings’. From 3 April 2020, some exceptions were included: for example, gatherings of up to 15 people were allowed for funerals, and civil weddings were authorized in the presence of the spouses, their witnesses, and the relevant civil servant

66.  From May 2020 onwards, these rules were gradually softened. One of the most important changes was the possibility of hosting four people other than those from the household (Ministerial Decree of 8 May 2020). As of 8 June 2020, attending places of worship was once again authorized. It then became possible to organize gatherings of up to 10 people, including in the public space, and to meet 10 different people each week (Ministerial Decree of 5 June 2020). These numbers increased to 15 from 1 July 2020 (Ministerial Decree of 30 June 2020). At the same time, larger gatherings were allowed in special contexts, such as weddings and funerals—30, 100, or 200 persons following respectively the Ministerial Decrees of 15 May, 5 June, and 30 June 2020. From 1 July onwards, events, performances, or receptions of up to 200 people, or up to 400 people for outdoors events, were authorized by the Ministerial Decree of 30 June 2020, which, in addition, opened up the possibility for municipal authorities to authorize larger public gatherings.

67.  A move towards stricter limitations on public and private gatherings was initiated again at the end of July 2020, when a surge of the pandemic was observed. Private gatherings were restricted as each household was only allowed to ‘meet a maximum of 5 people, always the same, in private meetings, including those held in places accessible to the public’ (Ministerial Decree of 28 July 2020). This rule was repealed by the Ministerial Decree of 25 September 2020, but stricter rules were introduced a few days later: under Ministerial Decree of 8 October 2020, public gatherings of more than four people were prohibited—with a number of exceptions that decreased in the following weeks—and each household was only allowed to host four people simultaneously. Since the Ministerial Decree of 1 November 2020, the rule has been amended to restrict the number of guests that each household can host to one, or two for people living alone but only one at a time. These rules were not relaxed for Christmas and New Year 2020 celebrations, except for people living alone who could host two guests simultaneously on 24 or 25 December. On 8 December 2020, the Council of State ruled that the restrictions on the collective exercise of religious freedom were disproportionate, as only weddings (with four people) and funerals (with 15 people) were allowed. It instructed the Federal Government to adopt new measures within five days, in dialogue with representatives from the religious communities.149 The Ministerial Decree of 11 December 2020 authorized religious gatherings of up to 15 people. The Council of State found the new rules to be prima facie valid.150

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sport facilities)

68.  Many premises were closed during the first weeks of the first lockdown in March–April 2020. From 14 March 2020, restaurants, bars, and facilities in the cultural, recreational, and sports sectors were shut (Ministerial Decree of 13 March 2020). A few days later, all stores—except for food stores, pharmacies, hairdressers, petrol stations, and newsagents—were also closed, as well as undertakings classified as non-essential whenever online working or social distancing between employees was not possible (Ministerial Decree of 23 March 2020). The list of essential undertakings took the form of an appendix to the Ministerial Decree and was amended several times. They included care homes, health providers, courts, Parliament, police forces, etc. Except for the first versions of the list, the social partners played a significant role in identifying essential undertakings, relying on their technical expertise in the relevant sectors.151

69.  From April 2020 onwards, the rules were progressively loosened. Garden centres and DIY shops (Ministerial Decree of 17 April 2020), followed by haberdashery shops (Ministerial Decree of 30 April 2020), were authorized to resume their activities. Following the Ministerial Decree of 8 May 2020, all other shops, such as bookshops or clothing shops, could also reopen. Restaurants and bars could reopen from 8 June 2020 (Ministerial Decree of 5 June 2020). Cinemas, theatres, etc could resume their activities from 1 July (Ministerial Decree of 30 June 2020). These reopenings were subject to rules set out in negotiated protocols on eg opening hours, physical distance, and the wearing of masks.152

70.  As the pandemic worsened in October 2020, closures were once again decided. The Ministerial Decree of 18 October 2020 provided for the closure of bars and restaurants for a period of one month. An application to suspend this measure was rejected by the Council of State.153 The Ministerial Decree of 28 October 2020 decided the closure of most facilities in the cultural, festive, sports, recreational, and events sectors. The Ministerial Decree of 1 November 2020 further provided that all non-essential stores should close until mid-December. The Ministerial Decree of 28 November 2020 allowed most stores to reopen at the beginning of December, together with other venues such as museums or swimming pools. Restaurants and bars must remain closed until 15 January 2021.

71.  Schools were first closed on 14 March 2020 (Ministerial Decree of 13 March 2020). The possibility of distance learning activities was maintained. The Ministerial Decree of 15 May 2020 allowed the Communities to reopen access to schools for groups to be determined by them. The implementation of this measure enabled many pupils in nursery, primary, and secondary schools to attend classes for a few weeks in June 2020. Higher education teaching was organized through distance learning between March 2020 and the end of the academic year 2019–2020. The organization of teaching activities during the second wave of the pandemic has largely been defined at the Community level.154 The Ministerial Decree of 28 October 2020 gave leeway to the Community Ministers to take the appropriate measures (Article 20). A system of colour codes was established according to the level of health risk, with different measures and different possibilities for face-to-face teaching applicable. The second wave of the pandemic did not lead to a new closure of primary or secondary schools, but pupils attending the last years of secondary school have had to alternate between online teaching and teaching in class. At the beginning of the academic year 2020–2021, higher education courses were organized partly in face-to-face sessions. However, the second wave of the epidemic led to a switch back to distance teaching from the end of October 2020.

5.  Physical distancing

72.  The obligation to keep 1.5 metres from other individuals was laid down in the Ministerial Decree of 18 March 2020. It was then targeted at certain specific situations, such as in the use of public transport. A more general provision was enshrined in Article 1 of the Ministerial Decree of 23 March 2020 and, later and more clearly, by the Ministerial Decree of 30 May 2020. The rule, with a series of exceptions, is currently set out in Article 23 of the Ministerial Decree of 28 October 2020.

6.  Use of face coverings and personal protective equipment (PPE)

73.  At the start of the health crisis, no significant stock of appropriate face masks was available in Belgium. Public authorities could therefore not impose the wearing of masks to the population. In March 2020, the sale of masks was reserved to licensed pharmacies and was allowed only on medical prescription.155 Wearing a mask in public was authorized by the Ministerial Decree of 30 April 2020; its use was simultaneously made compulsory on public transportation. Public authorities encouraged the production of home-made masks by individuals and ensured the availability of industrially produced masks through public procurement.156 The Minister for Home Affairs then tightened the legal requirements to wear masks for the general public. The list of places where wearing a mask was compulsory, except for medical counterindication, grew throughout July 2020 to include eg shops, museums, and casinos (Ministerial Decrees of 10 July 2020 and of 24 July 2020). Local authorities have extended the list of places where masks should be worn. Challenges brought before the Council of State regarding the obligation to wear a mask have all been found inadmissible on procedural grounds so far, eg because the use of emergency proceedings was found not to be warranted.157

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

74.  The Flemish and German-speaking Communities, the Walloon Region, and the Joint Community Commission in Brussels are the main competent authorities to enact quarantine measures. Legislation existed before the crisis in Flanders and Wallonia to allow for compulsory isolation of individuals at medical request.158

75.  In July 2020, health statutes were amended in Wallonia and Flanders to broaden the hypotheses of compulsory isolation.159 In Wallonia, the statute firstly provides that isolation and quarantine measures can be carried out at home or any other appropriate place. Secondly, it provides that anyone entering Belgium coming from a ‘red zone’ abroad should be placed in quarantine. Thirdly, it extends the quarantine obligation to persons in contact with others suspected of being infected by Covid-19. The rules were revised in October 2020.160

76.  The recommendations of the RMG, the FPS Public Health, and Sciensano play a major role in determining the details and duration of the quarantines.161 They distinguish between quarantines and isolation measures. The latter are applied to people who have symptoms and have tested positive for Covid-19, while quarantine applies to people at risk of being infected to Covid-19. The initial duration of the quarantine period was 14 days, but was reduced to seven days on 1 October 2020.162 The aim was to minimize the social and economic impact of quarantines. Since 21 October 2020, people with symptoms, high-risk contacts, and travellers returning from ‘red zones’ and identified as at risk by the Passenger Locator Form have been asked to quarantine themselves for 10 days—or seven days with a negative PCR test. Persons with a positive PCR test and symptoms of Covid-19 have had to place themselves in isolation for at least 7 days and, after that period, for at least 3 days without fever and with improvement of respiratory symptoms.163

8.  Testing, treatment, and vaccination

77.  Belgian law protects the right of the patient to freely consent to any medical intervention.164 Nevertheless, when a person suffers from certain contagious and dangerous diseases such as Covid-19, they may be forced to undergo medical examination.165

78.  Belgian testing capacity was limited during the spring of 2020. In accordance with Sciensano’s guidelines of 28 March 2020, there was priority for people who met the definition of a possible Covid-19 case, with particular attention being paid to healthcare staff, staff of nursing homes, and, later, their residents.166

79.  In the summer 2020, the Walloon Region and the Flemish Community provided for the possibility of compulsory testing for travellers returning from ‘red zones’ and for people who had been in close-contact with someone diagnosed with Covid-19.167 The Order of Physicians expressed some concerns, considering that the patient’s right to refuse a medical treatment should prevail.168 On 23 September 2020, the testing strategy was further detailed on the Sciensano website: patients with symptoms should contact their doctor in order to be tested as soon as possible. For asymptomatic people who had close contact with a person diagnosed with Covid-19, a test was required on the fifth day of the quarantine. The quarantine should start as soon as the person concerned knew they had been in close contact with an infected person.169 Travellers having stayed in a ‘red zone’ for more than 48 hours had to be tested on the fifth day of their quarantine, except if authorized not to do so according to the self-assessment tool.

80.  In October 2020, the testing centres became overwhelmed and the different Belgian Ministers responsible for health decided, as of 21 October, that people with no symptoms were no longer obliged to get tested.170 Testing resumed on a large scale on 23 November. Since then, all asymptomatic high-risk individuals can be tested on the seventh day of the quarantine.171

81.  Drawing on recommendations from the Superior Health Council (SHC), a taskforce coordinated by the Covid-19 commissar announced a plan on 3 December 2020 for the running of the vaccination campaign against Covid-19.172 The announcement identified six groups to be vaccinated over three phases. Firstly, residents and staff of care homes and healthcare professionals will receive the vaccine. The second phase will target people over 65 years of age, people between 45–65 years of age with comorbidities, and people with essential social and/or economic functions. Thirdly, the rest of the population will be able to receive the vaccine when sufficient doses are available. The vaccination campaign started on 28 December 2020. Vaccination is free, but not compulsory, however some surveys have shown that about 25% of Belgians are wary of the vaccine.173

9.  Contact tracing procedures

82.  The Walloon Region and the Flemish Community have created call centres to contact people infected or suspected of being infected with Covid-19. The contact centres use data from a database operated by the FPS Public Health and Sciensano. The database was first created through special powers decrees adopted at the federal level.174 These decrees were replaced by a cooperation agreement concluded by the Federal Government and the regional and community governments.175 Such an agreement was necessary because of the intertwinement of federal and community competences as far as tracing is concerned.176 This agreement was approved by the federated entities,177 and gave rise to an implementation cooperation agreement.178 The Data Protection Authority has issued several opinions on the draft texts organizing the contact tracing procedures, often criticizing their compatibility with data protection and privacy requirements.

83.  The Ministerial Decree of 24 July 2020 provided for a specific tracing system for bars, restaurants, and hotels (Article 3). These facilities were requested to obtain contact details from their clients, such as a telephone number or an e-mail address. A similar measure was later adopted regarding other facilities such as wellness centres, sports courts, swimming pools, and casinos.179 These provisions were repealed by the Ministerial Decree of 18 October 2020.

84.  The public health Passenger Locator Form was introduced in July 2020.180 Initially the form had to be filled in only by travellers returning from a ‘red zone’, but it was made compulsory from 1 August 2020 onwards for any person entering Belgium after staying abroad for more than 48 hours.181

85.  Finally, since 30 September 2020, the digital contact tracing application ‘CoronAlert’ has been made available by the Federal Government to speed up the search for the source and contacts of infected persons.182 Its use is not compulsory. On 11 December 2020, the application had been downloaded more than 2.3 million times.183

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors etc

86.  In March 2020, measures were taken in both Flanders and Wallonia to limit the spread of Covid-19 within care institutions, including rest homes for the elderly. In some cases, these measures were enshrined in binding legal instruments,184 while in other cases the (less transparent) route of administrative instructions was chosen.185 The main measure was the prohibition of visits.

87.  In Wallonia, visits could resume in late April 2020, on a supervised basis. In Flanders, this was the case in May 2020.186 When the second wave of the pandemic hit Belgium in October 2020, the Walloon government limited visits to one visitor per resident.187 These decisions were further detailed in regulations from the provincial governors.188 Visits were extended to two visitors per resident on 14 December 2020. 189 On 29 October 2020, the guidelines for rest homes were also amended in Flanders to limit visitors to two per resident. One of these visitors is allowed not to maintain physical distance from the resident.190

88.  Despite the adopted measures, the situation in the homes for the elderly during spring 2020 was critical at times and a report from Amnesty International highlighted severe violations of the human rights of the residents.191 Deaths in homes for the elderly represented more than 60% of the total number of Covid-19 deaths in Belgium during the first wave of the pandemic.

B.  Enforcement and Compliance

1.  Enforcement

89.  The Ministerial Decrees of 18 March 2020, 23 March 2020, 30 June 2020, 18 October 2020, and 28 October 2020 all provide that infringements to some of their provisions can be the subject of criminal penalties as provided under the Civil Security Act 2007. The criminal sanctions apply to infringements of the rules regulating the operation of shops, businesses, or other establishments, private and public gatherings and activities, mobility in the public space, use of masks, and international travel.

90.  The criminal penalties stipulated under the Civil Security Act 2007 are ‘imprisonment from eight days to three months and a fine of twenty-six to five hundred euros, or one of these penalties only’,192 to be imposed by a criminal court. The amount of the criminal fines must by law be multiplied by eight,193 which means that the actual amount of the fine ranges from 208–4,000 euros.

91.  Courts are not the only public bodies that may enact sanctions for infringements of the public health measures enacted by the Ministerial Decrees. However, when alternative punitive routes are chosen, citizens retain the option to go to court as an alternative.

92.  Firstly, from 7 April 2020 to 29 June 2020, a special powers Royal Decree granted the municipalities the possibility to enact administrative fines for violations of the then applicable Ministerial Decree of 23 March 2020.194 The fine amounted to 250 euros per infringement, regardless of its type or seriousness. 195

93.  Secondly, under the Ministerial Decree of 28 October 2020,196 agents from the FPS Public Health have been able to impose fines of 750 euros on shopkeepers, operators, and organizers of an activity, or 250 euros on other offenders for infringements to the provisions regulating the opening and operation of shops, businesses, and other establishments.

94.  Thirdly, infringements to the requirements of the Ministerial Decrees can be the subject of a criminal settlement between the offender and the prosecution offices.197 While normally the amount for the settlement is set individually for each case, guidelines have been adopted by the Board of Procurators General. According to the relevant circular, ‘[i]n the case of a first report of an infringement, a criminal settlement in the amount of 750 euros [can be offered] to shopkeepers, operators and persons in charge of an activity and 250 euros to other offenders’.198 Since 15 December 2020, the Board of Procurators General has set higher amounts for criminal settlements offered to offenders in cases of so-called ‘lockdown parties’.199

95.  The question of whether a person is put on trial for infringement of the lockdown and social distancing measures, or if one of the alternative sanctioning methods is applied, depends on factors such as the location where, or the moment when, the infringement was committed, the (absence of) payment of the administrative fine, the nature of the infringement, the existence of more restrictive local directives concerning lockdown parties or the repeated nature of the infringement. According to the Board of Procurators General,200 administrative fines or criminal settlements should be favoured for first offenders whenever possible. For repeated offenders, or offenders who do not comply with the terms of the offered criminal settlement, 201 the cases should be sent to court.202

96.  The unclear wording of some public health measures, for breaches of which criminal sanctions can be enacted, gave rise to challenges in court203 and scholarship has discussed whether the principle of legality in criminal matters was complied with.204 On 21 September 2020, a First Instance Court decided that the legal basis found in the Civil Security Act 2007 did not allow for a general restriction on freedom of movement, which implied that the criminal penalties provided for in the Civil Security Act 2007 could not be applied either.205 However, an appeal has been lodged against the decision and other judges have found differently.206

97.  Special rules apply to infringements to the mandatory quarantine requirements. The Flemish Preventive Health Policy Act 2003 provides for a fine of 26–500 euros—updated to 208–4000 euros—and/or a prison sentence from eight days to six months to be imposed by a criminal court (Article 79). Similar sanctions apply at Walloon level, except that the minimal amount of the fine is of one euro—updated to 8 euros.207

Infringements to the Ministerial Decrees

(i.e. rules regulating: the opening and operation of shops and other premisses; private and public gatherings and activities; circulation in the public space; the wearing of a mask; international travel)

Administrative fine of 250 euros per infringement

Infringements to the Ministerial Decree of 23 March 2020 (only for first infringements between 7 April 2020 and 29 June 2020 and if enacted by the municipality where the infringement was committed)

Administrative fine of 750 euros for shopkeepers, operators and persons in charge of an activity and 250 euros for all other offenders

Infringements to the Ministerial Decree of 28 October 2020 (only for first infringements to the rules regulating the opening and operation of shops, businesses or other establishments)

Criminal settlement in the amount of 750 euros for shopkeepers, operators and persons in charge of an activity and 250 euros for other offenders

Infringement to one of the Ministerial Decrees (mainly for first infringements when no administrative fine is provided, with a possible exception for lockdown parties)

Criminal settlement in the amount of 4,000 euros for organizers and 750 euros for participants

Organization or participation in a lockdown party (if foreseen by a local directive of the competent prosecuting authority)

Imprisonment from eight days to three months and a fine of twenty-six to five hundred euros (meaning 208 to 4.000 euros), or one of these penalties only, pronounced by a criminal court

Infringement to a Ministerial Decree (in case of repeated offenders, breaches of the conditions of a criminal settlement or – if foreseen by a local directive of the competent prosecuting authority – for first offenders organizing or participating in a lockdown party)

98.  Police forces have been at the forefront of the enforcement of the measures adopted as a response to the Covid-19 pandemic. As of 13 December 2020, the number of cases registered by the prosecution offices for infringements to the successive Ministerial Decrees amounted to 144,907.208 Police enforcement has led to tensions with citizens, in particular with minorities.209 Controversies also arose regarding the possibility for the police to use drones or to enter private houses to monitor compliance with the measures, notably during the Christmas and New Year holidays. The Board of Procurators General responded to this controversy, objecting to the use of drones and restricting home visits to strict conditions.210

99.  Municipalities have also played a role in enforcing the applicable health measures, eg by closing establishments in cases of infringements.211

100.  The Belgian army has not been mobilized to control or monitor compliance with public health measures. However, the army has provided, when required, logistical and medical support, eg in hospitals and care homes.212

2.  Compliance

101.  Since April 2020, Sciensano has been carrying out surveys to assess compliance with the lockdown and social distancing measures. To date, four surveys have been published.213 The periods covered are as follows: 2–9 April 2020;214 16–23 April 2020;215 28 May–5 June 2020;216 and 24 September–2 October 2020.217 Approximately 150,000 people participated in the surveys. Surveys have also been carried out by universities. For example, 2,740,687 people participated in 26 successive surveys run between 17 March–15 December 2020 by the University of Antwerp, in cooperation with the Universities of Hasselt and Leuven (the ‘corona study’).

102.  Overall, the studies show that compliance with the measures has been the norm. Some variation can nevertheless be observed. Firstly, the Sciensano surveys tend to show that the measures have been less respected by people aged 16–24 years. Secondly, the degree of compliance with the rules has evolved over time. For example, the corona-study showed that more people worked online during the first wave of the pandemic (50–57%) than during the second wave (36–42.5%), despite online working being mandatory in both cases. This does not necessarily imply non-compliance with the rule, as the exceptions to online working have been greater since October 2020. Another example is the rate of compliance with the requirement to maintain a physical distance of a minimum of 1.5 metres between individuals. The Sciensano studies show that the rate of compliance with this requirement decreased over time. The rate of non-compliance from respondents was 9% in the first survey, 12% in the second, 26% in the third, and was as high as 41% in the fourth survey. This information is corroborated by the corona-study, which shows that the percentage of people who kissed or shook hands with someone outside of their household increased as the crisis developed, with a peak observed during the summer months.

Prof. Emmanuel Slautsky, Université libre de Bruxelles

Prof. Frédéric Bouhon, Université de Liège

Ms. Camille Lanssens, Université libre de Bruxelles

Mr. Andy Jousten, Université de Liège

Mr. Xavier Miny, Université de Liège

Footnotes:

1  Constitution, title III, chapter 1.

2  Constitution, arts 63, 65, 67.

3  Constitution, art 36.

4  Constitution, arts 77, 78.

5  Constitution, art 87.

6  Constitution, art 96.

7  Constitution, art 99.

8  Constitution, art 104.

9  Constitution, art 96.

10  Constitution, art 62.

11  Constitution, art 37.

12  Constitution, art 106.

13  Constitution, art 105.

14  Constitution, arts 37, 107.

15  Constitution, arts 1, 2, 3.

16  Constitution, arts 115, 121.

24  Constitution, title III, chapter VIII.

25  Constitution, arts 41, 162.

27  Legislation Section of the Council of State, Opinion No. 47.062/1/V (18 August 2009) 4–5.

28  J Van Nieuwenhove and P Popelier, ‘De bevoegdheidsverdeling en de coördinatie tussen de bevoegde overheden in de strijd tegen de COVID-19 pandemie’ (2020) 4 Tijdschrift voor wetgeving 303, 303–13.

29  ‘New’ Municipal Act of 24 June 1988, eg art 135 s 2 no. 5 (municipalities); Civil Security Act 15 May 2007, arts 181, 182 (municipalities); Provincial Act of 30 April 1836, art 128; Police Force Act of 5 August 1992, art 11 (provinces).

30  P Popelier,‘COVID-19 legislation in Belgium at the crossroads of a political and a health crisis’ (2020) 8 The Theory and Practice of Legislation 131, 131–53.

31  House of Representatives, Plenary meeting of 19 March 2020, CRI, 2019-20, [1].

32  House of Representatives, Plenary meeting of 3 October 2020, CRI, 2019-20, [1].

33  Federal Public Service Prime Minister’s Office, ‘Prime Minister Address to Parliament’ (2 October 2020).

34  M Verdussen, ‘La Constitution belge face à la pandémie de Covid-19’, Confluence des droits (4 September 2020).

37  Eg Federal Agency for Medicines and Health Products, ‘Coronavirus – Belgium joins Europe for the purchase of the vaccine candidate against COVID-19 from AstraZeneca’ (26 August 2020).

38  European Commission, ‘State aid rules and coronavirus’ (3 April 2020, updated 13 October 2020).

39  European Commission, ‘Travel during the coronavirus pandemic’ (accessed 24 October 2020).

40  Eg Evaluation Unit (CELEVAL), Opinion 2.1, 19 (accessed 26 October 2020).

41  Legislation Section of the Council of State, Opinion No. 67.142 (25 March 2020) 25.

42  Tribunal de l’Entreprise Francophone (18th Chamber), Decision of 5 May 2020 (French-speaking Commercial Court of Brussels) not published (see Part III.C below); Cour de cassation, Decision No P.20.0840.F/1 (19 August 2020) (Supreme Court); Cour de cassation, Decision No P.20.0931.N (29 September 2020) (Supreme Court); Congregation Yetev Lev Dsatmar Antwerp Limited v Belgian State [2020] No 249.177 (Council of State).

46  Evaluation Unit (CELEVAL), Advies 2.1, 19. (accessed 26 October 2020).

49  House of Representatives, Plenary meeting of 12 March 2020, CRI, 2019-20, [2].

52  Carte blanche: «Sortez le parlement de la quarantaine!’, Le Soir (Online 2 November 2020).

55  House of Representatives, Plenary meeting of 26 March 2020, CRI, 2019-20.

56  Legislation Section of the Council of State, Opinion No. 67.142/AG (25 March 2020).

57  Ligue des droits humains, ‘COVID-19 | Special Powers’ (26 March 2020).

61  Walloon Parliament, Plenary meeting of 17 March 2020, CRI, 2019-20, 17, 20–21; Walloon Parliament, Special Powers Bill, Doc WP, 2019-20, No. 135-1. See also Walloon Special Powers Act of 17 March 2020 (II)

63  Walloon Parliament, Plenary meeting of 17 March 2020, CRI, 2019-20, 21.

65  Opinion No. 68.206/4/AG (9 November 2020) 5; Opinion No. 68.215/4/AG (9 November 2020) 5.

66  Ligue des droits humains, ‘The second wave of Covid-19’ (7 December 2020).

72  Constitution, art 159.

74  See here and here.

77  M Boverie, ‘Les pouvoirs locaux à l’épreuve du Covid-19’ (2020) 949 Mouvement communal 6, 8–9.

78  Eg Brikci-Nigassa v Mayor of Brussels and City of Brussels [2020] No 247.790 (Council of State).

79  Eg Legislation Section of the Council of State, Opinion No. 68.188/4 (27 October 2020) 7.

80  F Dewallens, C Lemmens, S Lierman et al, ‘COVID-19 en gezondheidsrecht: een eerste analyse’ (2020) Tijdschrift voor gezondheidsrecht 17, 25–26.

82  Legislation Section of the Council of State, Opinion No. 67.142 (25 March 2020) 28.

83  Legislation Section of the Council of State, ‘Principes de technique législative’, 88.

84  Legislation Section of the Council of State, Opinion No. 67.142 (25 March 2020) 27–28.

85  House of Representatives, Plenary meeting of 26 March, CRI, 2019-20, [3]; Walloon Parliament, Plenary meeting of 15 April 2020, CRI, 2019-20, 39–40, 47.

86  C Lanssens and E Slautsky, ‘Le recours aux pouvoirs spéciaux dans le contexte de la crise sanitaire liée à la pandémie du Covid-19: une première évaluation’ in S Parsa and M Uyttendaele (eds), Le Covid face au droit (Anthémis 2020) 102.

87  T Moonen, ‘Bijzondere machten als oplossing voor een crisis. Of zelf in een midlifecrisis?’ in E Vandenbossche (ed), Uitzonderlijke omstandigheden in het grondwettelijk recht (La Charte 2019) 207.

91  L Rigaux and M Uyttendaele, ‘L’impact du Covid-19 sur le gouvernement fédéral et les parlements’ in S Parsa and M Uyttendaele (eds), Le Covid face au droit (Anthémis 2020) 59–60.

92  ibid, 61.

93  House of Representatives, Plenary meeting of 26 March 2020, CRI, 2019-20, [11], [16].

95  College of Courts of Appeal and of First Instance, Communication coronavirus III (16 March 2020); Communication coronavirus IV (18 March 2020).

97  V Lefebve, ‘La justice est-elle soluble dans le coronavirus ? Les tensions entre pouvoirs exécutif et judiciaire en temps de pandémie’ (2020) e-legal. Revue de droit et de criminologie de l’ULB.

98  See D Chevalier, B De Coninck, A Hoc et al, ‘La procédure civile en période de Covid-19 – Commentaires et analyses de l’arrêté royal n°2 du 9 avril 2020’, (2020) 18 Journal des Tribunaux 330.

99  J Englebert, ‘Service nécessaire à la Nation, la Justice ne pouvait pas être confinée’ (Anthemis 2020) 40–46.

100  Tribunal de l’Entreprise Francophone (18th Chamber), Decision of 5 May 2020, not published. See, however, Legislation Section of the Council of State, Opinion No. 67.182/1-2 (4 April 2020).

101  High Council of Justice, Opinion on the Draft Special Powers Decree on Courts Procedures (April 2020) 3–5.

103  Une loi Covid dangereuse pour la justice’ Le Vif (Online, 26 November 2020).

104  Legislation Section of the Council of State, Opinion No. 68.261/1-2 (13 November 2020) 58–68.

106  High Council of Justice, Communication Audit Covid-19 (19 June 2020).

107  College of Courts and Tribunals, Communication Coronavirus XXI (1 November 2020).

109  Council of State, The Council of State and the COVID-19 coronavirus (accessed 26 October 2020).

111  College of Courts of Appeal and of First Instance, Communication coronavirus III (16 March 2020); Communication coronavirus IV (18 March 2020); Communication Coronavirus XXI (1 November 2020).

112  M Sirlereau, ‘Bart De Wever: “Les élections sont de plus en plus inévitables”’ RTBF (Online, 17 February 2020). See Part I above.

116  P Popelier, ‘COVID-19 legislation in Belgium at the crossroads of a political and a health crisis’, (2020) 8 The Theory and Practice of Legislation 131, 151.

119  Sciensano, ‘What role does Sciensano play?’ (accessed 18 October 2020).

120  Federal Commission for Access and Re-Use of Administrative Documents, Opinion No. 2020-56 (29 June 2020).

121  FPS Public Health, ‘Composition of the Evaluation Unit’ (accessed 18 December 2020).

122  Federal Government, ‘Publication of the final reports of the GEES expert group’ (8 June 2020).

126  See Royal decree creating the Superior Health Council (5 March 2007); Federal Public Service Health, Food Chain Safety and Environment (FPS Public Health), ‘Superior Health Council’ (accessed 26 October 2020).

127  Opinion No. 2020-39 (18 May 2020); Opinion No. 2020-40 (18 May 2020).

131  eg J-F Abbeloos, ‘Elk uur dat voorbijgaat zullen we nieuwe overlijdens vaststellen’, De Standaard (Online, 12 June 2020).

134  See Legislation Section of the Council of State, Opinion No. 68.261/1-2 (13 November 2020) 57–58.

137  Mainego v Belgian State [2020] No. 248.918 (Council of State).

139  C Lanssens and E Slautsky, ‘Le recours aux pouvoirs spéciaux dans le contexte de la crise sanitaire liée à la pandémie du Covid-19: une première évaluation’ in S Parsa and M Uyttendaele (eds), Le Covid face au droit (Anthémis 2020) 91–93.

140  See Part I above.

141  See Parts I and II.C above.

142  See Parts I and II.B above.

143  Bou-Oudi and Akhoun v Mayor of Brussels and City of Brussels [2020] No 248.541 (Council of State).

144  Verelst and ors v Belgian State [2020] No. 248.819 (Council of State).

147  eg Société à responsabilité limitée Deck Travel v Belgian State [2020] No. 248.270 (Council of State).

149  Congregation Yetev Lev Dsatmar Antwerp and ors v Belgian State [2020] No 249.177 (Council of State).

150  eg Parmentier and ors v Belgian State [2020] No 249.314 (Council of State).

151  E Dermine and A Mayence, ‘Associer les interlocuteurs sociaux à l’identification des entreprises essentielles: un apport technique mais également un enjeu démocratique’ 7 Carnet de crise du Centre de droit public (6 April 2020).

152  See overviews of the protocols approved by the Flemish Government and the French Speaking Community Government.

153  SPRL Manaigo v Belgian State [2020] No 248.781 (Council of State); NV Umami v Belgian State [2020] No 248.818 (Council of State).

154  See eg the information for the Flemish Community available here.

156  See eg the information available here (obtained through a freedom of information request).

157  Meulemans and ors v Belgian State [2020] No 248.124 (Council of State); Meulemans and ors v Belgian State [2020] No 248.108 (Council of State); Meulemans and ors v Belgian State [2020] No 248.109 (Council of State); X v French Speaking Community [2020] No 248.213 (Council of State); Van Roy v Belgian State [2020] No 248.231 (Council of State); Hovine v City of Tournai [2020] No 248.219 (Council of State).

161  FPS Public Health, ‘Quarantine and isolation’ (accessed 20 October 2020).

162  FPS Public Health, ‘Launch of the Risk Management Strategy: citizens' responsibilities’ (23 September 2020).

163  FPS Public Health, ‘Adapted testing policy’ (20 October 2020).

166  FPS Public Health, ‘20,000 tests for residential care centres and rest homes’, 10 April 2020.

169  FPS Public Health, ‘Launch of the Risk Management Strategy: citizens' responsibilities’ (23 September 2020).

170  FPS Public Health, ‘Adapted testing policy’ (20 October 2020).

171  FPS Public Health, ‘New screening strategy from 23 November’ (21 November 2020).

176  Legislation Section of the Council of State, Opinion No 67.425/3, 67.426/3 and 67.427/3 (26 May 2020).

177  See for example Walloon Act of 30 September 2020 (15 October 2020); Flemish Act of 2 October 2020 (15 October 2020).

185  eg Agency for Quality Living (AVIQ), Circular - CORONAVIRUS […] (13 March 2020).

192  Civil Security Act 2007, art 187.

195  Ibid, art 2.

196  Art 27 s 3 in combination with Consumer Health Act 1977, art 19.

197  Code of Criminal Procedure of 19 November 1808, art 216bis; Board of Procurators General, ‘Circular No. 06/2020’ (25 March 2020, updated 15 December 2020).

198  Ibid.

199  Ibid.

200  Board of Procurators General, ‘Circular No. 06/2020’ (25 March 2020, updated 17 June 2020); Board of Procurators General, ‘Circular No. 06/2020’ (25 March 2020, updated 15 December 2020).

202  Board of Procurators General, ‘Circular No. 06/2020’ (25 March 2020, updated 15 December 2020).

203  See eg Tribunal de Police du Hainaut (Division de Charleroi), Decision of 29 July 2020 (Police Court of Hainaut, Division of Charleroi), [2020] Jurisprudence de Liège, Mons et Bruxelles 1288–90.

204  See eg F Kuty, ‘Les implications pénales de la sécurité civile: Les infractions à la réglementation tendant à limiter la propagation du virus Covid-19 (1ère partie)’ (2020) 16 Journal des Tribunaux 296, 297–98.

205  Tribunal de Police du Hainaut (Division de Charleroi), Decision of 21 September 2020 (Police Court of Hainaut, Division of Charleroi) not published.

206  See eg Tribunal correctionnel du Brabant wallon, Decision of 26 June 2020 (Criminal court of Walloon Brabant), [2020] Jurisprudence de Liège, Mons et Bruxelles 1755.

208  Board of Procurators General, ‘Corona/COVID-19" statistics from the Public Prosecutor's Office’ (13 December 2020).

209  Amnesty International, ‘Policing the Pandemic’ (22 June 2020) 8–20.

210  Board of Procurators General, ‘Circular No. 06/2020’ (25 March 2020, updated 15 December 2020).

211  See eg Probumat Ltd and ors v City of Antwerp [2020] No. 247.393 (Council of State).

212  A Dumoulin, ‘L’armée belge face au Covid-19: le choix de la sémantique’ (2020) 6 Revue défense nationale 131.

213  A fifth health survey was carried out between 3 and 11 December 2020, the results of which were not available at the time of writing.