Research Ingrid Opdebeek

Abstract

It is beyond dispute that the State can be held liable like any other person if it commits a fault that causes damage. A more difficult question is whether it is possible to claim compensation for damage resulting from lawful State intervention. In France and the Netherlands, this is generally possible on the basis of the principle of equality of citizens before public burdens. According to this principle, the State cannot without compensation impose greater burdens on citizens than they need to bear in the public interest. More recently, the highest courts of Belgium have also applied this principle in the context of private property restrictions. However, little is clear as to the precise scope, meaning and function of the principle in Belgian law, and it remains an open question whether the adoption of the principle can be interpreted as a general acceptance of nofault State liability. Therefore, the PhD dissertation aims to elaborate a general framework regarding no-fault State liability and to test this framework against specific applications in property restricting legislation. The theoretical research results will be tested and applied within specific situations and ultimately evaluated, with policy recommendations. The project will be conducted in an intra-disciplinary way and build on insights drawn from property, civil liability, administrative and European law.

Researcher(s)

• Promoter: Carette Nicolas
• Co-promoter: Opdebeek Ingrid
• Fellow: De Winter Samuel

Research team(s)

• Personal Rights and Property Rights

Project type(s)

• Research Project

Abstract

The aim of the project is to create and apply a set of criteria used to determine depenalisation.The "Taxation-tool on criminality" will be used as a starting point. The reform of the Belgian Penal Code will be taken into account. An intra- and interdisciplinary scientifc team with expertise in criminal law, administrative law and criminlogy will do the research.

Researcher(s)

• Promoter: Rozie Joëlle
• Co-promoter: Opdebeek Ingrid

Research team(s)

• Law Enforcement

Project type(s)

• Research Project

Abstract

Numerous administrative decisions are taken every day in Belgium by a variety of administrative bodies. Some of these decisions rely on facts that are fairly easy to determine (date of birth, residence etc.). Others, however, require a more thorough and intensive investigation and proof of all the relevant facts in order to ensure that the administration can take a well-informed decision. Decisions on planning and environmental permits, for instance, require a precise, technical knowledge of the location of the planned construction, the dangers posed by certain activities, the expected nuisance with respect to mobility, the environment etc. Imposing a disciplinary sanction on a civil servant who denies the facts, may require the administration to have recourse to certain investigatory acts. Which methods of investigation and proof can the administration use in those cases? And who carries the delicate and complex burden of proof in asylum cases? Many administrative decisions are annulled by the administrative courts because the facts were not established or assessed in a proper and correct way. Sometimes, however, the question also arises whether the intensity of review that the administrative courts adopt in this matter is sufficient. Fundamental rights are at stake here, too. The question arises whether the right to a court that exercises 'full jurisdiction' (guaranteed by article 6 of the European Convention on Human Rights) does not require a more active role of the courts in these matters, which goes beyond a mere control of the investigation carried out by the administration. For citizens, administrative bodies and administrative courts, the lack of a comprehensive theory on proof in administrative law is problematic. Who carries the burden of proof in which circumstances? What has to be proved? Which types of evidence are permissible? And what is the role of the courts in the litigation phase? An answer to these questions would fill an important lacuna in legal academic knowledge. The aim of this research is to develop a general theory on proof in administrative law, both in the administrative phase and in the phase before the administrative courts. To that end, we study the case law of the Council of State and a selection of specialized administrative courts and we engage in comparative research to look for inspiration in other jurisdictions. Knowing who has to prove what, which types of evidence can be used for that purpose and how a judge has to evaluate and control this process is essential for legal certainty and, hence, for the rule of law. Both the scientific and social relevance of this research are therefore certain. The results of this research will not only offer handholds to citizens, administrative bodies and courts; they could also be an inspiration for the legislature to develop a statutory framework on proof in administrative law.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Co-promoter: De Somer Stéphanie
• Fellow: Stijleman Annelien

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

A construction company that participated in a public procurement procedure but lost, learns that the beneficiary has a close personal relationship to some of the members of the contracting authority. A candidate for a nomination as a public servant hears that a member of the jury is the former employer of the candidate that was ranked first and will be appointed. A public servant of a local authority that is subject to a pending disciplinary procedure reads in the newspaper that his mayor already considers him to be guilty and believes that he should be severely punished. In all these situations, the person affected could challenge the final decision via the administrative courts, relying on the prohibition of bias that the administration is subject to. A short preliminary study, however, reveals that the success rate of such claims in Belgium is low. The proposed research aims to assess what the explicit and implicit reasons for this high number of failures are and what the relative importance of those reasons is. It relies on a systematic analysis of the case law of the Council of State and the Raad voor Vergunningsbetwistingen ('Council for Disputes on Permits') in a period of 8 years. The research will reveal where precisely the duty of impartiality has its 'Achilles heel', being the factors that impede an effective judicial enforcement. Via the legal comparative method, possible solutions for the identified problems will be looked for in other legal systems.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: De Somer Stéphanie

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

It is beyond dispute that the State can be held liable like any other person if it commits a fault that causes damage. A more difficult question is whether it is possible to claim compensation for damage resulting from lawful State intervention. In France and the Netherlands, this is generally possible on the basis of the principle of equality of citizens before public burdens. According to this principle, the State cannot without compensation impose greater burdens on citizens than they need to bear in the public interest. More recently, the highest courts of Belgium have also applied this principle in the context of private property restrictions. However, little is clear as to the precise scope, meaning and function of the principle in Belgian law, and it remains an open question whether the adoption of the principle can be interpreted as a general acceptance of nofault State liability. Therefore, the PhD dissertation aims to elaborate a general framework regarding no-fault State liability and to test this framework against specific applications in property restricting legislation. The theoretical research results will be tested and applied within specific situations and ultimately evaluated, with policy recommendations. The project will be conducted in an intra-disciplinary way and build on insights drawn from property, civil liability, administrative and European law.

Researcher(s)

• Promoter: Carette Nicolas
• Co-promoter: Opdebeek Ingrid
• Fellow: De Winter Samuel

Research team(s)

• Personal Rights and Property Rights

Project type(s)

• Research Project

Abstract

It is a truth universally acknowledged that 'beauty is in the eyes of the beholder'. If this is true, can governments legitimately regulate the aesthetics of the built environment? Research in psychology has revealed that the way in which we perceive the beauty of our environment has important effects on our well-being as individuals and as a society. If an aesthetically pleasing environment indeed serves the public interest, it seems legitimate for governments to control the beauty of buildings and neighbourhoods. Planning authorities typically enjoy considerable room for appreciation (discretionary power) in matters of 'aesthetic regulation'. But precisely because aesthetic taste is often regarded as highly subjective, not everybody agrees that this is desirable. This raises the question of who is to (co)decide on what constitutes 'beauty' in this context. Architects, as experts? The public? This is also important because 'aesthetic regulation' affects fundamental rights. Whereas owners point to their right to protection of property, architects argue that they should be free from censorship, relying on their right to freedom of expression. The public, on the other hand, may well argue that it has a right to enjoy an agreeable neighbourhood, which could be subsumed under the right to an effective enjoyment of private life. The project studies the way in which Flemish urban planning law deals with these questions and seeks inspiration the US, the UK and the Netherlands.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: De Somer Stéphanie

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

The law on the creation of autonomous public bodies in the administrative organization of European states is currently characterized by two trends. On the one hand, international or supranational law obliges or encourages states to create autonomous public bodies. Various national regulatory authorities which find their legal basis in different directives of the European Union on the liberalization of utilities sectors are the most apparent examples of this trend towards the internationalization of the law on autonomous government. On the other hand, one notices an attempt on the national level to restrain the evolution towards autonomous government. The question arose whether and to what extent autonomous government can be reconciled with fundamental constitutional principles governing administrative organization. Attempting to put a brake on the unlimited rise of autonomous public bodies, states have come up with framework regulation, determining the conditions for their establishment. How do these two trends determine the law on autonomous public bodies? To what extent do these trends conflict and – if need be – (how) can they be reconciled? The research studies these questions from a European comparative perspective.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: De Somer Stéphanie

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

In Belgium, as well as abroad and within the E.U., important governmental tasks are more and more entrusted to autonomous public bodies, being entities in either a public or a (semi-)private legal form, with or without legal personality, that function at a certain distance from the core administration. In consequence of this evolution towards more autonomous government, fundamental questions arise as to the legal possibilities and limits of autonomous government and the democratic status of these entities. Recently, framework regulation has been developed in this context in several legal systems, but due to the frequent departures of this framework and the limited amount of issues which are arranged in it, the questions and problems remain. The research project aims at the development of a general legal framework on autonomous government. Which rules and principles of public law govern the creation and functioning of autonomous public bodies or should govern these? Are the traditional rules and principles of public law applicable to these autonomous bodies? Suchlike legal framework is necessary for the legislator who wants to create framework regulation, for the government that wishes to create autonomous bodies, for the autonomous public bodies themselves and for the supervising organs. It can also serve as an interpretative frame by which the various legal questions that arise today can be solved.

Researcher(s)

• Promoter: Opdebeek Ingrid

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

The law on the creation of autonomous public bodies in the administrative organization of European states is currently characterized by two trends. On the one hand, international or supranational law obliges or encourages states to create autonomous public bodies. Various national regulatory authorities which find their legal basis in different directives of the European Union on the liberalization of utilities sectors are the most apparent examples of this trend towards the internationalization of the law on autonomous government. On the other hand, one notices an attempt on the national level to restrain the evolution towards autonomous government. The question arose whether and to what extent autonomous government can be reconciled with fundamental constitutional principles governing administrative organization. Attempting to put a brake on the unlimited rise of autonomous public bodies, states have come up with framework regulation, determining the conditions for their establishment. How do these two trends determine the law on autonomous public bodies? To what extent do these trends conflict and – if need be – (how) can they be reconciled? The research studies these questions from a European comparative perspective.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: De Somer Stéphanie

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

The law on the creation of autonomous public bodies in the administrative organization of European states is currently characterized by two trends. On the one hand, international or supranational law obliges or encourages states to create autonomous public bodies. Various national regulatory authorities which find their legal basis in different directives of the European Union on the liberalization of utilities sectors are the most apparent examples of this trend towards the internationalization of the law on autonomous government. On the other hand, one notices an attempt on the national level to restrain the evolution towards autonomous government. The question arose whether and to what extent autonomous government can be reconciled with fundamental constitutional principles governing administrative organization. Attempting to put a brake on the unlimited rise of autonomous public bodies, states have come up with framework regulation, determining the conditions for their establishment. How do these two trends determine the law on autonomous public bodies? To what extent do these trends conflict and – if need be – (how) can they be reconciled? The research studies these questions from a European comparative perspective.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: De Somer Stéphanie

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

According to the principle of due care, the administration must carefully prepare its decisons. Therefore, it often obtains advice from external advisers, both public and private. The purpose of this research is to develop a general theory on advising the public authorities on the basis of an analysis of the domestic and foreign regulation, case law and doctrine.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: Denys Steven

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

According to the principle of due care, the administration must carefully prepare its decisons. Therefore, it often obtains advice from external advisers, both public and private. The purpose of this research is to develop a general theory on advising the public authorities on the basis of an analysis of the domestic and foreign regulation, case law and doctrine.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: Denys Steven

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

This project aims tot give a concise inventory of the most important legislative provisions of Belgian administrative law, by wich the silence of the administration after expiration of a certain term is equalled with a fictitious positive decision, the so called "silencio positivo". Some important characteristics of this fictitious decisions are briefly outlined. The various individual country reports will result in a final global report.

Researcher(s)

• Promoter: Opdebeek Ingrid

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

The research focuses on the internal, administrative appeal against agency decisons that has tot be exhausted before seeking relief tot the court. The research aims to : - determine the why and the how of the current system; - evaluate the similarities and differences between the various appeals; - propose ways to optimize the current system (eg by creating a general framework) - develop a general theory on organized administrative appeals, which would be applicable on all those appeals, regardless of the area of administrative law.

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: Goris Joke

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

This research project aims in the first place to answer the question if and to what extent the principles of proper administration are to be observed by the Government when it does not act unilaterally, but closes contracts. It also intends to measure the impact of the different principles of fair administration and other public law legislation in the more specific case when an employer of public law subscribes an employment contract. In this last case the interference between administrative law and labour law is the core issue.

Researcher(s)

• Promoter: Janvier Ria
• Co-promoter: Opdebeek Ingrid

Research team(s)

• Politics & Public Governance
• Public Administration & Management

Project type(s)

• Research Project

Abstract

Researcher(s)

• Promoter: Rozie Joëlle
• Co-promoter: Opdebeek Ingrid

Research team(s)

• Law Enforcement

Project type(s)

• Research Project

Abstract

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: Goris Joke

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

Researcher(s)

• Promoter: Opdebeek Ingrid
• Fellow: Goris Joke

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

Since the coming into force of the Belgian Act of July 29th, 1991 the individual decisions of the Executive must be formally motivated. The purpose of this project is to investigate the area of application of this act, its implications and the sanction if it is not respected.

Researcher(s)

• Promoter: Opdebeek Ingrid

Research team(s)

Project type(s)

• Research Project

Abstract

Most important factor is the foundation of the Institute for Manegement and Government. This institution aims to detect the needs for training and learning within the framework of the public sector. This is linked to the fact that most civil servants has gained the right for permanent education.

Researcher(s)

• Promoter: Janvier Ria
• Co-promoter: Opdebeek Ingrid

Research team(s)

Project type(s)

• Research Project