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The intensity of review of the Belgian Constitutional Court

The Belgian Constitutional Court (BeCC) takes a central role in the Belgian legal system. It reviews whether the laws issued by the legislator are in accordance with the provisions of the Belgian Constitution. For that process the BeCC theoretically relies on a proportionality test. However, the intensity by which this proportionality review is conducted varies from case to case. For example, in some circumstances, government action is reviewed by means of a full ‘necessity’ test, while in other cases it is upheld as long as the judge does not consider it to be ‘manifestly’ unreasonable.

Similar variations in scrutiny have been the object of closer research abroad, for example in U.S., U.K. and German legal doctrine. In many other jurisdictions, it remains a remarkably under-researched phenomenon. Belgian legal doctrine has hypothesised that variations are present in the case law of the BeCC, but further research into that question is warranted.

The purpose of this research project is to map intensity of review of the BeCC. It also aims to clarify the reasons for discovered variations. For conceptual purposes, the first phase of the project relies on a comparative legal study of judicial scrutiny in the USA, UK and Germany. The second and empirical part concerns a qualitative content analysis of the case-law of the BeCC.


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