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covid-19 crisis – belgium – lockdown exit measures – retail sector – litigation : stihl & fedagrim vs. belgian state – ruling of the council of state of 27 april 2020

While the initial measures to untighten the anti-COVID lockdown are taken in Belgium, its administrative court (the Council of State” “Raad van State” or “Conseil d’Etat”) has already dealt with the first litigation on the matter : on 27 April 2020, the Council rendered a landmark decision in summary proceedings of extreme urgency.

The decision dismisses an application in suspension of provisions of a Ministerial Decree of 17 April 2020 allowing the reopening of the following businesses:

  • stores offering a general assortment do-it-yourself-tools and/or building materials ;
  • garden centers and nurseries selling principally plants and/or trees.

The application was lodged by Andreas Stihl NV-SA (supplier of the well-known gardening tools) and its business association FEDAGRIM. 

The applicants criticized the aforementioned reopening measures, for not being applicable to specialist do-it-yourself-shops, alleging breaches of the following principles of law :

  • equality and non-discrimination;
  • freedom of trade and industry;
  • legality and legal security.

Only Stihl’s application was admitted, FEDAGRIM being denied standing on the somewhat surprising ground that a number of its members benefit from the litigious provisions. 

Stihl’s arguments have then been dismissed by the Council of State on the basis of the following reasoning :

  • the Belgian federal Government holds the widest discretionary powers of appreciation in this unprecedented crisis ;
  • the executive has duly based the Ministerial Decree on established facts of the situation.

As a consequence, the challenged measures appear to be reasonable and proportionate in order to protect public health, as well as in view of the social consequences of the lockdown.

The Council of State further considers that said provisions are sufficiently clearly described, whilst also pointing out that even though the application of a general and abstract provision to a specific case allows a certain margin of interpretation, in the case at hand, given the general applicability of the lockdown, any exception must be interpreted on a restrictive basis.

Although having rendered its judgment in a case brought in summary proceedings, it seems clear that the Council of State has duly substantiated its assessment of the lawfulness of the governmental measures aiming at combating the propagation of the virus in retail activities. 

The intention seems obvious : restricting the scope of similar litigation in view of the upcoming untightening of the lockdown.

However, the reasonable and proportionate nature of any distinction such measures may create between a variety of activities or business sectors will have to be appraised in view of the evolving facts of the crisis we are enduring. There can be little doubt that the Government will have to duly tailor the grounds for its prospected measures. To be continued…

On 30 January 2020, Bernard Deltour and Laurène Provost spoke at the seminar on “ Studiedag circulair bouwen & hergebruik van materialen: een kennisuitwisseling tussen Frankrijk, Vlaanderen en Wallonië ”; « Construction circulaire & réutilisation des matériaux : un échange de connaissances entre la France, la Flandres et la Wallonie »

 Industrious contributed to the 2020 Belgian section in the environmental chapter of Lexology’s  « Getting the Deal Through » – https://gettingthedealthrough.com/area/13/jurisdiction/31/environment-belgium/  

(Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology Getting the Deal Through – Environment 2020 (Published: November 2019). For further information : www.gettingthedealthrough.com.)