Conference Agenda

As in most Western countries, impartiality is one of the main principles embedded in the rule of law and as applied in the Belgian legal system. The concept of neutrality of public administration plays a crucial role in public administration in many countries, too and is also to be applied in Belgium. It entails that public services maintain objectivity, fairness, and independence while executing their duties, irrespective of their agents’ personal beliefs or political affiliations.

This paper aims at describing these concepts and their application in some areas of Belgian public law and the challenges and controversies surrounding them.

First we will discuss both principles theoretically and their appearance on different levels and areas of law as impartiality occurs as a principle in European law and in national, regional and local law systems and as well in various areas of law such as private law, competition law, penal law and administrative law.

We will also discuss the overlap between the concepts of impartiality and neutrality – their similarities and differences. We will continue by focussing on their application in education and in local government, and zoom in on not only the conceptual overlap of impartiality and neutrality but also on the effective overlap of local government and education.

In education law the principles of impartiality and neutrality take on a specific meaning, especially with regard to schools established and run by public authorities. Not only does the Belgian constitution explicitly stipulate in article 24 that the Community organizes [neutral] non-denominational education which implies in particular the respect of the philosophical, ideological or religious beliefs of parents and pupils. But the Flemish legislator has also stipulated that an educational institution cannot tolerate within its domain any communications or activities that directly or indirectly entail the dissemination of political ideas. This can create specific tensions within the triangle of government – educational institution – parents/pupils as can be illustrated by several case-studies which will be discussed in this paper. For example, neutrality in a school context does not imply that the school should per definition adopt a ‘value-free’ stance towards societal issues or should not be allowed to educate about human rights or ecological problems (which to others may be viewed as being of a political nature). These and other aspects concerning neutrality and impartiality within the context of (government-funded or subsidized) education will be further examined within this paper.

More specifically, we will highlight the dual role of local government: on the one hand, organizer of official (municipal / urban / provincial) education, on the other hand, its role as administrative authority with regard to all educational institutions on the territory… Neutrality in education versus impartiality of government will be discussed by analysing some relevant cases.

In Belgium, a growing number of administrations are being allocated the power to impose administrative sanctions and/or measures, making administrative enforcement an important alternative and complementary to criminal enforcement. While objectivity and impartiality are established principles of the judiciary - traditionally competent to impose sanctions - the question arises as to how objectivity and impartiality are ensured within administrative enforcement as well as how bias is prevented and addressed.

To a greater or lesser extent, administrations operate within a political framework, which may give rise to perceptions of political influence. The question pertaining to their objectivity and impartiality has therefore always existed and remains highly relevant. However, given the rise of administrative enforcement and the possible impact thereof on natural and legal persons, the question appears to be of even greater importance when the administration is also competent to enforce through administrative measures and/or sanctions.

Our paper will therefore determine legal mechanisms aimed at ensuring impartiality and objectivity as well as preventing and addressing bias within administrative enforcement. Is it for example always allowed that administrative ‘prosecuting’ and ‘sanctioning’ powers are attributed to the same person or institution? And how are possible conflicts of interest regulated? Such mechanisms can stem from a multitude of ‘regulatory levels’ (local, regional, national, …), but could also be developed through jurisprudence. Due attention will therefore also be given to the possible role judicial oversight might play in developing the aforementioned mechanisms.

Given the fragmented nature of administrative enforcement in Belgium, this study will focus on specific administrations able to enforce through administrative sanctions and/or measures on different levels: the national Data Protection Authority, the Flemish Regulator for the Media as well as Belgian local authorities. By comparing enforcement bodies across different levels, our study will provide valuable insights into how impartiality and objectivity within administrative enforcement are ensured as well as the possible challenges that arise.

The constitutional order of the Czech Republic explicitly enshrines the requirement of independence in connection with the right to a fair trial. Article 36 of the Charter of Fundamental Rights and Freedoms stipulates that everyone has the right to access a court, which must be inherently independent and impartial.

At the legislative level, the principle of impartiality is primarily enshrined in the Code of Administrative Procedure, which serves as the general legal framework governing the actions of administrative authorities, not only when issuing administrative decisions but also concerning other individual administrative acts, mixed administrative acts (such as municipal land-use plans), and other public administration activities when exercising public authority. In this context, the question also arises as to how the principle of impartiality applies in the case of the adoption of sub-legislative legal acts (normative administrative acts), in particular generally binding municipal ordinances and municipal regulations (bylaws).

In order to ensure that the principle of the impartiality of the administrative body is respected, the legislation must provide for means of defence against possible bias. Closely related to this issue is the right of affected individuals (typically parties to administrative proceedings) to object to bias. Such objections can be raised not only during the proceedings before an administrative body but also subsequently as part of judicial review.

A specific provision on bias can be found, for example, in relation to ministries and other central state administrative bodies. In the case of ministers and other senior officials, exclusion from decision-making on the grounds of bias is completely excluded. This raises questions about the legitimacy and legality of such a procedure, which have already been addressed in the case law of the Czech administrative courts (especially the Supreme Administrative Court).

Given that territorial public administration in the Czech Republic is based on a mixed model (e.g. in the field of public building law, expropriation or offences), a clear and significant problem is the systemic bias at the municipal and regional levels. This is due to the fact that the chosen model of territorial public administration gives rise to a number of concerns, as the municipal authorities, which carry out delegated state administration, often make decisions that affect the rights and obligations of the municipality itself. An issue that has been the subject of much debate is the bias of municipal authorities in cases where a municipality decides on its spatial planning documentation, i.e. when adopting or amending a land-use plan.

This paper has two basic objectives, firstly to provide a general (albeit comprehensive) introduction to the issue of bias in the Czech Republic, taking into account the issues outlined above (e.g. systemic bias). The second objective is to define how the individuals concerned may defend themselves against possible bias.

Although the paper is primarily based on the Czech legal system, it will also include a partial comparison with EU law and the legal systems of other European states, especially in relation to the establishment and grasp of the principle of impartiality.