Government liability and the unstable equilibrium of the Separation of Powers

Thirty years ago, when I came to the bar as an intern, I was able to experience it. The judiciary was not gentle with the executive at the time. This was even the case in tax matters. If the tax administration violated a procedural rule, that would be disastrous. A tax assessment that was not established according to the rules of the law  ̶  and art  ̶  was invariably annulled. But things also went further than that. In this zeitgeist, the judiciary was not afraid to examine the fate of the consequential damages as well. They also checked whether the procedural errors had not caused any other damage in addition to an unlawful tax assessment.

The 'Van Coillie' bankruptcy was one of the most infamous of its kind. During an audit of this big construction company, the tax authorities applied the wrong means of proof. Despite the fact that the company had adopted probative accounting, the tax authorities applied the comparison method. The tax assessment was annulled, but it was also determined that by implementing the tax procedural rules incorrectly, the State had committed a fault in the civil sense. Because the construction company was declared bankrupt due to this tax liability, the State was held liable for the damages amounting to hundreds of millions  ̶  still in Belgian francs then.

Our criminal code provides for the crime of 'misappropriation of public funds' (' knevelarij' in Dutch). This is a crime committed by a public official who knowingly and intentionally gives an incorrect order to claim or receive duties, fees or taxes. Anyone who wants to know more about the details of that crime has to go back a long way. It is no coincidence that many judicial cases date from the same time frames. That's also a striking illustration of the spirit of the times.

However, the current zeitgeist  ̶  and that of the past decades   ̶  is at odds with this trend. This new spirit is characterised by a particular leniency towards the executive power. Anyone who is not convinced should take a look at the so-called 'Antigone' theory, created by the judiciary. Indeed, the judiciary itself, without the legislator having intervened even once. The Antigone theory allows the tax authorities to overlook procedural errors that are considered not to 'materially’ affect the taxpayer’s rights. Certain sections of the tax administration have concluded that they should not apply the procedural rules so strictly. And the judiciary has been very flexible in this regard. Also when the proverbial inch given became a mile.

And yet a number of events have recently occurred which, considered individually, cannot be identified with the spirit of the time. These are respectively: the terror attack following the Belgium-Sweden football match, the Julie Van Espen case, a controversial verdict on solar panels and public statements by ministers in the past. Apparently these cases are far apart and have nothing to do with each other. Yet, they have a common denominator. In each of those cases, the government's liability is in question. With the special distinction that two of the three powers openly point to each other's responsibility. The equilibrium found in the trias politica, where the judiciary and the executive power balance each other, therefore appears to have been broken.

The Separation of Powers is like a baby's mobile over a crib, a structure holding three hanging figures, rotating in a circle. If left undisturbed, the three elements keep each other in balance. If the baby throws one out of orbit, they are all out of balance and a new equilibrium must be found. The proverbial baby in this case could well be public opinion and outrage. The fact that the balance has been seriously disturbed is evident from the criticisms, at last below the surface, which have been expressed between two of the three powers.

It is difficult to predict whether these events are taking the mobile in a completely different direction, or whether the three elements are briefly thrown out of balance with respect to each other. That will remain to be seen.  Of course, a swallow doesn't make spring. But even then it can be predicted with great accuracy that moments of imbalance will still occur. To eventually move the mobile in the other direction. Students with a special interest in administrative law and government liability would therefore choose wisely by specialising further in these areas.