Constitutional Dialogue in the Case of Legislative Omissions: Who Fills the Legislative Gap?

Abstract

In approximately 108 judgments, the Belgian Constitutional Court has confirmed the presence of a legislative lacuna. These judgements incite a constitutional dialogue, first and foremost with the legislator, especially in those cases where the Court explicitly emphasizes that only the legislator can amend an unconstitutional lack of legislation. Although the case law of the Constitutional Court regarding these legislative omissions has already been largely explored, the actual legislative reaction has not received much attention. Consequently, in this contribution the legislative response to these ‘lacuna judgements’ is examined. The study by Meuwese and Snel regarding the concept of constitutional dialogue offers an excellent starting point to analyse the interaction between the Constitutional Court and the legislator. The lack of any regular or systematic follow-up or specific parliamentary proceeding to comply with the case law of the Constitutional Court, however, has complicated the collection of empirical data.

Keywords

• constitutional dialogue
• constitutional review
• legislative omissions
• legislative reaction
• empirical research