The ratio legis behind the allocation and organisation of Belgian administrative enforcement powers: A case study

Abstract

Driven by different trends within national criminal law as well as the increasing influence of EU law, the Belgian administrative enforcement system continues to expand. This growing enforcement pressure raises a twofold question, pertaining to the legislative design of administrative enforcement: which considerations have been decisive in the past for the allocation and organisation of administrative enforcement powers and which considerations should be decisive in the future? The examination of past and future considerations will allow for the elaboration of minimum administrative law limits that should be taken into account by the competent regulator when intending to allocate and organise administrative enforcement powers. This paper addresses the primary question, laying foundational groundwork essential for (future) examination of the second question.

In Belgium alone, different authorities are competent to enforce administratively for different subject matters. This fragmented administrative enforcement landscape can explain why Belgian legal doctrine lacks comprehensive theoretical frameworks pertaining to the subject of administrative enforcement in its entirety. This study aims to contribute to narrowing the aforementioned research gap. While this study adopts a holistic approach, it also concentrates on specific enforcement authorities, such as the national Financial Services and Markets Authority and the (catch all) competence of Belgian local authorities to impose administrative sanctions.

The allocation of the last mentioned competence appears to have been based on considerations from a mere criminal law perspective rather than reasons related to administrative law. Additionally, the question as to why this particular administrative authority should be assigned this power was not addressed when allocating the power. It should therefore be examined whether and to what extent this has also been the case for other enforcement authorities.