|  | |
|
The Court of Auditors' organic law of 29 October 1846
[Translation]
Art. 1. The Court of Auditors consists of two chambers.
Each of both chambers is made up of a president, four "conseillers/raadsheren" and a "greffier/griffier".
They are appointed by the House of Representatives every six years and the House has the power to dismiss them.
The members of the Court of Auditors retire and are entitled to a retirement pension when they have reached the age of seventy or when they cannot fulfil their function properly because they suffer serious and permanent infirmity.
The senior of the two presidents is known as the "premier président/eerste voorzitter" and the senior registrar is known as the "greffier en chef/hoofdgriffier".
The presidents and conseillers are at least 30 years of age.
The registrars are at least 25 years of age; they are not entitled to vote.
To be nominated a member of the Court of Auditors, the appointee should hold a degree from a higher school that is taken into consideration for level 1 positions in government departments.
Art. 1bis. The retirement pension of the members of the Court of Auditors is paid on the basis of the last five activity years as fixed in accordance with the provisions of paragraph 4 of this article, in proportion of one thirtieth by year of activity as a member of the Court of Auditors but provided they performed their function in that capacity for at least twelve years. If a member is sixty-eight years old and his term is not renewed, he can make an application to the House of Representatives to get the additional thirtieth.
Those of the members' activity years that are not governed by the previous paragraph and count towards qualifying for the pension entitlement to be paid by the State are reckoned in accordance with the laws governing retirement pensions as to these service years.
If a member of the Court of Auditors has been recognised as not being fit to continue fulfilling his function because he is impaired by infirmity but has not reached the benefit age required by article 1, he is entitled to a retirement pension regardless of his age.
If, however, his function is an additional office, the retirement pension he will receive as a result of his infirmity may only be granted after any ten service years eligible for a retirement pension or after five activity years as a member of the Court. The pension is paid on the basis of the average remuneration of the last five years in accordance with the system governing retirement pensions paid out by the state. The King shall define the additional function within the meaning of this law.
No retirement pension of the members of the Court of Auditors shall exceed nine tenth of the average remuneration of the last five years.
The basic law on civil retirement pensions remains applicable in cases for which the provisions of this article do not apply.
Art. 2. The members of the Court of Auditors may neither be relatives or relatives by marriage up to the fourth degree nor be relatives or relatives by marriage up to a degree similar to a minister, as the head of a government department when they are first nominated.
They may not be a member of either of the legislative assemblies or hold a position for which they would receive a remuneration or an allowance paid out of the State funds, or else be directly or indirectly involved or employed in a company or business accountable to the State.
They may not consider matters in which they would have a personal interest or in which their relatives or relatives by marriage up to the fourth degree would have an interest.
Art. 3. It is prohibited for any member of the Court of Auditors to exercise either oneself or under the name of one's wife or through any other intermediary any kind of trading activity or be a trade agent or participate in the management or the running of a company or industrial plant.
Art. 4. A majority of Court members are required to be present when accounts are cleared or closed.
Art. 5. The Court is responsible for examining and validating the accounts of central government and those of all accounting officers answerable to the national treasury.
It ensures that no budgetary expenditure item is exceeded and that no transfers occur.
Operations related to the establishment and collection of entitlements owed to the State and the provinces, including tax receipts, fall within the general inspection remit of the Court of Auditors. The way this control should be performed is defined in a protocol agreement reached between the minister of Finance and the Court of Auditors.
It clears the accounts of the various government departments and is responsible for collating all items of information and all accounting documents needed for that purpose.
The Court of auditors performs ex-post reviews of the sound administration of public resources; it ensures they were used in compliance with the principles of economy, effectiveness and efficiency.
The House of Representatives may entrust the Court of Auditors with carrying out management controls in the departments and bodies falling under the Court's remit.
Art. 5bis. The Court of Auditors has the right to be submitted all documents and information, of any nature whatsoever, as it may require for carrying out any examination with regard to the management of departments and bodies falling under its inspection remit.
The Court of Auditors may perform on-the-spot checks.
The responsible authority is required to reply to the Court of Auditors' observations within one month. The Court of Auditors may extend this time limit.
Art. 6. The Court of Auditors exchanges direct mail with the various government departments; similarly, it exchanges mail with the executive of each of the provincial councils with regard to province accounting.
Art. 7. The accounting officers of the State and provinces submit their accounts to the Court of Auditors annually as well as when they leave office, and in the event of a deficit.
If an accounting officer fails to submit his account within the time limit stated by the competent department or if he deceased without submitting his account, the department draws it up of its own motion.
Art. 8. The Court clears the accounts of the accounting officers of the State and the provinces. This task is performed in each chamber by a conseiller designated by the Premier President/Eerste Voorzitter or by the President/Voorzitter according to the circumstances. The Court of Auditors establishes whether the accounting officers' accounts are in balance with their accounts or whether the balance is in their favour or in the State's favour.
In the first two cases, it grants them discharge and orders the repayment to them of the securities they have lodged and, where appropriate, the removal of any lien attachment and the cancellation of any mortgage claim on their property, established in connection with their management of the accounts.
Under all circumstances, the Court of Auditors immediately reports to the government department or the executive of the provincial council involved.
If the accounting officer's account shows a deficit, the minister or the executive of the provincial council shall decide whether he should be tried before the Court of Auditors for the repayment of the deficit.
The government department mentioned above may not refrain from suing the accounting officer whose account shows a deficit unless it is of the opinion that he can invoke circumstances beyond his control (force majeure) or if the deficit does not exceed an amount stipulated by the King.
If that department refrains from suing an accounting officer before the Court of Auditors, it reports to it through a notice in writing in which it substantiates its reasons and provides all supporting documentation. In its annual catalogue of observations to the Houses, the Court notifies the cases for which the government departments did not use their right to sue the accounting officers for the repayment of deficits.
The accounting officer is entitled to dispute the amount approved, which shows a balance in the State's favour.
The Court of Auditors grants a discharge if it establishes that there is no deficit or if it finds that the accounting officer may invoke circumstances beyond his control. If this is not so, it orders him to reimburse the amount of the deficit. It may, however, on the basis of all specific circumstances and, inter alia, the seriousness of the failure of the accounting officer to carry out his duties, impose him to pay only part of the deficit.
The accounting officer shall be granted a final discharge if a sentence has not been passed within five years after he left office.
Art. 9. The Court fixes the amounts to be recovered from authorising officers designated by the minister when they commit funds in violation of the law or cause damages to the treasury.
These authorising officers are summonsed before the Court by the State, acting through the delegating minister.
In its catalogue of observations, the Court of Auditors reports on the sentences passed against the delegated authorising officers.
Art. 9bis. […]
Art. 10. A writ of summons is served on the accounting officer or the authorising officer. He should appear before the Court within a fortnight of receiving the summons. If the accounting officer or the authorising officer has no place of residence or domicile or specified address in Belgium, the time limit is extended in accordance with article 55 of the Judiciary Code.
The summons contains the provisions mentioned in articles 43 and 702 of the Judiciary code. It is served in pursuance of articles 32 to 47 of the Judiciary Code.
The summons issued orders the accounting officer to appear before the French or the Dutch chamber, in respect of the language used in its internal section activities by the service to which the accounting officer or the authorising officer belongs or the language for which the accounting officer or authorising officer involved opted in the service to which he belongs when it is assumed to use more than one language in its internal operation, in pursuance of the laws governing the use of languages in administrative matters, co-ordinated on 18 July 1966.
If the accounting officer or the authorising officer belongs to a service that is part of the German-speaking Community or a public service institution falling under the remit of that Community, he is summonsed before either the French or the Dutch chamber. He is entitled to the assistance of an interpreter, whose expenses shall be defrayed out of moneys provided by the treasury, unless he applies to be tried in the other chamber. This exception should be raised before any defence action regarding the substance and ahead of any other exception.
The summonsing government department submits the file to the Court registry, where the parties and their lawyers have the right to inspect the files between the day of the summons and the day before the appearance before the Court.
Art. 11. A majority of the members of a chamber, registrar excluded, should be present to investigate and rule on a case. The members that attended the whole investigation process are alone allowed to take part in the judgment of the case. If the action is conducted against an accounting officer, the member of the Court who cleared the account of the accounting officer is not allowed to sit.
The prosecuting party is represented by a lawyer or an official whom it appoints specially for that purpose.
The accounting officer and the authorising officer appear personally. They may be assisted by a lawyer. The Court can allow the summonsed party to be represented by a lawyer when he establishes that he cannot attend personally.
The parties may file a written statement.
The hearing is public. The Court of Auditors, however, may decide by a reasoned judgment that it will be held in private because publicity might be detrimental to order or morality or for any other reason as stipulated in article 6, paragraph 1, of the Convention for the Protection of Human rights and Fundamental Freedoms (4 November 1950), ratified by the law of 13 May 1955.
With a view to settling a dispute pending before the Court, the Court can initiate an expert report. Articles 962 to 988 and 990 of the Judiciary Code apply to it.
If the case is a matter for inquiry, the Court orders that it should be carried out, either during its hearing or by someone among its members that it designates. The Court may order that the witnesses be heard under oath. In that case, they will take the following oath:
"I swear in honor and conscience that the evidence I shall give shall be the truth, the whole truth and nothing but the truth" (in Dutch, French or German).
Witnesses are summonsed by registered post. All persons summonsed as witnesses in pursuance of this article shall have to appear and meet the requirements of the summons. Any person who would refuse to appear, take the oath or make a statement is liable to a fine between twenty-six and a hundred francs.
A report on the non-appearance or the refusal to take the oath shall be drawn up and forwarded to the public prosecutor in the district where the witness was supposed to be heard.
The provisions of the Penal Code pertaining to perjury in civil matters and bribing of witnesses are applicable to the inquiry proceedings defined in this article.
A member of the Court who would have taken part in an investigation outside the hearing is not allowed to take part in the further judgment of the case.
Art. 12. If the party summonsed is absent from court, the case is judged by default. The party sentenced by default may appeal against it. The time limit for appealing is one month of serving of the judgment. If the failing party has no place of residence or domicile or specified address in Belgium, the time limit is extended in accordance with article 55 of the Judiciary Code.
The appeal is served by a writ specifying the basis of the claim and containing the summons to appear before the Court.
The appealing party who has been judged a second time by default is no more allowed to appeal.
Art. 13. If the accounting officer or the authorising officer deceases before the summons is served or the case is judged, the proceedings are initiated or carried on against his beneficiaries. For the assumptions mentioned in article 815 of the Judiciary Code, articles 815 to 819 of this Code are applicable.
Art. 13bis. The judgements of the Court are reasoned. They are delivered in public hearing. They are enforceable. They award the costs against the losing party. In the preliminary investigation judgements, the "costs are reserved". These are calculated in the same way as in a civil court. Articles 1018 to 1022 and 1024 of the Judiciary Code are applicable.
The judgements of the Court may be referred to the Court of Cassation by any of the parties for breach of law or for violation on a point of law or of substance or prescribed under penalty of nullity. Articles 1073 to 1116 of the Judiciary Code, article 1110 excepted, are applicable to the appeal and to the proceedings conducted before the Court of Cassation.
When a judgment of the Court is quashed by the Court of Cassation, the case will be referred to an ad hoc committee made up of members of the House of Representatives, and whose judgment is final, in accordance with the form stipulated for the Court of Audit.
Art. 13ter. Notwithstanding the fact that the Court would already have cleared an account or would have definitively sentenced an accounting officer, it may, within a period of five years from the date the account was cleared or the judgment was passed, put the account or the judgment under review, either at the request of the accounting officer, on the basis of supporting documents recovered since the date the account was cleared or the judgment was passed, or at the request of the government department under which the accounting officer falls or fell, as a result of errors, omissions or redundant entry uncovered during the audit of other accounts.
Any account that would have been cleared upon the production of documents found to be false may be subject to a review, even after the time limit mentioned above has expired.
If the review of the account cleared shows a deficit, the department under which the accounting officer falls or fell may summons him before the Court in accordance with article 8.
Art. 14. All payment orders are subject to the approval or "visa" of the Court before they can be implemented by the treasury.
When the Court finds that it should refuse its "visa" for a payment, the reasons for doing so are considered by the Council of Ministers.
If the ministers are of the opinion the payment should take place under their responsibility and decide to overrule the refusal, the Court of Auditors approves it with reservation.
It then immediately reports to both Houses [in fact only to the House of Representatives] why it initially refused to give its "visa". As a rule, it informs both Houses [in fact, only the House of Representatives] without delay of any violation of the budgetary laws as well as of articles 3 and 4 of the law of 20 July 1921 instituting the accounting of committed expenditure.
Art. 15. The supporting documents of the claim can be presented after the visa has been granted under the following circumstances:
1° when because of the nature of the service appropriations are to be made available for the performance of an expenditure; 2° when for operating an administrative service run under direct management an imprest is to be advanced to the accounting officer of that service.
The imprest may not exceed 5.000 euros and its use shall be justified within four months.
No other imprest exceeding the limit of 5.000 euros may be provided to any service run under direct management, unless all supporting documents pertaining to the previous imprest have been provided to the Court of Auditors or part of this imprest is still subject to justification is less than four months old.
Any other exception must be established by the law authorising the expense.
Art. 16. A duplicate of the register of public debt is kept at the Court of Auditors.
The Court sees to it that all transfers and reimbursements, as well as new loans, are entered properly in the register; it also takes care of the securities accounting officers have lodged in connection with their management of the accounts. To this end it receives from the various general government departments the indicative statement of the securities lodged by all accounting officers, for whatever reason.
Loan or conversion transactions or security certificates have no effect unless they have met with the Court of Auditors' approval.
The Court keeps a register of the refundable loans, granted to commerce, industry, agriculture or any other recipient in compliance with the acts governing budget allocation. It sees to it that these loans are appropriately entered into the accounts of the accounting officers and in the general account of the State.
Art. 17. The Court of Auditors rules on the legality and pension amounts owed by the State, on the basis of the supporting documents and the copies of the granting decrees it receives from the paying departments. For their sake, the Court puts its approval upon a slip or a copy of the granting decree they have drawn up.
Where appropriate, the provisions of article 14, paragraphs 2, 3 and 4, shall be implemented.
The Court keeps double entries of the register of pensions to be paid by the State.
Art. 18. The Court of Auditors may appoint and dismiss his staff.
Art. 19. […]
Art. 20. The rules of procedure of the Court of Auditors may only be amended with the approval of the House of Representatives.
Art. 20bis. The Court of Audit's detailed budget proposals and accounts based on a budgetary and accounting layout comparable to the one used by the House of Representatives is submitted for approval to the House of Representatives, which also reviews the budget implementation. The total amount of the budget appropriations is recorded as a special allocation in the general government expenditure budget.
Art. 21. The law of 30 December 1830 (Official bulletin, no 45) and the law of 14 June 1845 (Official Journal Moniteur belge/Belgisch Staatsblad, no. 166) are hereby repealed. […]
Other reference texts
|
Page last updated :
Wednesday, January 23, 2008
 |
|
| |
|
