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What decisions can the Appeal Body take?
The Appeal Body can take various types of decisions:
- the appeal is inadmissible (for example, due to lateness);
- the subject of the appeal is not valid (for example, because the security clearance has been granted in the meantime);
- the appeal is unfounded because the decision has been taken legally and the cited motives are not sufficient for justifying the refusal decision, withdrawal or negative security advice;
- the appeal is unfounded and the security clearance or security certificate must be granted (it is not the Appeal Body which grants the clearance or the certificate; the Appeal Body merely obliges the concerned authority to grant this clearance or certificate);
- the appeal against the negative security advice is valid and the Appeal Body issues positive security advice;
- the authority which refused or withdrew the security clearance must carry out an additional investigation (with regard to certain elements) and take a new decision within a specified period of time (this decision is only possible for a procedure in the context of a security clearance);
- the authority which has failed to complete the security clearance dossier within the legal time limit, is given an additional period of time to complete this (this decision is only possible for a procedure in the context of a security clearance);
- the decision to request security certificates or security advice in specific cases is confirmed or nullified.
The Appeal Body is obliged to provide the grounds for its decision and advice. However, it is possible that the applicant will not be informed of all the grounds of the decision. Since this notification may not include any information which, if communicated, could harm fundamental national interests, the protection of sources or the protection of the privacy of third parties.
The decisions of the Appeal Body are not open to any kind of appeal.
How does the appeal procedure work?
The applicant, and if required, his/her lawyer, are invited to inspect the investigation or verification dossier. In principle, the applicant has the right to inspect the entire dossier. However, at the request of police or intelligence services, the Appeal Body may decide to remove certain elements from the dossier. The applicant can be heard at his/her request.
The Appeal Body may request additional information and hear the members of the services who have carried out the investigation or have participated in the verification.
The Appeal Body is obliged to adhere to strict time limits. It must take its decision within a period of:
- 60 days if the appeal is related to a security clearance;
- 15 days if the appeal is related to a security certificate;
- 30 days if the appeal is related to security advice;
- 15 days if the appeal is related to a decision of an authority to request security certificates or security advice in specific cases
What is a security clearance, certificate or advice?
Persons who, on account of their position, (must) have access to classified information, need to hold a specific clearance. The main purpose of this so-called ‘security clearance’ is to protect sensitive information by limiting the access to this information to those persons who may be expected to offer sufficient guarantees with respect to confidentiality, loyalty and integrity. This clearance is not just applicable to natural persons and is not necessarily related to the access to classified information. Legal persons who, for example, want to bid for government contracts in sensitive sectors, may also be screened. In addition, security clearances can be requested in connection with the implementation of treaties concluded by Belgium with other countries or with international or supranational institutions.
Security certificate for access to locations containing classified information
Certain authorities may require a security certificate for persons who need to be given access to locations where classified documents are stored, even though these persons are not required to read them . This refers to, for example, the situation of a visitor or a cleaning team. Until 2005, only a security clearance could be requested in such cases. However, the procedure for issuing a security clearance is extremely laborious and time-consuming. The legislator therefore provided for a simplified procedure.
Security certificate for a specific location or event
There is also a second kind of security certificate, i.e. a certificate for persons who want to access, for a limited period of time, rooms, buildings or sites related to functions of public authorities or to a specific national or international, diplomatic or ceremonial event, and where there is a specific threat (e.g. terrorism). In concrete terms, this refers, for example, to access to a European summit or other international meetings where participants, visitors, suppliers and journalists are screened.
Apart from a possible or an actual threat in a building or at a location, specific sites – due to their nature – may also be sensitive to threats. Consider the tarmac of an airport. Persons, who misuse the opportunity to access such a location, can cause serious harm to fundamental (national) interests. The same applies to persons who want to perform a specific function or task or who wishto obtain a specific permit. In all such cases, administrative authorities can request security advice before taking their decision regarding the permit, authorisation or appointment.
How should an appeal be lodged?
An appeal may be only lodged by a registered letter issued by the applicant or by his/her lawyer. A lawyer's assistance is not compulsory; however, the law does not allow any other person to provide assistance.
The appeal must be addressed to the Appeal Body for security clearances, certificates and advice, Rue de Louvain 48/5, 1000 Brussels.
This letter should be accompanied by a so-called ‘deed of appeal’, as well as two copies of the same certified by the applicant or his/her lawyer. The deed of appeal must contain the following information:
the last name and first name, place and date of birth, place of domicile or residence of the applicant or, if he/she is acting on behalf of a legal person (e.g. a public limited company), the name and registered office, the identity of the directors, business managers, statutory auditors or the persons appointed for its administration and management and a copy of the Articles of Association;
the decision or advice against which the appeal is being instituted (unless, of course, the appeal is directed against the failure to take a timely decision);
an account of the circumstances of the case and the reasons invoked;
if necessary, the document showing that the applicant had been informed of the security verification to be carried out;
any document the applicant considers useful;
a list of the documents submitted as evidence.
The appeal must be lodged within:
30 days from the notification of the decision in case of refusal or withdrawal of the security clearance or 30 days from the end of the period assigned to the authority for completing the request;
8 days from the notification of the decision in case of refusal or withdrawal of a security certificate or 8 days from the date mentioned in the document received by everyone who is the subject of a security verification;
8 days from the notification of negative security advice;
There is no fixed period for an appeal against a decision of an authority to request security certificates or security advice in specific cases.
What is the purpose of the Appeal Body for security clearances, certificates and advice?
The Appeal Body for security clearances, certificates and advice is an independent administrative court. It was established by the Act of 11 December 1998 [pdf]. Its composition was modified and its scope of competence extended by the Act of 3 May 2005.
- What are the disputes that fall within the competence of the Appeal Body?
- How should an appeal be lodged?
- How does the appeal procedure work?
- What decisions can the Appeal Body take?
- What is the composition of the Appeal Body?
|The information below provides a very schematic description of the competences and the operations of the Appeal Body. For more detailed information, please refer to the attached documentt [pdf]|