While July and August mean holidays for some, they also mean second terms and possible appeals for university or college students who have failed one or more exams (or an entrance exam, especially in dental medicine).

In the event of failure in a first-session examination or in a July entrance examination, it will first be necessary to use the organised internal remedies. It may then be tempting to lodge an appeal in extreme urgency before the Council of State to contest a failure in the first session.

However, the Council of State will reject such appeals if the student is given a second chance to pass the contested examination(s) in the second session.

Indeed, according to Article 17, §1^erIn accordance with the second paragraph of the Coordinated Acts on the Council of State, the suspension of the execution of an administrative act may only be ordered if there is an urgency incompatible with the processing of the case for annulment and if at least one serious ground for annulment of the act is invoked.

Thus, in a judgment n°251.321 of 28 July 2021, the Council of State recalled that "Urgency requires, on the one hand, the presence of an inconvenience of sufficient gravity caused to the applicant by the immediate execution of the contested act and, on the other hand, the finding that the normal course of the proceedings on the merits does not allow a judgment of annulment to usefully prevent that inconvenience. The contested measure merely obliges the applicant to sit more examinations in the second session than he would have had to sit if the contested sanction had not been adopted. Such an inconvenience is not of the seriousness required by the condition of urgency laid down in Article 17(1) of the Council of State Acts.

It is therefore considered that the presentation of one or more examinations in a second session is not intrinsically serious enough to justify extreme urgency, even if it requires additional efforts.

The Council of State will however accept to hear such an appeal in extreme urgency, in certain particular cases, when it is not possible to present the contested examination in a second session and when the failure is therefore definitive (see in this sense in particular the Council of State's decision n°248.104 of 31 July 2020).

In order to challenge the legality of a failure in first sessionThis will be done in two stages:

• Submission of an appeal for annulment to the Council of State against the decision of the jury of the first session, after exhaustion of internal appeals, within 60 days of the decision on appeal;

• Possible submission of a request for suspension as a matter of extreme urgency within 7 to 10 days of the communication of the decision establishing the failure in the second session. The urgency to contest the failure in the first session only appears after the confirmation of a failure in the second session.

As for the challenge to a failure in second sessionIn the case of a domestic appeal, an application for suspension as a matter of extreme urgency may be lodged within 7 to 10 days of the communication of the decision on domestic appeal. An application for annulment may be lodged within 60 days of the communication of the same decision.

For more information, please contact Jean LAURENT (jean.laurent@cew-law.be) and Charline SERVAIS (charline.servais@cew-law.be), lawyers, CEW & Partners