THE BELGIAN COMMUNITIES AND REGIONS, THE ABSENCE OF CONSTITUTIONAL AUTONOMY, AND ASYMMETRICAL INSTITUTIONAL DEVELOPMENTS
Individual member states typically predate the formation of the federal state.12 They are in this sense “original” entities and have as such constitutional powers as well.
This constitutional autonomy need not be acknowledged in the federal constitution. Indeed, the federal constitution does not establish the states. Aside from defining the powers of the national government, it only imposes limits on the states’ powers. The residual powers remain with the states, and their constitutional autonomy is vested therein. The unity of the federal state is guaranteed by the supremacy of the federal constitution and federal legislation enacted in accordance with this constitution. On the other hand, the autonomy of the states is guaranteed by their participation in federal policy-making, including the exercise of the Kompetenz-Kompetenz, i.e., the power to determine and to amend the constitutional division of powers.This situation is totally different in devolved federal systems. The Belgian state is a typical example of such a system. In these countries, the member states do not predate the federal state and do not constitute “original” and “sovereign” states with their own constitutional order. The constitution of the centralised state is transformed into a federal constitution, which serves as a basis not only for the federal state but also for the communities and the regions. According to the same logic, the federal government has residual powers, while the communities and the regions have only enumerated powers. In this scenario, there is no need for an express rule of federal supremacy, since the supremacy of the federal constitution results from its place in the hierarchy of laws.
In Belgium, the communities and the regions have only those powers that are expressly attributed to them by the Constitution itself or by (special-majority) legislation enacted in accordance with the Constitution.
No section of the Constitution gives them the general power to regulate their own institutions. To the contrary, it is the Constitution itself that prescribes the establishment of community and regional parliaments and the principle of the direct election of their members every five years, as well as the timing of these elections (Articles 116 and 117). The Constitution also regulates the immunity of members of the regional and community parliaments (Article 120) and prescribes the establishment of a government for each community and region (Article 121) through a parliamentary electoral process (Article 122). The immunity of members of the community and regional governments and their potential criminal liability are directly governed by the Constitution as well (Articles 124 and 125). Finally, the Constitution refers to the special or ordinary majority needed to determine the composition and functioning of the community and regional institutions (Articles 39, 115, and 123).Although the community and regional institutions (parliaments, governments, etc.) are established and regulated by the Constitution itself or by the federal legislature through a constitutional delegation of authority (often by a special majority), the (at times) fundamentally different ideologies of the country’s two largest communities (the Dutch- and French-speaking Communities) have been taken into account from the beginning.
Article 137 of the Constitution creates the possibility to have the parliaments and governments of the Flemish and French Communities exercise the competencies of the Flemish Region and the Walloon Region, respectively. The Constitution left it to the federal legislature to determine the conditions for the exercise of these powers and the manner in which it should take place. According to a federal law passed by a special majority, the parliament and government of the Flemish Community exercise the competencies of the Flemish Region. The federal legislature did not establish the same “merger” with respect to the French Community and the Walloon Region.
Initially, it was provided that the institutions of the French Community would be able to exercise the competencies of the Walloon Region insofar as this was approved by a two-thirds majority of the parliaments of the Walloon Region and the French Community. This never occurred, however, and this possibility was finally abolished by the 1993 reform. A merger of these institutions appeared impossible, since the Walloon Region covers two linguistic regions (French- and German-speaking) and Brussels’ francophone population enjoys sociological and political independence from the Walloon Region. In fact, since the 1993 state reform, the francophone institutions have moved in the opposite direction, i.e., transferring powers from the French Community to the Walloon Region (the “dismantling of the French Community,” see below).Although on the Flemish side there is, strictly speaking, only one parliament and one government, there has been no “merger” between the Flemish Community and the Flemish Region in the legal sense of the term. The Flemish Community and the Flemish Region remain separate legal entities. The Flemish Region has no institutions of its own; its powers are exercised by the institutions of the Flemish Community – the Flemish parliament and the Flemish government.
In the same way, the Constitution offers the possibility for the Walloon Region to delegate some of its powers to the German-speaking Community (Article 139). Both parliaments, i.e., those of the German-speaking Community and the Walloon Region, can autonomously decide if the exercise of regional powers by the German-speaking Community should extend to all or part of the powers of the Walloon Region in the German linguistic region. They must pass identical laws indicating the powers that may be exercised by the institutions of the German-speaking Community. To date, this possibility has been used in a very limited manner in order to transfer powers for the protection of sites, monuments, and landscapes.
Unlike the “merger” between the Flemish Region and the Flemish Community, this transfer of powers has not entailed any institutional changes as such. Its sole objective was to avoid interference by the Walloon regional authorities in the German-speaking Community’s exercise of its powers.According to Article 138 of the Constitution, all or part of the powers of the French Community may be exercised by the Walloon Region and by the French Community Commission of the Brussels-Capital Region. The latter is part of the complex institutional solution negotiated for Brussels. In order to protect the Flemish-speaking minority in Brussels, members of the Brussels regional parliament, in the same way as members of the two houses of the federal parliament, are divided into Dutch and French linguistic groups, known as the Dutch and French Community Commissions. The members of these two community commissions together make up the Joint Community Commission, which exercises legislative powers in Brussels in person-related community matters with respect to institutions that cannot be identified as belonging to either the Flemish Community or the French Community, as well as directly with respect to persons. Powers can be transferred from the French Community to the Walloon Region and to the French Community Commission in Brussels only through identical decrees approved by a two-thirds majority by the French Community parliament and by an absolute majority by the Walloon regional parliament and by the assembly of the French Community Commission in Brussels. These decrees must indicate the powers and financial means to be transferred. In this way, a significant portion of the French Community’s powers has been transferred to the Walloon Region, on the one hand, and to the French Community Commission in Brussels, on the other hand.13 This possibility does not exist for either the Flemish Community or the German-speaking Community.
This “dismantling” of the French Community is to a large extent based on financial considerations.
Although the communities in principle have taxation powers, the Flemish and French Communities cannot levy taxes, unlike the German-speaking Community, owing to the lack of a (constitutional) provision defining the territorial application of such taxes. This is – yet again – a consequence of the interaction of these two communities in the Brussels-Capital Region. This has not resulted in any problems on the Flemish side, owing to the “merger” of the Flemish Region and the Flemish Community, which makes it possible to use regional financial resources for community matters. Since such a merger is lacking in the southern part of the country, however, the financial woes of the French Community have at least been partially resolved through a transfer of powers to the Walloon Region and to the French Community Commission in Brussels. The partial dismantling of the French Community also reflects the dominant regionalist tendency on the francophone side. The French-speaking Socialist party is a political force to be reckoned with in Wallonia. The dismantling of the French Community is one way of diminishing the political influence of the more liberal (conservative) French-speaking population of the Brussels-Capital Region, which has little interest in the highly specific, mostly economic, problems of the Walloon Region.