ITHPEPR - Les 3 - Thema 3, Luik Publiekrechts .docx

# Structure of the Belgian federal state The structure of the Belgian federal state involves a layered democratic and legal framework with historical origins stemming from its independence in 1830, evolving through numerous state reforms to its current federal composition. ## 1. The Belgian federal state Belgium is a federal, multi-layered, democratic rule of law state in Europe. ### 1.1 Nature of the Belgian state * **Multi-layered:** Characterized by the coexistence of various institutions possessing distinct powers within the Belgian state. * **Democratic:** Power resides with the people, who elect their representatives. * **Rule of law:** The constitution and laws govern the actions of the government and protect its citizens. ### 1.2 Historical origins * Belgian independence was achieved in 1830 following the Belgian Revolution. * Initial attempts by King William I to interfere with the Catholic Church and infringe upon freedoms, including language freedom in official matters (despite French becoming the de facto administrative language), led to the Flemish emancipation struggle. This struggle focused on issues in education and the right to be tried in Dutch, with economic interests tied to specific territories. ### 1.3 Federal structure and constituent entities #### 1.3.1 Federalism and constituent entities * The federal structure is anchored by the constitutional recognition of language areas (Article 4 of the Constitution). This is significant for the distribution of powers and language legislation. * Changes to territorial boundaries are made via special majority laws. * Several state reforms have occurred, including: * **1980:** Establishment of the Flemish and Walloon Regions; Cultural Communities transformed into Communities. * **1988:** Creation of the Brussels-Capital Region. For certain powers in Brussels, "community commissions" were established to handle competencies not attributable to the French or Flemish Communities. * **2014:** The "Vlinderakkoord" (Butterfly Agreement), the last major state reform. * **2025 onwards:** Calls for further autonomy for the constituent states, leaning towards confederalism. #### 1.3.2 Personal and territorial competencies * **Personal competencies** relate to individuals and their life spheres, such as education, culture, welfare, healthcare, and media. In Belgium, these are typically divided between the Flemish Community and the French Community. * In the Brussels-Capital Region, which is bilingual, assigning personal competencies exclusively to one community is often not feasible. The **Common Community Commission (CCC)** handles personal matters not exclusively assignable to the Flemish or French Communities. Measures or services intended for all residents of Brussels, regardless of language, fall under the CCC. ### 1.4 The Belgian Constitution and federalism * **Article 1:** Declares Belgium a federal state composed of Communities and Regions. * **Article 2:** States Belgium comprises three Communities: the Flemish, French, and German-speaking Communities. * **Article 3:** States Belgium comprises three Regions: the Flemish, Walloon, and Brussels-Capital Regions. * **Article 4:** States Belgium comprises four language areas: Dutch, French, German, and the bilingual Brussels-Capital area. ### 1.5 The federal state and its autonomy * **Autonomy** refers to the power of an entity to enact norms with the force of law within a specific territorial scope. * Constituent states do not possess constitutional autonomy (i.e., the power to create their own constitutions). * Norms with the force of law include laws, decrees, and ordinances, all of which are considered to be at the same hierarchical level. ### 1.6 Federal and constituent state competencies #### 1.6.1 The federal state * **Federal legislature:** The role of the Senate has diminished. * **Bill:** An initiative from the Chamber of Representatives, potentially with advice from the Council of State. * **Draft bill:** An initiative from the government, which must first be reviewed by the legislative division of the Council of State. * Publication in the Belgian Official Gazette is essential for a law to take effect. * **Federal executive:** Formation of the government. #### 1.6.2 Constituent states (Regions and Communities) * **Language areas:** Article 4 of the Constitution anchors language areas, influencing competency distribution and language legislation. * **Territorial Competencies:** * **Dutch language area:** Flemish Region. * **French and German language areas:** Walloon Region. * **Bilingual Brussels-Capital area:** Brussels-Capital Region. * **Language use:** Strictly regulated in the public sphere (e.g., official correspondence) but generally free in the private sphere. #### 1.6.3 Competencies of Regions and Communities * **Regions:** Primarily responsible for territorial competencies, such as spatial planning, environment, employment, agriculture, economy, and energy policy. * **Communities:** Primarily responsible for personal competencies, including culture, education, and matters related to individuals. * **Cultural matters (Article 127, Constitution):** Broadly defined in Article 4 of the Special Law on Institutional Reforms (SLIR), encompassing fine arts, libraries, audiovisual media, youth, and sports. * **Personal matters (Article 128, Constitution):** Detailed in Article 5 of the SLIR, including health policy, social welfare (including family benefits), and more. * **Education:** All aspects except diploma recognition, compulsory education, and pension schemes for educational personnel. * **Language use in administrative affairs:** Regulated within their respective territories. * **Brussels-Capital Region:** Has its own competencies. In the bilingual area, both Communities have limited competencies; for example, the Flemish Community might be competent for institutions like schools, while issues concerning individuals (e.g., vaccination campaigns) might be handled by the CCC. #### 1.6.4 The parliaments of the constituent states * **Flemish Parliament:** Combines the competencies of the Flemish Region and the Flemish Community. * **Walloon Parliament:** Competent for the Walloon Region. * **Parliament of the French Community:** Competent for the French Community. * **Parliament of the German-speaking Community:** Competent for the German-speaking Community. * **Brussels-Capital Parliament:** Competent for the Brussels-Capital Region. * **Common Community Commission (CCC):** Handles matters not exclusively assigned to one of the other communities. ### 1.7 Distribution of powers * The distribution of powers is enshrined in the Constitution and the Special Law on Institutional Reforms (1980). This makes amendment procedures complex. #### 1.7.1 Foundations of constituent state powers * **Autonomy of federal entities:** The constituent states exercise sovereign state powers, allowing for differentiated governance. * **Equality of federal entities:** Constituent states are not hierarchically subordinate to the federal government. Federal laws cannot amend decrees or ordinances, and vice versa, within their respective domains of competence (with exceptions, e.g., for implementing international obligations under Article 169 of the Constitution). * **Principle of exclusivity:** Generally, only one entity is competent to regulate a specific matter. * **Material exclusivity:** Refers to which entity is competent for a subject matter. * **Territorial exclusivity:** Refers to the territorial scope of an entity's powers. #### 1.7.2 Nuances to exclusivity * **Shared exclusivity:** Multiple entities may be competent for different aspects of a broad subject matter (e.g., education, where most aspects are Community competence, but some, like compulsory education, are federal). * **Concurrent powers:** Both federal and regional entities can legislate on a matter, but only if the federal government has not yet exercised its power. This applies to areas like taxation. #### 1.7.3 Verticality Principle * Legislative and executive powers typically lie with the same entity. ### 1.8 Federal competencies * **Assigned competencies:** * **Direct assignments in the Constitution:** Articles that assign a subject matter to "the law." Since the Special Law on Institutional Reforms (1980), "law" generally implies federal law. * **Example:** Article 14 of the Constitution (pre-1989): "No penalty may be established or applied except by virtue of the law." This could be interpreted to include penalties imposed by Communities or Regions. * **Example:** Article 184 of the Constitution (2001): "The organization and the powers of the integrated police service, structured at two levels, shall be governed by law." This clearly assigns competence to the federal level. * **Example:** Article 23 of the Constitution (2014): Explicitly mentions "law, decree, or the rule referred to in Article 134," indicating non-exclusive assignment. * **Residual competencies:** Powers not explicitly assigned to either the federal government or the constituent states by the Constitution or special laws. * **Article 35 of the Constitution:** States the federal government is only competent for matters explicitly granted by the Constitution and laws enacted under it. Communities and Regions are competent for the remaining matters, as defined by law. * **Powers of Communities and Regions:** * **Communities:** Powers are based in the Constitution (Articles 127-130) and further elaborated in the Special Law on Institutional Reforms (SLIR). * **Regions:** Primarily based in the SLIR. ### 1.9 Specific competencies in detail #### 1.9.1 Community competencies * **Personal competencies:** Culture, education, health, social welfare. * **Education:** Includes all aspects except diploma recognition, compulsory education, and pension schemes. * **Territorial competence:** In the bilingual Brussels-Capital Region, both Communities can be competent, but direct engagement with citizens is often indirect, through institutions deemed to belong exclusively to one community. #### 1.9.2 Regional competencies * **Territorial competencies:** Spatial planning, environment, employment, agriculture, economy, energy policy. * **Territorial competence:** Flemish Region for the Dutch language area; Walloon Region for the French and German language areas; Brussels-Capital Region for its territory. #### 1.9.3 Asymmetry * Not all constituent states have precisely the same competencies due to the transfer of certain competencies (e.g., monuments, landscapes, and spatial planning have been transferred to the German-speaking Community). #### 1.9.4 Instrumental competencies * **Treaty-making power:** Constituent states can conclude treaties within their areas of competence ("in foro interno, in foro externo"). * **Criminal law:** Constituent states can penalize violations of their own norms (Article 11 SLIR). ### 1.10 Examples of competency distribution * **Solar panels installation:** A regional competence (energy policy) as it relates to buildings within a specific region. * **Smartphone ban in schools:** A community competence (education). * **Nuclear power plant operation:** A regional competence (energy). * **Promotion of tourism:** A regional competence, as tourism is often linked to territorial attractions. * **Heritage management:** Can be a mixed competence; managing tangible heritage (buildings, landscapes) is typically regional, while intangible or mobile heritage might fall under community competence. * **Penalties for non-compliance:** A region can impose penalties for the non-compliance of its own decrees. ### 1.11 Conflicts of competence * Occur when a government entity exceeds its powers when taking a measure. * **Preventive control:** Advice from the legislative division of the Council of State. * **Reactive control:** Annulment procedures before the Constitutional Court (for formal laws) or the administrative division of the Council of State (for administrative acts). Ordinary courts can also refuse to apply an administrative act. ### 1.12 Cooperation between entities * Cooperation can be mandatory or voluntary for policy coordination. * Forms of cooperation include information exchange, consultation, advisory roles, and binding agreements. * This can lead to joint decrees or cooperation agreements. --- # Competence allocation and division This section details the principles and mechanisms of competence allocation within the Belgian federal system, including constitutional foundations and specific community and regional competences. ### 2.1 The Belgian federal state structure Belgium is a layered, democratic, and rule-of-law state. Its layered nature signifies the existence of multiple co-existing authorities with specific powers. #### 2.1.1 Historical context and evolution The Belgian state was established in 1830, following a revolution against Dutch King William I. Early tensions arose regarding the influence of the Catholic church and the suppression of liberties, particularly concerning language use. The constitution enshrined language freedom, but French became the de facto administrative language, leading to the Flemish emancipation movement advocating for rights in education and justice. These struggles were often linked to economic interests tied to specific territories. Major state reforms have progressively transferred powers: * **1980:** Establishment of the Flemish and Walloon Regions; Cultural Communities were transformed into Communities. * **1988:** Creation of the Brussels-Capital Region, leading to the establishment of 'community commissions' for powers in Brussels that could not be exclusively assigned to either the French or Flemish Community. * **2014:** The "Vlinderakkoord" (Butterfly Agreement) represented the last major state reform. * **2025 onwards:** Calls for further autonomy for the federal states, moving towards confederalism, are ongoing. #### 2.1.2 Constitutional foundations of the federal state The Belgian Constitution outlines the structure of the federal state: * **Article 1:** Declares Belgium a federal state composed of Communities and Regions. * **Article 2:** Identifies the three Communities: Flemish, French, and German-speaking. * **Article 3:** Identifies the three Regions: Flemish, Walloon, and Brussels-Capital. * **Article 4:** Designates the four language areas: Dutch, French, bilingual Brussels-Capital, and German. #### 2.1.3 The federal state and its territories The federal state possesses autonomy, defined as the power to issue norms with the force of law within a specific territorial scope. However, federal entities (Communities and Regions) do not have constitutional autonomy, meaning they cannot create their own constitutions. Norms with the force of law include laws, decrees, and ordinances, all of which hold equal hierarchical standing. * **Federal legislative power:** Historically vested in the federal parliament, the role of the Senate has diminished. Legislative proposals can originate from the Chamber of Representatives, while draft laws are initiated by the government and must be reviewed by the Council of State's legislative division. Publication in the Belgian Official Gazette is essential for a law to have legal force. * **Federal executive power:** Responsible for the formation of the government. #### 2.1.4 The federal states (deelstaten) The federal states, or 'deelstaten', are anchored by language areas, which significantly influence competence distribution and language legislation. The boundaries of these areas can be altered via special majority laws. * **Public sphere:** The use of languages in the public sphere is strictly regulated (e.g., official government correspondence). * **Private sphere:** Language use in the private sphere is generally free. #### 2.1.5 Competences of the federal states The federal states comprise Regions and Communities, each with distinct competences. * **Regions:** Primarily responsible for "ground-bound" competences. * **Communities:** Primarily responsible for "person-bound" competences. **Specific considerations for the Brussels-Capital Region:** In the bilingual Brussels-Capital Region, where both Dutch and French speakers reside, competences are more complex. For "person-bound" matters that cannot be exclusively assigned to one Community, the **Common Community Commission (GGC)** is competent. This applies to measures or services intended for all inhabitants of Brussels, irrespective of their language. **Legislative bodies of the federal states:** * **Flemish Parliament:** Combines the competences of the Flemish Region and the Flemish Community. * **Walloon Parliament:** Competent for the Walloon Region (covering French and German-speaking areas). * **Parliament of the French Community:** Competent for the French Community. * **Parliament of the German-speaking Community:** Competent for the German-speaking Community. * **Brussels-Capital Parliament:** Competent for the Brussels-Capital Region. * **Common Community Commission (GGC):** Handles specific person-bound competences in Brussels. ### 2.2 Principles of competence allocation The division of powers in Belgium is constitutionalized, primarily through the **Special Law on Institutional Reform of 1980 (BWHI)**. This legal framework establishes key principles guiding competence allocation: #### 2.2.1 Autonomy of federal entities Federal entities exercise sovereign state powers within Belgium. This allows for differentiated administration, meaning different rules can apply in different parts of the country for matters falling under the competence of these entities. #### 2.2.2 Equality of federal entities The principle of equality ensures that the autonomy of federal entities is not curtailed. There is no hierarchical or supervisory relationship between the federal government and the federal states. Laws cannot alter decrees or ordinances, and vice versa, within their respective fields of competence, with specific exceptions. * **Exception for international obligations:** Federal states can implement international treaty obligations through a substitution right (article 169 of the Constitution). #### 2.2.3 The exclusivity principle This principle dictates that for any given matter, only one entity is competent to legislate and execute. * **Material exclusivity:** Only one entity can regulate a specific matter. * **Verticality principle:** Legislative and executive powers reside with the same entity. * **Nuances to exclusivity:** * **Shared exclusivity:** Multiple entities are competent for different parts of a broad competence package (e.g., education, where the largest part is Community competence, but some aspects like the school-leaving age remain federal). * **Concurrent competences:** Both federal and regional authorities can legislate on these matters (e.g., taxation). However, regional competence is limited to areas where the federal government has not yet acted. * **Territorial exclusivity:** Federal states generally do not act outside their designated territories. * **Territoriality principle:** Federal states operate within their own geographical boundaries. * **Combination of material and territorial exclusivity:** In a specific location, only one entity is typically competent to regulate a particular matter. ### 2.3 Federal competences Federal competences are either explicitly assigned or residual. #### 2.3.1 Assigned competences These are powers directly allocated by the Constitution or subsequent laws. * **Direct constitutional assignments:** Articles that assign a matter to "law" generally imply federal competence following the 1980 BWHI (e.g., Article 14 on the legality of punishment, Article 184 on policing). * **Assignments with no direct competence-distributing effect:** Some constitutional articles, even if they mention "law," do not automatically distribute competence exclusively to the federal level if the broader framework does not support it (e.g., Article 23 on socio-economic rights). #### 2.3.2 Residual competences These are competences that are not explicitly assigned to the federal government or the federal states by the Constitution or special laws. * **Article 35 of the Constitution:** States that the federal government is only competent for matters explicitly granted by the Constitution and laws. All other matters fall under the competence of the Communities or Regions, as defined by law. Currently, the federal government temporarily holds residual competences, as the law to fully implement Article 35 is pending. ### 2.4 Community competences Community competences are rooted in the Constitution (Articles 127-130) and further detailed in the BWHI. They primarily concern "person-bound" matters. #### 2.4.1 Material competences * **Cultural affairs:** Governed by Article 4 of the BWHI, these include fine arts, libraries, audiovisual media, youth, and sports. * **Person-bound affairs:** Governed by Article 5 of the BWHI, these encompass health policy and social assistance, including family benefits. * **Education:** The Communities are competent for most aspects of education, with exceptions for diploma recognition, the compulsory education age, and pension schemes. #### 2.4.2 Language use in administrative matters This falls under Community competence. #### 2.4.3 Territorial competence of Communities * **Dutch and French language areas:** The Flemish and French Communities are competent within their respective territories. * **Bilingual Brussels-Capital Region:** Both Communities are competent. However, they do not reach citizens directly but through institutions considered to belong exclusively to one or the other Community based on their activities. This can lead to complex applications. #### 2.4.4 Examples of Community competences * A decree concerning e-books and associated software can be a Community matter. * Legislation regarding the compulsory education age, with exceptions for low-income families, can be regulated by Community decree. ### 2.5 Regional competences Regional competences are primarily "ground-bound" and are outlined in Article 6 of the BWHI. #### 2.5.1 Material competences These include spatial planning, environmental policy, employment, agriculture, economy, and energy policy. #### 2.5.2 Territorial competence of Regions * **Flemish Region:** Competent in the Dutch language area. * **Walloon Region:** Competent in the French and German language areas. * **Brussels-Capital Region:** Competent for matters within its territory, including its own specific competences. #### 2.5.3 Asymmetry in competences Not all federal states possess identical competences. Some powers have been transferred from Regions to Communities (this is an exception and complicates matters), such as monument and landscape protection and spatial planning, which have been transferred to the German-speaking Community. #### 2.5.4 Instrumental competences These are powers used as tools to implement the Region's or Community's own competences. * **Treaty-making power:** Federal states can conclude treaties ("in foro interno, in foro externo"). * **Criminal law:** Federal states can penalize violations of their own norms (Article 11 BWHI), allowing them to introduce penal provisions in their decrees. ### 2.6 Examples of competence allocation * **Exercise 1: Material and territorial competence:** A regulation requiring the installation of solar panels on buildings with a minimum roof area in the Flemish or Brussels-Capital Region relates to energy and falls under regional competence. * **Exercise 2: Educational matters:** A ban on smartphone use in primary and secondary schools, with exceptions for educational purposes requiring ministerial approval, is a Community competence. * **Exercise 3: Energy policy:** The authorization for nuclear power plants to produce electricity until a specific date is a regional competence (energy). * **Exercise 4: Tourism promotion:** The establishment of a fund to promote Belgium as a tourist destination abroad is a regional competence (tourism). * **Exercise 5: Heritage management:** The management of a portfolio of Flemish immovable heritage sites, representing architectural, landscape, and archaeological heritage, is a regional competence. However, if "navigable heritage" is included, it could also fall under Community competence. * **Exercise 6: Energy and education regulations:** A decree requiring solar panel installation on buildings in the Flemish Region is a regional competence. Penalties for non-compliance with such a regional decree can also be introduced by the Region. ### 2.7 Cooperation between entities Cooperation between the federal state and its entities, as well as between the entities themselves, is common, sometimes mandatory and often voluntary, to coordinate policy. #### 2.7.1 Forms of cooperation * **Information sharing.** * **Consultation and deliberation:** Non-binding advice. * **Unanimous advice, agreement, approval:** Binding decisions. * **Representation:** Joint representation in certain bodies. * **Cooperation agreements.** * **Joint decrees.** ### 2.8 Competence conflicts A competence conflict arises when an authority acts beyond its allocated powers, affecting the legality of a measure. * **Preventive control:** Advice from the legislative division of the Council of State. * **Reactive control:** * Annulment procedure before the Constitutional Court (for formal laws). * Annulment procedure before the Council of State's administrative law division (for administrative acts). * Ordinary courts and tribunals can refuse to apply administrative acts that exceed competence. --- # Belgian federalism and its legal framework Belgian federalism establishes a multi-layered state structure where power is divided between the federal state and its constituent entities, the communities and regions, governed by a complex legal framework. ### 3.1 Introduction to Belgian federalism Belgian federalism emerged from the country's independence in 1830 and the subsequent Flemish emancipation struggle, driven by linguistic and economic grievances. The constitutional evolution, marked by several state reforms, has led to a sophisticated division of powers. The concept of federalism in Belgium is deeply intertwined with its linguistic diversity, with distinct language areas shaping the distribution of competencies. ### 3.2 Constitutional basis of Belgian federalism The Belgian Constitution explicitly defines Belgium as a federal state composed of communities and regions. * **Article 1** establishes Belgium as a federal state. * **Article 2** outlines the three Communities: the Flemish Community, the French Community, and the German-speaking Community. * **Article 3** designates the three Regions: the Flemish Region, the Walloon Region, and the Brussels-Capital Region. * **Article 4** delineates the four language areas: the Dutch-speaking area, the French-speaking area, the bilingual Brussels-Capital area, and the German-speaking area. ### 3.3 The federal state and its constituent entities Belgian federalism involves the division of powers between the federal state and its constituent entities, which are recognized as having autonomy, meaning they can issue norms with the force of law within their respective territorial scopes. However, these entities do not possess constitutional autonomy, meaning they cannot create their own constitutions. #### 3.3.1 Competencies of the federal state The federal state's competencies are primarily those explicitly assigned to it by the Constitution and specific laws. These are often referred to as "assigned powers." * **Direct assignments in the Constitution:** Certain articles directly allocate specific matters to "the law," which, following the state reforms, is interpreted as federal law. * **Example:** Article 14 of the Constitution states, "No penalty may be instituted or applied except by virtue of the law." This provision, predating the full federalization, allows for laws to establish penalties, and by extension, federated entities can also impose penalties within their competences. * **Example:** Article 184 of the Constitution, as amended in 2001, explicitly assigns the organization and powers of the integrated police force to be regulated by law, thus falling under federal competence. * **Residuary powers:** Article 35 of the Constitution stipulates that the federal government is only competent for matters explicitly granted to it by the Constitution and laws enacted under it. All other matters fall to the communities and regions, to be regulated under conditions defined by law, which must be adopted by a special majority. Currently, the federal government retains residuary powers, though the intent is for these to be further transferred to the federated entities. #### 3.3.2 Competencies of the constituent entities (communities and regions) The communities and regions possess both assigned and, in the case of regions, residuary powers not explicitly allocated to the federal state. * **Communities:** Their competences largely stem from the historical linguistic struggles and are focused on "personal matters." * **Culture and education (Article 127 Gw.):** * **Cultural matters:** Encompass arts, libraries, audiovisual media, youth, sports, and more, as detailed in Article 4 of the Special Act on Institutional Reform (BWHI). * **Personal matters:** Include health policy and social assistance (like family allowances), as outlined in Article 5 of the BWHI. * **Education:** The communities are responsible for most aspects of education, with exceptions such as diploma requirements, compulsory schooling, and pension schemes, which remain federal competencies. * **Language use in administration:** This is also a community competence, with strict regulations for the public sphere and freedom in the private sphere. * **Territorial competence:** While communities have a territorial scope, their application in the bilingual Brussels-Capital Region is complex. Communities are competent for matters that, due to their activities, can be considered to exclusively belong to one or the other community. For matters intended for all inhabitants of Brussels, regardless of language, the Common Community Commission (CCC) is competent. * **Regions:** Their competences are primarily "ground-bound" matters. * **Material competencies:** Include spatial planning, environment, employment, agriculture, economy, and energy policy, as listed in Article 6 of the BWHI. * **Territorial competence:** The Flemish Region is competent in the Dutch-speaking area, the Walloon Region in the French and German-speaking areas, and the Brussels-Capital Region in the bilingual area of Brussels-Capital. #### 3.3.3 Asymmetry in competences Belgian federalism exhibits asymmetry, meaning not all constituent entities possess precisely the same set of powers. This can occur when competencies are transferred from one level to another, creating exceptions. For example, certain heritage and spatial planning competencies have been transferred to the German-speaking Community. #### 3.3.4 Instrumental competencies Constituent entities also possess instrumental competencies, which they can use as tools to implement their primary responsibilities. * **Treaty-making power:** The constituent entities can enter into international treaties ("in foro interno, in foro externo"), allowing them to conclude agreements within their areas of competence. * **Criminal law:** Entities can impose criminal sanctions for infringements of their own norms (Article 11 BWHI), meaning they can establish criminal offenses within their decreets or ordinances. ### 3.4 Legal framework governing the division of powers The division of powers is primarily enshrined in the Belgian Constitution and further detailed in special laws, notably the Special Act on Institutional Reform (BWHI) of 1980. #### 3.4.1 Principles of competence allocation Several fundamental principles govern the distribution and exercise of powers: * **Autonomy of federal entities:** The constituent entities have the autonomy to exercise sovereign state powers within Belgium, allowing for differentiated governance. * **Equality of federal entities:** There is no hierarchical relationship between the federal government and the constituent entities. Federal laws cannot alter decrees or ordinances within their respective domains, and vice versa, with specific exceptions. * **Exclusivity principle:** * **Material exclusivity:** Generally, only one entity is competent to regulate a specific matter. * **Verticality principle:** Legislative and executive powers for a given matter typically reside within the same entity. * **Nuances to exclusivity:** * **Shared exclusive competencies:** Multiple entities may be competent for different aspects of a broader policy area (e.g., education, where the community handles most aspects, but federal authorities retain competence for compulsory schooling). * **Concurrent competencies:** Both federal and regional levels can legislate on certain matters (e.g., taxation), but this is only permissible if the federal government has not already acted in that area. * **Territorial exclusivity:** Constituent entities generally do not act outside their designated territories. The combination of material and territorial exclusivity means that in a specific location, only one entity is typically competent for a given matter. #### 3.4.2 Special Act on Institutional Reform (BWHI) The BWHI of 1980 was a pivotal piece of legislation that formalized and detailed the division of powers following the initial state reforms. It provides the specific framework for the competences of communities and regions. #### 3.4.3 Legislative instruments Norms issued by the federal state and the constituent entities hold the same legal standing and include: * **Federal:** Laws (wetten) * **Communities:** Decrees (decreten) * **Regions:** Decrees (decret en) and Ordinances (ordonnanties) for the Brussels-Capital Region. The publication of these norms in the Belgian State Gazette is crucial for their legal enforceability. ### 3.5 Cooperation between levels of government Cooperation between the federal government and the constituent entities is often necessary, either mandated or voluntary, to coordinate policy. Forms of cooperation include information sharing, consultation, advisory roles, and binding agreements. This can manifest in collaborative decrees or specific cooperation agreements. ### 3.6 Conflicts of competence Competence conflicts arise when a government entity oversteps its powers in taking a measure. These conflicts pertain to the legality of a measure rather than its expediency. They can be addressed through preventive control (advice from the legislative division of the Council of State) or reactive control, including annulment procedures before the Constitutional Court or the administrative division of the Council of State, or by ordinary courts refusing to apply an administrative act. > **Tip:** Understanding the specific articles of the Constitution and the BWHI is crucial for correctly identifying which entity is competent for a given matter. Pay close attention to the nuances of shared and concurrent competencies. > **Example:** The allocation of competencies for energy policy illustrates the interplay between regional and federal powers. While regions generally handle energy policy within their territories, federal legislation may set overarching frameworks or address specific aspects like nuclear energy. > **Tip:** When analyzing legal texts, always identify the nature of the competence (community or region) and the territorial scope (Flemish Region, Walloon Region, Brussels-Capital Region). This will help in determining which legislative instrument (decree or ordinance) applies. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Federal state | A state where power is divided between a central government and regional governments, with each level having its own distinct powers and responsibilities. | | Layered democratic legal state | A state characterized by multiple levels of government and democratic principles, where laws and governance operate across different tiers, and citizens' rights are protected by a constitutional framework. | | Belgian revolution | The historical event in 1830 that led to Belgium gaining its independence from the United Kingdom of the Netherlands. | | Language freedom | The principle that individuals or entities can choose the language they use in specific contexts, though in Belgium's historical context, this was often a point of contention and struggle, particularly for the Dutch language. | | Flemish emancipation struggle | The historical movement advocating for greater recognition and rights for the Dutch-speaking population in Belgium, particularly concerning education and the legal system. | | Constituent entities (federal entities) | The major sub-national units within a federal state, such as communities and regions in Belgium, which possess significant autonomy and specific legislative and executive powers. | | Language areas | Defined territories within Belgium where specific languages are officially recognized and used, playing a crucial role in the division of competences and language legislation. | | Special majority law | A law that requires a qualified majority of votes for its adoption, often used for significant constitutional reforms or changes to the state structure, such as altering language area boundaries. | | State reform | The process of restructuring the Belgian state by transferring powers from the federal level to the regions and communities, aiming to accommodate linguistic and cultural differences. | | Personal matters | Competences related to individuals and their life spheres, such as education, culture, welfare, healthcare, and media, typically managed by communities in Belgium. | | Common Community Commission (GGC) | A special body in Brussels responsible for personal matters that cannot be exclusively assigned to either the Flemish or French Community, serving all inhabitants of Brussels regardless of language. | | Federal legislature | The legislative branch of the federal government in Belgium, historically composed of the Chamber of Representatives and the Senate, responsible for enacting federal laws. | | Bill (Wetsvoorstel) | A legislative proposal initiated by a member of the Chamber of Representatives, potentially with advice from the Council of State. | | Draft law (Wetsontwerp) | A legislative proposal initiated by the government, which must first be reviewed by the legislative division of the Council of State. | | Belgian Official Gazette (Belgisch staatsblad) | The official publication where laws are published, making them legally binding and enforceable. | | Federal executive power | The executive branch of the federal government in Belgium, headed by the government, responsible for implementing federal laws. | | Regions | Territorial entities within Belgium with specific competences, particularly related to economic and territorial matters, such as Flanders, Wallonia, and the Brussels-Capital Region. | | Communities | Entities in Belgium based on language groups, responsible for personal matters such as culture, education, and personal welfare, namely the Flemish, French, and German-speaking Communities. | | Competence division | The constitutional and legal allocation of powers and responsibilities between the federal government and the sub-national entities (communities and regions) in Belgium. | | Special Law on Institutional Reform (BWHI) | A key piece of legislation that outlines the structure and division of competences for Belgian federal institutions, enacted in 1980 and subsequently amended. | | Principle of autonomy | The right of federal entities to self-govern within their designated areas of competence, enacting their own norms and policies. | | Principle of equality | The notion that all federal entities should be treated equally, without a hierarchical relationship between the federal government and the sub-national entities. | | Principle of exclusivity | The principle that only one entity is competent to regulate a specific matter, ensuring clarity and avoiding overlapping jurisdictions, though with certain nuances and exceptions. | | Material exclusivity | The principle that a specific matter falls under the exclusive competence of a single entity, encompassing both legislative and executive powers. | | Verticality principle | The concept that legislative and executive powers related to a particular matter reside within the same governmental entity. | | Shared exclusivity | A situation where multiple entities share competence over different aspects of a broader policy area. | | Concurrent competences | Powers that can be exercised by both the federal government and sub-national entities, often with limitations or conditions, such as in fiscal matters. | | Territorial exclusivity | The principle that sub-national entities primarily exercise their powers within their defined geographical territory. | | Assigned competences | Powers that are explicitly granted to a specific level of government by the constitution or specific laws. | | Residual competences | Powers that are not explicitly assigned to any specific level of government by the constitution or laws, typically falling to the residual authority. In Belgium, historically, the federal government held residual competences. | | Community competences | Powers primarily related to personal matters, such as culture, education, and personal welfare, attributed to the Communities. | | Regional competences | Powers primarily related to territorial and economic matters, such as spatial planning, environment, employment, and economy, attributed to the Regions. | | Brussels-Capital Region | A distinct region within Belgium that is officially bilingual, with its own specific competences and governing bodies. | | Asymmetry | Differences in the distribution of competences or powers among sub-national entities within a federal state, leading to variations in their autonomy and responsibilities. | | Instrumental competences | Powers that sub-national entities can exercise as instruments to facilitate the execution of their own primary competences, such as treaty-making or the ability to impose penalties for violations of their norms. | | Treaty-making power (in foro interno, in foro externo) | The ability of sub-national entities to conclude international agreements, reflecting their internal autonomy and their capacity to act on the international stage within their competences. | | Competence conflicts | Disputes that arise when a governmental entity takes action that exceeds its legal authority or infringes upon the competences of another entity. | | Preventive control | A review process conducted before a measure takes effect, often by a legal body like the Council of State, to assess its legality and compliance with constitutional and legal provisions. | | Reactive control | A process of challenging a measure after it has taken effect, typically through judicial review, such as annulment proceedings before the Constitutional Court or administrative courts. | | Council of State (RvS) | An independent judicial and advisory body in Belgium that provides legal opinions on draft legislation and rules on administrative disputes. | | Constitutional Court (GwH) | The court responsible for reviewing the constitutionality of laws and settling competence conflicts between different governmental levels. |