Professor Jürgen Vanpraet (UA) was invited to give a guest lecture about the double aspect doctrine in the Advanced Study of Constitutional Law at Ghent University. Afterwards, student Evelien Verstraeten has asked him some additional questions, which have led to an interesting interview.
Jürgen Vanpraet is a professor at the University of Antwerp in public law. He has a broad knowledge in the field of institutional reform and the distribution of powers between the federal level, the communities and regions. He is author of the monograph ‘De latente staatshervorming’ [The latent state reform] (2011).
Can you briefly explain what the double aspect doctrine entails?
The double aspect doctrine modifies the starting point of the distribution of powers, in particular the principle of the exclusivity of the division of powers according to which legal norms always have to be qualified as one-dimensional, as belonging to the power of one or the other.
Why does it modify this principle of exclusivity? In practice, we often find that it is very difficult to qualify legal norms as one-dimensional and that sometimes it comes across as arbitrary to qualify certain matters as one or the other. The case law has found a solution for this, namely the ‘pith and substances doctrine’, which states that you should look at the core of what is governed by the legal rule. On this basis, you should seek the jurisdiction that is most supportive.
However, in certain cases, even the pith and substances doctrine does not offer relief and it can be appropriate that a legal norm is qualified as belonging to the jurisdiction of multiple governments. This can lead to two governments taking similar measures on a different jurisdictional basis.
This summarizes the double aspect doctrine.
Can you give an example?
A striking example is the Flemish health care insurance. In 1999 a Flemish health care insurance was introduced and gave allowances to people who needed care and were dependent upon others. This however, raised the question whether this is a power belonging to the regional community (i.e. assistance to persons), or to the federal power (i.e. social security). The Constitutional Court initially ruled that it belonged to the power of the regional community. However, in a later judgment, the Court ruled differently and stated that this does not prevent the federal government from also having jurisdiction under its power regarding social security.
In other words, the regional communities are competent on the basis of their power of assistance to persons and the federal government on the basis of their power of social security, health and disability insurance in particular.
What is the difference with the ‘pith and substances doctrine’? What has improved?
It is a stepwise process. Initially, the starting point is that you look for sufficient common ground with the jurisdictional matter. The premise is that you have to qualify a rule of jurisdiction as one-dimensional. To the extent that something has a connection with multiple jurisdictional matters however, it is possible that it will fall within the jurisdiction of two governments. Then you should initially look at the ‘pith and substance doctrine’ to qualify the legal relationship. If this is not possible or too difficult to determine, then it is possible to qualify it as multiple so it can belong to one or the other.
Does the double aspect doctrine in some matter resemble the system of parallel powers?
In a sense you could say that, but there is a very important distinction, at least in theory. A parallel jurisdiction states that one power can be governed by various authorities. Development cooperation is a good example.
On the other hand, the double aspect doctrine focuses on two legal matters, which are, in principle, exclusively assigned to one or the other. The way in which that power is being exercised in practice can lead to similar measures belonging to the power of both.
Summarized, parallel jurisdiction leads to one legal matter that everyone can regulate. The double aspect doctrine on the other hand, distinguishes several matters that give rise to a similar legal rule which can be authorized by multiple authorities.
Is the double aspect doctrine not at odds with the exclusivity principle?
I do not think so, because the exclusivity principle has a certain goal, in particular safeguarding the autonomy and avoiding a hierarchy between the federal government and the regions. At the start of the Institutional reform, in the 70’s and 80’s, one was of the opinion that the federal government could not have authority over the communities and regions. Therefore, decrees are at the same level as federal laws. Through the principle of exclusivity one wanted to avoid overlaps. With overlaps – so it was thought – there is always a need for a priority rule, such as Bundesrecht bricht Landesrecht. in Germany By strictly separating and mutually limiting the powers, one thought to optimally safeguard the autonomy. At least that was the starting point.
The starting point, however, is not entirely correct. Not every conflict leads to overlapping standards. In that sense the double aspect doctrine strengthens the autonomy which, in itself, is not contrary to the premise of safeguarding the exclusivity principle. As long as no standard conflict or hierarchy is introduced, there is no problem.
If you have 100 Euros regional community aid and 100 Euros federal assistance, that makes 200 Euros. There is no standard conflict nor is it perpendicular to the autonomy principle or to the starting point of the Belgian federalism.
To what extent can the double aspect doctrine be used as an alternative for an explicit transfer of power?
There is an example of this in the sixth Institutional reform. When negotiating this reform, the question was raised whether the power to create administrative jurisdictional courts had to be explicitly granted to the communities and regions. Previously, these courts were created on the basis of implied powers, but at the same time legal uncertainty rose,because you always have to comply with the terms of the implied powers. In the end, in het context of the sixth Institutional reform, it was decided not to explicitly assign this power because it already was allowed on the basis of implied powers.
Do you think the double aspect doctrine leads to a simplification of the institutional functioning of the federal State or does it lead to more complexity?
It leads to less unnecessary conflicts. It is more about policy responsibility than about a power. The question ‘Is the government competent to enact a measure?’ is less relevant because the double aspect doctrine gives more autonomy to the federal government, communities and regions to take the steps that are required in conducting their own policies. Therefore, it is more a question of responsibility, leaving the policy makers to decide whether they want to take a measure or not.
Is the double aspect doctrine an essential element of a federal State?
It indicates a form of maturity in the system of distribution of powers. Many federations started with a strict division of powers with mutually exclusive boundaries. Examples include the United States, Canada, and Austria. Nonetheless, everywhere we see in practice that this strict separation is untenable. Homogeneous authority packages do not exist, because there are always multiple dimensions. The double aspect doctrine is, in that sense, a sign of a growing maturity of the system. It is also a logical evolution which is not, in itself, negative, but difficult to stop. Halting such an evolution is, however, undesirable.