See Dutch version below.

Laurens Dumoulin & Mukan Heynderickx (master students Advanced Study Constitutional Law, UGent), Jurgen Goossens (doctoral researcher, UGent) & Pieter Cannoot (academic assistant, UGent)

Overview sixth state reform: part 2 of 6

We are finally there. Although former Prime Minister Yves Leterme assumed that the split-up of Brussels-Halle-Vilvoorde (BHV) would have taken only five minutes of political courage, in fact it took the politicians several years to reach an agreement. The Butterfly agreement of 11 October 2011 on the sixth state reform has solved the problem, or better said, resulted in a compromise à la belge.

BHVThe electoral district BHV dates back to 1830, shortly after the independence of Belgium. After the first state reforms, which divided Belgium into monolingual communities and territorially based regions, a special phenomenon occurred: the electoral district BHV spanned two regions (and two linguistic areas), namely the Flemish Region and the bilingual Brussels Capital Region. It included the 19 municipalities of the bilingual area Brussels and 35 municipalities of the province Flemish Brabant. Moreover, the federal Election Act was changed in 2002 and merged the former electoral constituencies based on communal districts into provincial electoral districts. Nevertheless, in Flemish Brabant, the existing districts BHV and Leuven remained unchanged.

Most of the Flemish parties, however, considered BHV to be a mechanism that supported the ‘Frenchification’ of the Flemish areas on the border with Brussels. In federal and European elections French-speaking politicians from Brussels were able to acquire votes in the 35 Flemish municipalities of Flemish Brabant. The Flemish politicians in their way also benefited from BHV to get better electoral results. Professor Dave Sinadet explains the BHV-problem in an animated video clip.

In 2003 the Belgian Constitutional Court ruled that, considering the new provincial electoral districts, maintaining the old districts Leuven and BHV was an unacceptable inequality. The Court gave the legislator four years to solve the BHV-problem. Despite the Court’s decision, the BHV case caught Belgium for a period far exceeding those four years. The so-called “five minutes of political courage” became several years and led in 2010 to the fall of the Leterme-II government. It was obvious that a compromise on BHV – the ultimate symbol of the tensions between the Flemish and French communities – had become an absolute condition for the formation of the new government. Negotiations on the sixth state reform started shortly after the elections.

Split-up of the electoral district

On 14 September 2011, more than eight years since the Court’s decision and after 459 days of negotiations, the politicians reached an agreement on the split-up of the electoral district BHV. Starting from that date, the province Flemish Brabant has fully become a separate provincial electoral district, which includes the former Halle-Vilvoorde and Leuven. Moreover, the electoral district Brussels Capital was also created. To compensate for the Flemish demand for the split-up of BHV, French-speaking citizens received ‘special modalities’ in six suburban municipalities with facilities (which entitle the French-speaking citizens living in this Flemish area to communicate with the municipal authorities in French) on the borders with Brussels. These ‘special modalities’ prove to be a status quo for their acquired rights: French-speaking citizens of these municipalities retain the choice to vote for political candidates of the district of Flemish Brabant as well as for those of Brussels Capital. In other words, these voters retain the right to vote for candidates in Brussels but are taken into account for the number of parliamentary seats accorded to Flemish Brabant. According to the negotiators, the split-up of BHV is a pure and well-balanced compromise.

Nevertheless, the institutional opposition did not agree. A number of French-speaking parties criticised the loss of the right of the inhabitants of the remaining 29 municipalities of Halle-Vilvoorde to vote for candidates from Brussels. The given compensation proved to be unfulfilling. On the other side, the Flemish opposition considered the number of concessions for this split-up to be too high. The hardest criticisms were related to the practical consequences of the split-up for the Flemish-Brussels representation in the Chamber of Representatives. A Fleming elected in the district of Brussels Capital will become a rarity. It will only be possible in case almost all Flemish parties will appear together on one electoral list. This Flemish fear came true in 2014, since during the recent federal elections only French-speaking politicians were elected in Brussels Capital.

Special arrangements for disputes in suburban municipalities of Brussels

It is clear that the six municipalities with facilities in the suburban area of Brussels are the object of several disputes between the communities. The administrative practice in these municipalities, according to which French-speaking inhabitants were only once required to ask the application of their linguistic facilities, had been established for over thirty years. In 1997 however, the Flemish circular-Peeters pointed out that a correct interpretation of the Belgian linguistic legislation demanded a constant expression of this linguistic preference in order not to harm the priority status of the Dutch language in Flanders.

The Mayors of three of these suburban municipalities around Brussels refused to comply with this circular, which in 2006 led to a conflict concerning the local elections. The inhabitants whom were known to be French-speaking, automatically received their convocation in French. As a reaction, the Flemish Minister of Internal Affairs, Marino Keulen, refused to reappoint the Mayors of these municipalities. During the negotiations on the sixth state reform, politicians tried to convert the circular-Peeters into law while at the same time mitigating its effects by proposing a periodic demand for linguistic facilities every three or six years. None of these propositions were adopted though.

On the other hand, out of these negotiations came more concrete and structural juridical frameworks to solve similar problems. From now on, all administrative disputes originating in these six municipalities will be treated by the General Assembly of the Council of State. This assembly will also have the final word on the appointment of their Mayors. The General Assembly has a bilingual French-Dutch structure which is useful in cases concerning delicate linguistic issues. On the other side, the assembly is also competent for disputes only remotely related to the tensions between the Flemish and French communities, such as the annulment of a planning permission for the building of a henhouse. This ‘overkill’ is criticised by the Flemish institutional opposition.

In the meantime, The General Assembly of the Council of State has ruled for the first time on the appointment of the Mayors and the circular-Peeters. On the one hand, it recognised the primacy of the Dutch language in the six Flemish suburban municipalities. On the other hand, it pointed out that the requirement to express one’s linguistic preference every single time violates the minority rights of the French-speaking citizens. Hence the Council of State concluded that a request for facilities only has to be renewed every four years.

Reform of the judicial district

The agreement on the sixth state reform did not only include the split-up of the electoral district BHV and the exceptional treatment of the municipalities with facilities, but also enclosed a reformation of the judicial district of Brussels. As a consequence of its complex structure this judicial area was difficult to control. The Act of 19 July 2012 on the reform of the judicial district of Brussels provides a thorough reformation. This new Act splits up the former prosecutor’s office in a prosecutor’s office of Halle-Vilvoorde and a prosecutor’s office of Brussels. In this way the prosecutor’s offices are able to decide on their own policy, taking in account the specific criminal acts that appear most frequently in every district. On the other hand, the courts themselves were not territorially split: they are duplicated on linguistic base. Every court was divided into two monolingual divisions.  Consequently, there is no pure split-up of the judicial district BHV. Beside some minor exceptions, this Act has recently passed constitutional review.

Generally we can conclude that the negotiations on the split-up of Brussels-Halle-Vilvoorde were held in a typical Belgian way. In order to reach an agreement on the sixth state reform, both Flemings as well as the French community made many concessions. The question as to whether this is a well-balanced agreement has to be answered differently depending on the perspective one takes. However, since BHV afflicted Belgium for almost fifty years and led to a true constitutional crisis, it is important for the future that an agreement has been reached.

Concise bibliography

1) C. BAEKELAND & B. NELISSEN, “De randgemeenten en hun bijzondere regeling na de Zesde Staatshervorming. Kicking the can down the road?”, in A. ALEN, B. DALLE, K. MUYLLE, W. PAS, J. VAN NIEUWENHOVE & W. VERRIJDT (eds.), Het federale België na de Zesde Staatshervorming, Bruges, die Keure, 2014, 255-276.

The suburban municipalities and their special arrangement after the Sixth State Reform. Kicking the can down the road?

2) F. GOSSELIN, “La réforme de l'arrondissement judiciaire de Bruxelles”, in J. SAUTOIS & M. UYTTENDAELE (eds.), La sixième réforme de l'Etat (2012-2013). Tournant historique ou soubresault ordinaire?, Limal, Anthemis, 2013, 375-396.

The reform of the judicial district Brussels

3) R. MNOOKIN & A. VERBEKE, “Persistent Nonviolent conflict with no reconciliation: the Flemish and Walloons in Belgium”, Law and Contemporary Problems 2009, vol 72, 151-186.

4) P. PEETERS & J. MOSSELMANS, “Belgium, The Brussels-Halle-Vilvoorde Question: A Linguistic Trap”, European Public Law 2009, vol. 15, 5-15.

5) A. REMICHE  & L. VAN DEN EYNDE, “La nouvelle procédure de nomination des bourgmestres des six communes à facilités de la périphérie bruxelloise”, in J. SAUTOIS & M. UYTTENDAELE (eds.), La sixième réforme de l'Etat (2012-2013). Tournant historique ou soubresault ordinaire?, Limal, Anthemis, 2013, 227-259.

The new procedure on the appointment of the Mayors of the six suburban municipalities of Brussels

6) V. RIGODANZO & E. SLAUTSKY, “La scission de la circonscription électorale de Bruxelles-Hal-Vilvorde”, in J. SAUTOIS & M. UYTTENDAELE (eds.), La sixième réforme de l'Etat (2012-2013). Tournant historique ou soubresault ordinaire?, Limal, Anthemis, 2013, 145-191.

The split-up of the electoral district Brussels-Halle-Vilvoorde

7) W. VANDENBRUWAENE, “Het gerechtelijk arrondisement Brussel”, in J. VELAERS, J. VANPRAET, Y. PEETERS & W. VANDENBRUWAENE (eds.), De zesde staatshervorming: instellingen, bevoegdheden en middelen, Antwerp, Intersentia, 2014, 203-214.

The judicial district Brussels

8) B. VANLERBERGHE, “Het gerechtelijk arrondissement Brussel”, in A. ALEN, B. DALLE, K. MUYLLE, W. PAS, J. VAN NIEUWENHOVE & W. VERRIJDT (eds.), Het federale België na de Zesde Staatshervorming, Bruges, die Keure, 2014, 191-212.

The judicial district Brussels

9) J. VAN NIEUWENHOVE, “De splitsing van de kieskring Brussel-Halle-Vilvoorde: over vijf minuten die tien jaar werden”, TBP 2013, 389-416.

The split-up of the electoral district Brussels-Halle-Vilvoorde: about five minutes that became ten years

10) J. VELAERS, “De splitsing van de kieskring BHV en de bijzondere regelingen voor de randgemeenten: de bevoegdheid van de algemene vergadering van de Raad van State, de benoeming van de burgemeesters en de stand still”, in J. VELAERS, J. VANPRAET, Y. PEETERS, & W. VANDENBRUWAENE (eds.), De zesde staatshervorming: instellingen, bevoegdheden en middelen, Antwerp, Intersentia, 2014, 151-201.

The split-up of the electoral district BHV and the special arrangements for the suburban municipalities: the competence of the General Assembly of the Council of State, the appointment of the Mayors and the principle of stand still

11) H. VUYE & G. CLEMER, De zesde staatshervorming (eerste fase): Het BHV-akkoord of de ultieme vergrendeling, Antwerp, Intersentia, 2013, 312 p.

The sixth state reform (phase one): The BHV-agreement or the ultimate fixation

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