Transfer of powers in the sixth state reform: Copernican revolution?

See Dutch version below

Rutger Goeminne & Eva Van Der Meulen (master students Advanced Study Constitutional Law, UGent), Jurgen Goossens (doctoral researcher, UGent) & Pieter Cannoot (academic assistant, UGent)

Overview sixth state reform: part 5 of 6

“The sixth state reform adds additional complexity to the Belgian institutional structure and distribution of powers. It is, therefore, time to question the distinction between communities and regions. A new state structure based on one type of federated states, similar to other federal countries like Germany, Switzerland and the U.S., would substantially contribute to more transparency.”

Alea iacta est. On 6 December2011, 541 days after the elections and with the world record of government formation, the government of Prime Minister Di Rupo took the oath. Negotiations of almost a year and a half had led to the so-called “Butterfly Agreement” on the sixth state reform. This agreement mainly laid the foundations for a transfer of powers worth 20 billion euros from the federal level to the federated states (regions and communities). Now that the agreement has been converted into legislation and is being implemented on the level of the states, it is the right moment to take a closer look at the transfer of powers.

Since 1970 the Belgian Constitution mentions the existence of communities and regions. The unique establishment of these federated states has historical origins. Flemish politicians aimed at acquiring cultural autonomy. They believed that the establishment of communities was a suitable means to protect their language and culture. Walloon, leftist politicians on the other hand were pursuing economic autonomy via the establishment of regions.

Over the years, the communities have become competent for person-related matters, such as education, culture, and assistance to persons. Economic and place-related matters, such as spatial planning, public works, and agriculture, were transferred to the regions. This division of the federated level into communities and regions is remarkable and complex. Other federal countries, such as Germany, Switzerland, and the U.S., only have one type of federated states, respectively Länder, cantons, and states.

Extensive transfer of powers

In light of these evolutions, the sixth state reform is undoubtedly a historic step. The whole package of power transfers is extensive (ca. 20 billion euros), especially in comparison with previous state reforms. For the very first time, powers regarding social security are decentralized. The power concerning family allowances is decentralized from the federal level to the communities.

In Brussels, however, the latter power is transferred to the ‘Common Community Commission’, composed of members of the Brussels Capital regional parliament. Consequently, the Flemish and French Communities are not competent in Brussels regarding family allowances. The same evolution can be seen with regard to juvenile criminal law: a transfer of powers to the communities, but in Brussels the (regional) Common Community Commission is competent. Next week, this remarkable evolution will be explained on the blog.

As to health care, the powers of the communities are expanded. In the field of justice, the communities are now competent for the enforcement of penalties, first line legal assistance and juvenile criminal law. On the other hand, certain aspects of the prosecution policy are transferred both to the regions and communities. A large number of powers are also transferred from the federal level to the regions, for instance important aspects of labor market policy and road safety. With regard to tourism, a power of the communities is transferred to the regions, notwithstanding a few exceptions.

The sixth state reform also aims at financial responsibility of the federated states, so that they will undergo the positive or negative effects of their policies. This has partly been realized by introducing financial incentives, such as a bonus-malus system to reduce greenhouse gas emissions. Nonetheless, responsibility has especially been achieved by granting fiscal autonomy to the regions via a mechanism of ‘extensive surcharges’. Thus, for the first time the Flemish parliament ought to thoroughly debate on fiscal policy.

Due to these power transfers a paradigm shift is gradually being realized with regard to the distribution of powers, whereby most powers are situated on the level of the federated states. The Flemish budget has now become larger than the federal budget, though not taking into account the federal power concerning social security.

Copernican revolution?

The large transfer of powers elicited former Prime Minister Di Rupo to call the sixth state reform a “Copernican revolution”, referring to the renowned statement of former Flemish Minister-President Kris Peeters. A thorough analysis of the power transfers, however, reveals that the federal level often maintains influence. On the one hand, the transfers are characterized by a high level of fragmentation and, on the other hand, they are accompanied by a strengthening of cooperation obligations and mutual dependence.

The current fragmentation contradicts the intended homogenization of powers. The transfers are often very detailed and include numerous exceptions. The complex, highly technical distribution of the powers could lead to several conflicts.

The sixth state reform reinforces cooperative federalism in Belgium. In nineteen cases, a cooperation agreement has to be reached between the federal level and the federated states. This policy choice is quite remarkable. In 2013, the Council of State issued an advice that ten obligatory cooperation agreements, which should have been reached before the sixth state reform, were still not entered into force. Therefore, the Council of State requested the special majority legislator to deliberate on the usefulness of this instrument. Nevertheless, the institutional majority ignored the advice.

On our way to a Belgian Union with four states?

Thus, the sixth state reform adds additional complexity to the Belgian institutional structure and distribution of powers. It is, therefore, time to question the distinction between communities and regions. A new state structure based on one type of federated states, similar to other federal countries like Germany, Switzerland and the U.S., would substantially contribute to a simplification of the labyrinthine Belgian state. Besides Flanders and Wallonia, Brussels and maybe also the German-speaking community could obtain the status of federated state. The future negotiators of a seventh state reform should dare to consider this contribution to more transparency. Within two weeks, an exclusive interview will be published on BelConLawBlog with prof. Johan Vande Lanotte (UGent) and prof. Stefan Sottiaux (KU Leuven Kulak).