See Dutch version below

Jana Huyghe and Pieter Steenhaut (master students Advanced Study of Constitutional Law, UGent), Jurgen Goossens (doctoral researcher, UGent) & Pieter Cannoot (academic assistant, UGent)

Overview sixth state reform: part 6 of 6

After the sixth state reform, Brussels has become more than a full-fledged region. One could now call Brussels a 'super-Region' or 'Region-Community’.”

“Citizens are increasingly convinced of the idea that the inhabitants of Brussels form a group which should govern Brussels without interference from the Flemish and French Community.”

brusselsThe Brussels-Capital Region has acquired many powers in the sixth state reform. Although Flemish politicians often suggest to combine transfer of powers and additional financial means for this region with an internal institutional reform of Brussels, a simplification has again not been achieved. Brussels remains a tangle of many institutions, so that a thorough structural reform is still necessary. Theoretically, several evolutions are conceivable in the future, but how does Brussels evolve in reality?

Region-Community Brussels

"Brussels will never be a full-fledged region." This statement of former Flemish Minister-President Kris Peeters does legally not make sense. In fact, after the sixth state reform Brussels has become more than a full-fledged region. One could now call Brussels a 'super-Region' or 'Region-Community’.

In the sixth state reform some person-related powers, such as juvenile criminal law and family allowances, were transferred to the communities, but in Brussels to the (regional) Common Community Commission. It is the first time in Belgian institutional history that community powers are allocated to the Brussels Capital Region. This transfer of powers is remarkable, as the bilingual character of Brussels and the lack of an own culture are traditionally invoked as arguments against granting community powers to Brussels.

The latter view, which got the upper hand during previous state reforms, has been replaced by a more pragmatic manner of thinking. Although Brussels has still led to heavy discussions during the sixth state reform negotiations, the attention has shifted towards defending the interests of the Brussels inhabitants, rather than to traditional institutional antagonisms. Moreover, the transfer of power regarding juvenile criminal law and family allowances to the (regional) Common Community Commission (CCC) has been considered to be a constitutional necessity. The existence of different family allowance and juvenile criminal law regimes of the French and Flemish Community in Brussels could have led to the creation of sub-nationalities and a differential treatment, which might be judged as incompatible with the constitutional principle of equality.

Simplification?

During the negotiations on the sixth state reform, a simplification of the Brussels institutions has been proposed, but the result is disappointing. The patchwork of institutions remains intact. Or, as outlined by Brussels’ minister Pascal Smet: "The 19 municipalities remain, 19 CPAS, complex procedures, etc. … A lot of synergies are still possible. Look at a metropolis such as New York. It is governed by 52 people, and is it governed badly? In Brussels, we still have more than 900 politicians”.

The complex structure characterizing Brussels can easily be explained. Brussels is too often the scenery for institutional conflicts and consequently the subject of compromise. The complex structure of today has historical origins, not least because of the different interests and influences of the federal level, the Flemish and French Community, the Brussels-Capital Region and the European Union. Thus, a reform of the Brussels institutions with a simplification of the existing structure is urgent. Brussels as a bilingual and multicultural capital faces many socioeconomic challenges. The question rises whether it is possible to deal with these challenges without providing a solid solution for the institutional issues. Should the communities ‘let go’ Brussels in order to make simplification possible?

One cannot ignore the special position of Brussels in Belgian federalism as capital of the country. This position leads to specific challenges. In addition, 28% of the population in Brussels does not have the Belgian nationality, which brings along challenges with regard to multiculturalism. Brussels is also de facto the capital of the European Union and has a strong international character. Hence, Brussels needs a customized approach.

Frenchification of Brussels

Due to the Frenchification starting from the end of the 18th century, there is no real bilingualism in Brussels. Bilingualism legally still exists, but French is gradually taking the upper hand. Consequently, with regard to the reform of the judicial district Brussels, the Butterfly Agreement required the public prosecutor of the Brussels Public Prosecution Service to be French-speaking. However, the Constitutional Court has recently annulled this provision. In practice, the Frenchification is very substantial, as strikingly illustrated by the final report of the Taskforce Brussels in 2012. The number of Brussels inhabitants speaking French well to excellent, remains stable at 95.5%. In contrast, the group speaking Dutch is limited to 28.2%. Only 17.2% of the French-speaking Brussels inhabitants speak Dutch to their Dutch friends. Author Luckas Vander Taelen wrote the following remarkable anecdote in a book about his life in Brussels: ‘Dutch was hardly spoken. French was the only language I heard in the supermarket. It was also the language I spoke with my neighbor, of whom I discovered after several years that he was as Flemish as I am’.

The gap between the legal language equality and the actual dominance of the French language is immensely large. In fact, the fear of some Flemish inhabitants of Brussels that the influence of the Flemish Community and the use of Dutch will diminish, is justified. The reason why Brussels is still bilingual can be explained both historically and politically: for centuries Brussels used to be a Dutch-speaking town and still remains the capital of the Flemish Community.

The question rises whether the Flemish people living in Brussels believe that the ties with the Flemish Community are still desirable and necessary. Citizens in Brussels seem to be increasingly convinced of the idea that the inhabitants of Brussels form a group which should govern Brussels without interference from the French and Flemish Community. Cutting the ties between Brussels and the communities thus gradually seems to be entering the Brussels mindset.

Brussels as an autonomous federated state

In order to fulfill this increased desire for self-governance of Brussels inhabitants, a new state structure has being advocated in legal doctrine. Brussels, next to Flanders, Wallonia and the German-speaking area, could become a federated state with the same, autonomous powers. Renowned politician and professor of constitutional law, Johan Vande Lanotte, among others, defends this vision. According to Vande Lanotte, Belgium should become a Union of four federated states. The advantage of such an institutional system is that the federated states, where necessary, can adopt a different policy, so that each state can adequately tackle its own specific problems. For Brussels these are typical metropolitan problems, such as migration policy, transport policy and employment for poorly educated workers. Challenges requiring a collaborative approach with other states can be dealt with through cooperation agreements. The question then rises if article 1 of the Constitution, proclaiming that Belgium is a federal state consisting of regions and communities, can be interpreted in a broad manner or should be altered.

Nevertheless, sometimes it is formulated as a criticism towards this vision of a Belgian Union with federated states that Brussels would not be able to function without the funding of the other states. This is far from the truth. Brussels has a lot of corporation seats. Thus, a defederalisation of taxation and especially of corporate taxation would immediately solve the financial problems of Brussels. Moreover, the proximity of Brussels Airport is a huge motor for both local economy and employment.

According to N-VA faction leader in the Chamber and constitutional expert Hendrik Vuye, the buzzword for the further evolution of Brussels is 'asymmetry'. According to Vuye, the Walloon and Flemish visions of Brussels do not have to be the same. On the contrary, only when the two communities can constitutionally realize their different vision, Brussels can flourish. Flanders can maintain its institutional connection to Brussels, whilst the French-speakers can develop the French Community Commission (COCOF) into a full-fledged community.

Future

What the future will bring for Brussels, is based on presumptions. Many proposals can be considered positive, but of course every advantage often also brings about a disadvantage. It is not yet clear how Brussels will evolve in the future. It is, however, obvious that a new institutional reform is desperately needed. The intentions of the sixth state reform were reasonable, but the execution could have been better and especially much more simplified. Therefore, Brussels will also in the future remain the constitutional laboratory of Belgium.

Concise bibliography

  1. H. Dumont en S. Van Drooghenbroeck, “L’interdiction des sous-nationalités à Bruxelles”, ATP 2011, 201-226.
    The prohibition of sub-nationalities in Brussels

  2. W. Pas, “Algemene beschouwingen over de bevoegdheidsverdeling in het kader van de Zesde Staatshervorming” in A. Alen, B. Dalle, K. Muylle, W. Pas, J. Van Nieuwenhove en W. Verrijdt (eds.), Het federale België na de Zesde Staatshervorming, Brugge, Die Keure, 2014, 343-371.
    General considerations about the distribution of powers in the Sixth State Reform.

  3. Q. Peiffer, “La sixième réforme de l’état sous l’angle des compétences culturelles et du tourisme à Bruxelles”, ATP 2014, 14-33.
    The Sixth State Reform in the perspective of cultural powers and tourism in Brussels.

  4. J. Vande Lanotte, “Vlugschrift: De Belgische Unie bestaat uit vier deelstaten”, 2011, 1-24, available online.
    The Belgian Union consists of four federated states.

  5. J. Velaers, “Brussel in de zesde staatshervorming” in J. Velaers, J. Vanpraet, Y. Peeters & W. Vandenbruwaene (eds.), De zesde staatshervorming: instellingen, bevoegdheden en middelen, Antwerpen, Intersentia, 2014, 965-1025.
    Brussels during the sixth state reform.

  6. H. Vuye, “Brussel: enkele modellen en hun(on)mogelijke gevolgen”, CDPK 2012, 244-262.
    Brussels: a number of models and their (im)possible consequences.

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