Moderator Jurgen Goossens (doctoral researcher, UGent)
With cooperation of Anna Vanhellemont (master student Advanced Study of Constitutional Law, UGent)
It has taken 541 days to reach an agreement on the sixth Belgian state reform, which is currently being implemented. In order to round off BelConLawBlog's overview of the sixth state reform, we will inquire how Belgian (con)federalism could evolve in the future. In a unique double interview, Johan Vande Lanotte and Stefan Sottiaux develop their view on this subject. Johan Vande Lanotte is Minister of State, member of the Chamber of Representatives, and professor of Constitutional Law at Ghent University. He was involved in the negotiations of the most recent state reforms. In his paper 'De Belgische Unie bestaat uit vier deelstaten' [The Belgian Union consists of four states] he has outlined a model for Belgium’s institutional future. Stefan Sottiaux is professor of Constitutional Law and Administrative Law at the KU Leuven Kulak. In his book 'De Verenigde Staten van België' [The United States of Belgium], he reflects on the future of Belgium and constitutional law in the multi-level legal order. Hereafter, a concise summary of the video-interview will be provided, through a non-literal translation.
How do you see the future of Belgian federalism?
Sottiaux: At the Belgian federal level we are confronted with a problem. There is a gap between the legitimacy of federal decision making and the powers at this level. Considering the substantial redistributive powers at the federal level, such as social security and taxation, the Belgian federal union is insufficiently democratically legitimized. There are two causes for this. Firstly, there is no democratic political space with Belgian parties. Secondly, the Belgian federal institutions are 'over-federalized', using the terminology of the German Constitutional Court. There is no balance between the federal principle, which stipulates that the rights of small states should be protected, and the democratic principle, according to which every citizen of the federal union should have an equal vote in the decision-making. This equality of citizens is impaired by the existing gridlock mechanisms, such as the language parity in the council of ministers and the alarm bell procedure. The possible solution for these problems is twofold. On the one side, it is desirable to democratize the federal decision-making level by establishing a federal electoral district, possibly combined with a reduction of the gridlock mechanisms. Another option is a further devolution of the most important redistributive powers. Both options can be combined; one does not exclude the other.
Vande Lanotte: It is the main challenge to introduce more transparency in our state structure, which has already undergone six state reforms. It is important for citizens to know how their country functions. Therefore, it is my plea to work with four federated states, namely Flanders, Brussels, Wallonia, and the German-speaking Community. These states each acquire their own powers, without the existing tangle of the communities and regions. In this regard, a clear agreement on the distribution of powers is crucial, and the socio-economic rights should be assigned to the states, as is already the case with child benefits. This is also possible for other powers, as long as solidarity mechanisms remain. One should be able to live in a state, which structure is not being reformed every ten years. Stability in the structures results in more trust from the citizens.
What are the challenges for the negotiating parties in a hypothetical seventh state reform, both on a level of institutional reforms and redistribution of powers?
Sottiaux: I agree with the viewpoint of professor Vande Lanotte. We have to evolve towards a state structure which is more clear and transparent for the public. We have to abandon the traditional system of communities and regions and have to evolve towards a federalism of three or four states, for example by transforming the classical federal state into a federal union or a union of states. This structure is situated between a federal state, in which the central level has sovereignty and most powers, and a confederation, in which sovereignty lies with the states. In a federal union, sovereignty is shared between both levels. In Belgium, we are currently already confronted with a combination of federal and confederal decision making; this clear, new state structure would better correspond to this reality.
Are Brussels and the German-speaking Community viable as federated states in such a new state structure?
Vande Lanotte: This is a matter of financing. It isn't the size of the state that counts. The question is whether the entity corresponds to a reality. Brussels and the German-speaking Community are realities in Belgium. The German-speaking Community for example has adopted a good education policy, which is part of her powers.
Sottiaux: I also think that in case of further devolution of social and economic powers we have to think about transforming the communities and regions into real states. This would be an evolution which corresponds with the social reality.
Are there legal or ideological principles which make further defederalization of powers difficult?
Vande Lanotte: This is a tough question. Professor Sottiaux has given a reality vision, departing from a strongly theoretical concept, while I have constructed a theoretical model from practical experience. There is one major problem with further devolution, namely the degree according to which some powers are socio-economically interwoven. Implementing fiscal devolution is very difficult in practice. Is more fiscal autonomy for the states possible without weakened solidarity or other negative effects in a country where a lot of mobility takes place on the level of care and work? How to organize solidarity is the most important question. The sixth state reform shows that the current solidarity mechanism is not a good mechanism anymore. One never anticipated the strong decrease of fiscal income in Brussels.
Sottiaux: I don't see any restricting legal principles. This is rather a political decision. Of course, a number of European legal parameters have to be kept in mind, such as the residence and workplace criteria, and VAT has to be taken into account. The democracy principle and the principle of solidarity shouldn't be seen as conflicting criteria with regard to the distribution of power. They should go hand in hand. It is impossible to create a real, comprehensive and stable solidarity on a decision-making level which suffers from a serious democratic deficit. If one wants to maintain solidarity on the federal level in Belgium, one should reform the federal institutions by reducing and abolishing the gridlock mechanisms and creating a political space by installing a federal electoral district. If this does not seem feasible, a further transfer of powers to the regions could be an option. However, also this option should be combined with the development of a strong form of interregional solidarity in Belgium and in the future also within the European Union.
Let us now take a look into the future. How do you think the situation will be in 2030: an independent republic of Flanders without the federal Belgian umbrella, a Belgian Union with three or four federated states, or a status quo of the current regime potentially with further defederalization of powers?
Vande Lanotte: I think my concept of a Belgian Union with four states is the most realistic, but this presupposes an alteration of the political system on the Union level. If one would like to maintain this Union level, it should be taken seriously and not be considered as an aggregation of the level of the states. The Union level is a level on its own, at which an overall majority, not a majority in the different entities, is required for decisions. However, a lot will depend on the management of the Union level. If the next federal governments are more stable and execute good policies, such a Union is possible. If not, the call for independence or more autonomy will become stronger.
Sottiaux: I also believe in the model of a federal union as intermediate structure between on the one hand a confederation or independence and on the other hand the current federal state. The powers of this federal union will depend on European evolutions. It is namely the question which powers will be transferred to the European level. This is impossible to predict. In case this fundamental reform takes place, the citizens should hereby be involved in a more direct way than today. The referenda in Scotland and Catalonia can be seen as an example. Such direct participation is necessary, so that the reform would be supported by the citizens and would result in a stable system. A strong democratic legitimacy of such a reform would be necessary.