Cooperative federalism: have Belgians forgotten how to cooperate?

Belgium has various forms of cooperation. The cooperation agreement, as laid down in Article 92bis of the Special Act on Institutional Reform (SAIR), is the prime example. Such an agreement brings about – whether mandatory or not – cooperation between the federal state, the Communities and the Regions, for example the joint establishment and management of common services, the joint exercise of their own powers or the joint development of initiatives. The Sixth State Reform provided for the conclusion of 26 cooperation agreements. At present, however, only six cooperation agreements have been concluded. It is therefore useful to reflect on Belgian cooperative federalism and on the effectiveness of cooperation agreements in particular.

Cooperative federalism

Since 1970, ideological and cultural differences between north and south have given rise to a steady process of federalisation in Belgium. In each of the past six state reforms, powers were transferred from the federal level to the level of the federated entities, increasing their autonomy. This has resulted in a rather dual federalism in which the federated entities in principle exercise their powers independently and without a hierarchical relationship. The founders of the federal state were aware that powers cannot always be exercised in complete isolation and that the interests of other entities sometimes have to be explicitly safeguarded. Various forms of cooperation have therefore been legally anchored both in the Constitution and in the special and ordinary acts on institutional reform. Federalism without consultation and coordination is in fact unthinkable. F. Delpérée aptly stated: "Le fédéralisme est coopératif ou il n’existe pas".

This is how the famous Belgian cooperative federalism came into being. The forms of cooperation have increased strongly in number and importance, especially since the state reform of 1988. Belgium currently has the following forms of cooperation: 1° voluntary consultation within the Concertation Committee and the interministerial conferences, 2° representation in management and decision-making bodies of institutions of another authority, 3° mandatory forms of cooperation, such as information, prior or binding advice, involvement, consultation, approval and agreement, 4° cooperation agreements, and – since the Sixth State Reform – 5° joint decrees.

In the case of the duty to inform, prior advice, involvement and consultation, the competent authority is not obliged to follow the position of the other authorities and thus retains the final decision-making power itself. In the case of binding advice, approval and agreement (i.e. consent), by contrast, the competent authority cannot take a decision if the other authority does not agree and thus exercises a veto. Cooperation agreements can be concluded voluntarily and are mandatory in certain cases. In any event, cooperation is only mandatory in Belgium if the constitution-maker or the special majority legislator so prescribes.

Cooperation agreements and joint decrees

In cooperation agreements and joint decrees, the reciprocity and equality of the authorities, through governments and parliaments respectively, are central. These cooperation procedures are the most far-reaching. According to the Council of State (Parl.St. Vl.R. 1985-1986, nr. 159/1, 3-4.) they are necessary to develop a joint policy in a system of exclusive powers.

First, a cooperation agreement can avoid competition and conflict between the various competent authorities with a view to more efficient policy-making. Some law and economics scholars, such as W. E.Oates and C. M. Tiebout, have, by contrast, questioned these advantages. They take the view that competition between governments is needed to achieve better services for citizens. Second, cooperation agreements are regularly used as a bargaining chip in political negotiations on more autonomy for the federated entities. The obligation to conclude a cooperation agreement may then be a necessary condition for the effective exercise of a devolved power. Finally, cooperation agreements can be introduced as an instrument for the executive to adapt in good time (read: faster than parliament) to changing circumstances.

In addition, the Sixth State Reform introduced the possibility of adopting joint decrees as an alternative to cooperation agreements.

Cooperation (at federal level) can lead to a so-called ‘joint decision trap’, in which it may be more difficult and therefore less efficient to reach a joint decision with several parties. One solution is to devolve powers. If, however, an obligation to conclude a cooperation agreement is subsequently introduced, a joint decision trap may arise again, and thus a cumbersome, time-consuming way of making policy.

The Sixth State Reform made it possible for the parliaments of the federated entities to adopt joint decrees as a less cumbersome and more efficient alternative to the conclusion of cooperation agreements by the governments. The procedure for cooperation agreements is indeed cumbersome. Every amendment, for example, requires a new cooperation agreement. The agreements are concluded by the governments and cannot be amended by the parliaments. The rules on joint decrees were inserted under Title IVbis SAIR on cooperation between the federal state, the Communities and the Regions. This form of cooperation, however, is only open to the federated entities and not to the federal level. The competent authorities and actors in the joint decree and the cooperation agreement are thus different, but the objective is identical. If the federal state is not a party involved, a choice can be made between the two forms of cooperation. A joint decree can indeed replace or repeal a cooperation agreement and vice versa (Article 92bis/1, §4, third paragraph SAIR). To date, no joint decrees have yet been adopted.

Cooperation agreements in practice

To implement the Sixth State Reform, the various authorities in Belgium had to conclude 26 cooperation agreements. At present, however, only six of them have been concluded and entered into force. To identify the possible problems and reasons for this, we studied and compared the 26 envisaged cooperation agreements.

For the two cooperation agreements on justice (justice centres and criminal and security policy) a draft was already ready during the negotiations on the Sixth State Reform. The negotiators of the Butterfly Agreement had already fairly clearly defined the subject matter of these agreements. Concluding them was indeed necessary to enable the planned transfers and reforms regarding justice. The sensitive elements of the cooperation had already been settled, so that the cooperation agreements were concluded immediately after the agreement on the Sixth State Reform, and thus still during the previous legislature. At that time the political parties of the various federated governments were also part of the federal government, which sped up the negotiations. In the current situation, in which the N-VA is the largest party in the Flemish and federal governments, while the PS is the largest party in Brussels and Wallonia without being part of the federal government, it is more difficult to reach a consensus on cooperation agreements.

When we take a closer look at the cooperation agreements not yet concluded, some differences immediately become clear. On the one hand, there are cooperation agreements that are not a priority for the federated entities, for example the envisaged cooperation agreement on the multi-annual investment plan. This plan would provide that part of the NMBS/SNCB is financed by the Regions.

On the other hand, there are also agreements that should be concluded urgently but on which there is no consensus. An example is the cooperation agreement that is to enable consultation between the three Regions on mobility, road safety and road works from, to and around Brussels. For this agreement the negotiators of the Sixth State Reform did not set up a clear framework. This sped up the negotiation of the Butterfly Agreement, but postponed the sensitive issue of mobility in and around Brussels indefinitely. Cooperation agreements relating to powers in Brussels are generally always rather difficult to conclude. This can be explained by the diverging interests of Flanders and Wallonia that manifest themselves in Brussels. This regularly stands in the way of a smooth conclusion of cooperation agreements. In addition, the last elections and the absence of symmetrical coalitions have certainly not made this easier.

What future for cooperative federalism?

Although cooperation agreements have been legally anchored since 1989, we must conclude that this form of cooperation is not yet fully fine-tuned and therefore cannot fully realise its potential. It is therefore telling that only six of the 26 cooperation agreements implementing the Sixth State Reform have been concluded. Although the lack of consensus between the various federated entities and political parties hampers cooperation, the problems are not only ‘political’ in nature. Possible legal and technical improvements should also be examined.

On the one hand, the rules on cooperation agreements could be adapted. A clear and more efficient procedure should be provided for the conclusion, implementation, amendment and termination of cooperation agreements. In addition, it is advisable to strengthen the role of parliament in cooperation agreements. The special majority legislator introduced the alternative of joint decrees to address this. It might, however, rather have been advisable to enshrine a strengthened role of parliament in the rules of Article 92bis SAIR on cooperation agreements themselves. It is at the very least remarkable that the special majority legislator did not provide for the federal level also to be able to use this new form of cooperation. To make the joint decree a fully-fledged alternative to the cooperation agreement, the special majority legislator should also admit the federal level to the procedure. It should be noted, however, that the coexistence of two quasi-identical forms of cooperation does increase complexity.

It is undoubtedly a difficult task to improve the efficiency of cooperative federalism in the short term. In the longer term, however, an effort seems necessary for the effective functioning and survival of Belgian (cooperative) federalism. Further developments remain to be seen.

Sources

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Adv. RvS, Parl.St. Vl.R. 1985-1986, nr. 159/1, 3-4.

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