Nr. 19 – Tombeur, December 2012

In Paper no. 19 Tombeur makes a thorough analysis of the shortcomings of the Belgian Federation. He explains in which respects the construction of that Federation differs from the classical Federal characteristics. Furthermore he indicates that several aspects of the Belgian Constitution should be changed and that Article 35 should be activated in order to turn it into a real, classical Federation. This case demonstrates what we need to learn before composing a Federal European Constitution.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Well, now I have reached the moment to elaborate on the constructional flaws within an existing Federation. You, Klinkers, would say ‘systemic’ errors impeding its operation, or even paralyzing it, although without terminating the Federation. Flaws that should be avoided.

I confine myself to the Belgian Federation – enough has been said about the tensions relating to the Francophone state of Québec in Federal Canada. I also do not wish to again discuss the concept of cultural diversity. I would like to focus on the operation of two of the three branches – the legislative and the executive – and the component parts of the Federation. In doing so, I will demonstrate some structural deviations of the concept of ‘Federalism’ – a curious matter if one understands the classical characteristics of a Federation. However, the cause of these deviations has to be sought in the political arena. In his book ‘Franstaligen tegen Vlamingen. Hoe België als natie mislukte’ (The Francophones against the Flemish. How Belgium failed to become a nation) Paul van Velthoven explains meticulously that sources of political conflict within the Belgian unitary state did not stop after its transformation into a Federal state; they continued smoldering within the new model of the state.

In a classical Federation the Federal Parliament consists of two Chambers. One Chamber relies on the Member States, thus emphasizing the equality of sovereignty of the Member States, despite their differences. That is why each Member State possesses the same type of powers. Usually this Chamber is called the Senate. The other Chamber is of the citizens, the inhabitants of the Federation. Logically, both Chambers operate as a whole because their members represent the Federation as a whole. In no way may they be fragmented on the basis of any criteria. That would be an attack on their essential function, namely to represent the Federation as a whole. The same applies to the Federal executive power.

Well, in Belgium (according to Article 43 of the Constitution) the members of both Chambers of Federal Parliament are divided with respect to language – a Dutch and a Francophone group: thus there is indeed fragmentation. To agree on legislation, each group has to reach a majority quorum, besides a two thirds majority in the plenary session. In addition, both language groups follow their own procedures to suspend or block a normal majority in the plenary session: one language group can state that there is a conflict of interests and can thus even force the abdication of Parliament. One language group can ring the so-called ‘alarm bell’; this almost occurred a few times and actually happened on one occasion, each time initiated by the Francophone group.

These double majorities and blocking minorities are a negation of the Federal concept – once again, by definition a real Federal Parliament represents the Federal whole, the bond that stands for the whole country. In that context fragmentation in the sense of decision making by different groups in Parliament is out of the question. A Federal Parliament must rely on common values and interests within the Federation and not on the diversity of its component parts. At most, there can be an organized ‘shared rule’; in other words: the right of co-deciding on the separate representation of the citizens of the whole Federation and of the Member States.

In Belgium this infringement of Federalism has led to a laborious functioning or even a jamming of the decision-making process, for instance in sensitive political matters such as the borders of a Member State or constituency.

The same applies to an executive Federal Government: it has to represent the whole and should not consist of representatives of specific groups of society. Society’s diversity should not be recognized in a Federal Government: it has to be one and indivisible. Nevertheless, things have been organized differently in Belgium. The executive Government is composed of an equal number of Flemish and Francophone Ministers. The Prime Minister may be appointed from any language group (Article 99 of the Constitution). The Federal Constitution itself dictates the composition of members of Government along the lines of the different language groups. This constitutionally imposed ministerial parity demonstrates the bi-communautarian nature and not the Federal nature of the Federal Government. In other words, an organized contradiction. Curious for a Federation, but nevertheless true.

Any composition and operating on the Federal level representing society’s diversity affects the Federal institutions’ reason for existence. The result of this lack of consistent Federalism is – in Belgium for instance – that one cultural community is able to block the other and therefore the whole governing system. If one Minister resigns in Belgium this is sufficient to disrupt the language balance, which in turn puts a complete stop to governing.

Belgium is organized federally in name only. Therefore it is stuck in an institutional trap. One could speak of a confederal contamination of the Federation. But that is not all: there is no country-wide Federal constituency. There are nine constituencies, one per (single-language) province. The only bi-lingual constituency is in the Brussels Region and in a part of the province of North-Brabant. Thus it is not surprising that since 1978 there have been no more Federal bilingual or trilingual political parties. This means that since then the Belgian ‘politeia’ (to use a Greek word) has disappeared – the country no longer possesses a political community, not even one ideological group. As a consequence, Federal Parliament and Government possess only a legitimate mandate on the level of the component parts of the State, not on the Federal level.

In other words, formally speaking, Belgium is a Federation, but politically the country operates like a Confederation. In the words of the Belgian Euro Commissioner Karel de Gucht: “Belgium is a permanent diplomatic conference.”

How to deal with this hybrid system that provokes confrontations between linguistic and cultural communities, thus leading to political deadlocks? It is obvious that the fragmentation of the Federal Parliament and Government should be lifted, inter alia through a revision of the Articles 43 and 99 of the Constitution.

However, there are more impediments hindering the operation of the Belgian Federation. There are six Member States, but of two kinds: three communities and three regions. Worldwide, this is unique for a Federation, I think. In what way the component parts of the Belgian Federation perform, I will leave aside because describing those Federated bodies and the way in which they operate does not add anything to the lessons we should learn from the flaws in the application of Federalism.

For some years Flemish parties talk of creating a Confederation. But watch out, this use of the word ‘Confederation’ is misleading. It is far from the purpose of these politicians to split the country into a Flemish and a Wallonian State – which would also make the position of Brussels questionable. Rather, they mean something completely different when they strive for Confederalism: activating Article 35 of the Constitution. This article states that one could decide to grant the Federal level a limitatively enumerated set of powers – see the text of Article 35 at the end of this paper. This would be a revolution with respect to the division of powers: at this moment the six Member States possess their own specific powers and leave ‘the rest’ to the Federal level. Article 35 is actually the basis of the yet to be created Federal State, in which the Federal level possesses limitatively enumerated powers, leaving all other powers to the Member States: a vertical division of powers as the nucleus of Federalism. Due to the fact that the application of Article 35 has been postponed indefinitely we should conclude that the Belgian Federation is not yet a fully grown Federation.

When Flemish politicians speak of striving for a Confederation they always mislead the French- and German-speaking inhabitants. Because those citizens interpret these observations as a purpose to split the country into the completely autonomous little countries of Wallonia and Flanders. That is patently not their aim. Therefore it would be good for everyone in Belgium if they would use the appropriate concepts; the wrong use of words damages communication and decision-making.

What can I conclude about the Belgian Federation? Like in Czechoslovakia the Belgian Federal system does not demonstrate unity, but rather consists of two poles: the Wallonian and the Flemish pole. We find this polarization in all institutions and their respective decision-making procedures. One should not be surprised about any latent or manifest antagonism between the two large communities. In fact it controls the operation of the entire State-system. This system does not leave much, if any, room for taking care of the communal, Federal, matters. As a result, the added value of the Federal level has not yet been achieved. The moral of this story is: on the Federal Belgian level there should be only Belgians, no Flemish, nor Wallonians, nor Brusselians; likewise on the European level there should only be Europeans.

This cultural bipolar situation in a country can undermine the Federal level. Institutionalizing that bipolar nature up until the Federal level has contributed to dissolving Federal Czechoslovakia and is still contributing to the laborious operation of the Belgian Federation.

Now that we have dealt in this and the previous Paper with failed or deficient Federations I would like to look at what we should learn from this. It is indeed clear that building a Federation and sustaining it requires that certain conditions are met. The cases I have dealt with teach us that federalism:

  • cannot be imposed externally or top-down;
  • should be a goal in itself and no means to achieve other goals;
  • presupposes converging values and balanced interests;
  • requires a representative democracy and tolerance of pluralism;
  • needs political room and organization to cover communal matters;
  • needs institutions to cooperate structurally and to solve conflicts.

Esteemed Klinkers, let me – before finalizing this Paper – discuss the aspect of the number of members of a Federation, required to prevent failure of the intended European Federation. You plead in Papers 12 and 13 to start European Federalization gently and on a small-scale, with only the three Member States of the Benelux. The goal would be that these three countries leave the Treaty of Lisbon individually in order to re-enter that Treaty as a Federation. Like Guy Verhofstadt, we foresee that it will be necessary for Europe to temporarily adopt the intergovernmental system next to a Federal organization. Around ten years ago I called these two intertwined organizations an ‘inter-federation’.

However, creating a threefold Benelux Federation seems to me too weak to grow into a full European Federation. Such a Benelux Federation starts with a tremendous mortgage. Its composition of three Member States brings with it the risk that the Chamber representing these States will push their national agendas in an organized way. Thus this organization will deteriorate into an intergovernmental system. Because the Chamber of the States, in which the three States have an equal and limited number of votes (for instance 3 x 2) threatens to vote along the lines of the State’s own interests. This risk is hardly avoidable in a three-state Federation.

An alternative composition of the Benelux Federation is possible although daring: it would be necessary to divide Belgium and the Netherlands into a larger number of Member States, next to the single Member State of Luxembourg. Thus, one could establish in both countries, along the provincial borders, ten or more Member States of the Benelux Federation. Or maybe better – to recognize societal importance and administrative continuity, a subject stressed by Larry Siedentop in his ‘Democracy in Europe’ – create the borders of new Member States along the lines of the old duchies and counties, taking into account the age-old division between the two States and the balance between the Member States. But let me put this aside for now.

Creating a European Federation with such a small number, the three Benelux countries, would be just another intergovernmental system. In addition, to have so few States in a European Federation seems to me not right for its survival. The fewer the members of a Federation, the less influence it will have, within and outside of Europe. A Federal Western Europe, for instance, is in my view insufficient, because it will be too weak on the continent and beyond. I aim higher and advocate a European Federation that will eventually cover the entire continent. I agree with you, Klinkers, to start small. The coercion of the principle of unanimity among the 17 or 27 EU-Member States should indeed be avoided. Also because it is now time to act: the social-economic crisis in Southern Europe is deepening and the EU is on the verge of dissolving. Thus the States that are prepared to create a Federation, the countries of the Eurozone first, should start, with the support of their citizens, building a European Federation from the bottom up, as soon as possible.

Also in this respect it seems necessary for Europe that we learn from historical best practice. The Convention of Philadelphia stated in Article VII of the draft Federal Constitution that this document would come into force upon the ratification by citizens of nine of the thirteen Confederal States. Thus, a majority vote. No unanimity requirement. A daring step and also a curious one, because it has become one of the solid aspects of Federalization that all involved States have to agree with the creation or adjustment of the Federal system. Moreover: it was also a breach of the ‘Articles of Confederation’, the treaty of the Confederation. Nevertheless, the delegates of the Convention dared to carry out this unorthodox deed.

Following this daring step of the founding fathers of the American Constitution, in 1848 followed by Switzerland, I propose that we, in our draft federal Constitution for Europe, also apply the principle of majority voting. Strictly speaking, our Federal thinking regards only the seventeen countries of the Eurozone. We leave aside the other ten EU-countries without the euro currency. If we want to bring a majority of the seventeen Eurozone countries into a Federal organization the number nine is also applicable here. A minimum majority of nine States against the other eight. When the citizens of nine Eurozone countries accept the Federal Constitution, in my view it should come into force.

If one would like to criticize the formula of nine States and my way of reasoning, for a further legitimization of my standpoint I would like to refer to the Treaty of Lisbon. You and I do not have any respect for that Treaty. But let us not forget – I already referred to this in Paper no. 7 – that Article 20 of the Treaty concerning the European Union (one of the two treaties of the Treaty of Lisbon) and Articles 326-334 of the Treaty concerning the working of the European Union (the other treaty of the Treaty of Lisbon) present a perfect foundation for taking the step towards Federalization through a ‘nine-majority-vote’. This cannot conflict with the goals of the European Union, on the contrary. Article 20, section 2 states that a minimum of nine Member States is allowed to begin closer or so-called strengthened cooperation, using the institutes of the European Union as well.

Well, see here the legal legitimacy to pour that strengthened cooperation into the shape of a Federation. To start a Federation with nine countries also diminishes the complexity of the operation of all countries in the context of two organizations (the intergovernmental and the Federal one). The Federation of nine countries also offers more legal security, both for the citizens within the Federation and for those staying outside. Moreover, the aforementioned articles of the Treaty of Lisbon offer another legitimization for Federalization: suppose that the Eurozone will be enlarged, then nine ratifying States would no longer constitute a majority. However, looking at these articles, in that case even a minority vote would legitimize the ratification of a Federal Constitution.

Thus, if you do not object, in the following Papers we start working together on drafting a Federal European Constitution, based on the American Constitution, including a majority vote for its ratification, using the aforementioned articles of the Treaty of Lisbon as its legal legitimization. With one eye on the Swiss Constitution.

 

Article 35 of the Belgian Constitution:

1.De federale overheid is slechts bevoegd voor de aangelegenheden die de Grondwet en de wetten, krachtens de Grondwet zelf uitgevaardigd, haar uitdrukkelijk toekennen.

2.De gemeenschappen of de gewesten zijn, ieder wat hem betreft, bevoegd voor de overige aangelegenheden onder de voorwaarden en op de wijze bepaald door de wet. Deze wet moet worden aangenomen met de meerderheid bepaald in artikel 4, laatste lid.

Overgangsbepaling

3.De wet bedoeld in het tweede lid bepaalt de dag waarop dit artikel in werking treedt. Deze dag kan niet voorafgaan aan de dag waarop het nieuw in titel III van de Grondwet in te voegen artikel in werking treedt dat de exclusieve bevoegdheden van de federale overheid bepaalt.

1.L’autorité fédérale n’a de compétences que dans les matières que lui attribuent formellement la Constitution et les lois portées en vertu de la Constitution même.

2.Les communautés ou les régions, chacune pour ce qui la concerne, sont compétentes pour les autres matières, dans les conditions et selon les modalités fixées par la loi. Cette loi doit être adoptée à la majorité prévue à l’article 4, dernier alinéa.

Disposition transitoire

3.La loi visée à l’alinéa 2 détermine la date à laquelle le présent article entre en vigueur. Cette date ne peut pas être antérieure à la date d’entrée en vigueur du nouvel article à insérer au titre III de la Constitution, déterminant les compétences exclusives de l’autorité fédérale.

1.Die Föderalbehörde ist für nichts anderes zuständig als für die Angelegenheiten, die die Verfassung und die aufgrund der Verfassung selbst ergangenen Gesetze ihr ausdrücklich zuweisen.

2.Die Gemeinschaften oder die Regionen, jede für ihren Bereich, sind gemass den durch Gesetz festgelegten Bedingungen und Modalitäten für die anderen Angelegenheiten zuständig. Dieses Gesetz muss mit der in Artikel 4 letzter Absatz bestimmten Mehrheit angenommen werden.

Ubergangsbestimmung

3.Das in Absatz 2 erwahnte Gesetz legt das Datum fest, an dem dieser Artikel in Kraft tritt. Dieses Datum darf nicht vor dem Datum des Inkrafttretens des in Titel III der Verfassung einzufügenden neuen Artikels liegen, der die ausschliesslichen Zuständigkeiten der Föderalbehörde festlegt.

English version:

  1. The federal Government only has the powers for the subjects explicitly enumerated in the Constitution and the laws.
  2. The communities or the regions each have the powers for all other subjects, under the conditions and procedures as determined by law. That law has to be accepted by a majority as mentioned in Article 4, final section.
  3. The law, mentioned in section 2, determines the day of the enforcement of this article. This day cannot precede the day on which the new Title III of the Constitution, containing the exclusive powers of the Federal Government, comes into force.