The purpose of this memorandum is to analyze the devolution of powers between the state, regional, and local governments in Switzerland and Belgium.
Devolution of powers concerns the decentralization of legislative, administrative, and fiscal powers from the central government to governments at a sub-national level. The legal basis for devolution is commonly set forth in a states constitution by specifying which level of government holds jurisdiction over specific powers. States commonly create coordination mechanisms to guarantee that each level of government respects assigned powers and to prevent disputes through cooperation. Where disputes arise, supreme and constitutional courts frequently have the authority to decide questions of jurisdiction and competencies.
The Swiss state consists of three levels: federal, cantonal, and communal. The cantons are the dominant political actors, granted great autonomy by the Swiss Constitution. The delicate constitutional balance of the Swiss federal republic is achieved through the principle of subsidiarity. The Swiss constitutional system is based on an adherence to the idea that power should be devolved to the greatest extent possible and that, unless otherwise provided, all powers rest with the cantons. There is no centrally managed coordination and information exchange system among the cantons but there are mechanisms in place to prevent conflicts, including intergovernmental coordination bodies and inter-cantonal treaties. When conflicts do arise, they are resolved by the Federal Supreme Court.
The Belgian state consists of the federal state, communities, and regions, all three of which are equal from a legal standpoint. Closer to the local level are provinces and communes, which are also intricately involved in the dissemination of government services and decision-making. The division of powers within the Belgian state is based on a system of exclusive competences, which involves an exhaustive demarcation of issue areas. The primary mechanism currently used to resolve conflicts is the Constitutional Court. Communities, regions, and federal authorities can also resolve conflicts by entering into cooperation agreements. Devolution of Powers in Switzerland and Belgium, July 2013
TABLE OF CONTENTS
Statement of Purpose 1
Introduction 1
Devolution in Switzerland 1 Allocation of Powers 3 Federal Level 4 Cantonal Level 6 Communal Level 7 Transfer of Powers to Other Levels 8 Oversight of Distribution of Powers 10 Federal Oversight 10 Inter-Cantonal Oversight 10 Inter-Communal Oversight 11 Citizen Oversight 12 Mechanisms to Resolve Conflict 14
Devolution in Belgium 16 Allocation of Powers 20 Federal Level 20 Community and Regional Levels 22 Provincial Level 23 Communal Level 23 Transfer of Powers to Other Levels 24 Oversight of Distribution of Powers 25 Mechanisms to Resolve Conflict 27
Conclusion 30
Devolution of Powers in Switzerland and Belgium, July 2013 1
DEVOLUTION OF POWERS IN SWITZERLAND AND BELGIUM
Statement of Purpose
The purpose of this memorandum is to analyze the devolution of powers between the state, regional, and local governments in Switzerland and Belgium.
Introduction
Devolution of powers concerns the decentralization of legislative, administrative, and fiscal powers from the central government to governments at a sub-national level. The legal basis for devolution is commonly set forth in a states constitution. When devolving powers, states generally specify which level of government holds jurisdiction over specific powers. States may assign all powers by specifically and exhaustively listing powers that are exclusive to either the central or sub-national governments. Alternatively, states may allocate a limited number of the powers to either level of government and grant residual authority over all new or unremunerated powers to either level of government. Granting residual powers to the federal government supports centralization, while granting residual powers to sub-national governments facilitates decentralization.
States commonly create coordination mechanisms to guarantee that each level of government respects assigned powers and to prevent disputes (by ensuring cooperation). Despite coordination and cooperation efforts, jurisdictional disputes over exclusive, residual, or concurrent powers occur, creating the need for dispute resolution mechanisms. Supreme and constitutional courts frequently have the authority to decide questions of jurisdiction and competencies. States also provide for non-judicial dispute resolution mechanisms to resolve disagreements between the central and sub-national governments.
Devolution in Switzerland
In Switzerland, geography shapes demography. Broken into component parts by Europes great mountains, Switzerland is linguistically, ethnically, and religiously diverse and politically fractured. 1 The Swiss can be divided into three distinct sociolinguistic groups: roughly 70 percent speak German, 22 percent speak
1 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. Devolution of Powers in Switzerland and Belgium, July 2013 2
French, seven percent speak Italian, and less than one percent speaks Romansch. 2
These cultural groups are separated into homogenous cantons, the political subunits of the Swiss state. 3 Of the 26 cantons, 22 are monolingual, and of those 17 are German-speaking, four are French-speaking, and one is Italian-speaking. 4
Moreover, 42 percent of the population identifies as Roman Catholic and 35 percent identifies as Protestant. 5
Despite this internal diversity, and despite being surrounded by continental Europes most powerful nation-states, the Swiss federal state has long been strong, prosperous, and independent. 6 Moreover, the cantons have been at peace with their neighbors since the states founding in 1848. 7 Much of this success is the result of an evolving constitutional order that carefully balances local autonomy with strictly necessary federal power. 8
Before the establishment of the Swiss federal state, Switzerland was a loose confederation of states. 9 In 1798, Napoleon Bonapartes troops invaded Switzerland and attempted to impose a centralized Helvetic Republic. 10 The
2 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 3 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 4 World Directory of Indigenous Peoples Switzerland: Overview, MINORITY RIGHTS GROUP INTERNATIONAL, August 2011, available at http://www.unhcr.org/refworld/country,,MRGI,,CHE,4562d8b62,4954ce045,0.html; See also Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 2-3, (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 5 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 6 About the Swiss Economy, FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, available at http://www.eda.admin.ch/eda/en/home/reps/eur/vgbr/ukemlo/ecofin/aboeco.html. 7 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 1, (2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 8 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 1, (2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 9 Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities, THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, 4, (Apr. 12-13, 2012), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf. 10 Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities, THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, 4, (Apr. 12-13, 2012), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 3
effort was not successful. 11 In 1803, Napoleon partially restored cantonal autonomy with the Mediation Act. 12 In 1815, following the Battle of Waterloo and the defeat of Napoleon, the Swiss chose to return to the old confederal system. 13
The sovereign states of the Confederation initially sought to guarantee collective security through mutual assistance. However, the pre-Napoleonic system proved to be inadequate, and the constitution of 1848 established the Swiss federal state. 14 While a Swiss national identity had developed over the centuries, the constitution represented the first Swiss nation-state. 15 That said, under this settlement, the cantons kept their statehood, their own constitutions, and most of their political autonomy. 16 The constitution of 1874 established a centrally organized modern state. 17 It transferred cantonal powers to the federal level, including the establishment of a federal army, federal currency (the monopoly of the federal government to issue banknotes was only introduced in 1891), an end to trade restrictions within the federal state, and the creation of a federal common and civil law. 18 The constitution of 1999, still in place today, extended the rights of the cantonal governments to participate in the federal decision-making process. 19
Allocation of Powers
The Swiss government has three levels: federal, cantonal (or state), and communal (or municipal). The cantons are the dominant political actors. The delicate constitutional balance of the Swiss federal republic is achieved through the
11 Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities, THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, 4, (Apr. 12-13, 2012), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf. 12 Switzerland and Napoleaon, Federal Department of Foreign Affairs, available at http://www.swissworld.org/en/history/the_18th_century/switzerland_and_napoleon/. 13 Nenad Stojanovic, Swiss Nation-State and Its Patriotism, MCGILL UNIVERSITY MONTREAL, 9, available at http://www.google.com/url?sa=t&rct=j&q=while%20a%20swiss%20national%20identity%20had%20developed%2 0over%20the%20centuries%2C%20the%20constitution%20represented%20the%20first%20swiss%20nation- state&source=web&cd=5&ved=0CEsQFjAE&url=http%3A%2F%2Fwww.polis.sciencespobordeaux.fr%2Fvol11ns %2Fstojanovic.rtf&ei=xjnSUIOKCc6Q0QHkxoDgDA&usg=AFQjCNFAjA352PyuY2iFH2X1pkhN6r9xcQ&bvm= bv.1355534169,d.dmQ. 14 The Constitution of 1848, FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, available at http://www.swissworld.org/en/history/the_federal_state/the_constitution_of_1848/. 15 SWITZERLAND CONST. preamble (1848); Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities, THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS 9-10 (Apr. 12-13, 2012), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf. 16 SWITZERLAND CONST. art.3 (1848). 17 SWITZERLAND CONST. arts. 1-3 (1874) available at http://www.servat.unibe.ch/icl/sz01000_.html. 18 SWITZERLAND CONST. arts. 13, 31, 38, 64 (1874). 19 SWITZERLAND CONST. art. 45 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 4
principle of subsidiarity, 20 which holds that powers should, as much as possible, be allocated to the lowest level of government able to properly administer them. 21
The Confederation, then, shall assume the tasks which require uniform regulation, and the Confederation shall leave the cantons as large a space of action as possible, and shall take their particularities into account. 22 All tasks not requiring uniform action are left to the cantons. 23
According to Arnold Koller, former President of the Swiss Confederation, Article 3is often referred to as the basic federal norm of Switzerland. 24 Article 3 provides that [t]he cantons are sovereign except to the extent that their sovereignty is limited by the federal Constitution. They shall exercise all rights which are not vested in the Confederation. 25 These twin principles that power should be devolved to the greatest extent possible and that, unless otherwise provided, all powers rest with the cantons form the foundation of the Swiss constitutional system. 26
As a matter of process, any reform to this constitutional system must be achieved through consensus through popular referendum and from the cantons themselves. 27 This reflects the complex system of direct democracy, which requires the consent of each canton for each new federal competence. 28 This topic will be discussed in greater detail below.
Federal Level The Swiss federal government is an executive and legislative system in which the people elect the members of parliament and the parliament, in turn, elects a Federal Council to fulfill the executive functions of government. 29 Under
20 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 4 (2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 21 SWITZERLAND CONST. arts. 3, 42, 43, 46 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf. 22 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 4 (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 23 SWITZERLAND CONST. arts. 42, 46 (1999); Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 4 (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 23 SWITZERLAND CONST. arts. 3, 42, 46 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf. 24 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 4 (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 25 SWITZERLAND CONST. art. 3 (1999). 26 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 4 (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 27 SWITZERLAND CONST. art. 140 (1999). 28 Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 5 (2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 29 SWITZERLAND CONST. arts. 149-150 (1999). Devolution of Powers in Switzerland and Belgium, July 2013 5
the principle of subsidiarity, the federal government makes policy only in areas that are necessarily federal, such as foreign policy. 30 Instead of deciding issues unilaterally, however, federal authorities commonly negotiate with the cantons and communes and respect them as equal partners. 31
The Swiss parliament has two chambers: the National Council and the Council of States. The two chambers make up the United Federal Assembly. 32
The people elect the 200 members of the National Council and the 46 members of the Council of States. 33 Cantons send two representatives to the Council of States, regardless of their size, except for six half cantons, which only have one representative. 34 The United Federal Assembly is the highest authority in the state. 35
The Federal Council serves as the federal government and consists of seven members elected by the parliament for a period of four years, subject to renewal. 36
The Federal Council sets its agenda, decides government policies, coordinates the work of the state institutions, and sets the financial plan and budget. 37 The members meet weekly every Wednesday. 38
Every year, the parliament elects one of the seven members of the Federal Council to serve as the presiding member and president of the Confederation. 39
The president is considered an equal to the other councillors, holds no special
30 SWITZERLAND CONST. art. 46 (1999); Arnold Koller, Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM, 4 (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf. 31 Thomas Fleiner, Swiss Confederation, in A GLOBAL DIALOGE ON FEDERALISM, VOLUME 2: DISTRIBUTION OF POWERS AND RESPONSIBILITIES IN FEDERAL COUNTRIES, 4 (Akhtar Majeed, Ronald L. Watts, & Douglas M. Brown, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Booklet_2/BL2-ch-Fleiner.pdf. 32 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 15 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 33 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 16, 24 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 34 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 25 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 35 SWITZERLAND CONST. art. 148(1) (1999). 36 SWITZERLAND CONST. art. 175 (1999). 37 SWITZERLAND CONST. arts. 180, 183 (1999). 38 A Reportage on the Staff of the Federal Council, THE SWISS CONFEDERATION, 5, available at http://www.google.com/url?sa=t&rct=j&q=the%20members%20meet%20weekly%20every%20wednesday%20in% 20the%20federal%20palace%20in%20bern&source=web&cd=4&ved=0CEcQFjAD&url=http%3A%2F%2Fwww.b k.admin.ch%2Findex.html%3Flang%3Den%26download%3DM3wBPgDB_8ull6Du36WenojQ1NTTjaXZnqWfVp 3Uhmfhnapmmc7Zi6rZnqCkkId1fn6BbKbXrZ6lhuDZz8mMps2gpKfo&ei=HsnUUPPsCYTE0AG90oG4BQ&usg= AFQjCNFm33G24-G2Rv1ylnjLasVyKvv6kw&bvm=bv.1355534169,d.dmQ. 39 Executive Branch: The Federal Council, FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, available at http://www.swissworld.org/en/politics/government_and_parliament/the_federal_council/. Devolution of Powers in Switzerland and Belgium, July 2013 6
political privileges, and still runs his or her own department. 40 Collectively, the Federal Council functions as the head of state. 41
There is a dual judicial system with a federal court system and 26 cantonal court systems. 42 Cantonal trial courts have the power to interpret and apply federal law, as well as the respective cantonal law. 43 The Federal Supreme Court functions as the highest appellate court, adjudicating on both federal and cantonal law. 44
Cantonal Level Switzerlands primary political actors are the cantons, which exist as independent legal entities. 45 All cantons have equal rights under the federal constitution. 46 Each canton has its own parliament and administrative government. 47 In addition, each canton has the exclusive power to implement federal law; determine the power of its communes; draft its own constitution; manage education at all levels; govern cultural matters; govern matters related to language; manage the church and state relationship; dispose of public water and water resources (including hydro-energy); and enforce gaming and fishing regulations. 48
The cantons also set the scope of direct democracy of their citizens and have great power in security and environmental regulation. 49 The adoption of any federal legislation must be preceded by consultation with the cantons, which are
40 Political Organization of Switzerland, THE FEDERAL AUTHORITIES OF THE SWISS CONFEDERATION, available at http://www.admin.ch/org/polit/00054/index.html?lang=en; Federal Department of Foreign Affairs, Executive Branch: The Federal Council, available at http://www.swissworld.org/en/politics/government_and_parliament/the_federal_council/. 41 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 43 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 42 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 43 SWITZERLAND CONST. arts. 191b (1999). 44 SWITZERLAND CONST. arts. 188-89 (1999). 45 Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities, THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, 15, (Apr. 12-13, 2012), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf. 46 Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities, THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, 15, (Apr. 12-13, 2012), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf. 47 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 14, available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 48 SWITZERLAND CONST. arts. 46, 50, 51, 62, 69, 70, 72, 76(4), 80(3) (1999). 49 SWITZERLAND CONST. arts. 51, 57, 74 (1999). Devolution of Powers in Switzerland and Belgium, July 2013 7
granted the power to participate in federal decision-making, particularly regarding legislation. 50 The power of the cantons is only limited by federal power, which is granted to the Confederation through the federal constitution. 51
The power of the cantons is further augmented by their ability to cooperate with each other without involving the federal government. Concordats are horizontal instruments of cooperation that enable the cantons to take collective action without the involvement of the Confederation. 52 These inter-cantonal treaties function as a form of regional cooperation. Concordats are designed to address specific issues, including the attendance of cantonal schools by students from other cantons, inter-cantonal institutions in the penal system, or mutual support of cantonal police forces from different cantons in the case of events which exceed the capacity of a single cantonal police services. 53
Communal Level Communes exist within the cantons and, because each cantonal government determines their level of autonomy, have varying degrees of responsibility. 54
Powers that are often transferred to the communes by the cantons include managing the registry of residents and organizing civil defense, as well as responsibilities relating to the implementation of cantonal rules and regulations regarding schooling, road construction, social services, energy supplies, taxes and local planning. 55 Currently there are 2,551 communes, however some smaller communes are merging in order to more efficiently handle their responsibilities by pooling resources and staff. 56
50 SWITZERLAND CONST. art. 45 (1999). 51 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 52 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 53 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, CENTER FOR COMPARATIVE AND INTERNATIONAL STUDIES, UNIVERSITY OF ZURICH, 6, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. 54 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 55 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 56 Swiss Communes Merge in Struggle to Survive, SWISS INFO, Feb. 4, 2004, available at http://www.swissinfo.ch/eng/Home/Archive/Swiss_communes_merge_in_struggle_to_survive.html?cid=3751794. Devolution of Powers in Switzerland and Belgium, July 2013 8
Transfer of Powers to Other Levels
As mentioned above, the Swiss Constitution grants great autonomy and decision-making power to the cantons. Restricted only by the constitutional mandate that the people of each canton have the power to make their own constitution and the requirement to comply with federal law, the cantons have virtually unlimited discretion with regard to the implementation of federal law and the creation and execution of their own systems of governance. 57 For instance, they exercise control over the determination of the power of the communes, education, culture and language, the relationship between church and state, and the management of natural resources of the cantonal lands. 58 Cantonal powers can only be limited by or transferred to the federation by constitutional amendment, as their powers are restricted only by the Constitution. 59 Even in those areas traditionally under the purview of the federation, the cantons can take action as long as the federation has not made use of its power in that particular area. 60
However, where cantonal law conflicts with federal law, federal law is supreme. 61
Due to the great degree of independence that the cantons are afforded, there are often vast differences in the way their respective governments function. As previously mentioned, one of the main differences between the cantons is in the breadth of autonomy and responsibility given to the communes within each canton. 62 Under the principles of autonomy that form the backbone of Switzerlands traditional constitutional regime, the lower units, in this case the communes, should have the power to organize themselves and decide how to accomplish their tasks, with the cantons only stepping in when the communes are unable to assume their responsibilities or when an overarching solution is necessary. 63
57 SWITZERLAND CONST. art. 51 (1999). 58 SWITZERLAND CONST. arts. 62, 69-70, 72, 76, 78, 80 (1999). 59 SWITZERLAND CONST. art. 3 (1999). 60 SWITZERLAND CONST. art. 46 (1999). 61 Thomas Fleiner, Swiss Confederation, in A GLOBAL DIALOGE ON FEDERALISM, VOLUME 2: DISTRIBUTION OF POWERS AND RESPONSIBILITIES IN FEDERAL COUNTRIES, 10 (Akhtar Majeed, Ronald L. Watts, & Douglas M. Brown, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Booklet_2/BL2-ch-Fleiner.pdf. 62 The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available at http://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en. 63 Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy, in THE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE 196, 202 (John Loughlin, Frank Hendriks, & Anders Lidstrm eds., 2010), available at http://www.andreasladner.ch/dokumente/Literatur_Unterricht/Ladner_2010_Subnational_Democracy.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 9
The degree to which the power of the communes is restricted is often a result of cantonal influences, such as religion and language. 64 For instance, French influenced cantons devolve fewer political powers to the communes in comparison to German-speaking cantons. 65 In addition, while there has been an increase in the number of governmental activities delegated to the lower units, this has been accompanied by the intensification of legal restrictions from higher political levels. 66
Article 50 of the Swiss Constitution provides a federal guarantee of communal autonomy. 67 The constitution provides that, the autonomy of the communes shall be guaranteed in accordance with cantonal law. 68 This guarantee, however, depends on the amount of independence conferred on the communes by their respective cantonal constitutions. The guarantee also does not grant the communes law-making powers because they are institutions of cantonal law. In some cases, canton and commune governments work together, often in areas where there is overlapping service responsibility, such as health care and education. 69 In situations like these, the responsibilities have been split, with the planning or instruction on the side of the cantons and the administrative functions delegated to the communes. 70 In the case of education, for example, a canton may handle the organization of primary school teaching and the setting up of the curricula, while a commune may run the school. 71
64 Thomas Fleiner, The Current Situation of Federalism in Switzerland, 9 REVISTA DESTUDIS AUTONMICS I FEDERALS 51, 63 (2009), available at http://www.google.com/url?sa=t&rct=j&q=thomas%20fleiner%20current%20situations%20of%20federalism%20in %20switzerland&source=web&cd=3&ved=0CD0QFjAC&url=http%3A%2F%2Fdialnet.unirioja.es%2Fdescarga%2 Farticulo%2F3079468.pdf&ei=HNHXULy4JtK90QHxjYCgCg&usg=AFQjCNGrzWCbNGeRrv7hr_xVTC493Ap3 AQ&bvm=bv.1355534169,d.dmQ 65 Thomas Fleiner, The Current Situation of Federalism in Switzerland, 9 REVISTA DESTUDIS AUTONMICS I FEDERALS 51, 63 (2009). 66 Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy, in THE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE 196, 214 (John Loughlin, Frank Hendriks, & Anders Lidstrm eds., 2010), 67 SWITZERLAND CONST. art. 50 (1999). 68 SWITZERLAND CONST. art. 50 (1999). 69 Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy, in THE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE 196, 206 (John Loughlin, Frank Hendriks, & Anders Lidstrm eds., 2010). 70 Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy, in THE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE 196, 206 (John Loughlin, Frank Hendriks, & Anders Lidstrm eds., 2010). 71 Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy, in THE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE 196, 206 (John Loughlin, Frank Hendriks, & Anders Lidstrm eds., 2010). Devolution of Powers in Switzerland and Belgium, July 2013 10
Oversight of Distribution of Powers
The distribution of powers is not monitored by any single government body, but rather at all levels of government. Above all, the people hold the ultimate power to review the distribution of powers, and to make changes as they see fit through direct democracy. 72
Federal Oversight The Federal Supreme Court functions as a constitutional court to protect the Constitution against the cantons. 73 The court engages with cantonal law only to the extent necessary to ensure that cantonal courts uphold and respect federal law, due process, and human rights as guaranteed by the Constitution. 74 The Federal Supreme Court has the authority to review cantonal policies and cantonal implementation of federal tasks if it violates federal law, but does not have the power to invalidate acts of the Federal Council or the Federal Assembly on legal or constitutional grounds. 75
Inter-Cantonal Oversight The Conference of Cantonal Governments (CCG) was founded in 1993 with the goal of coordinating cantonal views. 76 The Conference promotes cooperation and coordination among the cantons with respect to federal politics. 77 High on the CCGs list of priorities are issues relating to the division of responsibilities between the Confederation and the cantons, the shaping of opinions and preparing of decisions at the federal level, and the implementation of federal tasks by the cantons. 78
72 Gregory A. Fossedal, DIRECT DEMOCRACY IN SWITZERLAND 74 (2005). 73 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 74 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 75 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 76 Kurt Nuspliger, Federalism in Switzerland, PANEL ON COMPARATIVE FEDERALISM, FORUM OF FEDERATIONS, 10 (Mar. 25-26, 2004), available at http://www.forumfed.org/libdocs/CanSIPP04/CanSIPP04-Nuspliger.pdf. 77 Kurt Nuspliger, Federalism in Switzerland, PANEL ON COMPARATIVE FEDERALISM, FORUM OF FEDERATIONS, 10 (Mar. 25-26, 2004), available at http://www.forumfed.org/libdocs/CanSIPP04/CanSIPP04-Nuspliger.pdf. 78 Kurt Nuspliger, Federalism in Switzerland, PANEL ON COMPARATIVE FEDERALISM, FORUM OF FEDERATIONS, 10- 11 (Mar. 25-26, 2004), available at http://www.forumfed.org/libdocs/CanSIPP04/CanSIPP04-Nuspliger.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 11
Decisions of the CCG are made by its plenary assembly, which is composed of a representative of each canton and meets four times a year. 79 The CCG contributed considerably to the renewal of federalism in Switzerland, particularly with regard to the drafting of the 1999 constitution. 80 The CCG also ensures the participation of cantons in bilateral negotiations between Switzerland and the EU, including the role of cantons in setting foreign policy and financial equalization reform. 81 While the CCG aims to serve as an important means by which the cantons can influence the federal decision-making process, the success of the CCG depends greatly on the ability of the cantons to compromise and reach consensus among themselves. 82
Inter-Communal Oversight At the communal level, there is a parallel system of cooperative organizations and agreements. 83 Founded in 1953, the Association of Swiss Communes is a nondenominational, politically neutral umbrella organization for communes in Switzerland. 84 Currently around 70 percent of all communes and cities are members of the Association of Swiss Communes. 85 Its primary objective is to maintain and strengthen the autonomy of the communes and their ability to independently govern. 86 The Association is committed to asserting the common interests of the communes as the third federal power in the federal state. 87 Today, the communes are weighing the benefits of merging with other communes in order
79 Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from the Perspective of the Cantons, 5 FEDERATIONS 23, 23 (2006), available at http://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf. 80 Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from the Perspective of the Cantons, 5 FEDERATIONS 23, 24 (2006), available at http://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf. 81 Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from the Perspective of the Cantons, 5 FEDERATIONS 23, 23-24 (2006), available at http://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf. 82 Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from the Perspective of the Cantons, 5 FEDERATIONS 23, 24 (2006), available at http://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf. 83 See Marjan Haak-Griffioen, Regional Democracy in Switzerland, CONGRESS OF LOCAL AND REGIONAL AUTHORITIES, COUNCIL OF EUROPE, para. 55 (Mar. 1, 2000), available at https://wcd.coe.int/ViewDoc.jsp?id=1591807&Site=CM. 84 Partner Organisations, EGOVERNMENT, available at http://www.egovernment.ch/en/organisation/partnerorganisationen.php. 85 Partner Organisations, EGOVERNMENT, available at http://www.egovernment.ch/en/organisation/partnerorganisationen.php. 86 Partner Organisations, EGOVERNMENT, available at http://www.egovernment.ch/en/organisation/partnerorganisationen.php. 87 Partner Organisations, EGOVERNMENT, available at http://www.egovernment.ch/en/organisation/partnerorganisationen.php. Devolution of Powers in Switzerland and Belgium, July 2013 12
to pool funds and resources. 88 These cooperation projects serve to make services more efficient and to cut costs. 89
Citizen Oversight At the most basic level, the Swiss political system provides for direct participation by citizens in creating and amending the constitution and federal legislation. Obligatory referendums occur any time amendments to the constitution and important international treaties are proposed. 90 A majority of both the voters and the cantons must approve for an amendment to pass. 91
In 2001, a number of reforms were proposed that focused on the reallocation of responsibilities and financial arrangements between the Confederation and the cantons. 92 Since the cantons have fiscal autonomy, cantonal tax legislation and taxation rates vary considerably from one canton to the next. 93 In order to modernize and simplify this financial system both vertically and horizontally, a joint federal-canton working group was formed. 94 The parliament approved the reform package in 2003. 95 However, because the reforms required an amendment to the Constitution, a referendum was necessary, and a qualified majority of both voters and the cantons was required to pass the amendment. 96 The amendment passed by a majority of the electorate (64 percent) and by 23 of the 26 cantons in 2004. 97
88 Swiss Communes Merge in Struggle to Survive, SWISS INFO, Feb. 4, 2004, available at http://www.swissinfo.ch/eng/Home/Archive/Swiss_communes_merge_in_struggle_to_survive.html?cid=3751794. 89 Swiss Communes Merge in Struggle to Survive, SWISS INFO, Feb. 4, 2004, available at http://www.swissinfo.ch/eng/Home/Archive/Swiss_communes_merge_in_struggle_to_survive.html?cid=3751794. 90 SWITZERLAND CONST. arts. 140, 141 (1999). 91 SWITZERLAND CONST. art. 142 (1999). 92 Bernard Dafflon, Federal Cantonal Equalization in Switzerland, 30-32 (May 27, 2004), available at http://unifr.ch/finpub/assets/files/RecherchesPublications/WorkingPapers/WorkingPaper356.pdf. 93 Barnard Dafflon, Fiscal Federalism in Switzerland: A Survey of Constitutional Issues, Budget Responsibility and Equalisation, 6, 24 (2006), available at http://www.thomasfleiner.ch/files/categories/IntensivkursII/FiscalFederalismCH.pdf. 94 Thomas Stauffer, Nicole Topperwien, & Urs Thalmann-Torres, Switzerland (Swiss Confederation), in HANDBOOK OF FEDERAL COUNTRIES 342, 351 (Ann L. Griffiths, ed., 2005), available at http://www.forumfed.org/libdocs/FedCountries/FC-Switzerland.pdf. 95 Thomas Stauffer, Nicole Topperwien, & Urs Thalmann-Torres, Switzerland (Swiss Confederation), in HANDBOOK OF FEDERAL COUNTRIES 342, 351 (Ann L. Griffiths, ed., 2005), available at http://www.forumfed.org/libdocs/FedCountries/FC-Switzerland.pdf. 96 Ren L. Frey & Grard Wettstein, Reform of the Swiss Fiscal Equalization System, in CESIFO DICE REPORT 21, 25 (2008), available at http://www.cesifo-group.de/portal/pls/portal/docs/1/1193012.PDF. 97 Ren L. Frey & Grard Wettstein, Reform of the Swiss Fiscal Equalization System, in CESIFO DICE REPORT 21, 26 (2008), available at http://www.cesifo-group.de/portal/pls/portal/docs/1/1193012.PDF. Devolution of Powers in Switzerland and Belgium, July 2013 13
Optional referendums can also occur with regard to acts and regulations voted on in parliament. 98 A decision of the parliament becomes law unless 50,000 citizens, within 100 days of publication, demand the holding of a popular vote. 99 If the signatures are collected within the 100-day period, a vote must be held. 100 A majority vote of approval by those who vote decides whether the bill is approved or rejected. 101 The result of the popular vote in a particular canton determines the vote of the canton. 102
For instance, in order to comply with the Schengen Agreement 103 and adhere to developments in the area of travel documents, on June 8, 2007, the Federal Council proposed to the parliament that machine-readable biometric passports be introduced in Switzerland. 104 The two chambers approved the proposal, and then drafted and adopted a law in early 2008. 105 Groups that feared biometric passports would violate privacy launched a popular referendum against the law. The referendum backers gathered enough signatures to require a popular vote. On May 17, 2009, a very small majority (50.1 percent) of Swiss voters approved the new law. 106 While 14 out of the 26 cantons were against it, as previously mentioned, there is no requirement that a majority of the cantons approve the law for optional referendums. 107 As such, the law passed and the Swiss government began issuing the new passports in 2010. 108
Citizens can also monitor the governments actions through a citizens initiative, which was introduced as a tool of direct democracy in 1891. 109 By signing a formal proposition, 100,000 citizens can demand an amendment to the constitution, as well as propose the alteration or removal of existing legislation. 110
98 SWITZERLAND CONST. art. 141 (1999). 99 SWITZERLAND CONST. art. 141 (1999). 100 SWITZERLAND CONST. art. 141 (1999). 101 SWITZERLAND CONST. art. 142 (1999). 102 SWITZERLAND CONST. art. 142 (1999). 103 The Schengen Agreement created Europes borderless Schengen Area, which allows for travel within the area without internal border controls. 104 eGovernment Factsheets Switzerland, EPRACTICE, June 23, 2011, available at http://www.epractice.eu/en/document/5307930. 105 eGovernment Factsheets Switzerland, EPRACTICE, June 23, 2011, available at http://www.epractice.eu/en/document/5307930. 106 Swiss Narrowly Accept Biometric Passports, OTAGO DAILY TIMES, May 18, 2009, available at http://www.odt.co.nz/56582/swiss-narrowly-accept-biometric-passport. 107 SWITZERLAND CONST. art. 142 (1999). 108 Swiss Narrowly Accept Biometric Passports, OTAGO DAILY TIMES, May 18, 2009, available at http://www.odt.co.nz/56582/swiss-narrowly-accept-biometric-passport. 109 Bruno Kaufmann, Rolf Buchi & Nadja Braun, GUIDEBOOK TO DIRECT DEMOCRACY IN SWITZERLAND AND BEYOND 33 (2010). 110 SWITZERLAND CONST. art. 138 (1999). Devolution of Powers in Switzerland and Belgium, July 2013 14
In order to commence, an initiative committee of at least seven citizens must be created. The committee is tasked with drafting the proposition. The proposition can be expressed in a precise phrase of amendment or drafted in general terms, upon which the parliament can put forward a formal proposal. 111 The proposed article must then be registered in all four national languages, and the initiative committee may start gathering signatures. 112 The initiative committee has 18 months to gather the 100,000 signatures and, once submitted, the Federal Council has one year to respond to the initiative petition. 113 In most cases, the Federal Council decides against the initiative. In this case, the parliament has 18 months to discuss, and another 12 months to develop, a counter-proposal, if it wishes. 114 If this happens, the initiative committee can accept the counter-proposal and withdraw the initiative. If the parliament and the initiative committee cannot agree, voters are asked to vote yes or no on both the initiative and the counter- proposal. 115 Voters are also asked whether they prefer the initiative or the counter- proposal in the event that both are approved. 116
Only 18 of the 174 citizens initiatives that have been brought to the voters have been approved. 117 However, even when a citizens initiative is not successful, it can still have an impact on policy by sparking conversation and debate on critical issues of concern. For example, while an initiative to require accommodation for disabled people was rejected by the government and the voters because of the very strict standards for construction that were included in the text, it led the parliament to pass a new law that accomplished many of the goals of the initiative. 118
Mechanisms to Resolve Conflicts
While there is no centrally managed coordination and information exchange system among the cantons, there are mechanisms in place to prevent conflicts. 119
111 SWITZERLAND CONST. art. 139 (1999). 112 Bruno Kaufmann, Rolf Buchi & Nadja Braun, GUIDEBOOK TO DIRECT DEMOCRACY IN SWITZERLAND AND BEYOND 72 (2010). 113 Virginia Beramendi, et al., Direct Democracy: The International IDEA Handbook, 30 (2008), available at http://www.idea.int/publications/direct_democracy/upload/direct_democracy_handbook_chapter1.pdf. 114 Maija Setala & Theo Schiller, CITIZENS INITIATIVES IN EUROPE: PROCEDURES AND CONSEQUENCES OF AGENDA- SETTING BY CITIZENS 250 (2012). 115 SWITZERLAND CONST. art. 139 (1999). 116 SWITZERLAND CONST. art. 139b (1999). 117 Maija Setala & Theo Schiller, CITIZENS INITIATIVES IN EUROPE: PROCEDURES AND CONSEQUENCES OF AGENDA-SETTING BY CITIZENS 253 (2012). 118 Maija Setala & Theo Schiller, CITIZENS INITIATIVES IN EUROPE: PROCEDURES AND CONSEQUENCES OF AGENDA- SETTING BY CITIZENS 253 (2012). 119 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 15
There are two main kinds of horizontal cooperation mechanisms among Swiss cantons. 120 First, there are inter-governmental coordination bodies, called conferences, which bring together ministers or government officials of cantons. 121
The most important conference is the CCG, discussed above. However, there are numerous other sectoral conferences which bring together all cantonal ministers in the fields of education, justice and police, health services, construction and environment planning, agriculture, military, public finances, forestry, welfare, guardianship authorities, registry offices, economy, drug control, energy, pubic transportation, and fire services. 122
Second, as also previously discussed, cantons can enter into concordats (horizontal instruments of cooperation that enable the cantons to take collective action without the involvement of the Confederation) to regulate the unification of legislation and create common institutions. 123 Concordats are most effective if all cantons subscribe, but it is often difficult to achieve unanimity. 124 For example, a concordat to overcome the traditional particularity of half of the cantons starting the school year in the spring and the other half starting in the autumn has not been effective. 125
Today, there are approximately 760 concordats, affiliated with anywhere from two to 26 cantons, and some cantons have more than 100 common concordats. 126 Although each canton is connected to every other canton through at least 16 common concordats, the degree of inter-cantonal collaboration varies. 127
Because the cantons generally share a common interest in defending their own competences and discouraging federal government regulation, concordats continue
120 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. 121 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. 122 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5-6, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. 123 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. 124 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 125 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 126 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 6, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. 127 Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 6, available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 16
to serve as an important instrument for facilitating cooperation amongst the cantons. 128
Although a number of principles have been developed to avoid conflict between federal and cantonal authorities, only one article of the constitution directly addresses the resolution of conflicts once they arise. Article 44 provides that disputes between cantons or between cantons and the Confederation shall, to the extent possible, be resolved through negation or mediation. 129 However, there is no federal mediator to resolve such conflicts, nor is there a special commission within the parliament that specializes in questions of distribution of powers. 130
Thus, conflicts are resolved by the Federal Supreme Court, which has jurisdiction to make decisions with respect to conflicts between cantons or between a canton and the Confederation. 131 In particular, it can review a cantonal policy or the cantonal implementation of a federal task on the grounds that it contradicts federal law. 132 Since 1875, the constitution has granted citizens the right to sue their canton before the Court for constitutional violations. 133
Devolution in Belgium
Belgium was established in 1830 as a constitutional monarchy. 134 The formation of the Belgian state was largely the result of a compromise between French and Dutch claims, supported by the British government. 135 The Belgian Constitution established three branches of government: legislative, executive and judicial. 136 The legislative branch was established as a parliament with two chambers, the Chamber of Representatives and the Senate. 137 The executive
128 Wolf Linder & Isabelle Steffen, Swiss Confederation, in A GLOBAL DIALOGUE ON FEDERALISM, VOLUME 3: LEGISLATIVE, EXECUTIVE, AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES, FORUM OF FEDERATIONS (Katy Le Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3- C10-ch-LinderSteffen-en.htm. 129 SWITZERLAND CONST. art. 44 (1999). 130 Eleanor Cashin Ritaine & Anne-Sophie Papeil, Switzerland, 321, available at http://biblio.juridicas.unam.mx/libros/7/3054/20.pdf. 131 Eleanor Cashin Ritaine & Anne-Sophie Papeil, Switzerland, 321, available at http://biblio.juridicas.unam.mx/libros/7/3054/20.pdf. 132 SWITZERLAND CONST. art. 189 (1999). 133 Thomas Fleiner, The Current Situation of Federalism in Switzerland, 9 REVISTA DESTUDIS AUTONMICS I FEDERALS 51, 60 (2009). 134 Christoph Maillet, Research Guide to Belgian Law, GLOBALEX, available at http://www.nyulawglobal.org/globalex/belgium1.htm. 135 Christoph Maillet, Research Guide to Belgian Law, GLOBALEX, available at http://www.nyulawglobal.org/globalex/belgium1.htm. 136 BELGIUM CONST. arts. 36, 37, 40 (1994), available at http://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf. 137 BELGIUM CONST. art. 36 (1994). Devolution of Powers in Switzerland and Belgium, July 2013 17
branch established the King as the head of state and of the executive branch. 138
The judicial branch consists of district courts, appellate courts, and the Court of Cassation, as the highest court, and the legal system is a civil law system (core principals are codified). 139 Although Belgium has undergone numerous constitutional changes affecting the legislative and executive branches since its formation, the judicial branch and the court system have remained relatively unchanged. 140
There are three primary languages in Belgium: French, Dutch and German. 141 About sixty percent of the population speaks Dutch, also known as Flemish (Belgium Dutch). 142 Despite the fact that the majority of the population is Flemish, in the early years of its existence Belgian life was disproportionately dominated by French influences. 143 In response, the Flemish community developed a strong sense of nationalism that served as the catalyst for a general distrust between Flemish and the French-speakers. 144 This distrust has been the driving force behind the continual reorganization and constitutional reform of the Belgian regime. 145
Conflict between the Dutch and the French first came to a head in the 1960s, a period that also saw the rise of regionalist parties. 146 Although Flemish was added to French as Belgiums official language in 1935, the linguistic boundaries between the Dutch and the French continued to plague the Belgian state. 147 Ultimately, the language reforms of 1962-63 demarcated the language boundaries and created four linguistic areas: three monolingual areas (Flemish, French, and German) and bilingual Brussels. 148 The linguistic boundary divided
138 BELGIUM CONST. art. 37 (1994). Article 37 of the Belgian Constitution explicitly vests the federal executive power in "the King", but in practice it is exercised by the Federal Government. As of 1991, women can ascend to the throne, but the official term for the head of the Belgium Monarchy is the "King of the Belgians" (see Article 85). 139 BELGIUM CONST. art. 151 (1994). An administrative court was later added in 1948. 140 Christoph Maillet, Research Guide to Belgian Law, GLOBALEX, available at http://www.nyulawglobal.org/globalex/belgium1.htm. 141 Michael Keating & Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 61 (2006). 142 Languages Across Europe: Belgium, BBC, available at http://www.bbc.co.uk/languages/european_languages/countries/belgium.shtml. 143 See Jean Beaufays, A Dualist Political System?, 18 BICOMMUNAL SOCIETIES AND POLITIES 63, 64-65 (1988). 144 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 350 (1990). 145 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 105 (2000). 146 Michael Keating & Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 61 (2006). 147 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 105 (2000). 148 Jan Erk, Federalism and Non-Territorial Representation, 1 (May, 2003), available at, http://www.forumfed.org/libdocs/SriLanka02/946-SLMG0306-Erk.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 18
the country into a northern and southern part, with Flemish and French, respectively, as the sole languages of public affairs. 149 In Brussels, the two official languages co-exist. 150
Since 1970, the constitution has changed on more than 20 occasions, ultimately resulting in qualifying the Belgium state as a federal state in 1993. 151
These reforms provided for Belgiums evolution from a highly centralized structure to a federal system wherein newly established regions and communities gained considerable autonomy. 152 The constitutional evolution that started in 1970 has still not come to an end. The years 1980, 1988, 1993 and 2001 all marked a shifting of power to the regions and communities and, after the elections in 2010, the state began its latest period of reform. 153
The first state reform in 1970 resulted in the establishment of three cultural communities based on language (Flemish, French, and German) and also laid the framework for the establishment of the three regions (Flanders, Wallonia, and Brussels). 154 Important powers over linguistic matters were devolved to the cultural communities in 1970, but little else was devolved at that time. 155 In 1980, the second state reform saw the cultural communities become established communities. 156 The third state reform in 1988 and 1989 established the Brussels- Capital region institutions, as well as Dutch and French institutions for community matters. 157 This reform also brought the expansion of the competencies of the communities and regions, with communities having powers over cultural matters, including language, most educational matters, health care, and a wide range of
149 Kris Deschouwer, Kingdom of Belgium, 3, available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_1/BK1-C02-be-Deschouwer-en.pdf. 150 Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 61 (2006). 151 Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 60-61 (2006). 152 Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 60 (2006). 153 Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 60 (2006). 154 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346 (1990); France Lebon, Cultural Policies and Trends in Europe: Belgium, COMPENDIUM, 1, available at http://www.culturalpolicies.net/web/belgium.php. 155 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 353 (1990). 156 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 105-06 (2000), available at http://193.146.160.29/gtb/sod/usu/$UBUG/repositorio/10330616_Erk.pdf. 157 Wallonia; Birth of a Region, PUBLIC AUTHORITIES IN WALLONIA, available at http://www.crisp.be/wallonie/en/pouvoirs/creation.html. Devolution of Powers in Switzerland and Belgium, July 2013 19
social welfare issues. 158 The regions, on the other hand, were granted substantial economic management powers (subject to state override in certain cases), planning powers, environmental protection responsibilities and energy management powers. 159
During the fourth state reform, in 1993, the Belgian Constitution was amended to make Belgium a completely federal state. 160 The responsibilities of the communities and regions were expanded again, as were their resources. 161 The revised constitution recognized three language groups: the French-speaking, the Dutch-speaking, and the German-speaking communities. 162 In addition, the federal structure was divided into three regions: Dutch-speaking Flanders, Francophone Wallonia, which includes a small population of German speakers, and primarily Francophone Brussels. 163 Practically the Flemish community and the region of Flanders function as one entity. 164
The fifth reform took place in 2001 as more powers were transferred to the communities and the regions with respect to agriculture, fisheries, foreign trade, development cooperation, auditing of electoral expenses, and the supplementary financing of the political parties. 165 Today, Belgium is in the midst of its sixth state reform and, until very recently, was in a state of political disarray. Following the federal elections in 2010, a collection of political parties struggled to form a new federal government. 166 It was not until December 2011 that the disagreement was settled and a new federal government was sworn in. 167
158 Wallonia; Birth of a Region, PUBLIC AUTHORITIES IN WALLONIA, available at http://www.crisp.be/wallonie/en/pouvoirs/creation.html. 159 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 106 (2000). 160 Susanna Mancini, Surreal Federalism? The Belgian Attempt to Preserve Unity Through Contradiction, 1.4 (Feb. 2008), available at http://www.forumcostituzionale.it/site/images/stories/pdf/documenti_forum/paper/0029_mancini.pdf. 161 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 106 (2000). 162 BELGIUM CONST. art. 2 (1994). 163 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 106 (2000). 164 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 106 (2000). 165 Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE, 61 (2006). 166 David Criekemans, Belgium: The Non-Government Country?, 23 GLOBAL AFFAIRS (Jan.-Mar. 2011), available at http://www.globalaffairs.es/en/belgium-the-non-government-country/. 167 Belgium Swears in New Government Headed by Elio Di Rupo, BBC, Dec. 6, 2011, available at http://www.bbc.co.uk/news/world-europe-16042750. Devolution of Powers in Switzerland and Belgium, July 2013 20
Constitutional reforms have continually reshaped Belgium and led to the federalization of the Belgian state. The reforms have progressively codified exclusive competences over certain powers as opposed to shared powers between the various levels of government. 168
Allocation of Powers
The framework for the Belgian state is best described as a pyramid. At the top are the federal state, the communities, and the regions, which are legally considered equals. 169 The next level of the pyramid is occupied by the provinces, which are supervised by the higher government authorities. At the bottom of the pyramid are the communes, which is the level of administration closest to the people. 170 As with the provinces, the communes are under the supervision of the higher levels of government. 171 The division of powers within the Belgian state is characterized by a system of exclusive competences, which involves an exhaustive demarcation of issue areas. 172
Federal Level Broadly speaking, the powers of the federal state encompass everything connected with the public interest. The federal government manages the public finances, the army, the judicial system, social security, [and] foreign affairs, as well as substantial parts of public health and home affairs. 173 In addition, the federal government maintains control over civil, commercial, and criminal law, while the regions and communes handle public law issues, such as education, environment, and culture. 174
168 See About Belgium Government, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/; see also Frank Hendriks, Belgium: Federalism and Subnational Democracy in a Divided Country, in SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 289 (John Loughlin, ed., 2001). 169 The Structure of the Federal State and the Power Levels, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federale_staat/structure/. 170 The Structure of the Federal State and the Power Levels, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federale_staat/structure/. 171 About Belgium The Communes, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/Communes/. The provinces are financed and audited by the regions. 172 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 107 (2000). 173 About Belgium The Federal Government's powers, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/. 174 Christoph Maillet, Research Guide to Belgian Law, GLOBALEX, available at http://www.nyulawglobal.org/globalex/belgium1.htm. Devolution of Powers in Switzerland and Belgium, July 2013 21
The Chamber of Representatives and the Senate comprise the Federal Parliament of Belgium. There are 150 representatives directly elected to the Chamber of Representatives. 175 Currently the Senate has 71 members, of which 40 (25 Dutch-speaking and 15 French-speaking) are elected by the general population, 21 are appointed by the communities (ten from the Flemish community, ten from the French community and one from the German-speaking community), and ten senators (six Dutch-speaking and four French-speaking) are co-opted, or elected by their colleagues. 176 Certain powers are exclusive to the Chamber of Representatives. 177 These powers include control of state accounts and the budget, as well as the federal government. 178 Meanwhile, the Senate has exclusive power to settle any conflicts of interest between the Federal Parliament or the parliaments of the communities and the regions. 179 Other powers alternate between the Chamber of Representatives and the Senate, including the introduction of candidates for the Court of Arbitration, the Court of Cassation, and the Council of State (the Supreme Administrative Court). 180
For certain federal responsibilities, the two assemblies work together. However, even for the combined responsibilities, the Chamber of Representatives has the final decision-making power. 181 The Senate is expected to operate reflectively and only comment on proposed laws or measures where it is deemed necessary. 182 However, the Senate also has the power to propose laws. 183 The federal government, the Chamber of Representatives, and the Senate are jointly responsible for upholding the public interest. 184
175 BELGIUM CONST. art. 63 (1994); About Belgium The Federal Parliament, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/. 176 BELGIUM CONST. art. 67 (1994); About Belgium The Federal Parliament, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/. 177 The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. 178 BELGIUM CONST. art. 74 (1994); The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. 179 BELGIUM CONST. art. 143 (1994); The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. 180 The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. 181 The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. 182 Division for Public Administration and Development Management & Department of Economic and Social Affairs, Kingdom of Belgium: Public Administration Country Profile, UNITED NATIONS, 7 (Mar. 2006), available http://unpan1.un.org/intradoc/groups/public/documents/un/unpan023303.pdf. 183 The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. 184 The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/. Devolution of Powers in Switzerland and Belgium, July 2013 22
Community and Regional Levels As mentioned earlier, the federal state has three regions (Flanders, Wallonia, and Brussels-Capital) and three communities (Flemish, French, and German). 185
Regions and communities overlap to a large extent. 186 Each region has authority related to their specific region or territory. 187 For instance, the Flemish parliament and government exercise power over the Flemish region and community. 188
Similarly, the Walloon parliament is the legislative assembly of Wallonia and acts as the supervisory body of the Walloon government. 189 The Brussels-Capital region has a parliament that exercises power by means of ordinances. 190 This region was only granted a parliament and government in the state reform of 1988- 89. 191 The French and German communities also have their own parliaments. 192
In addition, the federal government, the regions, and the communities each have their own exclusive powers. 193 A number of powers, other than language, are often associated with the communities including: powers for culture (theatre, libraries, audiovisual media, etc.), education, health policy (curative and preventive medicine), and assistance to individuals (protection of youth, social welfare, aid to families, immigrant assistance services). 194 Under the principles of federalism, between community and national legislation there is no legal hierarchy, which means community parliaments hold near-sovereign powers. 195
185 Wilfred Swenden, Belgian Federalism: Basic Institutional Features and Potential as a Model for the European Union, Royal Institute of International Affairs, 6 (Apr. 2003), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/swenden.pdf. 186 Wilfred Swenden, Belgian Federalism: Basic Institutional Features and Potential as a Model for the European Union, Royal Institute of International Affairs, 7 (Apr. 2003), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/swenden.pdf. 187 BELGIUM CONST. arts. 115, 121 (1994); Wilfred Swenden, Belgian Federalism: Basic Institutional Features and Potential as a Model for the European Union, Royal Institute of International Affairs, 7 (Apr. 2003), available at http://www.chathamhouse.org/sites/default/files/public/Research/Europe/swenden.pdf. 188 The Flemish Region, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/regions/flemish_region/. 189 The Walloon Region, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/regions/walloon_region/. 190 The Brussels-Capital Region, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/regions/brussels_capital_region/. 191 Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 73 (2010). 192 Belgium Division of Powers, COMMITTEE OF THE REGIONS, EUROPEAN UNION, available at http://extranet.cor.europa.eu/divisionpowers/countries/MembersLP/Belgium/Pages/default.aspx. 193 John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 290 (2004). 194 Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 177 (2010). 195 Michael Keating & Nicola McEwen, DEVOLUTION AND PUBLIC POLICY: A COMPARATIVE PERSPECTIVE 64 (2006). Devolution of Powers in Switzerland and Belgium, July 2013 23
The areas over which regions have power are interpreted broadly. 196 All three regions have powers relating to the economy, employment, agriculture, water policy, housing, public works, energy, transport (except Belgian Railways), the environment, town and country planning, nature conservation, credit, foreign trade, and supervision of the provinces, communes, and inter-communal utility companies. 197
Provincial Level Since the state reform that took place in 1993, the Belgian state also includes ten provinces. 198 The provinces are located within the Walloon and Flemish regions. 199 The provinces are secondary administrations that exercise their powers autonomously, but with some oversight from the relevant community and/or region. 200 Provinces are essentially responsible for everything in their territory that is of provincial interest, including anything which needs to be done in the interests of the province and which does not come under the general interest of the federal state, the communities and regions, or under the communal interest. 201
For instance, the provinces have broad powers in the fields of education and social and cultural infrastructures. 202 The provinces also handle issues related to the environment, highways and waterways, the economy, transportation, public works, housing, [and the] use of official languages. 203
Communal Level The communes, also known as municipalities, are the most local level of government administration. 204 Communes are local units located within and supervised by the three regions. 205 When the Belgian state was created in 1831,
196 The Powers of the Regions, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/regions/competence/. 197 The Powers of the Regions, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/regions/competence/. 198 BELGIAN CONST. art. 5 (1994). 199 BELGIAN CONST. art. 5 (1994). 200 The Powers of the Provinces, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/provinces/competence/. 201 The Powers of the Provinces, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/provinces/competence/. 202 Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 172 (2010). 203 The Powers of the Provinces, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/provinces/competence/. 204 The Communes, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/Communes/. 205 Ellen Wayenberg & Filip De Rynck, Country Profiles: Kingdom of Belgium, UNITED CITIES AND LOCAL GOVERNMENTS, III, available at http://www.cities-localgovernments.org/gold/Upload/country_profile/Belgium.pdf. Devolution of Powers in Switzerland and Belgium, July 2013 24
there were 2,739 communes. 206 Following the amalgamation of communes in 1975, however, their numbers decreased to 589 across the state. 207 The communes hold expansive powers relating to the communal interest, or the collective needs of the public. 208 While the communes are still under the supervision of higher authorities, their powers extend to acting on anything not already prohibited, including constructing a sports centers or building roads. 209 In addition, the communes have purview over aspects of public works, social welfare, maintaining public order, housing, [and] education. 210 Commune responsibilities also include those tasked by higher authorities, such as maintaining the registers for births, deaths, marriages, and population data. 211 Communes operate under regional supervision, and the communities and federal state only have oversight with regard to the fields for which they hold powers. 212
Transfer of Powers to Other Levels
The structure of the Belgian government makes the transfer and assumption of power by the federal authority from the regions and communities very difficult. In fact, such transfer or assumption rarely occurs. The allocation of power between the levels of government in Belgium developed in large part due to friction and distrust between the two primary lingual groups. 213 The strong divide between the French and Dutch-speaking populations has led to the development of a system in which each population holds the ability to govern itself and jealously
206 M. Jean-Francois Huart, Financial Relations Between Regions and Local Authorities in Federal States: the Example of Belgium, in INTERNATIONAL CONFERENCE ON FINANCIAL RELATIONS BETWEEN STATE, REGIONAL AND LOCAL AUTHORITIES IN FEDERAL STATES - PROCEEDINGS, COUNCIL OF EUROPE 41 (Oct. 5-7, 2000). 207 Ellen Wayenberg, Filip De Rynck, Kristof Steyvers, & Jean-Benoit Pilet, Belgium: A Tale of Regional Divergence?, in THE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE 71, 77 (John Loughlin, Frank Hendriks, & Anders Lidstrm eds., 2010). 208 Karolien Pieters, Services Directive: Assessment of Implementation Measures in Member States, National Report for Belgium, 8 (May 2011), available at http://ec.europa.eu/internal_market/services/docs/services-dir/mileu- study/be-national-report-part_I_en.pdf. 209 Karolien Pieters, Services Directive: Assessment of Implementation Measures in Member States, National Report for Belgium, 8 (May 2011), available at http://ec.europa.eu/internal_market/services/docs/services-dir/mileu- study/be-national-report-part_I_en.pdf. 210 Karolien Pieters, Services Directive: Assessment of Implementation Measures in Member States, National Report for Belgium, 8 (May 2011), available at http://ec.europa.eu/internal_market/services/docs/services-dir/mileu- study/be-national-report-part_I_en.pdf. 211 The Powers of the Communes, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/Communes/. 212 The Communes, PORTALBELGIUM.BE, available at http://www.belgium.be/en/about_belgium/government/Communes/. 213 Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 105 (2000). Devolution of Powers in Switzerland and Belgium, July 2013 25
guards that ability from federal encroachment. 214 As the structure of government has evolved, this trend of limiting the federal governments powers has continued. 215 For instance, while the Constitution as amended in 1993 envisioned the regions and communities being responsible for all matters not expressly vested in the federal government, it failed to set forth what powers each branch of government should hold. 216 This allowed the regions to assume a majority of governmental power and resulted in a weakened federal authority. 217
The strength of the regional governments has had the unintended effect of shifting the locus of power, such that the federalization of Belgium has not led to devolution of power to the sub-regional levels, but has further strengthened centralization at the regional level. 218 Through multiple revisions of the constitution, the regions, particularly Flanders and Wallonia vied for greater autonomy. 219 In addition, the compromises that permitted further independence for Flanders and Wallonia, as a way to ensure continued cohesiveness of the larger Belgian state, created a momentum toward more sovereignty. 220 The result has been a continued weakening of the federal authority, greatly exacerbated by the self-containment of the Flemish region and community, the separation of the parties, and the institutional pressure to pull powers down from the [center]. 221
Oversight of Distribution of Powers
The devolution and distribution of power in Belgium is affected through parliamentary action. 222 Under the Belgian Constitution, the parliaments of the French, Flemish and German communities regulate cooperation between the
214 See John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 290 (2004). 215 See Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain, and Belgium, 10 REGIONAL & FEDERAL STUDIES 92, 107-08 (2000). 216 See John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 297 (2004). 217 John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 297 (2004). 218 See John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 302 (2004). 219 Manu Reys, The Low Countries: Belgian Federalisation, available at http://www.dbnl.org/tekst/_low001199301_01/_low001199301_01_0017.php. 220 Michael Keating, Federalism and the Balance of Power in European States, SUPPORT FOR IMPROVEMENT IN GOVERNANCE AND MANAGEMENT (SIGMA), 21 (2007), available at http://www.oecd.org/site/sigma/publicationsdocuments/37890628.pdf. 221 Michael Keating, Federalism and the Balance of Power in European States, SUPPORT FOR IMPROVEMENT IN GOVERNANCE AND MANAGEMENT (SIGMA), 21 (2007), available at http://www.oecd.org/site/sigma/publicationsdocuments/37890628.pdf. 222 Robert Agranoff, Autonomy, Devolution, and Intergovernmental Relations, 14 REGIONAL & FEDERAL STUDIES 26, 32 (2004). Devolution of Powers in Switzerland and Belgium, July 2013 26
communities. 223 In addition, both houses of the federal parliament are equally competent to handle institutional lawmaking and intergovernmental relations. 224
As a result of Belgiums multiple branches of government and parallel geographical and language-based institutions, each region functions somewhat like an independent state that is then loosely governed at the federal level. 225 Due to this fragmented distribution of power, cooperation is necessary to maintain any degree of efficiency in coordinating intergovernmental actions. 226 Because the federal government has no power to encroach on the authority of the regions, the Belgian system relies on intergovernmental agreements (concordats) to function. 227
For instance, as powers were devolved during periods of reform, greater coordination was required between the various levels of authorities in order to ensure that there were no disruptions in services, such as building roads or telecommunications. 228 Failure to coordinate leads to inconsistent outcomes and creates instability at the federal level. 229
Belgium experienced the results of this instability when it was forced to function for approximately one and a half years with only a transitional federal government, as the regions tried to come to an agreement about who would take control at the federal level. 230 Ultimately financial concerns, including the credit- rating downgrade of the country, forced the parties to come to an agreement and to restore a functioning federal authority. 231 During this period however, fully functioning regional governments and the fact that French and Flemish
223 BELGIUM CONST. arts. 127, 130 (1994). 224 BELGIUM CONST. art. 77 (1994). 225 See Robert Agranoff, Autonomy, Devolution, and Intergovernmental Relations, 14 REGIONAL & FEDERAL STUDIES 26, 31 (2004). 226 Johanne Poirier, The Functions of Intergovernmental Agreements: Post Devolution Concordats in a Comparative Perspective, THE CONSTITUTION UNIT, UNIVERSITY COLLEGE LONDON, 10 (Jul. 2001), available at http://www.ucl.ac.uk/spp/publications/unit-publications/75.pdf. 227 See BELGIUM CONST. art. 35 (1994); Sander Happaerts, Simon Schunz, Hans Bruyninckx, Federalism and Intergovernmental Relations, LEUVEN CENTRE FOR GLOBAL GOVERNANCE STUDIES, 6-7 (Jan. 2011), available at http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf. 228 Johanne Poirier, The Functions of Intergovernmental Agreements: Post Devolution Concordats in a Comparative Perspective, THE CONSTITUTION UNIT, UNIVERSITY COLLEGE LONDON, 10-11 (Jul. 2001), available at http://www.ucl.ac.uk/spp/publications/unit-publications/75.pdf. 229 Sander Happaerts, Simon Schunz, & Hans Bruyninckx, Federalism and Intergovernmental Relations, LEUVEN CENTRE FOR GLOBAL GOVERNANCE STUDIES, 6 (Jan. 2011), available at http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf. 230 Belgium Swears in New Government Headed by Elio Di Rupo, BBC, Dec. 6, 2011, available at http://www.bbc.co.uk/news/world-europe-16042750. 231 Belgium Swears in New Government Headed by Elio Di Rupo, BBC, Dec. 6, 2011, available at http://www.bbc.co.uk/news/world-europe-16042750. Devolution of Powers in Switzerland and Belgium, July 2013 27
communities have control over education, culture, and social welfare tasks, meant that local governments were able to continue with their responsibilities. 232
Mechanisms to Resolve Conflicts
Belgium only relatively recently became a federalist state. 233 The mechanisms used to resolve conflicts surrounding the allocation of powers, therefore, are relatively new or still in the process of being formed. 234 The primary mechanism currently used to resolve such conflicts is the Constitutional Court. 235
After Belgium became a federal state in the 1970s, the Court of Arbitration was created to resolve conflicts between federal and regional authorities. 236 The name originally reflected the courts primary function of arbitrating between the federal bodies and regional bodies. 237 However, it created confusion among lawyers, particularly foreign lawyers, who believed the court handled commercial or arbitration cases, and so the name was changed. 238 The jurisdiction of the Constitutional Court originally included the review of rules governing the division of powers of the federal state, the communities, and the regions, and the resolution of resulting disputes. 239 The jurisdiction of the Court has since been extended to include the supervision of the observance of those articles of the constitution guaranteeing the principles of equality and non-discrimination and, since 2003 it has become a full constitutional court, reviewing all laws for compliance with the Constitution. 240
The membership of the Court reflects its role as an arbitrator between groups and is legally designed to maintain a balance between the two major linguistic
232 Lauren de Vos, Belgiums 250 Days Without a National Government, THE GUARDIAN, Feb. 17, 2011, available at http://www.guardian.co.uk/commentisfree/2011/feb/17/belgium-elect-government-split. 233 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 346 (1990). 234 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 346 (1990). 235 BELGIUM CONST. art. 142 (1994). 236 Kris Deschouwer, Kingdom of Belgium, 6, available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_1/BK1-C02-be-Deschouwer-en.pdf. 237 Christoph Maillet, Research Guide to Belgian Law, GLOBALEX (Oct. 2010), available at http://www.nyulawglobal.org/globalex/belgium1.htm. 238 Christoph Maillet, Research Guide to Belgian Law, GLOBALEX (Oct. 2010), available at http://www.nyulawglobal.org/globalex/belgium1.htm. 239 BELGIUM CONST. art. 142 (1994); see Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 93 (2010). 240 See Special Act of Jan. 6 1989 on the Constitutional Court art. 26 (Belgium, 1989), available in English at http://www.const-court.be/en/common/home.html; Christoph Maillet, Research Guide to Belgian Law, GLOBALEX (Oct. 2010), available at http://www.nyulawglobal.org/globalex/belgium1.htm. Devolution of Powers in Switzerland and Belgium, July 2013 28
groups. 241 Its members consist of twelve judges: six French-speaking and six Dutch-speaking. 242 Half of the Courts members must be lawyers of long standing, while the other positions are reserved for former politicians. 243 The judges from the French and Dutch-speaking groups each elect a president or Chief Justice, who presides over the Court for a term of one year. 244 The Court makes its decisions with the understanding that many of the issues are politically sensitive (especially when arbitrating between federal and regional bodies). 245 The Courts deliberations are held in secret and no provision currently provides for the release of concurring or dissenting opinions. 246
The Constitutional Court is not the only mechanism used to resolve conflicts surrounding the allocation of powers. For instance, according to article 143 of the Belgian Constitution, the Senate makes decisions, by means of reasoned opinions, on conflicts of interest which may arise between the assemblies. 247 These conflicts of interests may arise between the federal government, the communities, and the regions. The dispute over the Brussels-Halle-Vilvoorde (BHV) constituency district, which consists of cantons of the Brussels-Capital and Flemish regions, caused the French-speaking community to invoke conflict of interest procedures in 2007. 248 BHV is the only constituency overlapping different regions and language areas, meaning that residents are allowed to vote for Dutch-speaking or French-speaking parties during elections, including during the monolingual Dutch-elections. 249 During a parliamentary vote that would determine if the constituency would be divided between the two communities, the Dutch took advantage of their parliamentary majority for the first time, voting to split up the constituency. 250 The French-speaking community invoked conflict of interest
241 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 355 (1990); BELGIAN CONST. art. 242 Special Act of 6 January 1989 on the Constitutional Court, art. 31 (Belgium, 1989), available in English at http://www.const-court.be/en/common/home.html; Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 355 (1990). 243 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 355 (1990). 244 Special Act of 6 January 1989 on the Constitutional Court, art. 33 (Belgium, 1989), available in English at http://www.const-court.be/en/common/home.html 245 Richard Cullen, Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL 346, 355 (1990). 246 Procedure Before the Constitutional Court, CONSTITUTIONAL COURT OF BELGIUM (May 9, 2007), available at http://www.const-court.be/en/common/home.html. 247 BELGIUM CONST. art. 143 (1994). 248 Brussels Halle-Vilvoorde, RAND-ABC, available at http://www.docu.vlaamserand.be/ned/webpage.asp?WebpageId=598. 249 Caitlin Steffen, Law to Split Brussels-Halle-Vilvoorde District, NEW EUROPE, Jul. 18, 2012, available at http://www.neurope.eu/article/law-split-brussels-halle-vilvoorde-district. 250 Brussels Halle-Vilvoorde, RAND-ABC, available at http://www.docu.vlaamserand.be/ned/webpage.asp?WebpageId=598. Devolution of Powers in Switzerland and Belgium, July 2013 29
procedures, causing the final vote to be postponed. 251 Following the failure of the Consultation Committee to reach a solution, and a second invocation of conflict of interest procedures, the French-speaking community initiated the alarm bell procedure. 252 A solution rested with the Belgian parliament, and in 2012 the parliament acted to split the constituency into two. 253
In addition to the Senate, communities, regions, and federal authorities can resolve conflicts by entering into concordats, or cooperation agreements. Cooperation agreements are the most typical instrument of the cooperative character of Belgian federalism. 254 As mentioned previously, the different levels of government engage in concordats to settle disputes over the distribution of powers. 255 These agreements are constitutionally permitted and regulated, 256 and allow for the development of mutual policies and the joint exercise of competences where cooperation is necessary. 257
Moreover, the Consultation Committee a political institution deals with conflicts of interests of a political nature, like in the case of the BHV dispute. 258
The Consultation Committee consists of the prime minister, five members of the federal government, the president and one member of the Flemish government, the president of the French community government, the president of the government of the Walloon region, and the president and one member of the executive of the Brussels-capital region. 259 The Committee is tasked with finding solutions to conflicts of interest that arise between the federal, regional, and community authorities. 260 Although the Consultation Committee is the only political means for
251 Brussels Halle-Vilvoorde, Rand-abc, available at http://www.docu.vlaamserand.be/ned/webpage.asp?WebpageId=598. 252 Brussels Halle-Vilvoorde, Rand-abc, available at http://www.docu.vlaamserand.be/ned/webpage.asp?WebpageId=598. 253 Caitlin Steffen, Law to Split Brussels-Halle-Vilvoorde District, NEW EUROPE, Jul. 18, 2012, available at http://www.neurope.eu/article/law-split-brussels-halle-vilvoorde-district. 254 Sander Happaerts, Simon Schunz, & Hans Bruyninckx, Federalism and Intergovernmental Relations, LEUVEN CENTRE FOR GLOBAL GOVERNANCE STUDIES, 7 (Jan. 2011), available at http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf. 255 Sander Happaerts, Simon Schunz, Hans Bruyninckx, Federalism and Intergovernmental Relations, LEUVEN CENTRE FOR GLOBAL GOVERNANCE STUDIES 7, available at http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf. 256 BELGIUM CONST. arts. 127, 128, 130 (1994). 257 Sander Happaerts, Simon Schunz, & Hans Bruyninckx, Federalism and Intergovernmental Relations, LEUVEN CENTRE FOR GLOBAL GOVERNANCE STUDIES, 7 (Jan. 2011), available at http://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf. 258 BELGIUM CONST. art. 82 (1994); Van Bael and Bellis, BUSINESS LAW GUIDE TO BELGIUM 18 (2003). 259 Van Bael and Bellis, BUSINESS LAW GUIDE TO BELGIUM 18 (2003). 260 Van Bael and Bellis, BUSINESS LAW GUIDE TO BELGIUM 18 (2003). Devolution of Powers in Switzerland and Belgium, July 2013 30
resolving conflicts of interest, it is rarely utilized. 261 Instead the prime minister regularly meets with the presidents of the regional authorities to address such conflicts. 262 The Consultation Committee also has the responsibility of reviewing incidents where competences have been exceeded, as alleged by the Council of State, as well as issuing an opinion and identifying relevant government actors to take possible action. 263
Conclusion
Both the Swiss and Belgian Constitutions devolve substantial power to sub- national levels of government. Switzerlands state structure is the result of an evolving constitutional order that carefully balances local autonomy with strictly necessary federal power. The division of powers within the Belgian state is based on a system of exclusive competences, which involves an exhaustive demarcation of issue areas. Both states employ coordination mechanisms to guarantee that each level of government respects assigned powers and to prevent disputes through cooperation. In addition, both states have dispute resolution mechanisms to resolve questions of distribution of powers.
261 John Kincaid & George Alan Tarr, CONSTITUTIONAL ORIGINAL, STRUCTURE, AND CHANGE IN FEDERAL COUNTRIES 58 (2006). 262 John Kincaid & George Alan Tarr, CONSTITUTIONAL ORIGINAL, STRUCTURE, AND CHANGE IN FEDERAL COUNTRIES 58 (2006). 263 Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 172 (2010).