Legislative procedure (Belgium)

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The Palace of the Nation , seat of the federal parliament

The legislative procedure in Belgium takes different forms, depending on whether it is a “law” of the federal parliament or a “decree” of the communities and regions or an “orderly” of the Brussels-Capital Region . If a law is passed by the federal parliament, i.e. by the Chamber of Deputies and possibly the Senate , three different legislative procedures are possible. All laws, decrees and ordinances are subject to constitutional control by the Constitutional Court .

Federal legislative process

General

The legislative legal texts of the federal parliament are called "laws". When looking at the attendance and majority conditions (" quorum "), a distinction must be made between two types of federal laws:

  • Ordinary laws : these are the laws passed by the federal parliament with an absolute majority (50% +1) of the votes cast, with a majority of parliamentarians (50% + 1, i.e. 76 MPs or 38 senators) present. In the event of a tie, the proposed proposal is rejected. The chamber in which these conditions must be met depends on the parliamentary procedure (see below).
  • Special laws : These are laws that organize the federal structure of the Belgian state within the constitutional framework. Special laws are only voted on if the constitution so provides. Since these special laws the delicate balance between Flemings and Walloons of the majority of the two language groups, a case of a special law must, in addition to a presence: to change, particularly strict majority conditions are provided two-thirds majority in total and an absolute majority in both language groups in both chambers are achieved.

If the federal parliament acts in its capacity as a constitution-maker and wants to amend or renumber the constitution, special rules also apply.

Depending on how you want to submit a law, you make the following difference:

  • Draft law : This is submitted by the government in one of the two chambers. The draft is preceded by a preliminary draft drawn up by the government and for which a non-binding opinion has been obtained from the legislative department of the Council of State . On the basis of this expert opinion, the preliminary draft will be adjusted if necessary.
  • Proposed law : This is submitted by a parliamentarian in one of the two chambers. This does not necessarily require an opinion from the Council of State, but the President of the Chamber (Chamber of Deputies or Senate) can request such an opinion at any time during the parliamentary procedure. The President is obliged to request this opinion if a third of the parliamentarians or the majority of a language group so request. If a legislative proposal has been approved by the first chamber in a two-chamber procedure, it also becomes a draft law.

The legislative procedures in the federal parliament are - with the exception of the unicameral procedure - the same for the Chamber of Deputies and the Senate . The constitution stipulates exactly in which cases this or that procedure must be used. Each bill or proposal mentions in its first article which procedure is applicable. However, it is also possible that so-called “mixed procedures” occur, since a draft or proposal contains articles that have to be passed using different procedures. These texts are then submitted in two drafts.

The unicameral process

The unicameral procedure is only possible in the Chamber of Deputies . The Senate is not involved in the procedure. It is the simplest parliamentary procedure.

This procedure can only be used in the cases exhaustively listed in Article 74 of the Constitution:

The procedure is as follows:

  1. Initiative : The legislative initiative can only be made by the government (draft law) or by a member of parliament (legislative proposal) (see above).
  2. Deposit : The draft or proposal is deposited in the Chamber of Deputies. In the case of a draft law, a general justification and a comment on the articles, as well as a copy of the non-binding opinion of the legislative department of the Council of State, are submitted. All texts are printed and distributed in Dutch and French . A draft law is deposited with the President of the Chamber. In order to deposit a legislative proposal, the Member submitting the text must first ask the Chamber of Deputies to consider the proposal; this may already lead to a vote.
  3. Consultation (committee) : First, the responsible committee deals with the text. The committee is made up of members from the majority and the opposition. If it is a draft law, the responsible minister in the committee , possibly accompanied by a cabinet member or an official , gives explanations of the draft. This draft is then discussed by the committee members first in general and then by article. If necessary, amendments are submitted by the government or parliamentarians. In the end, the committee votes on the draft or proposal. These committee meetings are usually public. For each committee meeting, a report is drawn up by a member of parliament who has been trusted by his colleagues as rapporteur. This report will be sent to all Members after the vote.
  4. Consultation (plenary) : After the committee, the text is discussed by the “ plenary ”. The starting point is the report from the committee. There is first a general discussion, then an article-by-article discussion. Here too, suggestions for amendments can be received. In the end, the plenary first votes on each individual article and then on the entire text. This voting has been done electronically since 1955.
  5. King : The king first "sanctions" the law, which means that he - as part of legislative power - shows that he agrees with it. There is no deadline for this. Usually this is just a formality, but if the king refuses to sign the text it is the responsibility of the government . Then the law is "executed" by the king, which means that he - as part of the executive power - takes note of the existence of this law and orders its implementation. Both stages take place at the same time, with the King and at least one of his ministers signing the text approved by both chambers.
  6. State Gazette : The law is published in the “ Belgian State Gazette ” in Dutch and French . Occasionally, federal laws are also published in German . Unless the law provides otherwise (e.g. through a delayed or retroactive provision), the law comes into force on the tenth day after its publication.

The mandatory two-chamber procedure

In the mandatory two-chamber procedure, a draft or proposal has to be passed by both the Chamber of Deputies and the Senate .

Before the 1993 reform of the state, all laws were passed this way, but today this procedure only applies to the cases provided for in Article 77 of the Constitution:

The procedure for passing a law in the mandatory two-chamber procedure can be summarized in eight steps (more details for the first three and the last two points are described in the section on the single-chamber procedure):

  1. Initiative : The legislative initiative can be made by the government (draft law), a member of parliament or a senator (both proposed bills).
  2. Deposit : The draft or proposal is deposited either in the Chamber of Deputies or in the Senate. However, if this draft or proposal concerns approval of an international treaty , it is automatically deposited in the Senate.
  3. Consultation (first chamber) : The draft or proposal is discussed in the chamber in which it was submitted (Chamber of Deputies or Senate). First, the committee responsible looks at the text and proposes amendments if necessary; the committee then votes on the draft or proposal. Then the text will be discussed in plenary . Suggestions for amendments can also be received here. At the end, the plenary votes on the text.
  4. Forwarding : If the text has been "adopted" in the first chamber (that is, it meets the necessary attendance and majority conditions), it is forwarded to the second chamber (Senate or Chamber of Deputies). If it was a legislative proposal, it will from now on also be referred to as the “draft law”.
  5. Consultation (second chamber) : The draft is discussed in the second chamber. First, the committee responsible looks at the text and proposes amendments if necessary; the committee then votes on the draft. Then the text will be discussed in plenary . Suggestions for amendments can also be received here. At the end, the plenary votes on the text.
  6. Return (possibly) : This step is optional. If the second chamber has changed the text sent by the first chamber, it is sent back to the first chamber. The first house can either approve the amendments and vote again on the text, or reject the amendments or propose other amendments. In this latter case, steps 3 to 5 are repeated until both chambers have passed the same text.
  7. King : The king "sanctions the law" and "executes it" by signing the text passed by both chambers and at least one of his ministers .
  8. State Gazette : The law is published in the “ Belgian State Gazette ”. Unless the law provides otherwise (e.g. through a delayed or retroactive provision), it comes into force on the tenth day after its publication.

The non-mandatory two-chamber procedure

In the case of the non-compulsory (or “optional”) two-chamber procedure, the Chamber of Deputies decides while the Senate “only” takes on the role of an “advisory and deliberation chamber ”. The Senate can “accept” (that is, discuss and vote) bills or proposals from the Chamber within a certain period and suggest amendments. The Chamber of Deputies always has the final say.

The non-binding bicameral procedure mentioned in Article 78 of the Constitution has been the standard procedure for passing laws since the state reform of 1993. It takes effect every time the constitution neither provides for a one-chamber nor a mandatory two-chamber procedure (see above). It is therefore the most widely used procedure for passing federal legislative texts.

The procedure for passing a law in the non-binding two-chamber procedure can be summarized in eleven steps (more details for the first three and the last two points are described in the section on the single-chamber procedure):

  1. Initiative : As a rule, the legislative initiative comes from the government (draft law) or from a member of parliament. Sometimes the initiative comes from a senator anyway (see below).
  2. Deposit : The draft or proposal is deposited in the Chamber of Deputies. At this point, the government can request urgency for its draft, which will shorten the Senate acceptance period.
  3. First consultation : the draft or proposal is debated in the Chamber of Deputies for the first time. First, the committee responsible looks at the text and proposes amendments if necessary; the committee then votes on the draft or proposal. Then the text will be discussed in plenary . Suggestions for amendments can also be received here. At the end, the plenary votes on the text.
  4. Forwarding : The senators must decide within 15 days whether or not they want to “accept” the forwarded bill. This period is 7 days if urgency has been requested. At least 15 senators must approve the request. If the draft is not accepted, the text of the law can be sanctioned and executed immediately by the king (see step 10).
  5. Consultation (Senate) : The Senate has 60 days to discuss the requested draft law. First, the committee responsible looks at the text and proposes amendments if necessary; the committee then votes on the draft. Then the text will be discussed in plenary . Suggestions for amendments can also be received here. At the end, the plenary votes on the text. If the Senate allows the 60-day period to elapse or if it comes to the conclusion that no amendment to the draft is necessary, this draft is submitted by the Chamber to the King , who sanctions and executes it (see step 10).
  6. Return : If the Senate has changed the draft, it is sent back to the Chamber of Deputies.
  7. Second discussion : The draft, as amended by the Senate, is being discussed in the Chamber of Deputies for the second time. This can then (1) approve the amendments proposed by the Senate (in this case the draft is submitted to the King, who sanctions and executes it; see step 10), (2) completely overrides the amendments proposed by the Senate by means of "counter-amendments" and converts the draft into restore its original form (in this case the draft is also submitted to the king, who sanctions it and executes it; see step 10) or (3) introduce new, own amendments and thus write a new draft (in this case the draft becomes the second Times transmitted to the Senate);
  8. Second consultation (Senate) : The Senate has a period of 15 days to discuss the amendments proposed by the Chamber of Deputies and the new draft and, if necessary, to propose new, own amendments. If the Senate lets the 15-day period elapse or if it comes to the conclusion that no amendment to the draft is necessary, this draft is submitted by the Chamber to the King, who sanctions and executes it (see step 10).
  9. Final consultation : If the Senate has again submitted its own amendments, the draft will be discussed for the last and final time by the Chamber of Deputies within a period of 15 days.
  10. King : The king "sanctions the law" and "executes it" by signing the text passed by both chambers and at least one of his ministers .
  11. State Gazette : The law is published in the “ Belgian State Gazette ”. Unless the law provides otherwise (e.g. through a delayed or retroactive provision), it comes into force on the tenth day after its publication.

A senator can also - even if this happens less often - submit a legislative proposal in the non-binding two-chamber procedure. As in the mandatory two-chamber procedure, the proposal is submitted to the Senate. This then advises on the proposal, votes on it and forwards it to the Chamber of Deputies. It approves or rejects the proposal that has become a draft within 60 days. If the Chamber proposes amendments, these are submitted to the Senate, which deliberates on them. If the Senate also proposes new amendments, these are in turn discussed in the Chamber of Deputies and they are definitively approved or rejected. Here, too, the Chamber has the last word. Then the text of the law is sanctioned and executed by the king (step 10).

The parliamentary consultation committee

Any problems of jurisdiction that arise between the two chambers ( Chamber of Deputies and Senate ) are regulated in a "parliamentary consultation committee" according to Article 82 of the Constitution. This consists of as many members of the Chamber of Deputies as the Senate and examines whether this or that legislative proposal or draft can actually be adopted with the proposed procedure. The committee can, by mutual agreement, extend the deadlines set for the non-binding two-chamber procedure. All other decisions are made by a simple majority in both groups of representatives or, if not otherwise possible, by a two-thirds majority in total.

Procedures in the communities and regions

The legislative legal texts of the Flemish Community , the French Community , the German-speaking Community , the Flemish Region and the Walloon Region are called "decrees". The legislative texts of the Brussels-Capital Region are called "Ordonnances".

In the hierarchy of norms , laws and decrees are to be equated. In principle, orderlies have the same value. However, they differ significantly from the decrees in that they are subject to the control of the ordinary courts and tribunals, which may refuse to apply an orderly if it violates the provisions of the special law on the Brussels institutions. Normally, this power of the judicial power is limited only to decrees and orders (of the executive branch). The ordinary courts and tribunals control the constitutionality of the ordinances "parallel" to the Constitutional Court , which can annul all laws, decrees and ordinances because they are unconstitutional (see below).

The parliaments of the above-mentioned member states all consist of only one chamber . In principle, mutatis mutandis, the same procedure is used in the communities and regions as the federal unicameral procedure of the Chamber of Deputies (see above). However, deviations are possible because, on the one hand, each parliament adopts its own rules of procedure and, on the other hand, the member states, with the exception of the German-speaking Community and the Brussels-Capital Region, have "constitutive autonomy", which allows them to make fundamental decisions about their own organization .

In application of Art. 137 of the Constitution, the Parliament of the Flemish Community and the Parliament of the Flemish Region have in fact been merged into a single parliament, the " Flemish Parliament ". Since the Flemish Community MEPs elected in the bilingual Brussels-Capital area are not allowed to vote on regional issues, each Flemish decree must indicate whether it relates to a Community or a regional competence.

In principle, the adoption of decrees and ordinances requires an absolute majority . In certain cases, however, the constitution requires the adoption of a “special decree”, which then requires a two-thirds majority in the respective parliament. This applies in the following cases:

  • When a community wishes to delegate certain powers to an educational institution ;
  • When a decree or ordinance provides for certain conditions for the creation of “inter-communal territorial bodies”;
  • If a community or a region, with the exception of the German-speaking Community and the Brussels-Capital Region, wants to make certain decisions about its own organization by virtue of its constitutive autonomy;
  • If the French Community of the Walloon Region in the French-speaking area and the French Community Commission (COCOF) in the bilingual area of ​​Brussels-Capital want to delegate the exercise of certain powers.

The decrees and ordinances are published in Dutch and French . Exceptions to this are the German-speaking Community and the Walloon Region, which must also publish their decrees in German .

Control by the Constitutional Court

Once a law, decree or order comes into force, it is part of the Belgian legal system . Nevertheless, it does not make this incontestable.

The Constitutional Court can review all legal texts with a legislative character (laws, decrees and ordinances) for conformity with the constitution. This control can take place on two levels:

  • Distribution of competences : The Constitutional Court checks whether the legislation respects the rules on the distribution of competences within the Belgian federal state. These rules can be found in the constitution itself, but also in the special laws on institutional reforms.
  • Fundamental rights : The Constitutional Court can also check the conformity of the various legislative legal texts with the fundamental rights and freedoms set out in Title II of the Constitution and in Articles 170, 172 and 191 of the same. Special mention should be made of the scrutiny of legislation in view of Articles 10 and 11 of the Constitution (prohibition of discrimination ), which the Constitutional Court has given an extremely broad interpretation since its inception (then called the “Arbitration Court”). The conformity of the legislation with the European Convention on Human Rights and the International Covenant on Civil and Political Rights can also be checked.

There are two ways in which the Constitutional Court can be stopped to check whether it is in conformity with the constitution; by an action for annulment submitted to him, or by a “prejudicial question” from a judicial body.

Nullity action

An action for annulment can be brought by the governments and parliaments of the federal state and the member states as well as by natural or legal persons, private or public. However, the latter must be able to demonstrate an "interest". The complaint must be filed within six months of the publication of the legal norm in the State Gazette.

If the Constitutional Court considers a law, a decree or an order to be unconstitutional, the legal text is declared null and void. As a result, the norm (or some of its provisions) will disappear from the Belgian legal system as soon as the judgment is published in the Council of State. This is usually done with retroactive effect , although the Constitutional Court can provide for exceptions.

Prejudicial question

The "preliminary question" is a process that the ordinary courts and tribunals and the Court of Cassation and the State Council has the opportunity (or, if necessary, forcing) in emerging questions about the constitutionality of certain rule texts in casu must be applied to Constitutional Court to question. The Constitutional Court then gives a binding interpretation of the constitution and decides whether or not the legislation in question in the interpretation proposed by the questioning judge (“ a quo ” judge) violates the constitution. The procedure is thus comparable to the European preliminary ruling procedure , in which the European Court of Justice provides the “correct” interpretation of EU law when asked by a national court .

If such a prejudicial question is asked, the proceedings before the questioning judge are suspended until the Constitutional Court has answered. If the Constitutional Court declares that the law, decree or ordinance in the proposed interpretation is unconstitutional, then the judge must disregard this norm in the further course of the judicial process. This also applies to all appeal proceedings in the same matter and to other disputes that show the same starting point. However, the legal text itself remains and does not disappear from the legal system. After the judgment has been announced, however, a six-month period starts in which an action for annulment against the legal norm can be filed (see above).

See also

literature

  • Delpérée F., Depré S., Le système constitutionnel de la Belgique , Brussels, Larcier, 2000, nos. 344-350.
  • Depré S., Renders D., “Le partage des compétences législatives entre les assemblées fédérales”, Ann. dr. Louvain , 1996, pp. 331-356.
  • Pâques M., Droit public élémentaire en quinze leçons , Coll. fac. droit de l'ULg, Brussels, Larcier, 2005, nos. 208-215.
  • Van der Hulst M., “De parlementaire overlegcommissie”, TBP , 1995, pp. 351-369.
  • Van der Hulst M., “De nieuwe wetgevingsprocedures in de practice: over mengen en splitsen”, TBP , 1997, pp. 589–597.

Web links

Individual evidence

  1. ↑ Article 53 of the Constitution
  2. ↑ Art. 4, last paragraph of the Constitution
  3. ↑ Article 195 of the Constitution
  4. ↑ Art. 98 u. 99 of the Rules of Procedure of the Chamber of Deputies
  5. ↑ Art. 83 of the Constitution and Art. 71 of the Rules of Procedure of the Chamber of Deputies
  6. ↑ Art. 121 of the Rules of Procedure of the Chamber of Deputies
  7. ↑ Art. 106 ff. Of the Chamber of Deputies' rules of procedure
  8. ↑ Art. 74 of the Rules of Procedure of the Chamber of Deputies and Art. 2 of the Act of May 31, 1961 on the use of languages ​​in legislative matters, the design, publication and entry into force of legal and ordinance texts
  9. ↑ Article 75 of the House of Representatives' rules of procedure
  10. ↑ Art. 77 ff. Of the Chamber of Deputies' rules of procedure
  11. ↑ Art. 85 ff. Of the Rules of Procedure of the Chamber of Deputies
  12. ↑ Art. 109 and 106 of the Constitution
  13. ↑ Art. 1 of the law of May 31, 1961 on the use of languages ​​in legislative matters, the design, publication and entry into force of legal and ordinance texts
  14. ↑ The State Gazette appears every working day and can be read on the website of the FPS Justice .
  15. ↑ Art. 75, Para. 3 of the Constitution
  16. ↑ Art. 78, 79 and 80 of the Constitution
  17. ↑ Article 81 of the Constitution
  18. ↑ Art. 9, para. 1 of the special law of January 12, 1989 on the Brussels institutions
  19. ^ Article 159 of the Constitution
  20. ↑ Art. 32 ff. Of the special law of August 8, 1980 on institutional reforms
  21. ↑ Article 44 of the special law of August 8, 1980 on institutional reforms
  22. ↑ Art. 53 of the Rules of Procedure of the Flemish Parliament
  23. ↑ Art. 24, § 2 of the Constitution
  24. ↑ Art. 41, Para. 4 of the Constitution
  25. ↑ Art. 68, § 3, Paragraph 2, Art. 118, § 2 and Art. 123, § 2 of the Constitution
  26. ↑ Art. 138, Para. 2 of the Constitution
  27. ↑ Art. 55 of the special law of August 8, 1980 on institutional reforms
  28. ↑ Art. 142, Para. 2, 1 ° of the Constitution
  29. ↑ See u. a. Art. 35, Art. 127 to 130 and Art. 134 of the Constitution, Art. 5 u. 6 of the special law of August 8, 1980, as well as the pertinent provisions in the law of December 31, 1983 on institutional reforms for the German-speaking community and in the special law of January 12, 1989 on the Brussels institutions
  30. ↑ Art. 142, Para. 2, 2 ° and Art. 1, 2 ° of the special law of January 6, 1989 on the Court of Arbitration
  31. ↑ Art. 1 ff. Of the special law of January 6, 1989 on the Court of Arbitration
  32. ↑ Art. 26 ff. Of the Special Act of January 6, 1989 on the Court of Arbitration
  33. ↑ Art. 9 ff. Of the Special Act of January 6, 1989 on the Court of Arbitration
  34. ↑ Article 28 of the Special Act of January 6, 1989 on the Court of Arbitration