Special Law (Belgium)

In Belgium, special laws or laws with a special majority are those laws that require special majority conditions in the legislative procedure in the federal parliament (two thirds in total and simple majority in each language group). Special laws are only passed if this is expressly provided for in the constitution . The cases in which the Belgian state structure is to be changed in the broadest sense are mostly affected .

In Belgian federalism, for example, the main features of the federal system are enshrined in the constitution itself, while the details relating to the institutions, responsibilities and funding of the member states are laid down in a series of special laws. Even if the special laws are not part of the constitution in the formal sense, they are part of the constitution in the “material” sense.

origin

Before the special laws were created, the qualified majority mechanism already existed in Belgian law. For example, since 1831 constitutional amendments have to be passed by a two-thirds majority (see below). Even when universal suffrage for men was inscribed in the constitution in 1920 , it stipulated that this suffrage could be extended to women by an ordinary law with a two-thirds majority (and not by a new constitutional amendment). One such law was passed on March 27, 1948.

The special laws were introduced during the first state reform (1968 to 1971). According to former Prime Minister Gaston Eyskens, the procedure for passing the special laws had the following origins: For the application laws of the state reform (the future special laws), the Catholic - Socialist government originally proposed that laws be introduced that required a simple majority in both language groups would (without an additional two-thirds majority). To make this system applicable, however, the constitution had to be amended first. As is well known, this required a two-thirds majority, which the coalition of the time did not have. So the Liberals were asked to agree to this system too. The majority offer was not innocent, because if the Liberals had given their consent, the implementing laws would have been passed without them (the coalition had a simple majority in both language groups). However, since the Liberals wanted to secure a further say, they only gave their consent to the constitutional amendment on the condition that a two-thirds majority was required in addition to the simple majority in both language groups for the special law procedure . The special legislative procedure in its present form was born through this compromise.

Special legislative procedure

→ Main article : Legislative procedure (Belgium)

Special laws are passed by the Federal Parliament according to the forced bicameral procedure. This means that both the Chamber of Deputies and the Senate have to vote on the draft. Each of the two houses has the right to table amendments, and only when both houses have approved the same (or rather identical) draft can the legal text be presented to the king. As long as this is not the case, the draft circulates from one chamber to the other.

The passing of a special law differs from ordinary laws, which are subject to the forced two-chamber procedure, in that it requires special attendance and majority conditions in both chambers. Indeed, in this case the Constitution provides for a majority not only at the level of the entire Chamber, but also at the level of the language groups ( Dutch and French ), into which both the Chamber of Deputies and the Senate are divided. For the Senate, the size of the language groups is specified in the constitution; in the Chamber of Deputies, the ratio can vary based on the real population figures at the beginning of the legislative period .

• Quorum : at least a simple majority (half plus 1) in each language group.
  • Chamber of Deputies :
    • Dutch language group: at least 45 MPs (currently)
    • French language group: at least 32 MPs (currently)
  • Senate :
    • Dutch language group: at least 21 MPs
    • French language group: at least 15 MPs
• Majority : at least two thirds of the votes cast in total and a simple majority (half plus 1) in each language group.
  • Chamber of Deputies : at least 101 votes in total
    • Dutch language group: at least 45 voices (currently)
    • French language group: at least 32 voices (currently)
  • Senate : at least 48 votes in total
    • Dutch language group: at least 21 voices
    • French language group: at least 15 voices

It is interesting to note that these majority requirements are stricter than those needed to revise the constitution. In fact, as already mentioned, a simple two-thirds majority is sufficient for a constitutional revision , without a particular majority in the language groups. On the other hand, with a constitutional revision, new elections between the declaration of the revision and the effective constitutional amendment must take place, which is not the case with special laws.

The situation of the only senator in the German-speaking community deserves special attention. According to the constitution, this does not belong to either of the two language groups in the Senate. His vote counts neither in the quorum, where only a majority is required in the language groups, nor in the majority in the language groups. The question that arose in 2001 was whether or not his vote counted for at least the two-thirds of the total. The constitution says literally: "(...) insofar as the total number of yes votes from both language groups reaches two thirds of the votes cast". A text-specific interpretation would mean that the voice of the German-speaking senator is not included in the calculation here either. Thus, he would have absolutely no influence on the vote on special laws. However, the majority in the Senate at the time did not follow this interpretation and used the Senator's vote both in calculating the quorum and in calculating the two-thirds majority in the Senate. This approach was challenged by the opposition before the Constitutional Court (former arbitration court), but the latter ruled that this question “in principle” does not fall within its jurisdiction. The question of the legality of this calculation therefore remains unanswered. This unfavorable situation for the only German-speaking senator was criticized by constitutional lawyers.

It should also be mentioned that the Flemish Region , the Flemish Community , the French Community and the Walloon Region have had what is known as “constitutive autonomy” since the fourth state reform in 1993 and the German-speaking community since the sixth state reform in 2014. This means that these local authorities can deviate from certain provisions of the special laws in order to shape parts of their internal organization (such as the election of parliaments and the composition and functioning of parliaments and governments) themselves under certain conditions. For this, the adoption of so-called "special decrees" is necessary, i. H. Decrees that were adopted by a two-thirds majority.

Applications

A special law is only passed if the constitution expressly provides for it. The Constitutional Court can check whether this condition has been met.

Existing special laws

There have been numerous special laws and amendments to special laws since their creation. Four of them deserve special mention.

Institutional reform

The best-known special law in Belgium is the special law of August 8, 1980 on institutional reform, which in the second state reform (1980) brought the regions into being and transformed the cultural communities into communities . Even if the competences of the member states have expanded considerably since 1980, this law represents an important step in the direction of the “federal state of Belgium”. The special law of August 8, 1980 has been amended around 35 times to date.

It is noteworthy that this special law does not mention either the German-speaking Community or the Brussels-Capital Region . The latter is regulated in a special law of 1989 (see below). As far as the German-speaking community is concerned, the constitution does not provide for the passing of a special law, but that of a simple law. Therefore, the German-speaking Community was brought into being by an ordinary law of December 31, 1983.

Brussels institutions

In the special case of Brussels , no compromise could be found in the second state reform in 1980. Indeed, since the language laws of the 1960s it has not been easy to find a new balance between the Flemings, who, despite the ongoing " Frenchization ", viewed Brussels as a Flemish city, and the Francophones, who focus on the predominant use of the French language in the capital in order to want to turn it into a region of its own. It was not until the third state reform that it was possible to negotiate separate legislation for the bilingual area of ​​Brussels-Capital.

The special law of January 12, 1989 takes over the most important content from the special law of 1980, but also contains numerous special features typical of Brussels.

Funding of the member states

The creation of communities and regions and the exercise of the responsibilities entrusted to them with and with involve financial transfers. The member states must be given financial resources to shape their policies and pay their officials. The sensitive issue of the division of financial resources between the federal state, communities and regions is recorded in a special law of 16 January 1989 on the financing of communities and regions.

The financing of the German-speaking Community is not regulated in a special law, but in the ordinary law of December 31, 1983 (see above). However, reference is made in various places to the special law relating to the financing of communities and regions.

Constitutional Court

The Constitutional Court was brought into being by a constitutional amendment in 1980 under the name "Arbitration Court". The other modalities were initially regulated in an ordinary law of June 28, 1983. After the third reform of the state, in which the competences of the court were expanded, the special legislature had to intervene, so that today the special law of January 6, 1989 on the Constitutional Court is the basic law.

Pending special laws

Not in all cases in which the constitution provides for the intervention of the special legislature, the latter has actually taken action (partly also because these are politically extremely sensitive).

Above all, Article 35 of the Constitution should be mentioned here. Since the fourth state reform of 1993, this article has stipulated who receives the so-called “residual competence” in Belgian federalism , i. H. who has all those responsibilities that have not been expressly assigned to a local authority. At the moment, this remaining competence belongs to the federal state, while the communities and regions only have those competences that the special laws (especially the special law of August 8, 1980) expressly assign to them. However, the same Article 35 provides that the communities or the regions (who exactly is not specified) can take over this residual competence if, on the one hand, the powers of the federal state are listed in detail in the constitution and, on the other hand, the relevant conditions and modalities are laid down in a special law become. However, such a special law has not yet been passed.

Even with the language legislation little activity can be observed the special legislature. For example, the possibility of moving the language border that had existed since the “Gilson Laws” from 1962 to 1963, which was “concreted” into the constitution during the first state reform, has never been used.

See also

• Political system of Belgium
• Legislative procedure in Belgium

Web links

• The Belgian Constitution (Eng.)
• Justel - The electronic legal database of the FPS Justice in Dutch or French language

Individual evidence

1. ↑ M. Uyttendaele : Précis de Droit constitutionnel Belge. Regards sur un systemic institutional paradox . Brussels, Bruylant 1997, p. 100.
2. ↑ Article 195 of the Constitution.
3. ↑ Former Art. 47, para. 3 of the 1831 Constitution.
4. ^ Gaston Eyskens : De Memoires . Tielt, Lannoo 1993, ISBN 978-90-209-2263-9 , p. 832.
5. ↑ Art. 4, last paragraph of the Constitution.
6. ↑ Art. 43, §2 of the constitution.
7. ↑ This interpretation was probably favored by the fact that the then German-speaking senator belonged to a majority party and that - if his vote had not been included - the entire fifth state reform in the Senate would have been overturned.
8. ^ Judgment of the Court of Arbitration of March 25, 2003, No. 35/2003, point B.2.2; the judgment can be viewed on the website of the Constitutional Court in Dutch ( Memento of the original dated August 29, 2005 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , French ( Memento of the original from November 7, 2005 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. and German ( Memento of the original from October 31, 2005 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Language.   
9. ↑ For a critical consideration of this judgment: CIRC (Center interdisciplinaire de recherches en droit constitutionnel des Facultés universitaires Saint-Louis), "La Cour d'arbitrage et Saint-Polycarpe: un brevet de constitutionnalité mal motivé", Journal des Tribunaux , 2003, especially p. 522; H. Vuye, C. Desmecht, K. Stangherlin, “La cinquième réforme de l'Etat devant ses juges”, Revue de jurisprudence de Liège, Mons et Bruxelles , 2003, p. 738.
10. ↑ Intervention by Prof. Simonart in Welkeherrorming voor de Senaat? Suggesties van Achttien grondwetsspecialisten / Quelles réformes pour le Sénat? Suggestions de dix-huit constitutionnalistes (Brussels, November 12, 2001), p. 17 ff .; the report can be viewed on the official website (PDF; 394 kB) of the Senate.
11. ^ The institutional development. In: www.dglive.be. Retrieved April 15, 2016 . 
12. ↑ This is not the case for the German-speaking Community and the Brussels-Capital Region.
13. ↑ Articles 118 and 123 of the Constitution.
14. ↑ The articles of the constitution concerned are: Art. 4, last paragraph; Art. 35, Paragraph 2; Art. 39; Art. 41, Paragraph 3; Art. 68, § 3, Paragraph 2; Art. 77, Paragraph 2; Art. 115 § 1; Art. 117, Paragraph 2; Art. 118, §§ 1 u. 2; Art. 121, § 1; Art. 123, §§ 1 u. 2; Art. 125, last paragraph; Art. 127, Section 1, Paragraph 2; Art. 128, §§ 1 u. 2; Art. 129, § 2; Art. 135; Art. 136, Paragraph 1; Art. 137; Art. 142, last paragraph; Art. 143, §§ 2 u. 3; Art. 151, § 3, last paragraph; Art. 162, para. 3 and 4; Art. 163, para. 2; Art. 166, § 2; Art. 167, §§ 4 u. 5; Art. 169; Art. 175, Paragraph 1; Art. 177, Paragraph 1; Art. 178; Transitional provision VI, § 3.
15. ↑ See u. a. Judgment of the Court of Arbitration of May 23, 1990, No. 18/90, point B.16.2; the judgment can be viewed on the website of the Constitutional Court in Dutch ( Memento of the original from November 17, 2005 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , French ( Memento of the original from November 13, 2005 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. and German  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. Language.    
16. ↑ The other special laws are, for example, international relations between communities and regions (special law of May 5, 1993) or electoral legislation (restriction of the number of mandates, representation of both sexes on electoral lists, etc.).
17. ↑ Law of December 31, 1983 reforming the institutions for the German-speaking community.
18. ↑ Nonetheless, this law makes extensive reference to the special law of August 8, 1980, so that the rules of the special law are ultimately also applicable to the German-speaking community.
19. ↑ Actually, Article 35 of the constitution provides that the remaining powers already belong to the communities or regions. However, due to a transitional provision, the article has not yet entered into force in this form.