Devolution of Powers in Switzerland and Belgium

DEVOLUTION OF POWERS IN
SWITZERLAND AND BELGIUM

Legal Memorandum

July 2013

DEVOLUTION OF POWERS IN SWITZERLAND AND BELGIUM

Executive Summary

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

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.
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
3
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
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,
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
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
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
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.
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
21
SWITZERLAND CONST. arts. 3, 42, 43, 46 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.
22
(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
25
SWITZERLAND CONST. art. 3 (1999).
26
27
28
29
SWITZERLAND CONST. arts. 149-150 (1999).
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
34
35
SWITZERLAND CONST. art. 148(1) (1999).
36
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/.
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
42
43
SWITZERLAND CONST. arts. 191b (1999).
44
SWITZERLAND CONST. arts. 188-89 (1999).
45
46
47
The Federal Chancery, A Brief Guide (2012), THE SWISS CONFEDERATION, 14, available at
48
SWITZERLAND CONST. arts. 46, 50, 51, 62, 69, 70, 72, 76(4), 80(3) (1999).
49
SWITZERLAND CONST. arts. 51, 57, 74 (1999).
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
51
52
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
55
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.
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
58
SWITZERLAND CONST. arts. 62, 69-70, 72, 76, 78, 80 (1999).
59
60
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
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.
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
FEDERALS 51, 63 (2009).
66
eds., 2010),
67
68
69
eds., 2010).
70
eds., 2010).
71
eds., 2010).
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
74
75
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.
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
81
Perspective of the Cantons, 5 FEDERATIONS 23, 23-24 (2006), available at
82
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
86
87
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
89
90
SWITZERLAND CONST. arts. 140, 141 (1999).
91
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.
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
99
100
101
102
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
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
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
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
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.
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
121
122
Daniel Bochsler, Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5-6,
123
124
125
126
127
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
129
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
133
FEDERALS 51, 60 (2009).
134
Christoph Maillet, Research Guide to Belgian Law, GLOBALEX, available at
http://www.nyulawglobal.org/globalex/belgium1.htm.
135
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).
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
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
(2006).
147
148
Jan Erk, Federalism and Non-Territorial Representation, 1 (May, 2003), available at,
http://www.forumfed.org/libdocs/SriLanka02/946-SLMG0306-Erk.pdf.
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
(2006).
153
(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
156
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.
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
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
162
163
164
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.
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
173
About Belgium The Federal Government's powers, PORTALBELGIUM.BE, available at
http://www.belgium.be/en/about_belgium/government/.
174
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
179
BELGIUM CONST. art. 143 (1994); The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at
180
181
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
184
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
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
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
195
(2006).
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
202
203
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.
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
210
211
The Powers of the Communes, PORTALBELGIUM.BE, available at
212
The Communes, PORTALBELGIUM.BE, available at
213
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
(2004).
217
John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION: CHALLENGES AND OPPORTUNITIES 297
(2004).
218
(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).
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
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
230
231
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
234
235
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
238
Christoph Maillet, Research Guide to Belgian Law, GLOBALEX (Oct. 2010), available at
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.
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
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
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
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
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
252
Brussels Halle-Vilvoorde, Rand-abc, available at
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
255
Sander Happaerts, Simon Schunz, Hans Bruyninckx, Federalism and Intergovernmental Relations, LEUVEN
CENTRE FOR GLOBAL GOVERNANCE STUDIES 7, available at
256
BELGIUM CONST. arts. 127, 128, 130 (1994).
257
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).
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

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