This report on the situation of local and regional democracy in Belgium summarises the findings of the monitoring visit carried out from 8 to 11 March 2022 and from 9 to 12 May 2022. This is the 2nd report assessing the implementation in Belgium of the Charter since it was ratified in 2004. In general, the rapporteurs observed general respect for the Charter provisions which have been ratified and conclude overall that the Belgian system of local self-government functions well. Despite this, they have highlighted several ways in which compliance with the Charter could be improved. For instance, the report notes that there is sometimes insufficient consultation and dialogue between different governance levels. This is particularly acute between the federal and local level and between the government of Brussels-Capital Region and the local authorities. The latter is, in part, due to the absence of an official consultation system. In addition, concerns were raised regarding the uncertain status of provinces, the restrictions on local authorities wishing to recognise and pay their employees and the current system of burgomaster appointment in Flanders which contravenes Article 8.3 of the Charter.
As a result, the report issues a number of recommendations. These include making the principle of local self-government more explicit in the constitution and/or regional legislation and improving consultation processes between different governmental levels by means of a federal bilateral body. Regional authorities are invited to provide greater clarity regarding the status of provinces, hold referenda before municipal amalgamation, and give local authorities greater control over the management of human resources. There are also several specific recommendations addressed to every region and to the German-speaking community. The report encourages Belgium to ratify the additional protocol to the Charter and Article 9.7, which is currently applied in practice.
The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.
Analysis of the respect of this provision should explore the situation at constitutional and statutory level, payingattention to the decentralised legal system of the country. A careful reading of the federal constitution leads to the conclusion that it does not proclaim or enshrine explicitly the “principle of local self-government”, that of “local autonomy” or similar wordings.
However, the Belgian Constitution includes succinct provisions on municipalities and provinces, which have been duly interpreted over the years by the Constitutional Court (Articles 41 and 162). Thus, Article 41 states that “the interests which are exclusively of a municipal or provincial nature are ruled on by municipal or provincial councils, according to the principles laid down by the Constitution”.
Another relevant constitutional provision is Article 162, which provides that “Provincial and municipal institutions are regulated by the law. The law guarantees the application of the following principles: … the attribution to provincial and municipal councils of all that is of provincial and municipal interest, without prejudice to the approval of their acts in the cases and in the manner that the law determines”.
These two constitutional provisions have been unanimously recognised by Belgian legal scholars and by the highest Belgian courts (the Council of State and Constitutional Court) as enshrining implicitly the principle of local self-government, according to which the local authorities can take up any subject matter that they consider to be in their interest and regulate it as they see fit. This fact has been recognised in a constant manner by the Constitutional Court in several rulings, among which stand Ruling No. 47/2012 of the Constitutional Court of 22 March 2012 and Ruling No. 28/2019 of 14 February 2019.
This understanding is also widespread among the main political stakeholders and, especially for this report, among the regional politicians.
As for the holders or recipients of such local autonomy, both municipalities and provinces do enjoy this principle. Moreover, in 2014, Article 41.1 of the constitution was amended to allow the abolition of the provinces and to replace them with supra-municipal entities. In the event that they were finally created, those supra-municipal entities would also enjoy the principle of local autonomy.
Consequently, there is a general consensus in the spheres of academia, the judiciary and legal practitioners that municipalities and provinces are fully autonomous entities, and this stems directly from constitutional and federal law.
Another level of enquiry should analyse the three different sets of legislation on local authorities, existing at regional level, and explore whether the principle of local self-government is appropriately recognised.
In the light of the above findings it is in our view clear that: (a) the federal constitution does not recognise in an explicit manner (or mention openly) the principle of local self-government, with this word or with another equivalent terminology; (b) legal experts, leading scholars and key politicians believe that the principle of local autonomy is implicitly recognised by the constitution; (c) none of the three statutes on local authorities existing at regional level recognise that principle either; consequently, the principle of local autonomy is not proclaimed by legislation either; (d) the case law of the Constitutional Court and of the Council of State does recognise that the principle is enshrined in Articles 41 and 162 of the federal constitution.
Consequently, the rapporteurs believe that Article 2 is respected in Belgium.
Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
The understanding that local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population is fully recognised in Belgium. As a matter of fact, among the local political stakeholders, the very understanding of the principle of local self-government consists in that assumption.
At this point, one constitutional provision is worth mentioning. According to Article 162, “the law guarantees the application of the following principles: ... the attribution to provincial and municipal councils of all that is of provincial and municipal interest”. As has been seen, the provisions of Article 3.1 of the Charter may be found, with a similar wording to Article 162 of the Belgian Constitution: “the attribution to provincial and municipal councils of all that is of provincial and municipal interest”.
On the other hand, Article 41 of the Belgian Constitution states that “the interests which are exclusively of a municipal or provincial nature are ruled on by municipal or provincial councils, according to the principles laid down by the Constitution”, which is another way to proclaim and to recognise the requirements of Article 3.1 of the Charter.
Moreover, and as will expanded below, municipalities and (to a lesser extent) provinces enjoy a considerable realm of responsibility, which can undoubtedly be characterised as a “substantial share of public affairs”. According to our interlocutors, the regions have enhanced local autonomy (at least for what concerns the municipalities). Apparently, the regions have granted more powers to the municipalities (for instance in the case of Flanders, in matters of sport and youth policy).
The same cannot be said of the provinces. As has been stated above, the institutional and political profile of the provinces is much smaller and less significant than that of the municipalities. Moreover, in recent years there has been a tendency in the two regions having provinces (Flanders and Wallonia) to reduce or to eliminate responsibilities from the provinces. This move has been especially acute in Flanders, where the region, by means of regional legislation, has transferred some of the provincial duties to the region. It is clear that provinces have somehow faded away in comparison to municipalities in terms of institutional and social relevance, and their very existence is in question.
Consequently, the delegation is persuaded that Article 3.1 of the Charter is fully respected in the Kingdom of Belgium.
This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.
From the outset, it should be recalled that Article 3.2 was not among the provisions of the Charter ratified by the Kingdom of Belgium. Consequently, this provision is not binding on Belgium., and for the sake of completeness, the present legal arrangements pertaining to this provision should be explored here. We will discuss separately the two parts of Article 3.2.
Councils and executive bodies
The democratic source and legitimacy of local authority bodies is proclaimed and guaranteed by the Belgian Constitution, according to which “The law guarantees the application of the following principles: ... the direct election of the members of provincial and municipal councils” (Article 162). We should then see this feature in the municipalities and in the provinces.
Local councils and executives – special reference to “burgomasters”
As noted above, each region has the power to enact the legislation applicable to the municipalities located in its territory. For this reason, the actual regulation of the local assemblies or councils, and that of the local executives, is a matter that is the exclusive responsibility of the regions. This key feature might potentially provoke a divergent normative picture and important differences among the Belgian municipalities.
However, they share some common features.
Traditionally, mayors (once elected by the councils) had to be appointed by the regional competent minister (usually the Interior Minister). Nowadays, there are differences among the regions.
In Wallonia, a local councillor is proposed as mayor by a local council (provided he or she is Belgian) and the regional government appoints him or her (Article L 1123-2 of the Code Wallon de la démocratie locale et la décentralisation). Under the law, this seems to be automatic.
In the Flemish Region, the system has traditionally been different, in the sense that the local council makes a proposal to the regional minister and the said governmental official has the possibility to scrutinise the personal circumstances of the proposed candidate and, eventually, may refuse his or her appointment if the minister considers that the proposed mayor does not meet the required moral and personal conditions to discharge this position. In this case, the regional government may ask the council to submit a new proposal with a different candidate, and the candidate who was proposed the first time cannot be proposed a second or a third time. Once appointed for a period of six years, the new mayor takes their oath from the provincial governor (Article 59 of the Flemish Decree on Local Authorities).
This traditional feature of the Belgian political landscape has been the object of much analysis and criticism from the Congress, which conducted several monitoring and fact-finding missions on the subject (see above, point 2.4). The Congress has consistently recommended the Belgian (Flemish) authorities to do away with the traditional system of appointment by the Flemish Interior Minister.
On the occasion of the visit for this report, the delegation was informed that some legal amendments had taken place in this field, which have changed the traditional process. Indeed, some legal amendments approved by the Flemish Parliament in July 2021 will enter into force in autumn 2024, on the occasion of the next local elections (modification of Article 58 of the Flemish Decree on Local Administration of 2017).
The burgomaster, at the end of the procedure, must be appointed by the regional government
(Article 58), and the proposed mayor takes their oath from the president of the council, not from the regional minister.
According to the new law, which is designed to increase local democracy and reinforce the popular vote, the new system will work as follows: 1) voting in the local elections will no longer be compulsory; 2) votes for the list will no longer count for determining which of the candidates will be elected; only the nominative votes will count 3) after the local elections, if a party obtains a clear victory and wins more than half of the seats of local councillors, the candidate who obtained the highest number of personal votes in that electoral list should be proposed by the local council as burgomaster.
However, this is extremely unusual in Belgian local elections, due to the high number of parties and the fragmentation of the electorate. Usually, an alliance among several parties is needed to obtain a majority in the local council. Consequently, the usual outcome is the one described in the following points: 4) the most popular party will have the duty to form a local government, that is, the new legislation provides a legal initiative, for 14 days, to the head of the most popular party to seek the formation of a local government, where necessary seeking an alliance with other parties that have obtained positions on the local council; 5) the candidate who receives more “personal” votes in the electoral list of his party and who belongs to the party whose list obtains the highest number of votes should become the burgomaster; 6) the local council elects, from among its members, the candidate to be appointed as burgomaster and addresses the corresponding proposal to the Flemish Government, Last but not least, the different parties must inform the electors (before the elections) about what types of coalitions they will form the day after election day. This is supposed to avoid fraud or surprises for the electors.
In this new legal process, we should focus our attention on the intervention of the Flemish Government, which has so far been the most contentious feature of that legislation. In this vein, an analysis of the new Article 58 reveals that the regional government still has a decisive intervention in the process of becoming a burgomaster.
It is true that the new law provides that the candidate that obtains the highest number of nominative votes within the most voted list “is appointed as Burgomaster by the Flemish government” (first indent), which seems quite an automatic decision.
However, a closer look leads to a different conclusion: after the elections and the effective installation of the members of the council, the candidate who has obtained the highest number of nominative votes in the most voted electoral list will be considered as “designated burgomaster” and will discharge all the functions assigned to a burgomaster (Article 59.1, paragraph 2); before initiating their mandate, the “designated burgomaster” takes an oath from the president of the municipal council, and if the designated mayor is himself or herself the president of the municipal council, he or she takes the oath from the oldest municipal councillor (Article 58.1, paragraph 3). However, immediately after taking this oath, the Flemish Government “takes a decision on the appointment [or not] of mayor after the designated mayor has taken the oath and after having been informed by the municipal council” (Article 58.1, paragraph 4).
If he or she is appointed by the regional government, they become an “appointed burgomaster” and must take another oath in that capacity (Article 58.1, paragraph 5). Consequently, the intervention of the Flemish Government is not automatic or a mere formality, because it can appoint (or nor appoint) the “designated burgomaster”. Moreover, the new law does not specify the grounds on which the government may decide not to appoint the burgomaster. The delegation was told by leading Flemish politicians that this would only happen in precise and exceptional circumstances (such as when a proposed candidate has a criminal record). However, this interpretation was provided orally by our interlocutors, and the new legal text does not say anything about this.
What is more, according to the new wording of the act, a decision by the Flemish Government not to appoint the mayor (or the refusal to take the oath) “has the effect that the person concerned can no longer be appointed mayor during the same legislature”. In case of a refusal to appoint the burgomaster, the new law provides that if the Flemish Government decides to refuse the appointment of one mayor “the councillor who, after this councillor in the same group, has obtained the most nominal votes, becomes the designated mayor and is appointed mayor by the Flemish Government”. That is, the same procedure must be followed.
In light of the foregoing, the delegation received the impression that, indeed, there are changes in the legal status of the candidate to become a burgomaster and a rationalisation of the procedures. However, the rapporteurs are not convinced that there is a significant improvement in the core matter: the need for a local councillor to obtain an “appointment” from the Flemish Government to become a burgomaster. This was the most unsatisfactory feature of the whole “old” legislation, the one that was the subject of different Congress recommendations.
Consequently, the rapporteurs are disappointed to see that there has been little improvement in the actual implementation of the Congress resolutions on the matter and that the situation, in basic terms, continues to be the same (concerning the appointment of the burgomaster by the Flemish government). The new legal process seems to leave considerable room for discretion in deciding whether to appoint or not a burgomaster, since the reasons for a refusal are not identified in the law.
A special reference to the six Flemish municipalities endowed with linguistic “facilities” and located around Brussels will be made below (see section 4.3).
The regional legislation of the Brussels-Capital Region allows for the most executive appointment of mayors, as no intervention or approval by the regional government is foreseen (Article 13 of the New Municipal Law, nouvelle loi communale). This is has been the case since a legislative reform of the regional legislation in 2020. In this region, the delegation was informed, there is a new piece of regional legislation (ordonnance) according to which there must be parity between men and women in all the electoral lists of candidates running for local elections (this new law will be effective for the next local elections, due in 2024).
Finally, in the German-speaking Community, the burgomaster is elected by the council without any other formality or procedure.
Each municipality has also a “Board of Mayor and Aldermen”, which is the executive body of the municipality. The aldermen are elected from among the municipal council members. The Board of Mayor and Aldermen is a collegial body which takes decisions with a majority of votes.
The political responsibility of the executive organs vis-à-vis the local council
It has been mentioned above that, according to scholars, Belgium had introduced an improper “reservation” to Article 3.2 because at the time of ratification the executive organs of the local authorities were not politically responsible to the local councils, as demanded by the Charter.
This assumption is no longer valid in the opinion of the rapporteurs, at least partially. Currently, the regional legislation on local authorities (at least in the Wallonia and Flanders regions) does allow clearly for the political responsibility of the executive organs (burgomaster, board) vis-à-vis the local council.
Thus, in the case of Flemish legislation, since 2021 the council have been able to propose, discuss and approve a collective “constructive motion of no confidence” (Article 46 of the Flemish decree on local authorities), which is addressed against the “whole” executive, that is, the college of the burgomaster and aldermen. An individual constructive motion of no-confidence can be addressed against one or more aldermen. The motion must be signed by a majority of local councillors.
If the municipal council adopts a motion of no confidence, the member or members subject to the motion are dismissed and the candidates presented are declared elected. From the adoption of the collective motion, the councillor referred to in Article 58 of the decree bears the title of "designated mayor" and exercises all the functions entrusted to the mayor. Before accepting his mandate, the designated mayor must take his or her oath. Finally, “the Flemish Government appoints the mayor in accordance with the procedure referred to in Article 58”, which has been described above. So, here again, a formal endorsement by the Flemish Government is required.
It must be underlined that the motion of no confidence does not apply in the six municipalities with “facilities” (see section 4.3, below).
In the case of the Walloon Region, important amendments to the regional code on decentralisation, adopted in 2005 and 2012, have meant important changes in this area. Indeed, the establishment of a mechanism for accountability of the college and its members to the municipal council was one of the major new features of the reform of 8 December 2005.
Article L1123-3, al. 3 of the Code on Local Democracy and Decentralisation lays down the principle that the college is responsible to the council. The motion of collective no confidence is regulated by
Article L1123-14, paragraph 1: “The council may adopt a motion of no confidence against the college, or against one of its members, as the case may be. This motion is admissible only if it presents a successor to the college, or to one or more of its members, as the case may be”. Because it involves the presentation of one or more successors (in the event of individual mistrust) or of a new team (in the event of collective mistrust), that mistrust is said to be constructive.
The mechanism of the motion of no confidence has given rise to numerous reactions, which prompted the Walloon Government to approve additional guidelines for the filing of such a motion, to prevent it from destabilising the collegial institution. This reform was completed on 26 April 2012. Thus, the motion of collective distrust is only admissible if it is tabled by at least half of the councillors of each political group forming an alternative majority. The presentation of a successor to the college constitutes a new majority pact. The motion must be adopted by a majority of council members; its adoption entails the resignation of college, as well as the election of the new college, although they remain in office until their replacement is sworn in. When a motion of collective no confidence has been adopted by the council and an alternative majority has been installed, no new motion of collective no confidence may be tabled before the expiry of a period of one year, and no more than two motions of collective distrust may be voted on during the same municipal legislature.
As regards the provinces, their basic institutional structure replicates to a certain extent that of the municipalities. Although there might be different features and terminologies according to the region where the provinces are located (either Flanders or Wallonia), they all share the following key provisions.
All provinces are autonomous and democratic entities.
The permanent deputation executes the resolutions of the provincial council and ensures its day-to-day management. It is chaired by a governor. The governor, however, is not elected but is appointed or dismissed by the King, under the responsibility of the Minister for the Home Department. Traditionally, the governor represented the national government but at present only represents the regional government.
Public participation. Status of ratification of the Additional Protocol to the Charter
The last indent of Article 3.2 of the Charter refers to “direct citizen participation”. We should first explore the vitality of direct participation at local level, and then assess the status of ratification of the Additional Protocol to the Charter.
With regard to “direct citizen participation”, all our interlocutors stated that in most Belgian cities and towns there are different ways, techniques and mechanisms to channel the public participation of citizens and to allow their input into the handling of local affairs and decisions. The matters for which citizen participation is most common are the approval of investment plans, urban planning and participatory budgets. In the case of urban planning, there are specific bodies featuring representatives from the public as natural members (such as the advisory commission on physical planning, the Commission consultative pour l´aménagement du territoire in French). On the other hand, local representatives acknowledged that the Covid pandemic has had a serious impact on citizen participation, which is now slowly being revived.
The different ways and formats of public participation are mainly regulated at regional level. In some regions, there are specific regional rules governing local referendums (like in Flanders). In the Walloon Region, for instance, citizens also participate frequently in what are known as programmes communaux de dévelopement rural – rural development programmes.
In the Brussels-Capital Region public participation is especially well developed, and the New Municipal Law regulates this feature of local democracy in its Articles 318-328 and Article 89bis relating to citizens' interpellation. Different techniques and possibilities are available to citizens, such as petitions, citizens’ suggestions or the participation in deliberative commissions. There are a number of topics where local residents may become involved, such as employment, health, culture, environment, mobility, issues affecting people with disabilities and housing.
In the light of the vitality of public participation at local level, the question arises as to why Belgium has not ratified the additional protocol to the Charter.
Under the law, Belgium can only ratify an international treaty if there is the agreement of the regional parliaments, if the treaty deals with a matter whose responsibility belongs to the regions (as with the additional protocol).
The reason has to do with the institutional organisation of Belgium. In order to ratify the additional protocol, a long, complex and slow procedure must be followed. In essence, all the four sub-state parliaments – the regional parliaments of Flanders, Wallonia, Brussels-Capital and that of the German-speaking Community – must first give their assent. The whole process is coordinated by a federal body, called the Interministerial Conference on Foreign Affairs (CIPE – Conférence Interministérielle de la Politique Etrangère).
So, the subject of the ratification of the protocol must be introduced in every regional parliament by the corresponding regional government, and once the appropriate parliament grants its assent, then the corresponding government communicates this assent to the federal authorities, and only when the federal authorities check that all necessary assent has been given can the federal government deposit the instrument of ratification.
In general terms, the regions have no problem with the protocol and there is no “hot issue” they wish to avoid.
In this vein, in Flanders the additional protocol was given assent for ratification, or approved by its parliament, on 15 July 2011.
In the case of the Brussels-Capital Region, the delegation was pleased to hear the following information: on 22 April 2022, the regional Parliament adopted the Ordinance giving assent to the Additional Protocol to the Charter; on 30 April, shortly before the second part of the visit of the delegation, the regional government ratified the said Ordinance and notified this to the federal government.
As concerns the German-speaking Community, the additional protocol was ratified in 2021 by the government and then transferred to the parliament. The president of that parliament ensured that the topic will be discussed shortly in parliament and that the assent will certainly be granted.
In the case of the Walloon Region, though, the “approval” or assent for the protocol seems to be in a standby situation, since the proposal has not been sent yet to the regional parliament. However, nobody seems to know exactly the reason why this has not been made yet; it is probably a matter of political priorities or lack of interest.
In light of the foregoing, the rapporteurs believe that there is only partial respect for Article 3.2 of the Charter, since the mechanism of motion of confidence or distrust is not recognised in all local authorities and in all regions.
The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.
Municipalities
At constitutional level, a very relevant provision is Article 41, according to which “interests which are exclusively of a municipal ... nature are ruled on by municipal … councils”. This constitutional provision lays down the general principle that everything happening within the territory of the municipality, or having a purely local dimension, falls under the remit of the municipalities. In general, and especially at the regional legislative level, this constitutional provision has been interpreted in a rather broad way. For instance, the 2017 Flemish decree on local authorities states in Article 2 that, as a consequence of that constitutional provision and to this end, municipalities “can take all initiatives”.
The precise competences of the municipalities must be found in the regional statutes governing their respective local authorities, while other sectoral legislation may also establish domains of competence for local authorities, as in the case of urban and spatial planning, licensing and authorisation of industries, environmental projects and the like.
Municipalities enjoy the legal nature of “public law authorities” and they possess a wide array of powers and legal privileges. For instance, they may approve local regulations prescribing rules of social behaviour in the domain of general or “special” administrative police, such as traffic.They have a wide array of adjudicatory powers (licensing); they also have the power to impose fines and sanctions on wrong doers. In addition, they have wide-ranging powers of taxation (see below). All the local representatives met by the delegation stated that they were happy with the actual level of municipal responsibility, which is high, and the delegation received no complaints about the level of responsibility in any part of the country.
In the case of Flanders, the key legal text is the regional decree on local authorities of 2017. Although this decree regulates in detail the competences of the different internal bodies of the municipal administration, it does not include a full and comprehensive list of competences allocated to municipalities. The law provides that “municipalities and public social assistance centres aim to make a lasting contribution to the well-being of citizens at the local level and ensure, in close proximity to them, a democratic, transparent and effective exercise of their powers ... they aim to contribute to the sustainable development of the municipal domain” (Article 2). Moreover, in accordance with the special law of 8 August 1980 on institutional reforms, as well as Article 46 of the ordinary law of 9 August 1980 on institutional reforms, and in application of the principle of subsidiarity, the municipalities also exercise the powers conferred on them by or by virtue of the law or decree.
Municipalities are thus competent for all matters which have not been withdrawn from their ambit of responsibility by higher authorities. Moreover, since the 1970s different sectoral parliamentary acts have explicitly assigned ever greater tasks to municipalities, for example in the fields of spatial planning, gas, water and electricity supply, domestic waste collection and processing, economic expansion, and cultural and social policy. The competences devolved to the regions and communities following the state reforms have been shared with the local authorities.
In the case of the Walloon Region, Article L 1113-1 of the Walloon code on local democracy and decentralisation of 2004 states that the powers of the municipalities are in particular “to govern the goods and incomes of the commune; to settle and discharge those local expenses which must be paid from common funds; to direct and carry out public works which are the responsibility of the municipality; to administer the establishments which belong to the commune, which are maintained by its funds, or which are particularly intended for the use of its inhabitants”.
In light of the above legal context, it possible to say that, in general, municipalities are responsible for the following matters.
- Urban planning and urban growth management; licensing of buildings and construction projects.
- The regulation and control of the transit of vehicles.
- The granting of permits and licences.
- The maintenance and improvement of the local environmental heritage, especially local roads and paths.
- Raising taxes and the capacity to set and collect taxes or duties (on polluting street activities or noisy commercial facilities).
- The protection of the environment, encompassing all sorts of local services, such as the supply of drinking water, depuration of urban waste water, the collection and treatment of waste, the monitoring and improvement of air quality, etc.
- The management of emergencies and fire prevention.
- The cleaning and maintenance of streets, public parks and recreational spaces.
- The construction and operation of all kinds of municipal facilities such as sport and recreational facilities, cultural centres, public car parking, etc.
- The construction and maintenance of green areas, public parks and gardens.
- The execution of police laws and decrees, administrative police regulation on the territory of the municipality and in matters of urgent police orders.
Provinces
Mirroring the relevant constitutional provision for municipalities, provinces are responsible for everything within their territory that is of provincial interest. In this vein, Article 41 of the constitution provides that “the interests which are exclusively of a … provincial nature are ruled on by ... provincial councils, according to the principles laid down by the Constitution”.
The province is the intermediate level of government between the regional and municipal levels; consequently, anything that goes beyond the strict territory of one municipality but does not have a regional impact falls under the domain of action of the provinces, who are responsible for regulating the provincial interests.
As noted above, the role, institutional profile and responsibilities of the provinces are currently a matter or regional interest. Consequently, the actual functions of the provinces are established in sectoral legislation or in the legislation of the regions on local authorities (although most of this legislation is devoted to extensively regulating local authorities and makes little reference to the provinces).
Traditionally, provinces had extensive powers in many domains, such as education, social and cultural infrastructures, preventive medicine and social policy, environmental protection, highways and waterways, economic development, transport, public works, housing, town and county planning, and licensing of industrial facilities and commercial and agricultural premises.
However, since the regionalisation of the field of local authorities, the actual powers of the provinces depend mostly on the situation and the legislation in each of the two regions where they exist, Flanders and Wallonia, since they can allocate responsibilities to the provinces or withdraw them. According to our interlocutors, the provinces have lost many powers in recent years, especially in Flanders and to a lesser extent in Wallonia.
For instance, in Flanders the only responsibilities that the provinces maintain are those that are connected to the management or planning of land or that are related to the territory, like transport. The rest of the traditional provincial responsibilities were transferred to the regions.
In light of the above considerations, the rapporteurs believe that Belgium complies with Article 4.1 of the Charter.
Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.
As a consequence of the visit and the meetings held with our interlocutors, the delegation also drew the conclusion that localauthorities (the municipalities) have, within the limits of the law, full discretion to exercise their initiative with regard to any matter which is not excluded from their competence or assigned to any other authority.
This is based on the way Article 41 of the constitution has been usually interpreted and implemented in legislation. Moreover, this understanding is explicitly enshrined in some provisions of the regional laws on local authorities. For instance, the 2017 Flemish decree on local authorities provides that under Article 41 of the constitution, the municipalities are responsible for matters of municipal interest.
To this end, they can take all initiatives.
In light of the above considerations, the rapporteurs believe that Belgium complies with Article 4.2 of the Charter.
Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.
This article of the Charter has commonly been interpreted as embodying the principle of subsidiarity.
The principle of subsidiarity is not recognised explicitly in the constitution but is recognised in the case law of the Constitutional Court. Moreover, the principle of subsidiarity has been explicitly enshrined in some regional laws on local authorities. For instance, in the case of the Flemish Region, the 2017 regional decree provides that “in application of the principle of subsidiarity, the municipalities also exercise the powers conferred on them by or by virtue of the law or decree”.
Apart from that, there is a clear pattern of decentralisation from the regional level to the local level, especially so in some areas. Consequently, it is commonly accepted that the principle of subsidiarity exists and that it is effectively implemented.
It is understood, for instance, that the principle of subsidiarity “explains” or justifies the transfer of competences from the region or community level to the municipalities. Apart from their constitutional competences, municipalities also have competences which have been entrusted to them, on the basis of the principle of subsidiarity, through or by virtue of the law or the Flemish Parliament Act.
In light of the above considerations, the rapporteurs believe that Belgium complies with Article 4.3 of the Charter.
Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.
As a rule, the powers given to local authorities are full and exclusive. The Belgian system is based on “exclusive” responsibilities. The “local” responsibilities are clearly those that have been attributed to the municipalities or provinces by an act, decree or regional ordinance, or that municipalities have decided to implement on the basis of Article 41 of the constitution.
However, this general principle does not preclude the fact that some responsibilities are implemented or discharged in an “co-operative” manner with the other levels of “higher” public administration, like the regions, communities or even the federal state, since some functions may be complex and may involve different entities or levels of government, or because the scale of the interests at stake so demands.
For instance, the communities play a role of “grand collaborator” with the municipalities in all cultural matters (libraries, cultural centres, permanent/continuous education activities, etc). In these matters, municipalities keep frequent contact with the communities. In the French Community, for instance, this co-operation has been manifested in the signing of a collaboration charter (Charte de collaboration), which defines the role, duties and obligations of each party.
Another example of joint implementation of concurring competences is the domain of spatial planning and economic development. There is a point where municipalities must co-operate with the regions and both levels of government must co-ordinate their responsibilities.
Moreover, this co-operation and co-ordination may be embodied in specific formal instruments, which are regulated at regional level. For instance, in the Flemish Region the regional authorities have concluded policy agreements with the municipalities, in the fields of transport, environment, youth work, culture, out-of-school care and urban policy, among others.
Another example is the implementation of police laws and regulations, where the municipalities enforce state or regional laws and regulations. Usually, it is for the burgomaster to implement these laws and regulations, although he or she may apply those issued by higher levels of government. In this sense, Article 63 of the 2017 Flemish decree on local authorities provides that the burgomaster, “Apart from his competences in matters of enforcement of police laws, is also responsible for the execution of the laws, decrees and implementing orders of the federal authority, the region or the community, except if the said responsibility is explicitly entrusted to another organ of the municipality”.
In light of the above considerations, the rapporteurs understand that the requirements of Article 4.4 of the Charter are met.
Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.
Under this provision, where powers are delegated to municipalities or to provinces by a central or regional authority, localauthorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions. From the outset, it should be noted that, in practice, this provision applies only to the municipalities, since regions rarely transfer or delegate any responsibilities or powers to the province.
The delegation did not hear any specific complaint about respect for this provision in Belgium. However, some local representatives made a related complaint in the sense that, over the years, they have observed that the higher authorities often manage public affairs by legislating a lot and by legislating in detail, depriving the municipalities of the necessary leeway in the implementation of regional and federal policies and the possibility to adapt them to the needs of local realities. In this vein, the association of municipalities of the Walloon Region (UVCW) has consistently demanded to regional authorities that they should approve framework legislation instead of the too-detailed legislation.
In light of the above considerations, the rapporteurs believe that Article 4.5 of the Charter is respected.
Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.
Article 4.6 deserves careful analysis, focusing on different areas and considering the situation in the three regions (and in the German-speaking Community) and that at federal level. To begin with, we should analyse how the situation works at national level, and then at regional level.
Consultation of local authorities by the federal government
It should be underlined that there are no constitutional provisions on this matter and no specific federal laws regulating this issue. Consequently, this aspect of local government is regulated exclusively at regional level.
Concerning the consultation of local authorities by the federal government, local representatives made a clear complaint: there is no formal mechanism for consultation of the local authorities by the federal government. Moreover, there is no systematic consultation. According to our local interlocutors, this is a serious shortcoming because it is not infrequent that the federal government takes decisions or initiatives that have a direct or indirect impact in the domain of local authorities, such as the negotiations with the trade unions of police officers and firemen, a question that will be presented in more detail in connection with
Article 9.2, below.
Consultation of local authorities by the regions
This aspect of local government is regulated exclusively at regional level, by regional laws and regulations.
The situation in the Brussels-Capital Region
According to the local representatives met by the delegation, in the Brussels-Capital Region there is no official and structured consultation process between the regional government and the local authorities (municipalities and CPAS). Consultation (which is often just communicating information) is therefore at the discretion of the regional government (on which depends most of the powers that concern the municipalities). This consultation sometimes takes place, but sometimes not, and it seems that it follows an erratic pattern.
The local representatives of that region pointed out that there are also other associations or representative instances in the region, such as the Conference of Burgomasters, the Federation of Municipal Secretaries and the Federation of Municipal Tax Collectors. However, the Conference of Burgomasters is not an effective forum for consultation. According to some interlocutors, this body does not work appropriately and should be reformed.
This situation is even more strange if one considers that in the regional parliament some members are burgomasters or aldermen. This fact makes it even more important and necessary that the regional government meets with, and consults regularly, the association Brulocalis, the association representing the 19 municipalities in the Brussels-Capital Region.
During the consultation procedure, the Government of the Brussels-Capital Region underlined that the 2019-2024 government agreement provides for the creation of a consultation platform between the Region and the municipalities for all matters that may affect municipal interests or strategy.
The situation in the Walloon Region
The Walloon Region presents a somehow different picture. According to the representative associations of local authorities (Union des Villes et Communes de Wallonie, hereinafter the UVCW, and the Federation of Social Services Centres, the CPAS), these associations have been recognised as forums with a consultative function since the enactment of a regional decree of 15 February 2017. Accordingly, the Walloon Region submits to these associations different legal documents and initiatives for consideration, when such documents and initiatives deal with local authorities, their functioning, their financing or (even more importantly) any topic or matter that is managed by local authorities, from environmental protection to housing and public contracts.
These documents include draft regional decrees (pieces of regional legislation), draft decisions from the regional government (projets d´arrêtés) and drafts of internal regulations (circulaires). When the government submits these documents, it asks for the opinion of the UVCW, which must issue a report. The above-mentioned associations analyse the drafts sent by the government and must deliver a reasoned opinion within 45 days. The UVCW report is obligatory. Consequently, there is a positive institutional mechanism for obligatory consultation of the local authorities, by means of their representative associations, and there is full compliance with Article 4.6 in that region.
In the case of legislative proposals (emanating directly from a parliamentary group), this is, in principle, not covered by the arrangements that have been presented above. However, it is frequent that the Walloon Parliament also asks for the opinion of the UVCW and that of the CPAS (especially by means of specific hearings). Although this form of consultation is not systematic, local representatives told the delegation that this practice has multiplied in recent years.
In the French Community (Fédération Wallonie-Bruxelles) there is no similar mechanism to the one presented above.
The situation in the Flemish Region
In Flanders, the Association of Flemish Cities (VUVS) is extensively consulted by the regional government, when the said political body plans to approve laws and regulations affecting the local authorities.
Regional representatives confirmed that, when drafting new regulations on matters that concern the municipalities, the Flemish Government seeks advice, often formally, from local authorities on the matters that concern them. Although this advice is not mandatory, in practice it is usually part of the decision-making process. For example, when drawing up regulations on local authorities' organisation and functioning, the Association of Flemish Cities and Municipalities (VVSG in Dutch), Excello.net and Flemish Local Financial Directors (VLOFIN) are consulted.
The German-speaking Community
The German-speaking Community presents a rather peculiar situation in terms of respect for Article 4.6 of the Charter. Indeed, the community is pretty small in territorial terms and the number of municipalities is very low (Eupen is the capital and the seat of the community institutions, the community parliament and the community government). Consequently, there is an extreme proximity, both “physical” and institutional between the local and the “higher” levels of administration.
In practice, the pattern of contact and consultations with the local authorities is very dense and permanent (for instance in the case of urban planning), to the point that local representatives of that community told the delegation that sometimes they feel dismayed by the high number of matters on which the community institutions ask their opinion and the high number of replies or opinions that they must prepare, something that is time-consuming.
Thus, municipalities are very frequently consulted by the German-speaking Community on all matters that concern them, directly or indirectly (for instance on community investment plans or the management of crises). This was confirmed by the representatives of the government and the parliament of the said community, who provided some figures. They stated, for instance, that during the Covid pandemic the community institutions organised 63 conferences and that all the mayors were present. The same may be applied to the management of the Ukraine crisis: the government discusses with the local authorities the measures to be taken and the procedures to be adopted.
In light of the above, the rapporteurs believe that there is compliance of Article 4.6 in Flanders, the Walloon Region and the German-speaking Community, but that this article is not respected in the Brussels-Capital Region.
Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.
This article raises the topic of the number (and size) of municipalities in the country, and the different governmental plans or strategies to change a given pattern of territorial distribution. To begin with, according to Article 7 of the Belgian Constitution “the boundaries of the state, the provinces and the municipalities can only be changed or corrected by virtue of a law”. From a comparative constitutional law perspective, the Belgian Constitution is one of the few constitutions that addresses this topic explicitly (another is the Spanish Constitution).
The number of municipalities has been reduced significantly in Belgium since the 1970s, at a time when local government was still a matter of federal interest. Thus, in 1977 there were 2 359 municipalities, while today there are just 581. Currently, the field of local government is entirely a regional responsibility (with the notable exception of the German-speaking Community), and each region has its own view on the matter, as well as their own priorities.
Although it belongs to the region to decide on or to approve the merger of two or more municipalities in its territory, they cannot do the same with the provinces. Provinces cannot be abolished by a decision or a law of the regions, since they are protected by the constitution.
In general, the big move towards mergers of municipalities is now finished, but regions still want to encourage local authorities to merge. Of course, their policies are conditioned by their size or the number of their municipalities. For instance, in the German-speaking Community there are only nine municipalities, so there is no need, intention or plan whatsoever to promote the merger of such authorities. In the case of the Brussels-Capital Region there are 19 municipalities, very close to each other within the territory. Consequently, in this region there is also no plan or programme for the mergers of municipalities. Consequently, merging municipalities is still a matter of political attention and only a realistic possibility in the Flemish Region and in the Walloon Region.
As concerns Flanders, in the late 1970s there were 500 municipalities in Flanders, but in 2014 this number had decreased to just 308. The regional government has been convinced for a long time that further fusions and mergers of municipalities are not only possible but needed. The regional government wants to have fewer municipalities, and larger, stronger and more efficient ones. In this vein, regional government officials pointed out that some municipalities (especially the smaller ones) have problems in delivering high-quality services. Others face difficulties in hiring specialist employees.
For these and other reasons, there has been a long-standing programme for the reduction of the number of municipalities and for encouraging the voluntary amalgamation thereof. The figures bear out about the success of that programme, since in 2014 there were 360 municipalities in Flanders, while currently there are only 300. During the consultation procedure, the Government of Flanders stressed that the Flemish Region provides incentives for the amalgamations of municipalities. When municipalities want to merge, the Flemish Government grants an overall subsidy of € 500 per inhabitant, with a maximum of € 50 Million altogether per amalgamation process. The Flemish Government also assumes a part of the debt of the municipalities concerned. Still, this figure does not seem to be satisfactory for the regional government, whose senior officials refer to the high number of municipalities having few inhabitants. This is why the Flemish Government keeps on promoting the voluntary amalgamation among municipalities (they acknowledge that the models to be followed are Denmark and the Netherlands). Apparently, dozens of further amalgamations are in the pipeline. According to our interlocutors, some 15 municipalities have expressed their interest in amalgamating. One of them concerns Antwerp and a nearby municipality.
The number, size and territorial pattern for municipalities is also a matter for concern in the Walloon Region, and senior governmental officials have stated that municipalities with under 12 000 inhabitants face problems in delivering good-quality local services. The region has tried to alleviate some of their burdens through a comprehensive system of administrative simplification, however the best solution is a programme of amalgamations. The regional government, then, fosters the voluntary merger of small municipalities, to produce larger territorial units.
In particular, there is a regional law (décret) that provides incentives for interested municipalities. For instance, when two nearby municipalities want to merge, the regional government grants an overall subsidy of €500 per inhabitant to both merging municipalities (up to a maximum total of €20 million). In addition, the regional government also assumes a part of the debt of the municipalities concerned. However, it seems that very few municipalities have decided to start an amalgamation process and few mergers are expected, at least in the short term.
For the sake of Article 5 of the Charter, it is important to underline that in both Flanders and Wallonia the decisions about amalgamations are taken by the local councils of the two participating local authorities. However, no local referendum takes place or is foreseen whatsoever, neither in Flanders nor in Wallonia.
In light of the above, the rapporteurs believe that Belgium fully complies with Article 5 of the Charter in the sense that the amalgamations are always accomplished with the assent of the local councils (and, most importantly, on their initiative), which is clearly much more than a simple “consultation”. However, there is still margin for improvement, notably by conducting local referendums in the concerned local communities.
Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.
As noted above, the subject matter of local authorities has been completely devolved to the regions, following the different state reforms. This means that this aspect of local government is the full responsibility of the regions and is regulated exclusively by laws and regulations of the three regions (plus the German-speaking Community for its nine municipalities). Consequently, there might be some divergences among the legislative choices made by each region.
Beyond this constitutional scenario, all regional legislation on local authorities establishes a framework or basic organisational structure (presented above). Within that context, the several regional laws allow the municipalities to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management. As a rule, these organisational decisions must be adopted by the council.
In Flanders, the municipal decree of 2017 defines the competences of the council. Among those competences is the power to set up consultation councils and co-operation structures (Article 41.13). Another example is the possibility to create autonomous bodies or authorities within the municipal structure, which are entrusted with the discharge of specific activities. In this vein, Article 231 of the regional decree provides that “an autonomous municipal authority is constituted by decision of the municipal council on the basis of a report drawn up by the college of mayors and aldermen … the municipal council sets the statutes of the autonomous municipal management”.
However, in the view of the delegation this piece of legislation is extremely long (610 articles) and very detailed. It regulates comprehensively almost all the aspects and features of the life of municipalities and, in reality, leaves little room for manoeuvre or capacity for municipalities to adopt really innovative decisions in the field of organisation.
In Wallonia, similar rules apply. For instance, the municipal council has the power to approve its internal by-laws and rules of procedures, according to Article L1122-18 of the Walloon code of local democracy and decentralisation, and under Article L1122-34, it may set up, within the council, specific committees with the duty to prepare discussions of the council. Finally, the council may also, under Article L1122-35 thereof, set up advisory councils (such councils are “any assembly of people, whatever their age, charged by the municipal council with rendering an opinion on one or more determined questions”).
In the Brussels-Capital Region, the same organisational power of the municipal council may be identified. Thus, the regional law on local authorities (Nouvelle loi communale) provides different examples of that power. For instance, under Article 331, the municipal council may set up “intra-municipal territorial bodies”, in municipalities with more than 100 000 inhabitants.
In light of the above, the rapporteurs believe that Belgium fully complies with Article 6.1 of the Charter.
The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.
First of all, it is helpful to describe briefly the structure of human resources in Belgian local government. This will help better understand the application of Article 6.2 of the Charter, and some features that will be described below, in connection with Article 9.
Local authorities have different types of personnel, the most important being “statutory employees” or local civil servants, and regular “workers”, hired under a work contract. Both types are recruited according to the applicable administrative regulations which local entities may approve themselves, under the control of the supervisory, higher authority (autorité de tutelle, see Article 8).
Although the general rule in Belgian public administration is that public employees should be “statutory personnel” (personnel statutaire, or “civil servants”), the fact is that because of different reasons local authorities resort more and more frequently to hiring employees under contract, to the point that the general rule has been transformed into the exception. Currently, it can be said that roughly 70% of local government employees are regular contract workers, while only 30% are civil servants. These percentages may fluctuate from region to region. Thus, the Walloon association UVCW also pointed out that in the local governments located in that region, 75% of personnel are contractual employees and only 25% of the employees are civil servants (personnel statutaire).
In addition, the applicable legislation on local authorities requires municipalities to provide for certain specific functions and to fill specific positions. In the provinces, these positions have traditionally been those of the local secretary (of the provincial council) and of accountant-comptroller. In the case of municipalities, these special positions were that of secretary (of the local council) and that of accountant-comptroller. This obligation for local authorities still exists today and, as regards the local civil service, local bodies enjoy more and more freedom to ensure the carrying out of these positions under mandate (especially in the Flemish Region and in Brussels-Capital Region).
As concerns the daily management of staff, the responsibilities of local authorities remain very large, as long as they respect the limits imposed by the legislation. Local authorities do freely recruit their staff, manage their careers and can also put an end to their terms of office. In Flanders, municipalities and provinces can freely appoint and dismiss their own staff. They have full authority as an employer.
The salary scales are determined by a decision of the Government of Flanders (2007) and the local authorities must adhere to this. In addition, every municipality can as an employer provide training and education for its employees.
In the recruitment of new employees, the region may impose some criteria or requirements, such as the duty to hire a certain percentage or proportion of people with disabilities (as in the Brussels-Capital Region).
Despite this general scope of freedom, the delegation heard some complaints on this matter. Hence, some local leaders complained that they do not have enough freedom to recognise and pay their employees for high performance, given the rigidity of the regulations. They would like to have more leeway to incentivise their employees and reward high performance.
Other local representatives pointed out that they have difficulties in hiring local personnel. Sometimes, this is due to the specialist or technical profile of the positions. In other cases, this seems linked to the fact that the applicants must have a good command of different languages in order to work in local government.
Finally, the Walloon association (UVCW) made the complaint that currently it is becoming increasingly difficult to attract and (above all) to keep talented local government personnel. They also pointed out that, under the current regional regulations, local authorities lack the necessary autonomy to establish a system of incentives and awards, to stimulate and reward the high performance of their employees.
These weaknesses in the current system were also acknowledged by senior officials in the Flemish Government. They ensured the delegation that they were planning to change the status of local government regulations in order to give more freedom to the municipalities and more capacity to manage their own personnel.
In light of the above, the rapporteurs believe that Belgium complies with Article 6.2 of the Charter, although there is room for improvement (see section 5, Conclusions and recommendations).
The conditions of office of local elected representatives shall provide for free exercise of their functions.
Under this provision, the conditions of office of local elected representatives shall provide for free exercise of their functions. The delegation did not hear any specific complaint about respect for this provision in Belgium. The local representatives met by the delegation stated that they were free to exercise their functions and free from political pressure or from undue governmental influence from the regions or communities.
The only complaint that was made referred to the fact that the burgomasters are increasingly becoming the target of hate speech on social media; in some parts they see open intolerance, radical expressions or even harassment from the local electors. Apparently, this is discouraging some people from engaging in local political life. In any case, this is a sociological development that falls beyond the parameters of the Charter, although it is an unfortunate trend.
In light of the above considerations, the rapporteurs believe that Article 7.1 of the Charter is complied with.
They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.
Under this provision, the laws and regulations governing the status and the discharge of duties of local elected representatives should allow forexercise
As with many other features of Belgian local government, this matter is not regulated by federal rules, but by regional laws and regulations, and by the by-laws, internal regulations and decisions adopted by the local authorities concerned. As usual, it is pertinent to present the information according to the region in question.
a) In the Walloon Region, Article L1122-7 of the Walloon code of local democracy and decentralisation states that local councillors do not receive any salary, but they receive an attendance fee (jeton de présence) when they attend municipal council meetings, committee and section meetings. The amount of these attendance fees is set by the municipal council. Currently, this amounts to between a minimum of €37.18 and a maximum amount that is calculated by reference to the amount received by the provincial councillors. It is up the municipality to increase the attendance fees of municipal councillors who benefit from other legal or regulatory salaries, pensions, indemnities or allowances, by an amount compensating for the loss of income suffered by the person concerned. The amount of the attendance fees, increased by the amount compensating for the loss of income, can never exceed the salary of an alderman of a municipality of 50 000 inhabitants.
b) In Flanders, similar rules apply in the case of “regular” members of the local council: they do not receive regular remuneration, but only attendance fees. According to the Flemish decree on local authorities, “the municipal council sets the amount of attendance fees and other allowances granted within the framework of the administrative operation of the autonomous municipal management in accordance with, and within the limits of, the conditions for grants established by the Government”. Consequently, the members of the local council receive an allowance if they attend the plenary session of the City Council or of any of its committees.
The burgomaster and the aldermen, though, receive a salary or remuneration which depends on the number of inhabitants of the municipality. In general, the delegation did not hear specific complaints about the level of remuneration for burgomasters or full-time members of the executive, although, as some local representatives pointed out, it is difficult to live only on the salary of a mayor in municipalities with under 50 000 inhabitants.
Another situation concerns that of the members of the different structures for intermunicipal co-operation that have been created by the local authorities (for instance, an intermunicipal authority for the collection and treatment of waste). According to a recent regional legal amendment, the members of the boards of those structures will not in future be paid for their job, something that, according to the Association of Flemish Cities and Municipalities (VUVS in Dutch), has created great unrest among the local representatives. In addition, this change will be to the detriment of the professionalisation of local management.
In the Brussels-Capital Region, the same general rules apply (see Article 12 of the Nouvelle loi communale). In the parliament of this region, the delegation was informed that there was a legal initiative in progress aimed at raising both the remuneration and the daily allowances of the burgomasters. On the sufficiency of the remuneration for mayors, some local representatives pointed out that it is difficult to live only on the salary of a mayor in municipalities of under 50 000 inhabitants, and that most of the members of the local executives do have another part-time job.
In light of the above considerations, the delegation believes that Belgium complies with Article 7.2 of the Charter.
Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.
In Belgium, theareaFor the sake of clarity this matter may benefit from the highlighting of several points.
It is in principle possible for a local representative to be at the same time a member of the House of Representatives of the federal parliament, as this condition is not listed among the positions that prevent someone running as an MP, under Article 64 of the constitution.
The right to simultaneously be a member of a local authority and a member of a regional parliament or institution is exclusively determined by regional laws and regulations, since, as outlined above, there is no nationwide federal legislation on the status of local elected representatives. In light of this: (a) in Flanders it is possible for a local politician to be a burgomaster or alderman and to be a member of the regional parliament; (b) in the Brussels-Capital Region, a new law will make it impossible to hold simultaneously the position of local representative and that of MP in the regional, federal or European parliament; some of the interlocutors deemed this to be an unwelcome development; (c) in the German-speaking Community, it is incompatible to be a burgomaster and a member of the community parliament at the same time.
In all parts of Belgium, a local councillor may be at the same time a member of a provincial council, but not a member of an executive organ (collège provincial or permanent deputation).
Local representatives reported that there is clear nationwide pattern; there are fewer and fewer mayors (burgomasters) sitting in the national or regional/community parliaments.
In light of the above, the rapporteurs understand that Article 7.3 of the Charter is fully respected in Belgium.
Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.
Underlying an analysis of compliance with Article 8 of the Charter in Belgium is the federal constitution. Indeed, there is a key provision that must be underlined again for the sake of better understanding. This provision is Article 162, which refers to the subject matter addressed by Article 8 at two different points. First, it provides that “Provincial and municipal institutions are regulated by the law. The law guarantees the application of the following principles: ... the attribution to provincial and municipal councils of all that is of provincial and municipal interest, without prejudice to the approval of their acts in the cases and in the manner that the law determines”. Second, Article 162 states that “The law guarantees the application of the following principles: ... the intervention of the supervisory authority or of the federal legislative power to prevent the law from being violated or public interests from being harmed”.
As can be seen, the constitution itself lays down relevant provisions and principles on the control or “administrative supervision” of local authorities. We are not dealing here with the judicial control of their activities (performed by the regular and administrative jurisdictions) but the “administrative” control, that is, the one discharged by the “higher” levels of government, the federal state, the regions or the communities.
These two key provisions thus authorise the approval of local authority acts (by a “higher administration”) and the intervention of the “supervisory authority” (or the federal legislative power) to implement such control. Traditionally, the “supervisory authority” (autorité de tutelle) has been the state but following the devolution of the matter from local authorities to the regions, the “supervisory authorities” for municipalities and provinces are now the regions, and the German-speaking Community for the nine municipalities that are located within that territory.
The precise content and the limits of these two provisions of Article 162 of the constitution have been interpreted by the Constitutional Court and by the Council of State. The case law of these two high courts supplements the wording of those provisions. Consequently, Article 162 has to be interpreted and applied in the light of such case law.
Beyond that constitutional provision, it is up to the several regional laws on local authorities to regulate the manner, mechanisms and procedures of implementing such control. Article 8.1 of the Charter does not deal with the extent and depth of the types of controls over local authorities, but rather focuses on the formal aspect that such control can only be performed according to the cases, modes and procedures that are enshrined in law.
From this perspective, the rapporteurs believe that Article 8.1 of the Charter is respected in Belgium.
Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.
General approach
From the outset, an important caveat should be made for this provision of the Charter: the Kingdom of Belgium did not include this provision among those “ratified” or accepted at the time of ratification. Therefore, there is an improper reservation on Article 8.2 and it is not binding on Belgium. However, and for the sake of completeness, it should also be analysed in this report.
It is well known that, as a rule, Article 8.2 of the Charter only accepts a control of legality upon the activities of and decisions adopted by the local authorities. According to the Explanatory Report to the Charter, “Administrative supervision should normally be confined to the question of the legality of local authority action and not its expediency”.
The control of legality is of course stipulated in domestic law, even at the constitutional level (see Article 162 above). This control may be an a priori control (Article 162, paragraph 2), that is, the local authority needs the approval or placet from a higher level of administration (the autorité de tutelle or supervisory authority, as a rule the region) before the local authority adopts a given decision, plan or rule. This legality control may be an ex post control, which means that after a local authority has adopted any plans, decisions or rules, the autorité de tutelle may revise, amend or annul them, on legal grounds, on its own initiative (ex officio control) or on the demand of someone else (another governmental body or a concerned individual).
This form of supervision is called “common administrative supervision” (or tutelle ordinaire, in French) and is implemented by the region.
The control of legality is specified by the Charter and this feature of Belgian local government is fully in line with the requirements of the Charter. Furthermore, when a “supervisory authority” exerts administrative control in a way that runs contrary to the wishes of the local authority concerned, it may appeal to the Council of State and it will be for this higher assembly to decide whether the region, in discharging its power of supervision, respected the content and the limits enshrined in the constitution and in the applicable laws and regulations.
On the other hand, the local representatives met by the delegation stated that this control is very infrequent; that their decisions, plans and rules are rarely amended or rejected by the regions, and when this happens it is only on legal grounds. In the case of Flanders, the delegation was informed that this administrative supervision only happens when there is a complaint raised by a concerned individual or firm. Ex officio supervision can also still be carried out although, in practice, action is usually taken only after a complaint. And in the case of the Brussels-Capital Region, the delegation was informed that there had been only one case of administrative supervision, in the form of a suspension of a local decision, in the last 10 years).
There is another aspect, though, that should be analysed in the Belgian system, that of the control of expediency.
“Specific” administrative supervision concerning delegated tasks
The second part of Article 8.2 of the Charter provides that “administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities”. This form of control is thus specified by the Charter, and the difference with the previous mode of control is that it refers not to the local authorities’ own responsibilities, but to tasks or duties that are “delegated” by other levels of administration. In Belgium, this situation does exist, too, and is usually referred to as “specific” administrative supervision (tutelle spécifique in French).
Contrary to the “ordinary” or common supervision, this form of supervision may be implemented by the federal state, by the communities or by the regions, depending on the level of government that delegated the responsibilities to the local authorities. This control is strictly limited to controlling how local bodies discharge the powers that have been allocated to them by the said “higher” territorial governments.
One local commentator provided some different examples of this type of supervision:
Control of expediency or appropriateness
As seen above, Article 162 of the Belgian Constitution does not prohibit the control of opportunity over the decisions and activities of local authorities, but clearly recognises it when this control provides for the intervention of the supervisory authority “to prevent the law from being violated or public interests from being harmed”. Indeed, it is a well-known feature of the Belgian system of local authorities that it still continues to stipulate the control of expediency and that administrative supervision is aimed at ensuring that the activity of local authorities conforms not only with the law, but also with the general interest. This is a basic principle, enshrined in the constitution since 1831, and this feature explains why Belgium presented a reservation on this aspect of Article 8.2 of the Charter.
However, one should not understand that the control of conformity with “the general interest” allows for indiscriminate supervision of pure expediency. On the one hand, this control is in practice very infrequent, and on the other hand the local authorities have the legal means at hand to defend their autonomy by filing an appeal to the administrative jurisdiction, in order to check whether the region has respected the core constitutional elements. In this vein, and as one local scholar has written, “the Council of State has declared that the general interest is an objective concept which cannot be confused with the simple ‘good will’ of the supervisory authority. For these reasons, when the controlling regional, federal or community authority intervenes on a given local government action or decision, it has to be motivated to make these interventions in a careful and comprehensive manner, according to the criteria of the general interest”.
In any case, it seems that the administrative tutelle over local authorities does not trigger a substantive or particular debate as regards the compatibility between supervision (tutelle) and local autonomy in Belgium. In can be said that the principle of supervision over local authorities has hardly evolved since 1831 and is largely accepted in the institutional habits of Belgium.
In light of the foregoing considerations, the rapporteurs believe that Belgium does not yet meet the requirements of Article 8.2 of the Charter, although that provision is not binding upon Belgium.
Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.
As noted above,the exercise of administrative supervision over local authorities is not an unfettered responsibility. It must respect rules, procedures and principles, some of them having a constitutional relevance (namely, that of local autonomy and that of proportionality).
On the other hand, in the context of administrative supervision by the regions, the local authorities have the legal means at hand to defend their autonomy by filing an appeal to the administrative jurisdiction, in order to check whether this control has respected the core constitutional elements. The Council of State controls the respect of this provision and is the body that guarantees that the principle of proportionality is respected. A couple of examples of this function of the Council of State will be provided below, when considering Article 9.
However, one final, important remark should be made here in connection with the system of the appointment of burgomaster that is in force in Flanders, and which has been presented in detail above. In its Recommendation 409 (2107), the Congress of Local and Regional Authorities expressed its concern about Flemish legislation, under which the election of a mayor proposed by the local council has to be endorsed by the Flemish Government even when the proposed mayor is member of the local council previously directly elected by the electorate. The Congress went on to say that that form of validation could constitute a disproportionate supervision of local authorities by the regional Flemish Government and a breach of the spirit of the Charter’s preamble and Article 8.3. Moreover, the Congress recommended that the competent Belgian authorities revoke the system of appointment by the Flemish Interior Minister. As has been discussed above, the legislation was, at the time of this monitoring visit, still the same, and, although a new legal scheme will enter into force in 2024, with the next local elections, the key feature of the law remains the same. The regional government will keep its power to accept or to refuse the appointment of a burgomaster proposed by the council. Hence, on grounds of consistency, the rapporteurs believe that this situation amounts to a violation of Article 8.3 of the Charter.
In light of the foregoing considerations, the rapporteurs believe that Belgium does meet the requirements of Article 8.3 of the Charter, but that there is a violation of this provision in Flanders
Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.
It is important to note that Belgium introduced an “improper” reservation to Article 9.6 and that, consequently, this provision is not binding on Belgium. However, and for the sake of completeness, we should analyse the situation concerning this provision.
On this matter, all local representatives met by the delegation made the same complaint, which is a serious one. It refers to the costs of the retirement pensions of local civil servants. To better understand the problem, it is worth mentioning that the payment of the retirement pensions for regular workers (in the private and public sectors) and the pensions of state civil servants is carried by the state, by means of the Social Security. Pensions are a federal responsibility, including for those of state officials.
As mentioned above, the human resources of local authorities are composed of “regular workers” (employees under a contract) and “civil servants” (agents statutaires). Recently the federal government decided that the pensions of local civil servants should be paid by the municipalities for whom they had been working before retirement, while the state would keep on paying the retirement pensions of the “regular” workers from the municipalities.
This reform has had very serious consequences for the budgets of local authorities because it represents a very large sum of money. Besides, this is an expense for which the local authorities have not received proportional funding from the state and on which they were not consulted by the federal government at the time of adopting this decision.
Apparently, this problem has also been partially fuelled by a practice where, in many municipalities, some local “regular” workers (contractual agents) were promoted or redesignated as “civil servants” at the end of their careers, as a sort of prize or reward. Consequently, when reaching retirement age, their social security contributions were not sufficient to cover the costs of their pensions as a civil servant, and this had to be paid by the municipality.
As a result of this measure, local authorities are now facing an unsustainable financial burden for a responsibility that they did not have an opportunity to discuss with the federal government.
This problem seems to be especially acute in the Brussels-Capital Region. The delegation was told that in this region this expense amounted to €80 million in 2021. In addition, the financial burden will grow every year for natural reasons, and according to the forecasts of the National Court of Auditors, pension costs will continue to increase faster than the wage bill. In this vein, it is estimated that in 2025 the 19 municipalities will need to pay roughly €100 million in retirement pensions for their civil servants. According to the regional association of local authorities, Brulocalis, the financial impact of this situation will represent a much greater threat to local finances than the consequences of the pandemic.
All the local representatives met by the delegation agreed that the system of pensions for local civil servants is unsustainable. At the time of the visit, this was the most important and serious claim made by the local representatives in the field of local finances. Moreover, the regions apparently have not taken into consideration the rise in the costs of the pensions of the local civil servants when they calculate the municipal fund.
Local representatives proposed that at least one part of this financial burden should be satisfied by the state or by the regions. However, the response of the regions to this problem has been uneven and is conditioned by their own financial wealth. Apparently, only the Flemish Region has taken an executive move, by deciding to pay half of the cost that the Flemish municipalities will have to pay in the next years. Regional representatives told the delegation that this move will involve a financial commitment of roughly €1.3 billion over the next few years. The delegation was also told that not all the regions seem to have the means to take this decision. For instance, in the Brussels-Capital Region, there is no idea or plan whatsoever to help the municipalities face up to the financial burden of the payment of retirement pensions; it would be too costly, regional representatives acknowledged. During the consultation procedure, the rapporteurs were informed by the Government of Brussels-Capital Region that the region has provided for pension aid in its sectoral agreement 2021-2025 and that it grants the municipalities an amount of 250EUR/year per FTE to finance the legal pension of their statutory employees and the complementary pension of their contractual employees.
On the other hand, the local authorities’ associations criticised the fact that the principle of budgetary neutrality is further violated by the federal level because it imposes on municipalities duties and tasks for which they do not receive the necessary financial means. The said associations provided several different examples (some of which have been referred to above), including the financing of the police and emergency services.
In general, the federal government (in the form of the Interior Ministry) carries out negotiations with the trade unions and workers’ associations with regard to the status of civil servants, pensions and salaries. These matters are negotiated at federal level for the whole country. For example, the federal government conducts collective bargaining and negotiates the working conditions and salaries for all police forces with their national unions; however, 80% of police officers are local and work in the municipalities. The same is true for firefighters. Thus, local authorities must pay a salary rise upon which they have not been consulted.
In those negotiations, local representatives remarked, those representing local authorities are rarely consulted on the preparation of the negotiations. The paradox is that it is the federal level that negotiates with the unions and may make concessions to the local employees, but at the end of the day it is for the local authorities to pay the salaries and wages of those employees, since those employees work for the local authorities and receive remuneration from them. Consequently, local representatives complained, central government makes concessions for which it does not assume a financial burden and regulates the social and wage structure of regimes that it does not run.
The associations complained that this conduct by the federal government triggers a transfer of burdens from the federal level to the local one, something that has been denounced in recent years. In the Walloon Region, the UVCW claimed that this state of affairs will have a negative impact on the budgets of the municipalities of roughly €295 million in 2022. In this claim, the local associations are backed by the regional minister.
As a consequence, financing the local police forces also constitutes a challenge for many municipalities.
At regional level, the principle of budgetary neutrality seems to be more respected. This is the case in the Walloon Region, according to local representatives. In the Flemish Region, according to regional leaders, the “belfry” principle applies, which means that the municipalities have to be compensated each time that the Government of Flanders takes measures or decides upon something that has a financial impact on them. From these facts, the local associations reasonably conclude that Belgian municipalities are allocated tasks and responsibilities for which they are not appropriately funded.
In light of the foregoing, the rapporteurs understand that there is a partial violation of Article 9.2 of the Charter, although this provision is not binding on the kingdom.
For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.
Municipalities may have access to borrowing as an extra source of revenue where the amounts from the regional grants and their own revenues are insufficient. In particular, investments in local infrastructure may be financed by borrowing. The golden rule is that all these operations must be decided by the local council, either at municipal or provincial level.
Municipalities may go the private sector or ask for credit from a public or quasi-governmental organisation. For instance, in the Walloon Region there is a specific public authority, called the Centre for Assistance to the Municipalities (CRAC). Municipalities or provinces facing a structural deficit can obtain an extraordinary long-term aid credit via the CRAC account under certain conditions. Depending on the type of aid, the terms and conditions of the credit may differ.
Regional legislation sets the different criteria, conditions and eventual limitations that the local borrowing operations may reach, and the types of local authorities and bodies that may have recourse to borrowing (for instance in the Walloon Region the possibility to have recourse to borrowing is also recognised for the authorities and bodies created for the intermunicipal co-operation).
The regional governments keep a close eye on the debt of local authorities and on their borrowing operations, ensuring that they respect the regional laws and regulations on the matter. Regional legislation may provide that the borrowing decision of the municipality be subject to the approval of the regional ministry when the operation goes beyond certain legal limits.
The regions may also establish specific financial mechanisms for assisting the municipalities with special needs in order to fulfil their duties and obligations, involving eventually the possibility of borrowing. For instance, in late 2021 the Walloon Region approved a specific plan, called the “Oxygen Plan”. From the year 2022, and in order to balance their budget, the municipalities will be able to borrow for five years to cope with the increase in expenses caused by the cost of pensions or funding the police and emergency services. The region, via the CRAC, bears the payment of interest as well as, for certain municipalities, 15% of the amount borrowed. The municipalities will therefore go into debt in order to finance staff pensions and to fund the police and emergency services as well as the social integration income (RIS). It is considered that these expenses are all for structural reasons, and they are only expected to increase over time.
Apart from this general picture, the delegation did not hear any complaint from local representatives or from their associations about this source of income for municipalities.
In the light of the above considerations, the rapporteurs understand that Belgium complies with Article 9.8 of the Charter.
As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.
From the outset, it should be recalled that Belgium also introduced an “improper” reservation to Article 9.7 and that, consequently, this provision is not binding on Belgium. However, and for the sake of completeness, we should analyse the situation concerning this provision.
Block transfers
In Belgium, the most important grant for municipalities is a main block transfer, granted by the corresponding region. As noted above, the financing of the local authorities is a regional responsibility. This means that the regions are responsible for most matters concerning local finances and they are also responsible for ensuring that local authorities’ finances are sufficient, that they are proportional to the tasks and competences allocated to local authorities and that they are sufficiently diverse and buoyant.
The number, type and features of the transfers that the regions grant to their local authorities depend on each region, there is no federal law on this issue. In general, each region has a main “local fund”, which is a block grant that is distributed and transferred every year from the budget of the region to the budgets of the several local authorities present in its territory. Regional representatives met by the delegation assured it that local authorities are free to spend these monies as they want, although they usually apply this revenue to cover their operational expenses. The municipalities’ funds are instrumental to stabilising the local finances and ensuring local autonomy.
The amount of this main fund is updated and increased every year according to inflation. In addition to the general update, a region may decide to add a certain percentage in the form of a “bonus” or improvement.
In the Flemish Region, regional representatives pointed out that the municipal fund has an amount of roughly €3 billion and has been increased every year by 3.5%, in most years well above inflation rates. Apart from the “main” fund, the Flemish Government has created new general allocations, including an allocation distributed based on the accountability contributions that local governments must pay to honour pension costs (from €130 million in 2020 to €367 million in 2026); and an allocation distributed based on the number of hectares of open space known to the municipalities (from €63 million in 2021 to €127 million in 2025).
Regional government representatives stated that the financial contributions by the region to the municipalities will amount to roughly €20 billion in the 2019-2024 government period (compared to €15 billion in the previous 2014-2019 period, according to their figures).
In the Brussels-Capital Region, the general regional financing amounts to roughly 27% of the total income of the municipalities. Local representatives claimed that the regional local fund was increased in 2017 by 12% and since then has been indexed annually by 2%.
In the case of the Walloon Region, the basic regional allocation (known as Fonds des communes) is a major source of income for the 253 municipalities located in the region. In 2021, the overall amount of this fund was roughly €1.3 billion. In general, this grant represents roughly 25% of all municipal regular revenues. The overall amount of this fund is updated every year according to inflation, plus 1% (it is “indexed”), and this latter aspect is highly appreciated by the local association. In addition, the Walloon Region further includes in the regional fund an overall amount of roughly €11.2 million. This amount is connected to the traditional tax that the local authorities could in the past raise on mobile telephone antennae (which was abolished in 2014). Consequently, with this additional amount the regional government is somehow compensating the local authorities for the loss of that income.
Still in this region, there is a separate and specific fund, allocated to the German-speaking municipalities (Fonds des communes germanophones). In 2021, this fund had an endowment of roughly €22.7 million.
A general complaint made by local representatives is that the actual amount that a given municipality may receive as part of the regional fund at the end of the year is not always the amount calculated by the local authority at the beginning of the year, because the region may sometimes grant the sum equivalent to 11 months, and at other times for 13 months.
In addition to the main grant, each region may have different smaller, sector-based funds. For instance, until 2014 in the Flemish Region there were at one time up to eight different funds (sectoral funds), which today have been merged into one single local fund (although there is still a “rural” fund).
The structure of local finances is more or less the same in the three regions. For instance, for Flemish local authorities, roughly 40% of their revenue comes from fiscal revenue and 60% comes from non-fiscal revenue, mainly the funds and grants allocated by the regions.
Subsidies
Local authorities may also receive “subsidies”, which are allocated by the “higher” administrations (the state, regions or communities). Certainly, other levels of government may take the initiative to finance directly, in certain circumstances, investment works that local powers will take advantage of and will manage in the future.
Unlike with the block grants, municipalities may spend as they wish (as long as the expenses correspond with the regular local budget) and subsidies are allocated to specific purposes, which usually involve an investment in the local community (for instance construction projects or the maintenance and improvement of local roads and streets). However, this is not an absolute rule, since the region may decide to set up a subsidy to help the municipalities finance exceptional operational expenses linked to situations of crisis.
This type of subsidising may be ensured by each of the various levels of power (federal, state, regions, communities) according to their respective responsibilities and powers. Subsidies are usually granted by the regions, although in practice they can come from other administrations, depending on the project in question. For instance, the French Community may subsidise the construction of a library in a municipality located in the Walloon Region or in the Brussels-Capital Region and the German-speaking Community may do the same thing in one of the nine German-speaking municipalities.
The state may also subsidise local initiatives. A good example of this form of financing is represented by certain federal funds invested in the municipalities of the Brussels-Capital Region to support the role of the country’s capital region.
A notable case is that of the nine municipalities located in the German-speaking Community: they may ask for subsidies from the Walloon Region or from the German-speaking Community. For instance, this latter community has a specific fund for the construction and improvement of schools. Sometimes, the construction of a given project needs subsidies from both the Walloon Region and that of the German-speaking Community – that would be the case for a bike lane, for example, because this project falls within the realm of responsibility of both governments: roads (Walloon Region) and mobility (German-speaking Community).
The regions’ financial assistance to the municipalities may also take the form of subsidies in cases of emergencies. For instance, following the flooding that took place in the country in September 2021, the German-speaking Community assisted the nine municipalities with a budgetary appropriation of €30 million for flood relief assistance. In Flanders, the regional government has created various ad hoc grants for local governments to help offset the additional costs caused by the coronavirus crisis and the Ukraine crisis.
Another potentially relevant source of subsidies may come from the different EU structural funds, granted in the context of EU regional policy.
When it comes to analysing Article 9.7, the delegation did not hear in general significant complaints. It seems that the municipalities may spend with significant freedom the monies that they receive from the regional block grants.
Consequently, the rapporteurs believe that Belgium does meet the requirements of Article 9.7 of the Charter, although this provision is not binding on the country.
Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.
From the outset, it should be recalled that Belgium introduced an “improper” reservation, too, to Article 9.6 and that, consequently, this provision is not binding on Belgium. However, and for the sake of completeness, we should also analyse the situation concerning this provision.
There is a general recognition that this provision of the Charter is not respected in Belgium and that there are no plans or initiatives to change the situation. In general, local authorities are not consulted in an appropriate manner on the way in which redistributed resources are to be allocated to them. This understanding was made very clear during the different meetings held by the delegation. This was the situation at the time of ratifying the Charter, so Article 9.6 could not be ratified by Belgium. Unfortunately, the situation is still more or less the same.
Local representatives complained that there are frequent examples of the federal level discussing or adopting decisions and laws on matters that directly or indirectly concern the finances of local authorities, but local authorities are not consulted. These cases have been presented above.
Apart from the issue of the negotiation of the salaries of several governmental employees who work at local level and are paid by the local authorities (described above), local representatives pointed out that when the government introduces a tax reform (for instance, a tax relief or tax reduction programme) this ultimately ends up by having a significant impact on the finances of local authorities, since an important part of their revenue consists of surcharges on state taxes, such as the real estate tax. Not only are local authorities not consulted, they do not receive compensation for such cuts.
Consequently, the rapporteurs understand that Belgium does not meet the requirements of Article 9.6 of the Charter, although this provision is not binding on the country.
The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.
Fiscal equalisation among local authorities, in the sense of Article 9.5 of the Charter, is not unknown in the Belgian system. As usual, this is ensured and managed by the regions themselves, and not by the state. Consequently, financial equalisation instruments have been set up and are implemented in the three regions.
Thus, in the Brussels-Capital Region there is a specific fund known as dotation aux communes, through which the region tries to compensate for and redistribute financial means among the poorer municipalities. This equalisation mechanism is distributed among the municipalities based on multiple criteria, for instance the number of kindergartens, the unemployment rate or the population density. According to some senior regional representatives, the current system uses too many criteria and is too complex. They informed the delegation that they are working towards a simplification of the current system and the strengthening of the fiscal equalisation system.
In the case of the Flemish Region, there is a specific fund, a fund endowed with €3.8 billion, which is specifically used to accomplish fiscal equalisation among the Flemish municipalities. The monies from this fund are allocated among the several municipalities on the basis of a dozen technical criteria. As a result, the poorer and rural municipalities get more money than the others.
In the Walloon Region, there is a specific equalisation grant, called the dotation péréquation fiscale in French. This allocation introduces a certain solidarity within the general regional fund by allowing further grant allocations to municipalities with low tax-raising potential. This endowment is broken down into two slots or instalments, one of 22% and linked to the local surcharge on income tax and the other of 8%, linked to the surcharge on real estate tax. This additional fund redistributes monies among the municipalities whose tax potential is lower than the overall tax potential of the region for a given financial year. The extent to which each municipality has access to this part of the additional fund is established according to a formula which considers several criteria. As for the equalisation portion that relates to the real estate tax, it is distributed among the municipalities whose tax-raising potential is lower than the average tax potential of the region for a financial year. The specific amount that is granted to each municipality is also established according to a formula that uses several criteria.
Still in this region, there is an additional regional endowment that is intended for the municipalities and that has an equalisation aim. The population density endowment (dotation “densité de population”) aims to offset the expenses incurred by certain municipalities due to their low population density, for example for the maintenance of a larger road network. This allocation is only accessible to municipalities whose population density is lower than the population density of the Walloon Region (calculated on the basis of the number of inhabitants per square kilometre and of the basis of the area in hectares of the municipality). The share that each municipality receives is determined according to a formula using several criteria.
Finally, in the German-speaking Community, the small number of municipalities and the proximity of the “higher” administration allows the community to directly correct the fiscal imbalances among the nine municipalities present in the territory.
In light of the foregoing, the rapporteurs believe that Belgium complies with Article 9.5 of the Charter.
Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.
As noted above, local taxation is an important source of revenue for the Belgian municipalities. There are two types of local taxes: (A) local surcharges on State or regional taxes. In this case, a municipal rate is added to the rate of the state or region. Examples are the personal income tax and the real estate tax; (B) 'self-contained' local taxes, independently determined and elaborated by the local authorities. We should consider both types separately. In addition to these two types of local taxes, local governments also charge fees for specific services to individuals.
Local surcharges on taxes
This is by large the most important source of fiscal revenue for local authorities. These taxes are actually 'supplements' to a state or regional tax.
The existence of the basic tax is independent of the municipal government. Nor does the municipal authorities shape this type of taxes in any way. The local authorities do not collect these taxes either, as they are collected by the region or the state, who later return the “part of the cake” that corresponds to each municipality. There is, in any case, some leeway in the decisions taken by the local authorities, who are free to determine the actual amount or percentage of the said surcharge. There are two basic local surcharges.
The supplement or surcharge on the real estate tax is by far the most important source of fiscal revenue for the municipalities (in Flanders it accounts for almost 45% of all local fiscal revenue).
The municipalities (and the regions, too) may levy surcharges on the national income tax. The municipality is free to decide the actual rate of the surcharge, within minimum and maximum limits. The rates vary from 0% to 8.5%, and the average rate is between 4% and 7% (in Flanders, 7.5%). In general, the revenue from these two surcharges amounts to roughly 85% of all fiscal revenue for the municipalities.
The associations of local authorities made several different complaints about the current system of local “surcharges” or shares in the state or regional taxes. First, that the revenues vary from year to year what makes them unstable. Second, that the “higher” administrations can take decisions of general economic policy such as tax relief or “tax shift” by which they modify the tax rates or decide on fiscal reductions or exemptions. These decisions later have a clear impact on local revenues, since the part of the taxation that corresponds to the local authorities is reduced. However, local authorities have no say in adopting these decisions and are not even consulted. Third, they have experienced a significant decrease in revenue as a result of the Covid pandemic and the subsequent crisis.
Genuine or “own” local taxes
In Belgium, municipalities enjoy a wide power of taxation. They can raise taxes on any local fact or event, as long as no restrictions are imposed by the higher authorities. The decision to levy a tax, is made by the city council. This is stipulated in the Belgian Constitution, when it says that a charge or tax can only be introduced by the metropolitan districts, federations of municipalities or by the municipalities by a decision of their council”. The competence for these taxation decisions belong to the council.
Among the most common local taxes levied by municipalities is the tax on second residences. Many municipalities have decided to raise this tax, which affects properties that do not constitute main or permanent residences. As a rule, all people having a second residence (apart from having their own main or permanent residence) must pay an annual tax. The tax paid varies according to the commune and the region, depending on the importance in terms of tourism of the area where the temporary residence is located.
In addition, municipalities may levy environmental taxes, such as taxes on refuse collection (direct or indirect tax on the purchase of refuse bags) or on environmentally harmful activities.
Municipalities also levy taxes on night shops, or on abandoned buildings. For instance, in the case of the tax on night shops the amount of tax (at least in Flanders) ranges from between €2 000 and €3 000, depending on the surface area taken up by the business.
As said, the general power of taxation enjoyed by the municipalities may be regulated or limited by federal or regional laws and regulations. The way in which the regions intervene in municipal fiscal autonomy differs from region to region. For instance, in the Walloon Region there is a catalogue of taxable subjects or events that is approved every year by the regional government (by means of “circular” regulation). According to the regional local association (UVCW), this constitutes a limitation on the fiscal capacity of the municipalities. The region may want to homogenise local taxation on its territory, but it must respect a core content for the local fiscal autonomy.
Still in Wallonia, and by virtue of regional legislation, any decision of a local council to levy a specific local tax and adopt a corresponding local regulation needs to be approved by the regional competent body or ministry. In this vein, legislation in Wallonia provides that “the regulations relating to municipal fees and taxes are subject to government approval, with the exception of additional taxes on personal income and additional centimes on property tax”. In addition, “the approval of such regulations may be refused for any violation of the law and harm to the general interest” (Article L3131-1 of the Walloon Code of Local Democracy and Decentralisation).
The implementation of the inherent fiscal powers of the municipalities (their power to levy taxes on taxable subjects) may sometimes conflict with the economic or fiscal policies of the state or the region. In this context, a state or a region may want to curtail or to curb the tax autonomy of a municipality. This tension is a very good example of the nature and depth of local autonomy in Belgium and has so far produced some very interesting legal developments.
Indeed, the Council of State, one of the most important Belgian courts that rules on government measures, has already dealt with this issue several times. During the consultation procedure, the Government of Flanders referred to the decision of the Council of State in a dispute between the Walloon Region and the municipality of Lessines that it considered as a matter of principle. The municipality of Lessines wanted to raise a local tax on nights shops, but the region disagreed on two grounds: first, the region had approved a regional internal regulation (circulaire), establishing which taxes the municipalities should or could levy, and the decision of the municipality infringed that regulation; second, the regional tax policy discouraged municipalities from raising additional taxes.
The refusal of the region (acting as autorité de tutelle) to approve the local tax regulation was challenged by the local authority before the Council of State, invoking, among other grounds, its local autonomy. In its ruling, the Council of State declared that the circulaire could not have a regulatory nature and it was not a genuine legal rule. The Council of State started its reasoning recalling that “by virtue of Articles 41 and 162, paragraph 2, of the constitution, municipal interests are regulated exclusively by the municipal councils, in accordance with the principles established by the constitution”.
The court went on to say that “the control exercised by the supervisory authorities being an exception to the constitutionalprinciple of local self-government, the powers of the latter must be interpreted restrictively, all the more so when it comes to special approval supervision”. Finally, the Council of State declared that “the establishment of a municipal tax is, by virtue of the aforementioned provisions of the constitution, a matter of municipal interest which it is up to the municipal council to regulate, except for the exceptions determined by law, the need for which is demonstrated, and provided that, under the control of the supervisory authority and the competent jurisdictions, the establishment of such a tax does not violate the law or does not harm the general interest”.
Accordingly, the Council of State annulled the decision of the regional minister to refuse. This ruling is very important because it confirms and reiterates the case law of this highest court in the matter of local autonomy and, more precisely, in the field of local fiscal autonomy.
A similar controversy was adjudicated on by the Council of State in its rulings No. 251.180, of 30 June 2021 and No. 252.629, of 13 January 2022, as the delegation were informed by Council of State representatives.
Charges and fees
Local authorities may collect user fees and charges (redevances in French, retributies in Dutch) for the use of public property or facilities, or for the provision of certain local services such as the issuance of permits. The number and types of these fees may vary from region to region, and from one municipality to the other. Examples of fees and charges that are applied just about everywhere are fees on the terraces of bars and restaurants, and fees on street traders and on street markets. Moreover, in the Walloon Region there is a fee levied on the use of local roads (redevance de voirie), which is payable by the distributors/suppliers of gas and electricity that use local infrastructure such as roads and pathways. The same applies to the Brussels-Capital Region.
In light of the foregoing, municipalities’ autonomy in terms of taxation is substantial and is protected by the courts of law (including the Council of State). Consequently, Belgium complies with Article 9.3 of the Charter.
Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.
From the outset, some general remarks should be made before we analyse the matter of local finances in Belgium. First, since the very beginning of the kingdom, local authorities have enjoyed fiscal autonomy. Thus, the Belgian Constitution of 1831 (Article 170.4) effectively confirms that both the provinces and municipalities have proper fiscal powers and that these fiscal powers must be exercised only by the council, either provincial or municipal.
Second, as with many other aspects of local government in the kingdom, local financing is a regional responsibility, not a federal one (for the nine municipalities located in the German-speaking Community, this responsibility falls on the shoulders of the said community and not on those of the Walloon Region). The state does not bear explicit responsibilities in this domain, although it may take decisions which, in a direct or indirect way, have an impact on local finances, as we will see below.
Third, despite some regional differences, there are some common structural patterns and sources of income for local finances which provide a general overall picture. The main sources of income for municipalities are as follows.
Transfers granted by the region. This source of income is analysed below, in connection with Article 9.7.
Local taxation. Three types of local taxation may be identified: local surcharges on state taxes, that is, amounts added on top of some state or regional taxes like the personal income tax and the real estate tax; truly “local” taxes, raised by municipalities themselves and different from those mentioned above; local charges and fees. All these sources are described below, in connection with Article 9.3.
Other sources of revenue. There are other different sources of income, of varying amounts and importance, that vary from place to place, such as:
It is difficult to identify the respective importance of each of these three sources, because the value of those sources may vary from one region to the other and, in addition, the actual amounts of these sources fluctuate naturally every year (this is especially the case for subsidies on investments). In any case, according to local experts, “it can be said that the municipal tax system remains the essential source of local financing” and represents more than 50% of all municipal revenue in all three regions.
One aspect of local autonomy in financial matters is the responsibility of each local authority to ensure a fair and effective control of its expenditures. In the Walloon Region, there are some specific positions within the local authorities that carry out this function, in particular the accountant-comptrollers in the provinces and municipalities. Each municipality has an internal audit service, too. In addition, municipalities may be audited by the regions.
In the Flemish Region, the internal financial control in every municipality is ensured by a Financial Director, who releases a “financial statement” every year. The financial statements of the municipalities must be approved by the Flemish Government or the relevant minister. Moreover, there is an independent audit carried out by the Flemish Government by means of an agency on audits (there is a systematic control over the 300 Flemish municipalities). This agency does not check all the expenses or any expense in particular, but rather performs a quality control over the standards applied by the internal audits.
In light of the above, the rapporteurs understand that Article 9.1 is respected in Belgium.
The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.
Under this provision of the Charter, authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.
As regards this article, it should be noted that the system of local financing is sufficiently diversified, as described in this report in connection with the different paragraphs of Article 9.
Concerning the buoyancy of the system, it will be described below that the block grants that the regions transfer to the municipalities are updated every year in proportion to the rate of inflation, and that in some regions there is even a “surplus” beyond that ceiling. In addition, there are comprehensive mechanisms for equalisation, as described below (Article 9.5).
Moreover, in some regions there are specific schemes to help municipalities whose finances are especially burdened or imbalanced. For instance, in the Walloon Region the municipalities and the Centres for Social Help (CPAS) that face acute financial structural difficulties may ask for financial assistance from the Regional Centre for Assistance to the Municipalities (Centre regional d’aide aux communes, CRAC).
This assistance is presented in more detail below, too.
Finally, the delegation received some complaints about respect for the principles enshrined in these provisions (the burden of the local pension payments or the reduction of revenues owing to fiscal decisions made by the state/regions, for example), but in our view they do not equate to an open violation of this provision, or at least not in the whole country. In this vein, it should be recalled that some local authorities’ associations (such as in Wallonia) acknowledged that the regional institutions do recognise the principle of budgetary neutrality, which forces the regions to compensate municipalities for the negative financial effects that regional decisions might have on local authorities. This is done in practice, even if this principle has not been recognised yet in the constitution or in the applicable regional legislation.
In light of the above, the rapporteurs believe that Belgium complies with Article 9.4 of the Charter.
Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.
Belgian local authorities are entitled to co-operate and to form consortia and other types of collective structures and bodies with other Belgian local authorities (and sometimes with local authorities located abroad; see below). Thus, Belgian municipalities may establish associations or partnerships among themselves in order to carry out tasks of common interest and to discharge common local services. Intermunicipal co-operation takes place mainly in the fields of economic and technical infrastructure, municipal services, social services, transport, civil protection, cultural services, water supply and depuration, gas supply, waste management and economic development.
According to local representatives, intermunicipal co-operation is extremely developed across the whole of Belgium and there are hundreds of structures for co-operation. This co-operation takes place mainly among the municipalities belonging to the same region. Some common rules may be identified in this matter.
This aspect of local government is also regulated exclusively at regional level and, consequently, in the different regional laws and regulations. Consequently, each region may have a different policy of encouraging or channelling intermunicipal co-operation.
For instance, in Flanders regional leaders have identified that there are many structures for intermunicipal co-operation (roughly 190 partnerships), but that this co-operation does not follow a rational pattern (functional or territorial). The regional government approved in 2021 a new decree on intermunicipal co-operation. The decree has created different “districts” or “regions for co-operation” (fifteen in total) and the municipalities are encouraged to co-operate with other entities placed in the same geographical area. With this initiative, the regional government wants to “intensify” intermunicipal co-operation, avoid territorial dispersion and strengthen intermunicipal co-operation.
In the Brussels-Capital Region, the peculiar territorial pattern of the region (with 19 municipalities packed into a relatively small area of 161 km2) makes intermunicipal co-operation unavoidable, for instance in the field of management of sewage systems. As regards the police forces they have been merged in the municipalities. Currently, there are six police zones or areas and these areas are run by councils representing the municipalities concerned. Sporting and other facilities are another common area of co-operation as a result of the close proximity of the population, with participating municipalities seeking to pool expenses.
In Wallonia, government representatives told the delegation that they were preparing regional legislation to reform intermunicipal co-operation and that their model is the French intercommunalité. In the future, it will be possible to create in this region communautés de communes, which is the most complex form of intermunicipal co-operation in France. Meanwhile, they are putting in place pilot projects, for instance for the reception of refugees.
The different types of intermunicipal co-operation and their associated processes vary according to the degree and ambition of the co-operation. The loosest form of co-operation is the one that takes place in an informal way. But participating municipalities may want stronger or more stable co-operation, which is usually manifested in a “partnership agreement”. Finally, two or more municipalities may decide to set up a permanent separate structure, body or authority, with its own legal personality, managing organs, internal organisation, and the like.
For instance, in Flanders there are “interlocal associations”, which represent the least formal form of intermunicipal co-operation and which have no legal personality. There are also “project associations”, which are established to realise a clearly defined (small-scale) project of intermunicipal interest; they have legal personality. And, finally, there are “service associations” and “commissioned associations”. These partnerships involve the strongest and most stable form of co-operation. They are common in areas such as water or energy distribution and waste collection.
Regional legislation provides for questions such as: the remuneration and wages of the local (municipal) representatives sitting on the managing boards of the structures for co-operation; the possibility for the said structures to have recourse to borrowing; the possibility to hold simultaneously two or more positions in different structures of co-operation.
In view of above considerations, the rapporteurs believe that Belgium fully complies with Article 10.1 of the Charter.
The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.
In Belgium, local authorities are certainly entitled to belong to associations for the protection and promotion of their common interests. As in other fields of local government, this dimension must be analysed strictly at regional level. In contrast to what happens in most countries, in Belgium there is no national association of municipalities or of provinces. Conversely, in all three regions there is one major (or only) association of municipalities (and eventually provinces). Usually, they have the legal nature of a non-profit organisation.
These associations have a strict regional scope: in the Flemish Region, the local association is the Association of Flemish Cities and Municipalities (Vereniging van Vlaamse Steden en Gemeenten, VVSG). This association brings together all of the 300 municipalities now present in Flanders. Therefore, it is the only such association operating at the regional level.
In the Brussels-Capital Region, the association is Brulocalis, while in the Walloon Region the association is the Union des Villes et Communes Wallonnes (UVCW). In the German-speaking Community, though, there is no representative association of local authorities. However, the small number of authorities allows for direct communication between the municipalities and the community’s institutions.
Concerning the provinces, in 1973 the existing provinces decided to create an association to promote their common interests: the Association of the Belgian Provinces was born. In 1991, the Flemish provinces and the Flemish members of the Council of the Province “Brabant” created their own association: the Flemish Association of Provinces.
The missions of the regional associations of local authorities are equivalent in the three regions. They seek to protect the rights and the interests of all the affiliated municipalities or provinces; to lobby for municipalities and provinces and to represent them at the regional and federal level; to deliver reports and consultations, whenever they are consulted by the regions on any matter concerning the local authorities;
to provide them with consultancy, training for municipal staff and technical support and assistance. The associations are usually funded through membership fees.
The general freedom enjoyed by Belgian local authorities to form or to join the regional representative associations is complemented by their capacity to join international associations. As a consequence, these associations may participate in international institutions and organisations related to their field of operation as founding members or members, upon decision of the municipal or provincial council.
Thus, Belgian associations work actively within international associations of local authorities, for instance in the Council of European Municipalities and Regions (CEMR), the oldest and broadest European association of local and regional governments. The Association of Flemish Provinces is a member of CEPLI (European Confederation of Intermediate Local Authorities).
In view of the above considerations, the rapporteurs believe that Belgium fully complies with the requirements of Article 10.2 of the Charter.
Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.
As noted above (see paragraph 5), the Kingdom of Belgium has signed and/or ratified a number of Council of Europe international treaties in the domain of transfrontier co-operation at local level, such as the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106); the Additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, of 9 November 1995 (ETS No. 159); Protocol No. 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning interterritorial co-operation, of 5 May 1998 (ETS No. 169); Protocol No. 3 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning Euroregional Co-operation Groupings, of 16 November 2009 (CETS No. 206). As long as these treaties fall within a subject matter which is within realm of responsibility of the regions, all or most of the above-mentioned treaties have also been ratified by the regions.
Consequently, there are extensive legal and institutional foundations for extensive co-operation with municipalities of other neighbouring states (mainly France, Luxembourg, the Netherlands and Germany).
For instance, in the case of Flanders, this region has approved the European Framework Convention on Transfrontier Co-operation between Territorial Communities or Authorities, as well as the three additional protocols to this convention. Flanders is also bound by the European Union Regulation of 5 July 2006 on a European Grouping of Territorial Cooperation (EGTC), as amended. Hence, Flanders and/or Flemish local and intermediary authorities currently participate in different EGTCs (for instance, in the Euregio Maas-Rijn).
Transborder co-operation is also strong in the context of the Benelux Union, of which Flanders is a partner. This allows for different forms of co-operation, for instance by the creation of a “Benelux Grouping for Territorial co-operation”. Flemish municipalities do not need the approval of the Flemish Government, except for the establishment of an EGTC, because the aforementioned Regulation of 5 July 2006, as amended, requires this.
In general, the delegation did not hear any complaints about the implementation of this freedom or right enshrined in the Charter, and many Belgian municipalities are involved in schemes for intermunicipal co-operation at the international level, where twin-city partnerships with foreign cities are, of course, a common feature.
The delegation did not receive any complaint or negative assessment of this freedom. In light of the above, the rapporteurs believe that Article 10.3 of the Charter is respected in Belgium.
Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.
An analysis of the legal protection of local self-government in the Kingdom of Belgium must consider two different aspects: on the one hand, the regular access of local authorities to ordinary courts, and, on the other hand, the access of such entities to the Constitutional Court to defend the principle of local self-government.
As regards the first aspect, Belgian local authorities do enjoy locus standi to go to the regular or administrative courts in order to defend their rights, properties and interests, just as other juridical persons do. In the Belgian system, municipalities and provinces are able to go to the courts to secure the free exercise of their powers, interests and properties. They may go to civil courts or to the administrative courts. The delegation did not hear any complaint from local leaders or representatives regarding this.
The administrative jurisdiction is of special interest for the purpose of this report. The Council of State is the only general administrative jurisdiction in Belgium, but there are other specialist jurisdictions. For instance, if a municipality claims that a decision concerning it by a regional body is illegal, it may bring a claim to the Council of State.
Local authorities have the appropriate legal capacity and regular access to the Council of State (section du contentieux), like any other moral person, and this high court examines the “locus standi”, in the sense that they must show “an interest to act” (intérêt à agir). In general terms, this requirement is implemented to a great extent by the Council of State.
Moreover, in some legal proceedings lodged by individuals and companies (for instance in the domain of local planning and urbanism) the Council of State invites the concerned municipality to be a party to or intervener in the proceedings. In practical terms, “locus standi” also applies to the local burgomaster and to the board of the mayor and aldermen. The Council of State also implements a broad view of the required “interest to act” when a local resident is the plaintiff, acting for the defence of collective local interests.
In a legal proceeding lodged in the Council of State, the concerned local authority may certainly invoke the principles of local government enshrined in the Charter (or in Article 162 of the constitution). A violation of such principles is a frequent claim that is formulated in judicial proceedings where a municipality and a region are opposed within the context of intergovernmental control or administrative supervision (tutelle).
The Council of State has made several rulings where the notion and principles of local self-government have been interpreted and applied. Consequently, this case law is vital to understanding how the principle of local autonomy is implemented and protected in Belgium. In fact, some of the decisions taken by the Council of State in this domain are cited at different points in this report.
The Council of State is very cautious when it comes to recognising the “direct effect” of the Charter, and it does not recognise such a “direct effect” of many provisions of the Charter because of its broad wording.
The Council of State is reluctant to recognise such direct effect when a given provision does not entail a clear obligation for the state. Nevertheless, this supreme court has recognised the effect of some articles of the Charter, for instance Article 4.6 (consultation of local authorities). In other cases, the Council of State does not adjudicate on claims on the basis of the Charter only, but also on constitutional or statutory provisions.
The case law of the Council of State is of crucial importance when it comes to understanding and implementing the system of interterritorial control in Belgium (tutelle), by which regions have the power to control the decisions, plans or measures approved by local authorities. For instance, a local authority may want to implement a decision or plan, but the region may refuse to grant its approval; in other cases, a municipality may envisage introducing a local tax, but the controlling authority refuses to accept the proposal. Then, the municipality can take the region to the Council of State with the said court deciding whether the control exerted by the region is proportional and whether it has respected local autonomy. Consequently, the case law of the Council of State is key to understanding the actual content and limitations of the principles of local self-government.
Another field where the judicial activity of the Council of State is very relevant is the implementation of legislation on the municipalities with linguistic “facilities” (especially in the six municipalities located in Flanders, in the periphery of the Brussels-Capital Region), which has proved to be very controversial (see below, section 4.3). There is a specific chamber in the Council of State that deals with these issues (the General Chamber).
Regarding the access of local authorities to the Constitutional Court, there is no major problem concerning their locus standi, as they have the legal capacity to go to that court. Moreover, individual citizens can also act on behalf of a municipality, acting as a “substitute”, and associations of local authorities may also bring challenges to the court, as they are recognised as having the legal capacity as well.
Therefore, the case law of the Constitutional Court is the second pillar that needs to be considered when one wants to understand in detail the interpretation, implementation and protection of the principle of local self-government in Belgium, and, by implication, that of the Charter. Indeed, the Constitutional Court does not need to use the concept of “direct effect” to check for the actual application of an international treaty, as the court may apply an “indirect review” of the conformity of legislation with such treaties, including the Charter. The Constitutional Court has also recognised the existence of the principle of subsidiarity, although this principle is not explicitly enshrined in the constitution.
So far, local authorities have introduced roughly 80 complaints to the Constitutional Court (this figure includes single municipalities or provinces, or an association thereof). Usually, they ask for the annulment of a legal rule or decision that they consider to be unconstitutional. If an action for annulment is successful, the act is annulled by the Constitutional Court and the respective body or parliament must make a new law. Moreover, during the course of the proceedings, the court can suspend the challenged statute as an interim measure.
Another indirect way by which municipalities may have an “access” to the Constitutional Court is by way of a “preliminary ruling”, by which a lower court, which is competent to adjudicate on a complaint triggered by a local authority (or any that involve such an authority), formulates to the Court a question that is relevant for the solution of the case pending in that court (for instance, a question about the constitutionality of a statute that is decisive in adjudicating on the legal proceedings). According to the services of the Constitutional Court, until now there have been some 153 cases of preliminary rulings where a local authority was involved in one way or another.
In any of the proceedings outlined above, the principles of local self-government may be invoked, as they are in practice (especially in the domain of local finances, such as those concerning fire brigades, the police, local pensions, etc.). This is facilitated by the position of the court vis-à-vis the direct or indirect application of treaties, including the Charter, in the Belgian legal system.
Consequently, the Constitutional Court has made several relevant rulings where the principle of local self-government has been identified and applied in a precise forensic context. Among that case law, it is worth mentioning the following.
Other relevant rulings are those of 8 May 2014 (Ruling No. 73/2014) and 21 December 2017 (Ruling
No. 145/2017)
Another domain where the Constitutional Court case law has had a very relevant impact is the legal scheme governing the municipalities endowed with “linguistic facilities”. In this field, Rulings No. 57 and No. 58/2014, both of 3 April 2014, should be highlighted (see section 4.3, below).
In light of the foregoing considerations, the delegation believes that the Belgian system of local government fully complies with the requirements laid down in Article 11 of the Charter.
The principle of local self-government is recognised in the Belgian Constitution.
