devolution of powers in switzerland and belgium

8/12/2019 Devolution of Powers in Switzerland and Belgium

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DEVOLUTION OF POWERS IN

SWITZERLAND AND BELGIUM

Legal Memorandum

July 2013


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DEVOLUTION OF POWERS IN SWITZERLAND AND BELGIUM

Executive Summary

The purpose of this memorandum is to analyze the devolution of powersbetween the state, regional, and local governments in Switzerland and Belgium.

Devolution of powers concerns the decentralization of legislative,administrative, and fiscal powers from the central government to governments at asub-national level. The legal basis for devolution is commonly set forth in a statesconstitution by specifying which level of government holds jurisdiction overspecific powers. States commonly create coordination mechanisms to guaranteethat each level of government respects assigned powers and to prevent disputesthrough cooperation. Where disputes arise, supreme and constitutional courts

frequently have the authority to decide questions of jurisdiction and competencies.

The Swiss state consists of three levels: federal, cantonal, and communal.The cantons are the dominant political actors, granted great autonomy by the SwissConstitution. The delicate constitutional balance of the Swiss federal republic isachieved through the principle of subsidiarity. The Swiss constitutional system is

based on an adherence to the idea that power should be devolved to the greatestextent possible and that, unless otherwise provided, all powers rest with thecantons. There is no centrally managed coordination and information exchangesystem among the cantons but there are mechanisms in place to prevent conflicts,including intergovernmental coordination bodies and inter-cantonal treaties. Whenconflicts do arise, they are resolved by the Federal Supreme Court.

The Belgian state consists of the federal state, communities, and regions, allthree of which are equal from a legal standpoint. Closer to the local level are

provinces and communes, which are also intricately involved in the disseminationof government services and decision-making. The division of powers within theBelgian state is based on a system of exclusive competences, which involves anexhaustive demarcation of issue areas. The primary mechanism currently used to

resolve conflicts is the Constitutional Court. Communities, regions, and federalauthorities can also resolve conflicts by entering into cooperation agreements.


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Devolution of Powers in Switzerland and Belgium, July 2013

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Devolution in Switzerland 1Allocation of Powers 3

Federal Level 4Cantonal Level 6Communal Level 7

Transfer of Powers to Other Levels 8Oversight of Distribution of Powers 10

Federal Oversight 10

Inter-Cantonal Oversight 10Inter-Communal Oversight 11Citizen Oversight 12

Mechanisms to Resolve Conflict 14

Devolution in Belgium 16Allocation of Powers 20

Federal Level 20Community and Regional Levels 22Provincial Level 23Communal Level 23

Transfer of Powers to Other Levels 24Oversight of Distribution of Powers 25

Mechanisms to Resolve Conflict 27

Conclusion 30


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DEVOLUTION OF POWERS IN SWITZERLAND AND BELGIUM

Statement of Purpose

The purpose of this memorandum is to analyze the devolution of powersbetween the state, regional, and local governments in Switzerland and Belgium.

Introduction

Devolution of powers concerns the decentralization of legislative,administrative, and fiscal powers from the central government to governments at asub-national level. The legal basis for devolution is commonly set forth in a statesconstitution. When devolving powers, states generally specify which level ofgovernment holds jurisdiction over specific powers. States may assign all powers

by specifically and exhaustively listing powers that are exclusive to either thecentral or sub-national governments. Alternatively, states may allocate a limitednumber of the powers to either level of government and grant residual authorityover all new or unremunerated powers to either level of government. Grantingresidual powers to the federal government supports centralization, while grantingresidual powers to sub-national governments facilitates decentralization.

States commonly create coordination mechanisms to guarantee that eachlevel of government respects assigned powers and to prevent disputes (by ensuringcooperation). Despite coordination and cooperation efforts, jurisdictional disputesover exclusive, residual, or concurrent powers occur, creating the need for disputeresolution mechanisms. Supreme and constitutional courts frequently have theauthority to decide questions of jurisdiction and competencies. States also providefor non-judicial dispute resolution mechanisms to resolve disagreements betweenthe central and sub-national governments.

Devolution in Switzerland

In Switzerland, geography shapes demography. Broken into component

parts by Europes great mountains, Switzerland is linguistically, ethnically, andreligiously diverse and politically fractured.1 The Swiss can be divided into threedistinct sociolinguistic groups: roughly 70 percent speak German, 22 percent speak

1Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.


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French, seven percent speak Italian, and less than one percent speaks Romansch.2These cultural groups are separated into homogenous cantons, the politicalsubunits of the Swiss state.3 Of the 26 cantons, 22 are monolingual, and of those17 are German-speaking, four are French-speaking, and one is Italian-speaking.4Moreover, 42 percent of the population identifies as Roman Catholic and 35

percent identifies as Protestant.5

Despite this internal diversity, and despite being surrounded by continentalEuropes most powerful nation-states, the Swiss federal state has long been strong,

prosperous, and independent.6 Moreover, the cantons have been at peace with theirneighbors since the states founding in 1848.7 Much of this success is the result ofan evolving constitutional order that carefully balances local autonomy withstrictly necessary federal power.8

Before the establishment of the Swiss federal state, Switzerland was a looseconfederation of states.9 In 1798, Napoleon Bonapartes troops invadedSwitzerland and attempted to impose a centralized Helvetic Republic.10 The

2Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.3Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:

LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.4World Directory of Indigenous Peoples Switzerland: Overview, MINORITY RIGHTS GROUP INTERNATIONAL,August 2011, available at http://www.unhcr.org/refworld/country,,MRGI,,CHE,4562d8b62,4954ce045,0.html; SeealsoArnold Koller,Introduction to the Swiss Model of Federalism , INTERNATIONAL CONFERENCE ON FEDERALISM,2-3, (2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.5Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.6About the Swiss Economy, FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, available athttp://www.eda.admin.ch/eda/en/home/reps/eur/vgbr/ukemlo/ecofin/aboeco.html.7

Arnold Koller,Introduction to the Swiss Model of Federalism , INTERNATIONAL CONFERENCE ON FEDERALISM,1,(2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.8Arnold Koller,Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM,1,(2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.9Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities,THE ROYALINSTITUTE OF INTERNATIONAL AFFAIRS, 4, (Apr. 12-13, 2012), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf.10Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities,THE ROYALINSTITUTE OF INTERNATIONAL AFFAIRS, 4, (Apr. 12-13, 2012), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf.


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effort was not successful.11 In 1803, Napoleon partially restored cantonalautonomy with the Mediation Act.12 In 1815, following the Battle of Waterloo andthe defeat of Napoleon, the Swiss chose to return to the old confederal system.13

The sovereign states of the Confederation initially sought to guaranteecollective security through mutual assistance. However, the pre-Napoleonicsystem proved to be inadequate, and the constitution of 1848 established the Swissfederal state.14 While a Swiss national identity had developed over the centuries,the constitution represented the first Swiss nation-state.15 That said, under thissettlement, the cantons kept their statehood, their own constitutions, and most oftheir political autonomy.16 The constitution of 1874 established a centrallyorganized modern state.17 It transferred cantonal powers to the federal level,including the establishment of a federal army, federal currency (the monopoly ofthe federal government to issue banknotes was only introduced in 1891), an end to

trade restrictions within the federal state, and the creation of a federal common andcivil law.18 The constitution of 1999, still in place today, extended the rights of thecantonal governments to participate in the federal decision-making process.19

Allocation of Powers

The Swiss government has three levels: federal, cantonal (or state), andcommunal (or municipal). The cantons are the dominant political actors. Thedelicate constitutional balance of the Swiss federal republic is achieved through the

11Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities,THE ROYALINSTITUTE OF INTERNATIONAL AFFAIRS, 4, (Apr. 12-13, 2012), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf.12Switzerland and Napoleaon, Federal Department of Foreign Affairs, available athttp://www.swissworld.org/en/history/the_18th_century/switzerland_and_napoleon/.13Nenad Stojanovic, Swiss Nation-State and Its Patriotism, MCGILL UNIVERSITY MONTREAL,9,available athttp://www.google.com/url?sa=t&rct=j&q=while%20a%20swiss%20national%20identity%20had%20developed%20over%20the%20centuries%2C%20the%20constitution%20represented%20the%20first%20swiss%20nation-state&source=web&cd=5&ved=0CEsQFjAE&url=http%3A%2F%2Fwww.polis.sciencespobordeaux.fr%2Fvol11ns%2Fstojanovic.rtf&ei=xjnSUIOKCc6Q0QHkxoDgDA&usg=AFQjCNFAjA352PyuY2iFH2X1pkhN6r9xcQ&bvm=

bv.1355534169,d.dmQ.14The Constitution of 1848, FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, available athttp://www.swissworld.org/en/history/the_federal_state/the_constitution_of_1848/.15SWITZERLAND CONST.preamble (1848); Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics andContemporary Realities,THE ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS9-10 (Apr. 12-13, 2012), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf.16SWITZERLAND CONST.art.3 (1848).17SWITZERLAND CONST.arts. 1-3 (1874) available at http://www.servat.unibe.ch/icl/sz01000_.html.18SWITZERLAND CONST.arts. 13, 31, 38, 64 (1874).19SWITZERLAND CONST.art. 45 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.


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principle of subsidiarity,20which holds that powers should, as much as possible, beallocated to the lowest level of government able to properly administer them.21The Confederation, then, shall assume the tasks which require uniform regulation,and the Confederation shall leave the cantons as large a space of action as possible,and shall take their particularities into account.22 All tasks not requiring uniformaction are left to the cantons.23

According to Arnold Koller, former President of the Swiss Confederation,Article 3is often referred to as the basic federal norm of Switzerland.24 Article3 provides that [t]he cantons are sovereign except to the extent that theirsovereignty is limited by the federal Constitution. They shall exercise all rightswhich are not vested in the Confederation.25 These twin principles that powershould be devolved to the greatest extent possible and that, unless otherwise

provided, all powers rest with the cantons form the foundation of the Swiss

constitutional system.26

As a matter of process, any reform to this constitutional system must beachieved through consensus through popular referendum and from the cantonsthemselves.27 This reflects the complex system of direct democracy, whichrequires the consent of each canton for each new federal competence.28This topicwill be discussed in greater detail below.

Federal LevelThe Swiss federal government is an executive and legislative system in

which the people elect the members of parliament and the parliament, in turn,elects a Federal Council to fulfill the executive functions of government.29 Under

20Arnold Koller,Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM,4(2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.21SWITZERLAND CONST.arts. 3, 42, 43, 46 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.22Arnold Koller,Introduction to the Swiss Model of Federalism , INTERNATIONAL CONFERENCE ON FEDERALISM,4(2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.23SWITZERLAND CONST.arts. 42, 46 (1999); Arnold Koller,Introduction to the Swiss Model of Federalism,INTERNATIONAL CONFERENCE ON FEDERALISM,4 (2002) available at,http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.23

SWITZERLAND CONST.arts. 3, 42, 46 (1999) available at http://www.admin.ch/ch/e/rs/1/101.en.pdf.24Arnold Koller,Introduction to the Swiss Model of Federalism , INTERNATIONAL CONFERENCE ON FEDERALISM,4(2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.25SWITZERLAND CONST.art. 3 (1999).26Arnold Koller,Introduction to the Swiss Model of Federalism, INTERNATIONAL CONFERENCE ON FEDERALISM,4(2002) available at, http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.27SWITZERLAND CONST.art. 140 (1999).28Arnold Koller,Introduction to the Swiss Model of Federalism , INTERNATIONAL CONFERENCE ON FEDERALISM,5(2002) available at http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.29SWITZERLAND CONST.arts. 149-150 (1999).


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the principle of subsidiarity, the federal government makes policy only in areasthat are necessarily federal, such as foreign policy.30 Instead of deciding issuesunilaterally, however, federal authorities commonly negotiate with the cantons andcommunes and respect them as equal partners.31

The Swiss parliament has two chambers: the National Council and theCouncil of States. The two chambers make up the United Federal Assembly.32The people elect the 200 members of the National Council and the 46 members ofthe Council of States.33 Cantons send two representatives to the Council of States,regardless of their size, except for six half cantons, which only have onerepresentative.34 The United Federal Assembly is the highest authority in thestate.35

The Federal Council serves as the federal government and consists of seven

members elected by the parliament for a period of four years, subject to renewal.36The Federal Council sets its agenda, decides government policies, coordinates thework of the state institutions, and sets the financial plan and budget.37 Themembers meet weekly every Wednesday.38

Every year, the parliament elects one of the seven members of the FederalCouncil to serve as the presiding member and president of the Confederation.39The president is considered an equal to the other councillors, holds no special

30SWITZERLAND CONST.art. 46 (1999); Arnold Koller,Introduction to the Swiss Model of Federalism ,INTERNATIONAL CONFERENCE ON FEDERALISM,4 (2002) available at,http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.31Thomas Fleiner, Swiss Confederation,inAGLOBAL DIALOGE ON FEDERALISM,VOLUME 2:DISTRIBUTION OFPOWERS AND RESPONSIBILITIES IN FEDERAL COUNTRIES, 4 (Akhtar Majeed, Ronald L. Watts, & Douglas M. Brown,eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Booklet_2/BL2-ch-Fleiner.pdf.32The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 15 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.33The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 16, 24 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.34The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 25 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.35SWITZERLAND CONST.art. 148(1) (1999).36

SWITZERLAND CONST.art. 175 (1999).37SWITZERLAND CONST.arts. 180, 183 (1999).38A Reportage on the Staff of the Federal Council, THE SWISS CONFEDERATION, 5, available athttp://www.google.com/url?sa=t&rct=j&q=the%20members%20meet%20weekly%20every%20wednesday%20in%20the%20federal%20palace%20in%20bern&source=web&cd=4&ved=0CEcQFjAD&url=http%3A%2F%2Fwww.bk.admin.ch%2Findex.html%3Flang%3Den%26download%3DM3wBPgDB_8ull6Du36WenojQ1NTTjaXZnqWfVp3Uhmfhnapmmc7Zi6rZnqCkkId1fn6BbKbXrZ6lhuDZz8mMps2gpKfo&ei=HsnUUPPsCYTE0AG90oG4BQ&usg=AFQjCNFm33G24-G2Rv1ylnjLasVyKvv6kw&bvm=bv.1355534169,d.dmQ.39Executive Branch: The Federal Council, FEDERAL DEPARTMENT OF FOREIGN AFFAIRS, available athttp://www.swissworld.org/en/politics/government_and_parliament/the_federal_council/.


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political privileges, and still runs his or her own department.40Collectively, theFederal Council functions as the head of state.41

There is a dual judicial system with a federal court system and 26 cantonalcourt systems.42 Cantonal trial courts have the power to interpret and apply federallaw, as well as the respective cantonal law.43 The Federal Supreme Courtfunctions as the highest appellate court, adjudicating on both federal and cantonallaw.44

Cantonal LevelSwitzerlands primary political actors are the cantons, which exist as

independent legal entities.45 All cantons have equal rights under the federalconstitution.46 Each canton has its own parliament and administrativegovernment.47 In addition, each canton has the exclusive power to implement

federal law; determine the power of its communes; draft its own constitution;manage education at all levels; govern cultural matters; govern matters related tolanguage; manage the church and state relationship; dispose of public water andwater resources (including hydro-energy); and enforce gaming and fishingregulations.48

The cantons also set the scope of direct democracy of their citizens and havegreat power in security and environmental regulation.49The adoption of anyfederal legislation must be preceded by consultation with the cantons, which are

40Political Organization of Switzerland, THE FEDERAL AUTHORITIES OF THE SWISS CONFEDERATION, available athttp://www.admin.ch/org/polit/00054/index.html?lang=en; Federal Department of Foreign Affairs,ExecutiveBranch: The Federal Council, available athttp://www.swissworld.org/en/politics/government_and_parliament/the_federal_council/.41The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 43 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.42Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.43SWITZERLAND CONST.arts. 191b (1999).44SWITZERLAND CONST.arts. 188-89 (1999).45

Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities,THE ROYALINSTITUTE OF INTERNATIONAL AFFAIRS, 15, (Apr. 12-13, 2012), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf.46Clive Church & Paolo Dardanelli, Switzerland: Historical Dynamics and Contemporary Realities,THE ROYALINSTITUTE OF INTERNATIONAL AFFAIRS, 15, (Apr. 12-13, 2012), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/church_and_dardanelli.pdf.47The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 14, available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.48SWITZERLAND CONST.arts. 46, 50, 51, 62, 69, 70, 72, 76(4), 80(3) (1999).49SWITZERLAND CONST.arts. 51, 57, 74 (1999).


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granted the power to participate in federal decision-making, particularlyregarding legislation.50 The power of the cantons is only limited by federal

power, which is granted to the Confederation through the federal constitution.51

The power of the cantons is further augmented by their ability to cooperatewith each other without involving the federal government. Concordats arehorizontal instruments of cooperation that enable the cantons to take collectiveaction without the involvement of the Confederation.52These inter-cantonaltreaties function as a form of regional cooperation. Concordats are designed toaddress specific issues, including the attendance of cantonal schools by studentsfrom other cantons, inter-cantonal institutions in the penal system, or mutualsupport of cantonal police forces from different cantons in the case of events whichexceed the capacity of a single cantonal police services.53

Communal LevelCommunes exist within the cantons and, because each cantonal government

determines their level of autonomy, have varying degrees of responsibility.54Powers that are often transferred to the communes by the cantons includemanaging the registry of residents and organizing civil defense, as well asresponsibilities relating to the implementation of cantonal rules and regulationsregarding schooling, road construction, social services, energy supplies, taxes andlocal planning.55 Currently there are 2,551 communes, however some smallercommunes are merging in order to more efficiently handle their responsibilities by

pooling resources and staff.56

50SWITZERLAND CONST. art. 45 (1999).51The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.52Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-

C10-ch-LinderSteffen-en.htm.53Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, CENTERFOR COMPARATIVE AND INTERNATIONAL STUDIES,UNIVERSITY OF ZURICH, 6, available athttp://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.54The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.55The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.56Swiss Communes Merge in Struggle to Survive, SWISS INFO,Feb. 4, 2004, available athttp://www.swissinfo.ch/eng/Home/Archive/Swiss_communes_merge_in_struggle_to_survive.html?cid=3751794.


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Transfer of Powers to Other Levels

As mentioned above, the Swiss Constitution grants great autonomy anddecision-making power to the cantons. Restricted only by the constitutionalmandate that the people of each canton have the power to make their ownconstitution and the requirement to comply with federal law, the cantons havevirtually unlimited discretion with regard to the implementation of federal law andthe creation and execution of their own systems of governance.57For instance,they exercise control over the determination of the power of the communes,education, culture and language, the relationship between church and state, and themanagement of natural resources of the cantonal lands.58 Cantonal powers canonly be limited by or transferred to the federation by constitutional amendment, astheir powers are restricted only by the Constitution.59 Even in those areastraditionally under the purview of the federation, the cantons can take action as

long as the federation has not made use of its power in that particular area.60However, where cantonal law conflicts with federal law, federal law is supreme.61

Due to the great degree of independence that the cantons are afforded, thereare often vast differences in the way their respective governments function. As

previously mentioned, one of the main differences between the cantons is in thebreadth of autonomy and responsibility given to the communes within eachcanton.62 Under the principles of autonomy that form the backbone ofSwitzerlands traditional constitutional regime, the lower units, in this case thecommunes, should have the power to organize themselves and decide how toaccomplish their tasks, with the cantons only stepping in when the communes areunable to assume their responsibilities or when an overarching solution isnecessary.63

57SWITZERLAND CONST.art. 51 (1999).58SWITZERLAND CONST.arts. 62, 69-70, 72, 76, 78, 80 (1999).59SWITZERLAND CONST.art. 3 (1999).60

SWITZERLAND CONST.art. 46 (1999).61Thomas Fleiner, Swiss Confederation,inAGLOBAL DIALOGE ON FEDERALISM,VOLUME 2:DISTRIBUTION OFPOWERS AND RESPONSIBILITIES IN FEDERAL COUNTRIES, 10 (Akhtar Majeed, Ronald L. Watts, & Douglas M.Brown, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Booklet_2/BL2-ch-Fleiner.pdf.62The Federal Chancery,A Brief Guide (2012), THE SWISS CONFEDERATION, 14 (2012), available athttp://www.bk.admin.ch/dokumentation/02070/02480/08016/index.html?lang=en.63Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy,inTHE OXFORD HANDBOOKOF LOCAL AND REGIONAL DEMOCRACY IN EUROPE196, 202 (John Loughlin, Frank Hendriks, & Anders Lidstrmeds., 2010), available athttp://www.andreasladner.ch/dokumente/Literatur_Unterricht/Ladner_2010_Subnational_Democracy.pdf.


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The degree to which the power of the communes is restricted is often a resultof cantonal influences, such as religion and language.64 For instance, Frenchinfluenced cantons devolve fewer political powers to the communes in comparisonto German-speaking cantons.65 In addition, while there has been an increase in thenumber of governmental activities delegated to the lower units, this has beenaccompanied by the intensification of legal restrictions from higher politicallevels.66

Article 50 of the Swiss Constitution provides a federal guarantee ofcommunal autonomy.67 The constitution provides that, the autonomy of thecommunes shall be guaranteed in accordance with cantonal law.68 Thisguarantee, however, depends on the amount of independence conferred on thecommunes by their respective cantonal constitutions. The guarantee also does notgrant the communes law-making powers because they are institutions of cantonal

law. In some cases, canton and commune governments work together, often inareas where there is overlapping service responsibility, such as health care andeducation.69 In situations like these, the responsibilities have been split, with the

planning or instruction on the side of the cantons and the administrative functionsdelegated to the communes.70 In the case of education, for example, a canton mayhandle the organization of primary school teaching and the setting up of thecurricula, while a commune may run the school.71

64Thomas Fleiner, The Current Situation of Federalism in Switzerland, 9REVISTA DESTUDIS AUTONMICS IFEDERALS51, 63 (2009), available athttp://www.google.com/url?sa=t&rct=j&q=thomas%20fleiner%20current%20situations%20of%20federalism%20in%20switzerland&source=web&cd=3&ved=0CD0QFjAC&url=http%3A%2F%2Fdialnet.unirioja.es%2Fdescarga%2Farticulo%2F3079468.pdf&ei=HNHXULy4JtK90QHxjYCgCg&usg=AFQjCNGrzWCbNGeRrv7hr_xVTC493Ap3AQ&bvm=bv.1355534169,d.dmQ65Thomas Fleiner, The Current Situation of Federalism in Switzerland, 9REVISTA DESTUDIS AUTONMICS IFEDERALS51, 63 (2009).66Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy,inTHE OXFORD HANDBOOKOF LOCAL AND REGIONAL DEMOCRACY IN EUROPE196, 214 (John Loughlin, Frank Hendriks, & Anders Lidstrmeds., 2010),67SWITZERLAND CONST.art. 50 (1999).68

SWITZERLAND CONST.art. 50 (1999).69Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy,inTHE OXFORD HANDBOOKOF LOCAL AND REGIONAL DEMOCRACY IN EUROPE196, 206 (John Loughlin, Frank Hendriks, & Anders Lidstrmeds., 2010).70Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy,inTHE OXFORD HANDBOOKOF LOCAL AND REGIONAL DEMOCRACY IN EUROPE196, 206 (John Loughlin, Frank Hendriks, & Anders Lidstrmeds., 2010).71Andreas Ladner, Switzerland: Subsidiarity, Power Sharing and Direct Democracy,inTHE OXFORD HANDBOOKOF LOCAL AND REGIONAL DEMOCRACY IN EUROPE196, 206 (John Loughlin, Frank Hendriks, & Anders Lidstrmeds., 2010).


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Oversight of Distribution of Powers

The distribution of powers is not monitored by any single government body,but rather at all levels of government. Above all, the people hold the ultimatepower to review the distribution of powers, and to make changes as they see fitthrough direct democracy.72

Federal OversightThe Federal Supreme Court functions as a constitutional court to protect the

Constitution against the cantons.73 The court engages with cantonal law only tothe extent necessary to ensure that cantonal courts uphold and respect federal law,due process, and human rights as guaranteed by the Constitution.74The FederalSupreme Court has the authority to review cantonal policies and cantonalimplementation of federal tasks if it violates federal law, but does not have the

power to invalidate acts of the Federal Council or the Federal Assembly on legal orconstitutional grounds.75

Inter-Cantonal OversightThe Conference of Cantonal Governments (CCG) was founded in 1993 with

the goal of coordinating cantonal views.76 The Conference promotes cooperationand coordination among the cantons with respect to federal politics.77 High on theCCGs list of priorities are issues relating to the division of responsibilities

between the Confederation and the cantons, the shaping of opinions and preparingof decisions at the federal level, and the implementation of federal tasks by thecantons.78

72Gregory A. Fossedal, DIRECT DEMOCRACY IN SWITZERLAND74 (2005).73Wolf Linder & Isabelle Steffen, Swiss Confederation, inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.74Wolf Linder & Isabelle Steffen, Swiss Confederation, inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.75

Wolf Linder & Isabelle Steffen, Swiss Confederation, inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.76Kurt Nuspliger,Federalism in Switzerland, PANEL ON COMPARATIVE FEDERALISM,FORUM OF FEDERATIONS,10(Mar. 25-26, 2004), available at http://www.forumfed.org/libdocs/CanSIPP04/CanSIPP04-Nuspliger.pdf.77Kurt Nuspliger,Federalism in Switzerland, PANEL ON COMPARATIVE FEDERALISM,FORUM OF FEDERATIONS,10(Mar. 25-26, 2004), available at http://www.forumfed.org/libdocs/CanSIPP04/CanSIPP04-Nuspliger.pdf.78Kurt Nuspliger,Federalism in Switzerland, PANEL ON COMPARATIVE FEDERALISM,FORUM OF FEDERATIONS,10-11(Mar. 25-26, 2004), available at http://www.forumfed.org/libdocs/CanSIPP04/CanSIPP04-Nuspliger.pdf.


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Decisions of the CCG are made by its plenary assembly, which is composedof a representative of each canton and meets four times a year.79The CCGcontributed considerably to the renewal of federalism in Switzerland, particularlywith regard to the drafting of the 1999 constitution.80 The CCG also ensures theparticipation of cantons in bilateral negotiations between Switzerland and theEU, including the role of cantons in setting foreign policy and financialequalization reform.81 While the CCG aims to serve as an important means bywhich the cantons can influence the federal decision-making process, the successof the CCG depends greatly on the ability of the cantons to compromise and reachconsensus among themselves.82

Inter-Communal OversightAt the communal level, there is a parallel system of cooperative

organizations and agreements.83 Founded in 1953, the Association of SwissCommunes is a nondenominational, politically neutral umbrella organization forcommunes in Switzerland.84 Currently around 70 percent of all communes andcities are members of the Association of Swiss Communes.85 Its primary objectiveis to maintain and strengthen the autonomy of the communes and their ability toindependently govern.86 The Association is committed to asserting the commoninterests of the communes as the third federal power in the federal state.87 Today,the communes are weighing the benefits of merging with other communes in order

79Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from thePerspective of the Cantons , 5 FEDERATIONS23, 23 (2006), available athttp://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf.80Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from thePerspective of the Cantons , 5 FEDERATIONS23, 24 (2006),available athttp://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf.81Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from thePerspective of the Cantons , 5 FEDERATIONS23, 23-24 (2006), available athttp://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf.82Canisius Braun, The Importance of Horizontal and Vertical Collaboration Within the Swiss Federal State from thePerspective of the Cantons , 5 FEDERATIONS23, 24 (2006), available athttp://www.forumfed.org/libdocs/Federations/V5N2-ch-Braun.pdf.83

See Marjan Haak-Griffioen, Regional Democracy in Switzerland, CONGRESS OF LOCAL AND REGIONAL

AUTHORITIES,COUNCIL OF EUROPE, para. 55 (Mar. 1, 2000), available athttps://wcd.coe.int/ViewDoc.jsp?id=1591807&Site=CM.84Partner Organisations, EGOVERNMENT, available athttp://www.egovernment.ch/en/organisation/partnerorganisationen.php.85Partner Organisations, EGOVERNMENT, available athttp://www.egovernment.ch/en/organisation/partnerorganisationen.php.86Partner Organisations, EGOVERNMENT, available athttp://www.egovernment.ch/en/organisation/partnerorganisationen.php .87Partner Organisations, EGOVERNMENT, available athttp://www.egovernment.ch/en/organisation/partnerorganisationen.php.


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to pool funds and resources.88 These cooperation projects serve to make servicesmore efficient and to cut costs.89

Citizen OversightAt the most basic level, the Swiss political system provides for direct

participation by citizens in creating and amending the constitution and federallegislation. Obligatory referendums occur any time amendments to theconstitution and important international treaties are proposed.90 A majority of boththe voters and the cantons must approve for an amendment to pass.91

In 2001, a number of reforms were proposed that focused on the reallocationof responsibilities and financial arrangements between the Confederation and thecantons.92 Since the cantons have fiscal autonomy, cantonal tax legislation andtaxation rates vary considerably from one canton to the next.93 In order to

modernize and simplify this financial system both vertically and horizontally, ajoint federal-canton working group was formed.94 The parliament approved thereform package in 2003.95 However, because the reforms required an amendmentto the Constitution, a referendum was necessary, and a qualified majority of bothvoters and the cantons was required to pass the amendment.96The amendment

passed by a majority of the electorate (64 percent) and by 23 of the 26 cantons in2004.97

88Swiss Communes Merge in Struggle to Survive, SWISS INFO,Feb. 4, 2004, available athttp://www.swissinfo.ch/eng/Home/Archive/Swiss_communes_merge_in_struggle_to_survive.html?cid=3751794.89Swiss Communes Merge in Struggle to Survive, SWISS INFO,Feb. 4, 2004, available athttp://www.swissinfo.ch/eng/Home/Archive/Swiss_communes_merge_in_struggle_to_survive.html?cid=3751794.90SWITZERLAND CONST.arts. 140, 141 (1999).91SWITZERLAND CONST.art. 142 (1999).92Bernard Dafflon,Federal Cantonal Equalization in Switzerland,30-32 (May 27, 2004),available athttp://unifr.ch/finpub/assets/files/RecherchesPublications/WorkingPapers/WorkingPaper356.pdf.93Barnard Dafflon,Fiscal Federalism in Switzerland: A Survey of Constitutional Issues, Budget Responsibility andEqualisation, 6, 24 (2006), available athttp://www.thomasfleiner.ch/files/categories/IntensivkursII/FiscalFederalismCH.pdf.94

Thomas Stauffer, Nicole Topperwien, & Urs Thalmann-Torres, Switzerland (Swiss Confederation), inHANDBOOKOF FEDERAL COUNTRIES342, 351 (Ann L. Griffiths, ed., 2005), available athttp://www.forumfed.org/libdocs/FedCountries/FC-Switzerland.pdf.95Thomas Stauffer, Nicole Topperwien, & Urs Thalmann-Torres, Switzerland (Swiss Confederation), inHANDBOOKOF FEDERAL COUNTRIES342, 351 (Ann L. Griffiths, ed., 2005), available athttp://www.forumfed.org/libdocs/FedCountries/FC-Switzerland.pdf.96Ren L. Frey & Grard Wettstein,Reform of the Swiss Fiscal Equalization System, in CESIFO DICEREPORT 21,25 (2008), available at http://www.cesifo-group.de/portal/pls/portal/docs/1/1193012.PDF.97 Ren L. Frey & Grard Wettstein,Reform of the Swiss Fiscal Equalization System, in CESIFO DICEREPORT 21,26 (2008), available at http://www.cesifo-group.de/portal/pls/portal/docs/1/1193012.PDF.


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Optional referendums can also occur with regard to acts and regulationsvoted on in parliament.98 A decision of the parliament becomes law unless 50,000citizens, within 100 days of publication, demand the holding of a popular vote.99 Ifthe signatures are collected within the 100-day period, a vote must be held.100 Amajority vote of approval by those who vote decides whether the bill is approvedor rejected.101 The result of the popular vote in a particular canton determines thevote of the canton.102

For instance, in order to comply with the Schengen Agreement103and adhereto developments in the area of travel documents, on June 8, 2007, the FederalCouncil proposed to the parliament that machine-readable biometric passports beintroduced in Switzerland.104 The two chambers approved the proposal, and thendrafted and adopted a law in early 2008.105 Groups that feared biometric passportswould violate privacy launched a popular referendum against the law. The

referendum backers gathered enough signatures to require a popular vote. On May17, 2009, a very small majority (50.1 percent) of Swiss voters approved the newlaw.106 While 14 out of the 26 cantons were against it, as previously mentioned,there is no requirement that a majority of the cantons approve the law for optionalreferendums.107 As such, the law passed and the Swiss government began issuingthe new passports in 2010.108

Citizens can also monitor the governments actions through a citizensinitiative, which was introduced as a tool of direct democracy in 1891.109 Bysigning a formal proposition, 100,000 citizens can demand an amendment to theconstitution, as well as propose the alteration or removal of existing legislation.110

98SWITZERLAND CONST.art. 141 (1999).99SWITZERLAND CONST.art. 141 (1999).100SWITZERLAND CONST.art. 141 (1999).101SWITZERLAND CONST.art. 142 (1999).102SWITZERLAND CONST.art. 142 (1999).103The Schengen Agreement created Europes borderless Schengen Area, which allows for travel within the areawithout internal border controls.104eGovernment Factsheets Switzerland, EPRACTICE, June 23, 2011, available athttp://www.epractice.eu/en/document/5307930.105

eGovernment Factsheets Switzerland, EPRACTICE, June 23, 2011, available athttp://www.epractice.eu/en/document/5307930.106Swiss Narrowly Accept Biometric Passports, OTAGO DAILY TIMES,May 18, 2009, available athttp://www.odt.co.nz/56582/swiss-narrowly-accept-biometric-passport.107SWITZERLAND CONST.art. 142 (1999).108 Swiss Narrowly Accept Biometric Passports, OTAGO DAILY TIMES,May 18, 2009, available athttp://www.odt.co.nz/56582/swiss-narrowly-accept-biometric-passport.109Bruno Kaufmann, Rolf Buchi & Nadja Braun, GUIDEBOOK TO DIRECT DEMOCRACY IN SWITZERLAND ANDBEYOND 33 (2010).110SWITZERLAND CONST.art. 138 (1999).


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In order to commence, an initiative committee of at least seven citizens must becreated. The committee is tasked with drafting the proposition. The propositioncan be expressed in a precise phrase of amendment or drafted in general terms,upon which the parliament can put forward a formal proposal.111The proposedarticle must then be registered in all four national languages, and the initiativecommittee may start gathering signatures.112 The initiative committee has 18months to gather the 100,000 signatures and, once submitted, the Federal Councilhas one year to respond to the initiative petition.113 In most cases, the FederalCouncil decides against the initiative. In this case, the parliament has 18 months todiscuss, and another 12 months to develop, a counter-proposal, if it wishes.114 Ifthis happens, the initiative committee can accept the counter-proposal andwithdraw the initiative. If the parliament and the initiative committee cannotagree, voters are asked to vote yes or no on both the initiative and the counter-

proposal.115 Voters are also asked whether they prefer the initiative or the counter-

proposal in the event that both are approved.116

Only 18 of the 174 citizens initiatives that have been brought to the votershave been approved.117 However, even when a citizens initiative is not successful,it can still have an impact on policy by sparking conversation and debate on criticalissues of concern. For example, while an initiative to require accommodation fordisabled people was rejected by the government and the voters because of the verystrict standards for construction that were included in the text, it led the parliamentto pass a new law that accomplished many of the goals of the initiative.118

Mechanisms to Resolve Conflicts

While there is no centrally managed coordination and information exchangesystem among the cantons, there are mechanisms in place to prevent conflicts.119

111SWITZERLAND CONST.art. 139 (1999).112Bruno Kaufmann, Rolf Buchi & Nadja Braun, GUIDEBOOK TO DIRECT DEMOCRACY IN SWITZERLAND ANDBEYOND 72 (2010).113Virginia Beramendi, et al.,Direct Democracy: The International IDEA Handbook,30 (2008), available athttp://www.idea.int/publications/direct_democracy/upload/direct_democracy_handbook_chapter1.pdf.114

Maija Setala & Theo Schiller, CITIZENSINITIATIVES IN EUROPE:PROCEDURES AND CONSEQUENCES OF AGENDA-SETTING BY CITIZENS250 (2012).115SWITZERLAND CONST.art. 139 (1999).116SWITZERLAND CONST.art. 139b (1999).117 Maija Setala & Theo Schiller, CITIZENSINITIATIVES IN EUROPE:PROCEDURES AND CONSEQUENCES OFAGENDA-SETTING BY CITIZENS 253 (2012).118Maija Setala & Theo Schiller, CITIZENSINITIATIVES IN EUROPE:PROCEDURES AND CONSEQUENCES OF AGENDA-SETTING BY CITIZENS 253 (2012).119Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.


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There are two main kinds of horizontal cooperation mechanisms among Swisscantons.120 First, there are inter-governmental coordination bodies, calledconferences, which bring together ministers or government officials of cantons.121The most important conference is the CCG, discussed above. However, there arenumerous other sectoral conferences which bring together all cantonal ministers inthe fields of education, justice and police, health services, construction andenvironment planning, agriculture, military, public finances, forestry, welfare,guardianship authorities, registry offices, economy, drug control, energy, pubictransportation, and fire services.122

Second, as also previously discussed, cantons can enter into concordats(horizontal instruments of cooperation that enable the cantons to take collectiveaction without the involvement of the Confederation) to regulate the unification oflegislation and create common institutions.123 Concordats are most effective if all

cantons subscribe, but it is often difficult to achieve unanimity.124 For example, aconcordat to overcome the traditional particularity of half of the cantons startingthe school year in the spring and the other half starting in the autumn has not beeneffective.125

Today, there are approximately 760 concordats, affiliated with anywherefrom two to 26 cantons, and some cantons have more than 100 commonconcordats.126 Although each canton is connected to every other canton through atleast 16 common concordats, the degree of inter-cantonal collaboration varies.127Because the cantons generally share a common interest in defending their owncompetences and discouraging federal government regulation, concordats continue

120Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.121Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.122Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5-6,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.123Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 5,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.124Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy Le

Roy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.125Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.126Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 6,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.127Daniel Bochsler,Neighbors or Friends? When Swiss Cantonal Governments Cooperate with each Other, 6,available at http://www.bochsler.eu/konkordate/bochsler_rfs09-concordats-fin.pdf.


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to serve as an important instrument for facilitating cooperation amongst thecantons.128

Although a number of principles have been developed to avoid conflictbetween federal and cantonal authorities, only one article of the constitutiondirectly addresses the resolution of conflicts once they arise. Article 44 providesthat disputes between cantons or between cantons and the Confederation shall, tothe extent possible, be resolved through negation or mediation.129However, thereis no federal mediator to resolve such conflicts, nor is there a special commissionwithin the parliament that specializes in questions of distribution of powers.130Thus, conflicts are resolved by the Federal Supreme Court, which has jurisdictionto make decisions with respect to conflicts between cantons or between a cantonand the Confederation.131 In particular, it can review a cantonal policy or thecantonal implementation of a federal task on the grounds that it contradicts federal

law.132 Since 1875, the constitution has granted citizens the right to sue theircanton before the Court for constitutional violations.133

Devolution in Belgium

Belgium was established in 1830 as a constitutional monarchy.134 Theformation of the Belgian state was largely the result of a compromise betweenFrench and Dutch claims, supported by the British government.135The BelgianConstitution established three branches of government: legislative, executive and

judicial.136 The legislative branch was established as a parliament with twochambers, the Chamber of Representatives and the Senate.137The executive

128Wolf Linder & Isabelle Steffen, Swiss Confederation,inAGLOBAL DIALOGUE ON FEDERALISM,VOLUME 3:LEGISLATIVE,EXECUTIVE,AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES,FORUM OF FEDERATIONS(Katy LeRoy & Cheryl Saunders, eds., 2006), available at http://www.forumfed.org/libdocs/Global_Dialogue/Book_3/BK3-C10-ch-LinderSteffen-en.htm.129SWITZERLAND CONST. art. 44 (1999).130Eleanor Cashin Ritaine & Anne-Sophie Papeil, Switzerland, 321, available athttp://biblio.juridicas.unam.mx/libros/7/3054/20.pdf.131Eleanor Cashin Ritaine & Anne-Sophie Papeil, Switzerland, 321, available athttp://biblio.juridicas.unam.mx/libros/7/3054/20.pdf.132

SWITZERLAND CONST.art. 189 (1999).133Thomas Fleiner, The Current Situation of Federalism in Switzerland, 9REVISTA DESTUDIS AUTONMICS IFEDERALS51, 60 (2009).134Christoph Maillet,Research Guide to Belgian Law, GLOBALEX, available athttp://www.nyulawglobal.org/globalex/belgium1.htm.135Christoph Maillet,Research Guide to Belgian Law, GLOBALEX, available athttp://www.nyulawglobal.org/globalex/belgium1.htm.136BELGIUM CONST.arts. 36, 37, 40 (1994), available athttp://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.137 BELGIUM CONST.art. 36 (1994).


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branch established the King as the head of state and of the executive branch.138The judicial branch consists of district courts, appellate courts, and the Court ofCassation, as the highest court, and the legal system is a civil law system (core

principals are codified).139 Although Belgium has undergone numerousconstitutional changes affecting the legislative and executive branches since itsformation, the judicial branch and the court system have remained relativelyunchanged.140

There are three primary languages in Belgium: French, Dutch andGerman.141 About sixty percent of the population speaks Dutch, also known asFlemish (Belgium Dutch).142 Despite the fact that the majority of the population isFlemish, in the early years of its existence Belgian life was disproportionatelydominated by French influences.143 In response, the Flemish communitydeveloped a strong sense of nationalism that served as the catalyst for a general

distrust between Flemish and the French-speakers.144 This distrust has been thedriving force behind the continual reorganization and constitutional reform of theBelgian regime.145

Conflict between the Dutch and the French first came to a head in the1960s, a period that also saw the rise of regionalist parties.146 Although Flemishwas added to French as Belgiums official language in 1935, the linguistic

boundaries between the Dutch and the French continued to plague the Belgianstate.147 Ultimately, the language reforms of 1962-63 demarcated the language

boundaries and created four linguistic areas: three monolingual areas (Flemish,French, and German) and bilingual Brussels.148 The linguistic boundary divided

138BELGIUM CONST.art. 37 (1994). Article 37 of the Belgian Constitution explicitly vests the federal executivepower in "the King", but in practice it is exercised by the Federal Government. As of 1991, women can ascend to thethrone, but the official term for the head of the Belgium Monarchy is the "King of the Belgians" (seeArticle 85).139

BELGIUM CONST.art. 151 (1994). An administrative court was later added in 1948.140Christoph Maillet,Research Guide to Belgian Law, GLOBALEX, available athttp://www.nyulawglobal.org/globalex/belgium1.htm.141Michael Keating & Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE 61(2006).142Languages Across Europe: Belgium , BBC, available athttp://www.bbc.co.uk/languages/european_languages/countries/belgium.shtml.143

See Jean Beaufays,A Dualist Political System?, 18 BICOMMUNAL SOCIETIES AND POLITIES63, 64-65 (1988).144Richard Cullen,Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL346, 350 (1990).145Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,105(2000).146Michael Keating & Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE61(2006).147Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,105(2000).148Jan Erk,Federalism and Non-Territorial Representation,1 (May, 2003), available at,http://www.forumfed.org/libdocs/SriLanka02/946-SLMG0306-Erk.pdf.


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the country into a northern and southern part, with Flemish and French,respectively, as the sole languages of public affairs.149 In Brussels, the two officiallanguages co-exist.150

Since 1970, the constitution has changed on more than 20 occasions,ultimately resulting in qualifying the Belgium state as a federal state in 1993.151These reforms provided for Belgiums evolution from a highly centralizedstructure to a federal system wherein newly established regions and communitiesgained considerable autonomy.152 The constitutional evolution that started in 1970has still not come to an end. The years 1980, 1988, 1993 and 2001 all marked ashifting of power to the regions and communities and, after the elections in 2010,the state began its latest period of reform.153

The first state reform in 1970 resulted in the establishment of three cultural

communities based on language (Flemish, French, and German) and also laid theframework for the establishment of the three regions (Flanders, Wallonia, andBrussels).154 Important powers over linguistic matters were devolved to thecultural communities in 1970, but little else was devolved at that time.155 In 1980,the second state reform saw the cultural communities become establishedcommunities.156 The third state reform in 1988 and 1989 established the Brussels-Capital region institutions, as well as Dutch and French institutions for communitymatters.157 This reform also brought the expansion of the competencies of thecommunities and regions, with communities having powers over cultural matters,including language, most educational matters, health care, and a wide range of

149Kris Deschouwer,Kingdom of Belgium,3, available athttp://www.forumfed.org/libdocs/Global_Dialogue/Book_1/BK1-C02-be-Deschouwer-en.pdf.150Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE61(2006).151Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE60-61(2006).152Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE60(2006).153Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE60

(2006).154Richard Cullen,Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL346 (1990); France Lebon, CulturalPolicies and Trends in Europe: Belgium, COMPENDIUM, 1, available athttp://www.culturalpolicies.net/web/belgium.php.155Richard Cullen,Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL346, 353 (1990).156Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,105-06(2000),available athttp://193.146.160.29/gtb/sod/usu/$UBUG/repositorio/10330616_Erk.pdf.157Wallonia; Birth of a Region, PUBLIC AUTHORITIES IN WALLONIA, available athttp://www.crisp.be/wallonie/en/pouvoirs/creation.html.


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social welfare issues.158 The regions, on the other hand, were granted substantialeconomic management powers (subject to state override in certain cases), planning

powers, environmental protection responsibilities and energy managementpowers.159

During the fourth state reform, in 1993, the Belgian Constitution wasamended to make Belgium a completely federal state.160 The responsibilities of thecommunities and regions were expanded again, as were their resources.161 Therevised constitution recognized three language groups: the French-speaking, theDutch-speaking, and the German-speaking communities.162 In addition, the federalstructure was divided into three regions: Dutch-speaking Flanders, FrancophoneWallonia, which includes a small population of German speakers, and primarilyFrancophone Brussels.163 Practically the Flemish community and the region ofFlanders function as one entity.164

The fifth reform took place in 2001 as more powers were transferred to thecommunities and the regions with respect to agriculture, fisheries, foreign trade,development cooperation, auditing of electoral expenses, and the supplementaryfinancing of the political parties.165 Today, Belgium is in the midst of its sixthstate reform and, until very recently, was in a state of political disarray. Followingthe federal elections in 2010, a collection of political parties struggled to form anew federal government.166 It was not until December 2011 that the disagreementwas settled and a new federal government was sworn in.167

158Wallonia; Birth of a Region, PUBLIC AUTHORITIES IN WALLONIA, available athttp://www.crisp.be/wallonie/en/pouvoirs/creation.html.159Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,106(2000).160Susanna Mancini, Surreal Federalism? The Belgian Attempt to Preserve Unity Through Contradiction, 1.4 (Feb.2008), available athttp://www.forumcostituzionale.it/site/images/stories/pdf/documenti_forum/paper/0029_mancini.pdf.161Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,106(2000).162BELGIUM CONST.art. 2 (1994).163

Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,106(2000).164Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,106(2000).165Michael Keating and Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE, 61(2006).166David Criekemans,Belgium: The Non-Government Country?, 23 GLOBAL AFFAIRS (Jan.-Mar. 2011), availableat http://www.globalaffairs.es/en/belgium-the-non-government-country/.167Belgium Swears in New Government Headed by Elio Di Rupo , BBC,Dec. 6, 2011, available athttp://www.bbc.co.uk/news/world-europe-16042750.


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Constitutional reforms have continually reshaped Belgium and led to thefederalization of the Belgian state. The reforms have progressively codifiedexclusive competences over certain powers as opposed to shared powers betweenthe various levels of government.168

Allocation of Powers

The framework for the Belgian state is best described as a pyramid. At thetop are the federal state, the communities, and the regions, which are legallyconsidered equals.169 The next level of the pyramid is occupied by the provinces,which are supervised by the higher government authorities. At the bottom of the

pyramid are the communes, which is the level of administration closest to thepeople.170 As with the provinces, the communes are under the supervision of thehigher levels of government.171 The division of powers within the Belgian state is

characterized by a system of exclusive competences, which involves an exhaustivedemarcation of issue areas.172

Federal LevelBroadly speaking, the powers of the federal state encompass everything

connected with the public interest. The federal government manages the publicfinances, the army, the judicial system, social security, [and] foreign affairs, aswell as substantial parts of public health and home affairs.173 In addition, thefederal government maintains control over civil, commercial, and criminal law,while the regions and communes handle public law issues, such as education,environment, and culture.174

168SeeAbout Belgium Government, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/; see alsoFrank Hendriks,Belgium: Federalism andSubnational Democracy in a Divided Country, in SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION:CHALLENGES AND OPPORTUNITIES289 (John Loughlin, ed., 2001).169The Structure of the Federal State and the Power Levels, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federale_staat/structure/.170The Structure of the Federal State and the Power Levels, PORTALBELGIUM.BE, available at

http://www.belgium.be/en/about_belgium/government/federale_staat/structure/.171About Belgium The Communes, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/Communes/. The provinces are financed and audited by theregions.172Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,107(2000).173About Belgium The Federal Government's powers, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/.174Christoph Maillet,Research Guide to Belgian Law, GLOBALEX, available athttp://www.nyulawglobal.org/globalex/belgium1.htm.


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The Chamber of Representatives and the Senate comprise the FederalParliament of Belgium. There are 150 representatives directly elected to theChamber of Representatives.175 Currently the Senate has 71 members, of which 40(25 Dutch-speaking and 15 French-speaking) are elected by the general population,21 are appointed by the communities (ten from the Flemish community, ten fromthe French community and one from the German-speaking community), and tensenators (six Dutch-speaking and four French-speaking) are co-opted, or elected bytheir colleagues.176 Certain powers are exclusive to the Chamber ofRepresentatives.177 These powers include control of state accounts and the budget,as well as the federal government.178 Meanwhile, the Senate has exclusive powerto settle any conflicts of interest between the Federal Parliament or the parliamentsof the communities and the regions.179 Other powers alternate between theChamber of Representatives and the Senate, including the introduction ofcandidates for the Court of Arbitration, the Court of Cassation, and the Council of

State (the Supreme Administrative Court).180

For certain federal responsibilities, the two assemblies work together.However, even for the combined responsibilities, the Chamber of Representativeshas the final decision-making power.181 The Senate is expected to operatereflectively and only comment on proposed laws or measures where it is deemednecessary.182 However, the Senate also has the power to propose laws.183 Thefederal government, the Chamber of Representatives, and the Senate are jointlyresponsible for upholding the public interest.184

175BELGIUM CONST.art. 63 (1994);About Belgium The Federal Parliament, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/.176BELGIUM CONST.art. 67 (1994);About Belgium The Federal Parliament, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/.177The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.178BELGIUM CONST. art. 74 (1994); The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.179BELGIUM CONST.art. 143 (1994); The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.180The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available at

http://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.181The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.182Division for Public Administration and Development Management & Department of Economic and SocialAffairs,Kingdom of Belgium: Public Administration Country Profile, UNITEDNATIONS, 7 (Mar. 2006), availablehttp://unpan1.un.org/intradoc/groups/public/documents/un/unpan023303.pdf.183The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.184The Powers of the Chamber and the Senate, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/federal_authorities/federal_parliament/competence/.


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Community and Regional LevelsAs mentioned earlier, the federal state has three regions (Flanders, Wallonia,

and Brussels-Capital) and three communities (Flemish, French, and German).185Regions and communities overlap to a large extent.186 Each region has authorityrelated to their specific region or territory.187 For instance, the Flemish parliamentand government exercise power over the Flemish region and community.188Similarly, the Walloon parliament is the legislative assembly of Wallonia and actsas the supervisory body of the Walloon government.189The Brussels-Capitalregion has a parliament that exercises power by means of ordinances.190 Thisregion was only granted a parliament and government in the state reform of 1988-89.191 The French and German communities also have their own parliaments.192

In addition, the federal government, the regions, and the communities each

have their own exclusive powers.193 A number of powers, other than language, areoften associated with the communities including: powers for culture (theatre,libraries, audiovisual media, etc.), education, health policy (curative and preventivemedicine), and assistance to individuals (protection of youth, social welfare, aid tofamilies, immigrant assistance services).194 Under the principles of federalism,

between community and national legislation there is no legal hierarchy, whichmeans community parliaments hold near-sovereign powers.195

185Wilfred Swenden,Belgian Federalism: Basic Institutional Features and Potential as a Model for the EuropeanUnion, Royal Institute of International Affairs, 6 (Apr. 2003), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/swenden.pdf.186Wilfred Swenden,Belgian Federalism: Basic Institutional Features and Potential as a Model for the EuropeanUnion, Royal Institute of International Affairs, 7 (Apr. 2003), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/swenden.pdf.187BELGIUM CONST.arts. 115, 121 (1994); Wilfred Swenden,Belgian Federalism: Basic Institutional Features andPotential as a Model for the European Union, Royal Institute of International Affairs, 7 (Apr. 2003), available athttp://www.chathamhouse.org/sites/default/files/public/Research/Europe/swenden.pdf.188The Flemish Region, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/regions/flemish_region/.189The Walloon Region, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/regions/walloon_region/.190

The Brussels-Capital Region, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/regions/brussels_capital_region/.191Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 73 (2010).192Belgium Division of Powers, COMMITTEE OF THE REGIONS,EUROPEAN UNION, available athttp://extranet.cor.europa.eu/divisionpowers/countries/MembersLP/Belgium/Pages/default.aspx.193John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION:CHALLENGES AND OPPORTUNITIES290(2004).194Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 177 (2010).195Michael Keating & Nicola McEwen, DEVOLUTION AND PUBLIC POLICY:ACOMPARATIVE PERSPECTIVE64(2006).


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The areas over which regions have power are interpreted broadly.196 Allthree regions have powers relating to the economy, employment, agriculture,water policy, housing, public works, energy, transport (except Belgian Railways),the environment, town and country planning, nature conservation, credit, foreigntrade, and supervision of the provinces, communes, and inter-communal utilitycompanies.197

Provincial LevelSince the state reform that took place in 1993, the Belgian state also includes

ten provinces.198 The provinces are located within the Walloon and Flemishregions.199 The provinces are secondary administrations that exercise their powersautonomously, but with some oversight from the relevant community and/orregion.200 Provinces are essentially responsible for everything in their territory thatis of provincial interest, including anything which needs to be done in the

interests of the province and which does not come under the general interest ofthe federal state, the communities and regions, or under the communal interest.201For instance, the provinces have broad powers in the fields of education and socialand cultural infrastructures.202 The provinces also handle issues related to theenvironment, highways and waterways, the economy, transportation, publicworks, housing, [and the] use of official languages.203

Communal LevelThe communes, also known as municipalities, are the most local level of

government administration.204 Communes are local units located within andsupervised by the three regions.205 When the Belgian state was created in 1831,

196The Powers of the Regions, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/regions/competence/.197The Powers of the Regions, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/regions/competence/.198BELGIAN CONST.art. 5 (1994).199BELGIAN CONST.art. 5 (1994).200The Powers of the Provinces, PORTALBELGIUM.BE, available at

http://www.belgium.be/en/about_belgium/government/provinces/competence/.201The Powers of the Provinces, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/provinces/competence/.202Organization for Economic Co-Operation and Development, BETTER REGULATION IN EUROPE 172 (2010).203The Powers of the Provinces, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/provinces/competence/.204The Communes, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/Communes/.205Ellen Wayenberg & Filip De Rynck, Country Profiles: Kingdom of Belgium, UNITED CITIES AND LOCALGOVERNMENTS, III, available at http://www.cities-localgovernments.org/gold/Upload/country_profile/Belgium.pdf.


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there were 2,739 communes.206 Following the amalgamation of communes in1975, however, their numbers decreased to 589 across the state.207The communeshold expansive powers relating to the communal interest, or the collective needsof the public.208 While the communes are still under the supervision of higherauthorities, their powers extend to acting on anything not already prohibited,including constructing a sports centers or building roads.209 In addition, thecommunes have purview over aspects of public works, social welfare,maintaining public order, housing, [and] education.210 Commune responsibilitiesalso include those tasked by higher authorities, such as maintaining the registersfor births, deaths, marriages, and population data.211 Communes operate underregional supervision, and the communities and federal state only have oversightwith regard to the fields for which they hold powers.212

Transfer of Powers to Other Levels

The structure of the Belgian government makes the transfer and assumptionof power by the federal authority from the regions and communities very difficult.In fact, such transfer or assumption rarely occurs. The allocation of power

between the levels of government in Belgium developed in large part due tofriction and distrust between the two primary lingual groups.213 The strong divide

between the French and Dutch-speaking populations has led to the development ofa system in which each population holds the ability to govern itself and jealously

206M. Jean-Francois Huart,Financial Relations Between Regions and Local Authorities in Federal States: theExample of Belgium, in INTERNATIONAL CONFERENCE ON FINANCIAL RELATIONS BETWEEN STATE,REGIONAL ANDLOCAL AUTHORITIES IN FEDERAL STATES -PROCEEDINGS,COUNCIL OF EUROPE 41(Oct. 5-7, 2000).207Ellen Wayenberg, Filip De Rynck, Kristof Steyvers, & Jean-Benoit Pilet,Belgium: A Tale of RegionalDivergence?,inTHE OXFORD HANDBOOK OF LOCAL AND REGIONAL DEMOCRACY IN EUROPE71, 77 (John Loughlin,Frank Hendriks, & Anders Lidstrm eds., 2010).208Karolien Pieters, Services Directive: Assessment of Implementation Measures in Member States, National Reportfor Belgium, 8 (May 2011), available at http://ec.europa.eu/internal_market/services/docs/services-dir/mileu-study/be-national-report-part_I_en.pdf.209Karolien Pieters, Services Directive: Assessment of Implementation Measures in Member States, National Reportfor Belgium, 8 (May 2011), available at http://ec.europa.eu/internal_market/services/docs/services-dir/mileu-

study/be-national-report-part_I_en.pdf.210Karolien Pieters, Services Directive: Assessment of Implementation Measures in Member States, National Reportfor Belgium, 8 (May 2011), available at http://ec.europa.eu/internal_market/services/docs/services-dir/mileu-study/be-national-report-part_I_en.pdf.211The Powers of the Communes, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/Communes/.212The Communes, PORTALBELGIUM.BE, available athttp://www.belgium.be/en/about_belgium/government/Communes/.213Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,105(2000).


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guards that ability from federal encroachment.214 As the structure of governmenthas evolved, this trend of limiting the federal governments powers hascontinued.215 For instance, while the Constitution as amended in 1993 envisionedthe regions and communities being responsible for all matters not expressly vestedin the federal government, it failed to set forth what powers each branch ofgovernment should hold.216 This allowed the regions to assume a majority ofgovernmental power and resulted in a weakened federal authority.217

The strength of the regional governments has had the unintended effect ofshifting the locus of power, such that the federalization of Belgium has not led todevolution of power to the sub-regional levels, but has further strengthenedcentralization at the regional level.218 Through multiple revisions of theconstitution, the regions, particularly Flanders and Wallonia vied for greaterautonomy.219 In addition, the compromises that permitted further independence

for Flanders and Wallonia, as a way to ensure continued cohesiveness of the largerBelgian state, created a momentum toward more sovereignty.220 The result has

been a continued weakening of the federal authority, greatly exacerbated by theself-containment of the Flemish region and community, the separation of the

parties, and the institutional pressure to pull powers down from the [center].221

Oversight of Distribution of Powers

The devolution and distribution of power in Belgium is affected throughparliamentary action.222 Under the Belgian Constitution, the parliaments of theFrench, Flemish and German communities regulate cooperation between the

214See John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION:CHALLENGES AND OPPORTUNITIES290(2004).215See Can Erk and Alain-G. Gagnon, Constitutional Ambiguity and Federal Trust: Codification of Federalism inCanada, Spain, and Belgium, 10 REGIONAL &FEDERAL STUDIES 92,107-08(2000).216See John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION:CHALLENGES AND OPPORTUNITIES297(2004).217John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION:CHALLENGES AND OPPORTUNITIES297(2004).218See John Loughlin, SUBNATIONAL DEMOCRACY IN THE EUROPEAN UNION:CHALLENGES AND OPPORTUNITIES302(2004).219

Manu Reys, The Low Countries: Belgian Federalisation, available athttp://www.dbnl.org/tekst/_low001199301_01/_low001199301_01_0017.php.220Michael Keating,Federalism and the Balance of Power in European States, SUPPORT FOR IMPROVEMENT INGOVERNANCE AND MANAGEMENT (SIGMA), 21 (2007), available athttp://www.oecd.org/site/sigma/publicationsdocuments/37890628.pdf.221Michael Keating,Federalism and the Balance of Power in European States, SUPPORT FOR IMPROVEMENT INGOVERNANCE AND MANAGEMENT (SIGMA), 21 (2007), available athttp://www.oecd.org/site/sigma/publicationsdocuments/37890628.pdf.222Robert Agranoff,Autonomy, Devolution, and Intergovernmental Relations, 14 REGIONAL &FEDERAL STUDIES26, 32 (2004).


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communities.223 In addition, both houses of the federal parliament are equallycompetent to handle institutional lawmaking and intergovernmental relations.224

As a result of Belgiums multiple branches of government and parallelgeographical and language-based institutions, each region functions somewhat like

an independent state that is then loosely governed at the federal level.225Due tothis fragmented distribution of power, cooperation is necessary to maintain anydegree of efficiency in coordinating intergovernmental actions.226Because thefederal government has no power to encroach on the authority of the regions, theBelgian system relies on intergovernmental agreements (concordats) to function.227For instance, as powers were devolved during periods of reform, greatercoordination was required between the various levels of authorities in order toensure that there were no disruptions in services, such as building roads ortelecommunications.228 Failure to coordinate leads to inconsistent outcomes and

creates instability at the federal level.229

Belgium experienced the results of this instability when it was forced tofunction for approximately one and a half years with only a transitional federalgovernment, as the regions tried to come to an agreement about who would takecontrol at the federal level.230 Ultimately financial concerns, including the credit-rating downgrade of the country, forced the parties to come to an agreement and torestore a functioning federal authority.231 During this period however, fullyfunctioning regional governments and the fact that French and Flemish

223BELGIUM CONST.arts. 127, 130 (1994).224BELGIUM CONST.art. 77 (1994).225SeeRobert Agranoff,Autonomy, Devolution, and Intergovernmental Relations, 14 REGIONAL &FEDERALSTUDIES26, 31 (2004).226Johanne Poirier, The Functions of Intergovernmental Agreements: Post Devolution Concordats in a ComparativePerspective, THE CONSTITUTION UNIT,UNIVERSITY COLLEGE LONDON, 10 (Jul. 2001), available athttp://www.ucl.ac.uk/spp/publications/unit-publications/75.pdf.227SeeBELGIUM CONST.art. 35 (1994); Sander Happaerts, Simon Schunz, Hans Bruyninckx,Federalism andIntergovernmental Relations, LEUVEN CENTRE FOR GLOBAL GOVERNANCE STUDIES,6-7 (Jan. 2011), available athttp://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf.228

Johanne Poirier, The Functions of Intergovernmental Agreements: Post Devolution Concordats in a ComparativePerspective, THE CONSTITUTION UNIT,UNIVERSITY COLLEGE LONDON, 10-11 (Jul. 2001), available athttp://www.ucl.ac.uk/spp/publications/unit-publications/75.pdf.229Sander Happaerts, Simon Schunz, & Hans Bruyninckx, Federalism and Intergovernmental Relations , LEUVENCENTRE FOR GLOBAL GOVERNANCE STUDIES,6 (Jan. 2011), available athttp://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp51-60/wp58.pdf.230Belgium Swears in New Government Headed by Elio Di Rupo, BBC,Dec. 6, 2011, available athttp://www.bbc.co.uk/news/world-europe-16042750.231Belgium Swears in New Government Headed by Elio Di Rupo, BBC,Dec. 6, 2011, available athttp://www.bbc.co.uk/news/world-europe-16042750.


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communities have control over education, culture, and social welfare tasks, meantthat local governments were able to continue with their responsibilities.232

Mechanisms to Resolve Conflicts

Belgium only relatively recently became a federalist state.233 Themechanisms used to resolve conflicts surrounding the allocation of powers,therefore, are relatively new or still in the process of being formed.234The primarymechanism currently used to resolve such conflicts is the Constitutional Court.235

After Belgium became a federal state in the 1970s, the Court of Arbitrationwas created to resolve conflicts between federal and regional authorities.236 Thename originally reflected the courts primary function of arbitrating between thefederal bodies and regional bodies.237 However, it created confusion among

lawyers, particularly foreign lawyers, who believed the court handled commercialor arbitration cases, and so the name was changed.238 The jurisdiction of theConstitutional Court originally included the review of rules governing the divisionof powers of the federal state, the communities, and the regions, and the resolutionof resulting disputes.239 The jurisdiction of the Court has since been extended toinclude the supervision of the observance of those articles of the constitutionguaranteeing the principles of equality and non-discrimination and, since 2003 ithas become a full constitutional court, reviewing all laws for compliance with theConstitution.240

The membership of the Court reflects its role as an arbitrator between groupsand is legally designed to maintain a balance between the two major linguistic

232Lauren de Vos,Belgiums 250 Days Without a National Government, THE GUARDIAN, Feb. 17, 2011, availableat http://www.guardian.co.uk/commentisfree/2011/feb/17/belgium-elect-government-split.233Richard Cullen,Adaptive Federalism in Belgium, 13 UNSW LAW JOURNAL346, 346 (1990

devolution of powers in switzerland and belgium

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