The Regional Dimension of the European Union

Towards a Third Level in Europe?

Charlie Jeffery

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781136311000
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Decision-making within the EU has moved to a third (regional) level of government emerging in the EU policy process alongside the first (Union) and second (member state) levels. Multi-level governance can increasingly be identified. These papers describe and analyse this third level.

Country Studies

The Belgian Sub-National Entities in the European Union: Second or Third Level Players?

BART KERREMANS AND JAN BEYERS

Introduction

Over the last three decades Belgium has been squeezed between two processes that have gradually eroded its sovereignty: the process of European integration and the constant reform of the Belgian state. The first process led to the extension of the powers of the European Union into a large array of hitherto domestic competences. The second one gradually but steadily (De Winter and Laurent, 1996: 89) created sub-national entities and institutions with legal prerogatives that are similar to those of a state. Inevitably, this has led to an overlapping of the competences of these sub-national authorities and those of the European Union. It necessitated two responses: one at the Belgian level and one at the European level. As both increased the role of the Belgian sub-national entities in EU decision-making, they blurred the distinction between Second Level players (the national actors) and Third Level players (the sub-national actors). This article shows how the Belgian state reform triggered this blurring, how this affected the position of both the Belgian federal state and its sub-national entities in the European Union, and how it changed political practices in EU policy-making. First, it will become clear that the Belgian Third Level players have developed a position and strategy analagous in key respects to Second Level players. In several policy domains this has relegated Third Level strategies to a secondary importance. Second, we will characterize the Belgian political system as a co-operative system in which actors are mutually interdependent. To begin with, however, we will examine in more depth the intricacies and the peculiarities of the new Belgian state.

The ‘New’ Belgium and the EU

The Successive State Reforms

The Belgian state has been reformed from a centralized state into a fully-fledged federal state by four constitutional reforms over the last 25 years (Hooghe, 1995). These reforms not only allocated a large array of competences to Belgium's sub-national entities, but also created new governments and parliaments.

One of the principal features of the Belgian federal system is that there is no hierarchy between the federal level and the sub-national level. This absence of hierarchy is fundamental not only for an understanding of the consequences of the Belgian state reform but also for the position of the Belgian sub-national entities in the European Union. A federal law cannot override a sub-national law (which is called a decree). Nor can a sub-national executive decision be altered by an executive decision of the federal government.

The Belgian state reform resulted in the formation of six constituent sub-national units: the Flemish, Francophone, and German Communities, the Flemish and Walloon Regions, and the Brussels Capital Region. Each of these units has its own directly elected parliament, a government, and ministerial departments. Regions and Communities largely overlap. Whereas the first refers to territories, the second refers to inhabitants. The competences of the Regions are linked to territory and concern issues like regional economic development, employment, industrial restructuring, environment, land use planning, urban renewal, road building, traffic, agriculture, and export promotion. The competences of the Communities are linked to persons: culture, language policies, education, health care, welfare and family policies. The Flemish Community consists of the inhabitants of FLänders (the Flemish Region), and the Dutch-speaking inhabitants of the Brussels Capital Region. The Francophone Community consists of the French-speaking population of both Brussels and Wallonia (the Walloon Region). The German Community consists of the German-speaking population (about 65,000 people) of Wallonia. In FLänders, the Flemish Community and the Flemish Regional institutions have merged into the Flemish Government and the Flemish Parliament. The Francophone Community is still separated from the Walloon Region, although personal links (ministers belonging to both the Walloon and the Francophone governments) exist. The German Community and the Brussels Capital Region remain separate entities.

The far-reaching character of the Belgian state reform is visible in the international competences of the Belgian sub-national authorities. Before 1993 the federal government still had the right to negotiate international agreements for policy fields which fell within the competence of the sub-national entities. However, the latter were concerned that the federal government's role in international negotiations would allow it to get back what it had partly lost through the state reforms. This concern was especially pertinent in matters falling within the competences of the European Union. The federal government could participate in decisionmaking on these matters by way of the Council of Ministers. The only obligation for the federal government was to 'involve' its sub-national counterparts in its international negotiations. Consequently, the only option left open for the sub-national authorities was to try to influence the federal government or the Community institutions. Phrased differently, their involvement was typical of that of Third Level players elsewhere in the EU.

In practice, the system did not work in a satisfactory way.¹ In the state reform of 1993 the sub-national authorities acquired the right to conclude international agreements in those policy fields in which they possessed exclusive competences. In this way, the 1993 reform filled a lacuna left by the reforms of 1970, 1980 and 1988. The sub-national entities acquired the right to conduct their own external relations and to conduct negotiations themselves. They only have to respect two limitations. First, they can only act within the confines of their (ever larger) competences. Second, they have to respect the general principles of Belgium's foreign policy. Sub-national entities cannot, for instance, conclude agreements with a state that has no diplomatic relations with Belgium.

While the granting of international competences to the sub-national entities may have been an answer to their concerns it also engendered new problems. First, how was it possible to conduct a consistent Belgian policy towards the European Union if sub-national entities could go their own way? Second, how would Belgium be represented in the EU in dealing with matters that, completely or partly, fall within the jurisdiction of the sub-national authorities? It was clear that the answer to these questions could not solely be provided by the Belgium state system itself but that new arrangements were also necessary at the European level. The European answer was provided in 1991 with the Maastricht Treaty. The Belgian answer came in the course of 1993 and 1994 when a Special Law was adopted and when a Co-operation Agreement was concluded between the sub-national authorities and the Belgian federal state. Both answers had serious consequences for the position of the Belgian sub-national authorities in the EU. On the one hand, they provided solutions that forced all Belgian authorities, federal and sub-national, to share their competences on EU matters. On the other hand, the answers provided the Belgian sub-national authorities with direct access to EU decision-making.

The European Response

It is difficult to imagine that authorities negotiating on an issue (such as education) in the Council of Ministers are those without the competences, either exclusive or partial, on this issue in the legal system of their home country (for the situation in Germany see Deeg, 1995: 203). This was the case with the Belgian representation in the EU Council before the Maastricht Treaty and its new article 146 EC came into force. According to the Secretariat of the Council, the meaning of the old article 146 of the EEC-Treaty was clear:

According to Article 2 of the Merger Treaty of 1965 (formerly article 146 EEC) the Council consists of the members of the governments of the member states, which means either ministers or secretaries of state from the national governments.

This advice was issued after Germany had been represented by the Land government of Rheinland-Pfalz in a meeting of the Cultural Council (Belgian House of Representatives, Documents, 92/93, No.791/3: 3). The advice was logical if one looks to the old working rules of the Council (Article 4 of the Working Rules of the Council). These clearly stated that only members of the national governments possessed a voting right. Moreover, the presence of a member of a sub-national government could not be taken into account to determine whether the quorum had been achieved.

It was unsurprising therefore, that the Belgian sub-national authorities, anxious as they are to secure their new prerogatives, wanted to change the system. At the Intergovernmental Conference on Political Union of 1991, the Belgian delegation asked for a revision of Article 146. In return, the French delegation asked for a guarantee that every member state representative in the Council would bind his member state as a whole and not only parts of it (Ingelaere, 1994: 69). Therefore Article 146 has been reformulated as follows, with its first part reflecting the Belgian concerns, and its second part those of the French:

The Council shall consist of a representative of each Member State at ministerial level, authorized to commit the government of that Member State.

Although Article 146 did not resolve all the problems of Belgium's representation in the Council, its principal significance lies in the extended access that it creates, that is, allowing non-national ministers to the meetings of the Council on condition that they can commit their country as a whole. For those sub-national authorities that enjoy this privilege, the change to Article 146 changed their position from outsiders in EU decision-making to insiders. Given the 'behind closed doors' working style of the Council, this was a considerable improvement. What was still needed after the amendment to Article 146 however, was a Belgian system of representation, as it was obvious from the beginning that Belgium could not be represented by all its sub-national and national authorities at the same time.

The Belgian Response

Determining the Belgian Position. In the course of 1993 and 1994 a system was created that guarantees direct access for the sub-national entities to the Belgian decision-making process concerning Council matters. The Cooperation Agreement between the federal government and the sub-national governments (CA) of 8 March 1994 set up a system of concertation and coordination among the different Belgian authorities.

The Federal Foreign Ministry plays a central, albeit not a preponderant, role in Belgian coordination on Council issues by way of its Directorate for European Affairs. This Directorate, better known as P.11, organizes meetings on a weekly basis. On the agenda are all issues that will be dealt with in the different Councils. These meetings are attended by representatives of the federal prime minister, of the federal vice-prime ministers, and of the ministers-president of the different sub-national governments. Also present are the representatives of those ministers (both federal and sub-national) who are responsible for the subjects on the agenda. The Permanent Representation (PR) of Belgium in the EU is also represented. This is important since the Belgian PR acts as the leader of the Belgian delegations in COREPER and the Working Groups of the Council.

In the P.11 meetings the instructions for the Belgian representatives in the Council are determined. If the different participants fail to reach a decision on the Belgian position, the question is submitted to the so-called Inter-Ministerial Conference on Foreign Policy. This organ consists of the different ministers themselves, not their representatives. If they also fail to reach an accommodation, there is no instruction. In that case, the Belgian representative, whoever it is, will abstain during a vote in the Council. As mentioned in the memorandum attached to the Cooperation Agreement, a Belgian abstention cannot block EU decision-making when unanimity is required. It does, however, have an effect if a qualified majority is required. In that case, the five Belgian votes cannot be taken into account in reaching the required 62 votes. In extreme cases, therefore, the inability of the Belgians to reach a compromise among themselves can lead to non-decision-making at the EU-level.

A crucial element of this system is the fact that it grants the Belgian federal and sub-national entities a right of veto in the determination of Belgium's policy in the Council. Theoretically, they have this veto in all cases, including exclusive federal or sub-national matters, since the representatives of the ministers-president are ex officio members of the coordination meetings. Practice shows however that these representatives keep a low profile whenever issues are discussed that do not fall within their jurisdiction. On all other matters however — and there are a lot since many competences are shared between the federal and the sub-national authorities (Baeteman, 1994: 57) — they are anxious to protect their prerogatives.

Representing Belgium in the Council. The new Article 146 makes it possible that Belgium will be represented in the Council by a member of one of its sub-national governments. A system was therefore needed to determine who would be the representative in which case. The CA provides this system. It is based on two principles: mixed delegations and rotation.

The CA provides four different types of representation. These four types are based on a division of the EU Councils into four categories. This division is based on the agenda of each Council during the last three years. The issues on these agendas are compared with the competences of the different Belgian authorities. For every Council it is then determined which governmental level (region, community or federal) is responsible for most of the issues dealt with in each of the Councils. This results in four categories of Councils (see Table 1), each of them signifying a different kind of Belgian representation. The distinction between the leader of the delegation and the assessor is crucial in this representation system. The leader of the delegation negotiates and votes whenever necessary. The assessor assists the leader and consults the governments that are not present in the Council negotiations (for example, when additional concessions are required).²

TABLE 1
REPRESENTATION OF BELGIAN AUTHORITIES IN THE COUNCIL OF MINISTERS

Category	Type of Council of Ministers	Examples of Council of Ministers	Example issues	Representation
I	exclusive federal competences	General Affairs Ecofin Budget Telecommunication Development Cooperation	Directive on Voting	federal government
II	shared competences with a dominant federal share	Agriculture Internal Market Public Health Energy	Directive on waste and packaging waste	head of delegation is the federal government assisted by one of the sub-national entities (dependent on rotation)
III	shared competences with a dominant sub- national share	Industry Research	Proposals concerning the restructuring of the Steel Industry	head of delegation is one of the sub-national entities (dependent on rotation) assisted by the federal government
IV	exclusive sub- national competences	Culture Education Tourism Land Use Planning	The Socrates- programme	one of the sub-national entities (dependent on rotation)

The system for the Councils of Category I and IV is simple. These Councils deal mostly with matters that fall within the exclusive competences of either the federal state or the sub-national entities. In the first case (Category I) Belgium will be representated by a member of the federal government only. In the second case (Category IV) the representative will belon...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• INTRODUCTORY PERSPECTIVES
• COUNTRY STUDIES
• REGIONAL INSTITUTIONS
• Index