Implementation of European Law in a federal state: The Belgian case between coherence and autonomy

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Implementation of European Law in a federal state: The Belgian case between coherence and autonomy

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Abstract

‘Ultimately the impact of EU rules depends on the willingness and capacity of Member States authorities to ensure that they are transposed and enforced effectively and fully and on time' (Graver) . This statement from the European Commission in its White Paper on Governance deals with the issue of the implementation of the EU law in the Member States. Indeed, the implementation deficit has been a real issue for the efficiency of the European legislation. Among the main countries which have suffered a lack of implementation, we find Belgium, a federal state. Belgium knew a long (25 years) process of constitutional reforms to achieve a federal form. They created a large array of competencies to Belguim's subnational entities and new governments and parliaments. For instance, the Federated States are granted the right to conclude international treaties. These new institutions can act independently from the federal state. In other words, there is no hierarchy between the different governmental levels.

Introduction.
The issue of autonomy in federal states and the implementation of Eu law.
1. The general issue of implementation deficit in federal states.
2. The paradoxical Belgian case.
Imperfect domestic reforms to reconcile autonomy and coherence.
1. Reforms towards a cooperative federalism.
2. The limited impact of the changes.
Conclusion.

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[...] Conclusion Between respect for the autonomy of the Federated States and the coherence of the implementation of European law in Belgium, the Federal State has faced a problem. Cultural fundamentals and competitive federalism have been two elements threatening good implementation in Belgium. Several times, the country has been condemned by the European Court of Justice and disapproved by the European Commission for non-implementation or incorrect implementation. The reform of 1993 tried to find solutions and instituted two mechanisms whose effects were mainly insufficient. [...]

[...] Does Federalism Constrain Europeanization?' http://www.essex.ac.uk/ECPR/events/jointsessions/paperarchive/turin/ws19/BUR SENS.pdf 15Andersen, C., ‘European Union Policy-making and National Institutions The Case of Belgium' in Svein S.Andersen and Kjell A.Eliassen (eds.), The European Union: How Demovratic Is It? (London: Sage, 1996), pp.83-100. Andersen, C., ‘European Union Policy-making and National Institutions The Case of Belgium' in Svein S.Andersen and Kjell A.Eliassen (eds.), The European Union: How Democratic Is It? (London: Sage, 1996), pp.83-100. Hooghe, L (1995), ‘Belgian Federalism and the European Community', in Jones and Keating (eds.), The European Union and the Regions, pp.135-165. [...]

[...] In other words, as the several juridical cases involving the Commission versus the Belgian State seem to suggest[8], there is a dilemma between on one hand, the respect for the principle of subsidiarity and autonomy of the federated states and on the other a hand the efficiency and coherence of the implementation of EU law in the federal State. Throughout this essay, we will study the interactions between the domestic level and the European level under the pressure of the implementation of EU law in Belgium. [...]

[...] In case of federal states, the issue of implementation has to be combined with the respect of the principle of subsidiarity as stated in the article 5(ex Article Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. [...]

[...] In order to find solution to this situation, the 1993 institutional reform introduced two new systems: a substitution mechanism and the possibility of having eventual financial sanctions incurred by Belgian state assumed by the responsible Federal Entities. Thus, first the substitution mechanism was created by the revised article 68 (par.7) of the Constitution and the amended article 16 (par.3) of the SIRA (the ‘Special Institutional Reform Act'). By this novelty, the Federal legislative and executive powers can temporarily act on behalf of the Federated Entity to carry out the executory part of the judgement of an international or supra-national court. [...]

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