By Karel Reybrouck (external contributor)

The Belgian federation consistently ranks among the poorest performing OECD countries in the Covid-19 pandemic. Belgium’s institutional structure, based on an opaque maze of interlocking powers, appears to lie at the heart of its difficulties. Decades of gradual devolution by way of messy and incomplete compromises between the countries’ Dutch-speaking and French-speaking politicians resulted in a fragmented division of powers. This post argues that Belgium’s adherence to the principles of dual federalism, which hold that the federal government and the states function in isolation from each other and reject mechanisms of cooperative and interdependent federalism, impeded a coordinated and effective Covid-19 response.

The absence of federal emergency powers

In contrast to other federal states, the Belgian Constitution explicitly prohibits the declaration of a state of emergency (Article 187 of the Belgian Constitution). Even during a global pandemic, the federal government cannot temporarily force a shift of powers from the federated entities to the federal government.

Nonetheless, as described in more details in the Compendium, in March 2020, the federal government did impose a wide-scale lockdown to combat the pandemic, including in areas falling under the normal responsibility from the states (the Regions and the Communities), such as education or cultural matters. All restaurants, bars, cultural institutions, and non-essential shops were forced to close doors, children had to stay home from school, large gatherings were forbidden, borders were closed, teleworking became mandatory, and non-essential movement outside the house was prohibited (Ministerial Decree 23 March 2020). To combat a second wave of infections in the fall of 2020, the federal government imposed a second 'light' lockdown.

Curbing the exclusivity principle

The quasi-unitary federal pandemic response has led many experts to raise eyebrows, given Belgium’s highly decentralized system of governance with a strong focus on exclusive powers and state autonomy. This is particularly so given that the Council of State, Belgium’s supreme administrative court, repeatedly stated before the pandemic that 'it is not because measures relate to combating a public health emergency that the federal government can be considered competent. On the contrary, each authority is responsible for combating a public health crisis within the limits of its own material competence' (Advisory Opinion Council of State nr. 53.018/VR).

Given the lack of an emergency power mechanism which would justify this federal intrusion in exclusive state powers, scholars had a hard time identifying the competence basis for the federal government’s quasi-unitary pandemic response. Some scholars suggested that the solution could be found in the residual federal competence for civil security and law enforcement (see for instance P. Popelier, 'COVID-19 legislation in Belgium at the crossroads of a political and a health crisis). This federal competence, which is traditionally associated with immediate disaster relief after calamities such as floods, earthquakes, gas explosions or train collisions, could be – somewhat dubiously – extended to combat a long-term health crisis. This reasoning was upheld in a recent advisory opinion of the Council of State, which did nevertheless protect the autonomy of the states by imposing three conditions on the exercise of this de facto federal emergency power. The federal government can only adopt pandemic control measures with a profound impact on state powers (such as school closures) if 1) the principles of proportionality and federal loyalty are respected, 2) the federal government consults the states in advance, and 3) federal action is strictly limited to measures relating to sanitary policing, civil protection, and civil security. Thus, in a crisis situation, the federal government can only use its broad security powers and law enforcement powers after a proportionality assessment between the utility of a federal measure to protect the population and its impact on state powers. The federal government cannot impose non-sanitary obligations on the states, such as the obligation to organize remote learning when the school is closed or regulate other educational modalities.

When the federal government issues pandemic containment measures which impede on state policy areas, a case of de facto concurrent powers arises. To conceptualize how concurrent powers can pop up in a system based on an dogmatic adherence to the rigid dualist exclusivity principle, some Belgian scholars draw inspiration from the Canadian ‘double aspect doctrine’ (see for instance J. Vanpraet, 'Vers une sécurité sociale flamande complémentaire dans le cadre actuel de répartition des compétences'). This flexible doctrine enables two orders of government to regulate a common matter from the standpoint of their own exclusive competence.

However, if both the federal state and the communities can close schools in a pandemic, what happens if they disagree? Can a state reopen its schools in violation of federal lockdown measures? Once again, absent a conflict norm or supremacy clause, Belgium’s constitution lacks appropriate tools to answer that question. According to the classic truism, a conflict norm would simply be redundant: since the division of powers is strictly exclusive, no conflict can ever arise. In practice, this lacuna only creates difficulties, as there is no systematic approach to the conflicts of competence that will inevitably arise in cases of de facto concurrency. With regard to the pandemic measures, the Council of State has held that the states cannot enact measures that hamper the effectiveness of federal Covid-19 measures. Consequently, the states can only tighten the federal measures, but not relax or undo them.

In sum, the federal pandemic control measures amount to de facto (not statutorily provided) and conditional (the federal government can only act if certain conditions are met) framework powers. As the Belgian dual federal system is ill-equipped to deal with this kind of exceptions to the exclusivity dogma and, more generally, demarcating the powers of the various authorities is difficult, the different governments did not always know which aspect of pandemic control fell under their responsibility, which led to chaos and delays.

Collaboration is key

In federal states, all governments have to play their part to deal with the transboundary and multilevel challenge a pandemic poses. Consequently, broad and close cooperation between the federal level and the states is crucial to the success of a federal Covid-19 policy.

In Belgium, the importance of federal collaboration mechanisms to streamline national and state pandemic responses was emphasized long before the Covid-19 crisis erupted. Already in 2006, the Council of State held that, since health crisis management is not an exclusive competence, the federal government should 'conclude a cooperation agreement with the Communities, and possibly also with the Regions, in view of an integral approach to public health crises. (…) If an integral approach to public health crises is pursued (…), the conclusion of a cooperation agreement (…) is the most appropriate means, in view of the necessary policy harmonization and coordination.' This proves that even in the essentially dualist Belgian federal system, the federal government and the states are sometimes forced to cooperate, particularly when the joint exercise of federal and state competences is 'absolutely necessary for the implementation of a coherent policy.'

However, as the Council’s advisory opinions are not legally binding, and pandemic readiness was not particularly high on the political agenda, a pandemic cooperation agreement was never concluded (although the federal government and the Communities did conclude a Protocol on 5 November 2018, which played an important role in administrative coordination of federal and state policies during the Covid-19 pandemic). As a result, in order to come up with an institutional Covid-19 plan of action, federal and state actors were forced to improvise along the way.

Initially, the federal pandemic measures were discussed in the National Security Council (NSC), a national consultative organ that was set up for counter-terrorism purposes and normally consists only of representatives of the federal level. Later, the venue of Covid-19 coordination meetings was moved to the Conciliation Committee (Comité de concertation/Overlegcomité), the official meeting platform for members of the executive branch of the federal and the state governments. As this organ puts the federal authority and the states on equal footing, it is a more suited place for intergovernmental coordination and collaboration (Article 31 and 31/1 Ordinary Law Reform Institutions 1980, 9 August 1980). Consequently, state political leaders were able to weigh in on federal pandemic decision-making and were also given visible ownership of the measures, which might have helped to stifle later opposition from the states.

During the summer of 2020, which was relatively calm from an epidemiological perspective, the focus on federal crisis management gradually shifted to Community-led preventive health care strategies aimed at identifying and containing virus outbreaks. This transition was not without friction, as the fragmented division of health care powers caused much confusion on who was responsible for the development of a contact-tracing policy. The Council of State stated that the organization of an integrated nationwide approach to contact tracing could only be achieved through cooperation between the Communities (competence ‘preventive health care’) and the federal government (competence ‘scientific research’). It took these authorities three precious months to conclude a cooperation agreement that made sure there would be an integrated test and trace policy, with a single contact tracing database and one digital contact detection application for the whole of Belgium, instead of different systems in the three Communities. The failure to set up an effective system of contact tracing and isolation in due time, was widely considered harmful to an efficient post-lockdown exit-strategy (see E. Schokkaert and J. Luyten 'Belgium’s Response to the Coronavirus Pandemic').

Dualism’s fundamental flaws?

Lacking both a clear division of powers and an intergovernmental cooperation agreement on public health crises, Belgium was forced to resort to constitutional improvisation and ad hoc solutions to streamline its pandemic response. Dualism’s focus on exclusivity, its difficulty to conceptualize concurrency, and the system’s general inexperience with mechanisms of intergovernmental cooperation, might explain why Belgium constantly seemed to be lagging one step behind the virus.

Karel Reybrouck is a doctoral researcher in federalism at Leuven Centre for Public Law.