Chamber of Local Authorities

      AUTUMN SESSION
      CPL(15)8REP

      31 October 2008

      Local democracy in Belgium:
      non-appointment by the Flemish authorities of three mayors

      Michel Guégan, France (L, NR)
      Dobrica Milovanovic, Serbia (R, NR)

      Explanatory memorandum
      Institutional Committee

      Summary:

      The subject of this report concerns the non-appointment of three mayors by the Flemish Authorities. Further to the request from the Bureau of the Chamber of Local Authorities, the Rapporteurs Michel Guégan and Dobrica Milovanovic visited Belgium where they met the Flemish Minister of Interior, the three non-appointed mayors together with Belgian representatives of the governmental authorities and members of Parliaments, and associations of local authorities. This visit underlined five breaches to the European Charter of Local Self-Government, which are: the disruption in the management of public affairs caused by the non-appointment of three mayors, despite being democratically elected ; an obstruction to the participation in the local political life because of the interdiction, by enforcement of the law, of the use of French language by the mayor and the deputy mayors, in the municipalities with so-called “special arrangements”, which are mainly composed of French-speaking citizens ; a proportionality problem with the non-appointment decision in relation to the faults, which are reproached to the mayors ; an excessive supervision applied by the Flemish Authorities ; and the non-respect of the Recommendation 131 (2003). For the time being, the three mayors are still not appointed. The report ends by a resolution for a general monitoring of Belgium and by a recommendation to the Belgian Authorities, tending in particular to appoint the elected mayors, to reconsider the mode of the mayors appointment in Flanders and in Brussels-Capital in the light of the Recommendation 131 (2003), and to reconsider the linguistic laws as well.

      R : Chamber of Regions / L : Chamber of Local Authorities
      ILDG : Independent and Liberal Democrat Group of the Congress
      EPP/CD : Group European People’s Party – Christian Democrats of the Congress
      SOC : Socialist Group of the Congress
      NR : Member not belonging to a Political Group of the Congress

      I Introduction

      1.  In accordance with Article 2.3 of Statutory Resolution (2000) 1 of the Committee of Ministers, the Congress prepares on a regular basis reports on the situation of local and regional democracy in all member states and in states which have applied to join the Council of Europe.

      2.  Belgium has been a member of the Council of Europe since 1949. It signed the European Charter of Local Self-Government in 1985 and ratified it on 25 August 2004, with a number of reservations1. The Charter entered into force in Belgium on 1 December 2004.

      3.  The situation of local and regional democracy in Belgium has already been the subject of a report, leading to Recommendation 131 adopted by the Congress in 20032.

      4.  In November, and then December 2007, members of the Belgian delegation to the Congress drew attention to the persistent refusal by the Flemish Ministry of the Interior to appoint three democratically elected mayors in three municipalities3 with special language arrangements on the outskirts of Brussels. Further to a request from the President of the Bureau of the Chamber of Local Authorities to Minister Marino Keulen, the latter, in a letter dated 6 February 2008, forwarded information justifying his refusal to appoint the three mayors despite their having been elected.

      5.  The decision to undertake a fact-finding mission to Belgium was taken by the Bureau of the Chamber of Local Authorities at its meeting of 15 February 2008. In accordance with Article 8 of Resolution 31(1996), the Bureau may, at the request of the local and regional authorities in member states, decide to establish the facts through an initial fact-finding mission performed by at least two members of the Congress, making it possible to begin a frank and constructive dialogue with both the national authorities and the territorial authorities of the member state concerned.

      6.  The Bureau of the Chamber of Local Authorities appointed the rapporteurs for Belgium from the Chamber of Local Authorities, Michel Guégan (France) and the Chamber of Regions, Dobrica Milovanovic (Serbia). The delegation was assisted by Prof. Dian Schefold (Germany), Vice-Chair of the Group of Independent Experts on the European Charter of Local Self-Government, and it wishes here to express its gratitude to him.

      7.  During the visit, the Congress fact-finding delegation spoke with representatives of the governmental authorities (Ministries of the Interior of the Flemish government and the federal government, members of the Government of Brussels-Capital and the government of the German-speaking Community), the Speaker of the Flemish parliament and the Chair of the parliamentary committee responsible for internal affairs and local and regional authorities of the parliament of Brussels-Capital, representatives of national associations of local authorities and a number of experts (for the detailed programme of the visit, please refer to the appendix).

      8.  This report was drafted in the light of the information gathered during the visit, a study of all the relevant legislation and other information and documentation provided by the representatives of the Belgian authorities and the experts, and of the European Charter of Local Self-Government.

      9.  The rapporteurs would like to thank the Belgian authorities for the way in which they were received and for their help in organising the visit and obtaining the information presented here.

      II. The issues identified at the end of the fact-finding visit

      10.  The rapporteurs would like to draw members’ attention to six points in particular which appear problematic in relation to the European Charter of Local Self-Government.

      A.  Disruption in the management of public affairs

      11.  The situation as described to the members of the Congress delegation during this visit can be presented as follows:

      Three candidates for mayor stood for office in the municipal elections held on 8 October 2006 in three municipalities with special language arrangements on the outskirts of Brussels. The number of seats won by their respective lists was sufficient for them to be comfortably elected4. However, under Article 59.1 of the municipal decree of the Flemish region of 15 July 2005, it falls to the Minister of the Interior of the Flemish Government to appoint them. In point of fact, Minister Keulen refused to appoint them on the ground, firstly, that the candidates in question had deliberately sent the voting papers in French to the French-speaking electors and in Dutch to the Dutch-speaking electors. They should, according to the Flemish Minister, have sent all voting papers in Dutch and only subsequently in French when specifically requested by the electors. Second, it is alleged that the mayors allowed the use of French by certain members of their municipal council during the latter’s meetings, despite the fact that the only authorised language is Dutch. In this way, the mayors are alleged to have repeatedly violated the legislation as interpreted by the Flemish Minister of the Interior and therefore, in his view, do not have the moral qualities or authority required to exercise, with the confidence of the Government, the duties of mayor. Accordingly, they have not been appointed. To this day, they are “acting mayors” and their official position within their municipal council is that of “1st deputy mayor” (eerste schepen/premier échevin).

      12.  This situation prompts the following observations: first, since January 2007, the three municipalities in question have no appointed mayors. The reasonable timeframe within which the electorate was entitled to expect a solution to be found has long since passed, constituting disruption of the proper management of public affairs in these municipalities. There has also been disruption insofar as the mayor, whose list was elected but who has not been appointed, is holding the post of “1st deputy mayor”. As a result, the municipal council has one deputy mayor (schepen/échevin) less, which compromises the efficient management of the municipality.

      13.  In this respect, the rapporteurs consider that this runs counter to the spirit and the letter of the European Charter of Local Self Government.

      B.  Participation in local political life

      14.  The language laws as interpreted by the Flemish government impose the use of Dutch by everyone during meetings of the municipal council, by the members of the municipal executive, ie the mayor and his/her deputies (on this point, the law and case-law are clear), and also by the members of the municipal council, for whom the legislation and its interpretation are less clear.

      15.  A judgment of 10 March 1998 by the Belgian Court of Arbitration (which in 2007 became the Belgian Constitutional Court) provides that the members of the municipal council may speak in the language of their choice, and that the mayor and his/her deputies may speak in the language used by the citizen or the councillor in their replies to the questions put to them. This judgment appears to concur with the spirit of Article 30 of the Belgian constitution and Section 23 of the co-ordinated laws (language laws) of 18 July 1966.

      16.  The Flemish authorities generally refute the scope of this judgment, referring to several judgments by the Belgian Council of State, and in particular a judgment of 23 December 2004. In that case, the appellant had submitted an appeal challenging the lawfulness of an interpretative circular authorising the sending of election information in French only if the votes in question explicitly requested. However, the Council of State had dismissed the appeal on the ground that the appellant did not have locus standi, without ruling on the merits of the question of the lawfulness of the circular in question. Accordingly, this judgment cannot be interpreted as constituting an implicit foundation for the lawfulness of the circular.

      17.  As things currently stand, the Flemish authorities interpret the law as prohibiting anyone from using French during the meetings of the municipal council in municipalities with special language arrangements. The rapporteurs consider that this raises the problem of citizens’ participation in local life. Although the three municipalities are situated on Flemish territory, a majority of the population is French-speaking. For example, the meetings of the municipal council are open to the public, but if the use of Dutch is the rule during discussions, it is difficult for non-Dutch speaking citizens to follow the discussions, and therefore to participate in local political life. Similarly, the obligation to request documents in one’s own language after having received them in another is not conducive to encouraging participation in elections.

      18.  On this point too, the rapporteurs believe that this situation may be interpreted as a violation of the Preamble to the European Charter of Local Self-Government.

      C. The question of the proportionality of the decision not to appoint the mayors and the absence of any disciplinary procedure against the three mayors

      19.  The rapporteurs note that in relation to the faults of which the mayors are accused, the refusal to appoint them as a sanction is disproportionate. They were surprised, for example, that no disciplinary procedures were initiated against the three mayors. They are alleged to have breached the law by allowing members of the municipal council to speak in French and yet, no action was taken. No official complaint is believed to have been submitted against them.

      20.  The rapporteurs observe that in the light of the results of the democratic elections in which the lists presented by the mayors received relative high numbers of votes, the failure to appoint them on the ground of the non-exclusive use of Dutch in respect of their French-speaking citizens, and in a context in which there have been conflicting interpretations of the legislation, raises a problem of proportionality within the meaning of the Charter.

      21.  However, a range of administrative disciplinary measures, varying according to the seriousness of the faults committed by elected representatives. In the exist present case, the Minister considered that the breaches of the legislation in force could entail only a refusal to appoint the mayors concerned. The Minister’s view was that insofar as the mayors had not yet been officially appointed following the election of their list, they were not officially mayors and it was therefore not possible for any disciplinary proceedings to be taken against them. This argument is admissible with regard to the complaint relating to the sending of the voting papers in French, but it is more difficult to accept in relation to the charge of allowing French to be used in the meetings of the municipal council, because at that point the candidates were already acting mayors and disciplinary proceedings could therefore have been taken against them.

      22.  Opting to initiate disciplinary proceedings could have confirmed the faults committed, and sanctions could then have been imposed. An appropriate administrative (or indeed judicial) response could perhaps have avoided the scale of this dispute, or limited it to a question of the proportionality of any sanction imposed on them.

      23.  In conclusion on this point, the rapporteurs emphasise that even supposing that the allegations against the mayors were well-founded from the point of view of the law, the refusal to appoint the candidates concerned, who had received a clear majority in the vote, is disproportionate within the meaning of Article 8.3 of the European Charter of Local Self-Government.

      D.  The fact that the mayors have not appealed against the Flemish Minister of the Interior’s refusal to appoint them.

      24.  During the meetings held in the course of the fact-finding visit, the fact that the mayors had not appealed against the Minister’s decision was raised up time and time again. The mayors could have lodged an appeal with the Council of State against the Minister’s decision not to appoint them. They did not do so. However, they did avail themselves of their right to submit to the Minister their candidacy as mayor a second (and final) time, giving full reasons for their request. If the Minister of the Interior rejects their request once again, they will have no alternative other than to accept the decision or to lodge an appeal before the Council of State.

      25.  A judicial appeal is essential in order to give a legal response to the problem of interpreting the language laws. Lodging an appeal will perhaps lead to a clearer definition of the parameters of the language laws and their application, but if necessary it could also bring the dispute before the international courts (for example, the question of the composition of the monolingual chambers of the Council of State, which are themselves required to deal with a language issue, could be examined in the light of the objective impartiality requirement).

      26.  The rapporteurs believe that the mayors should appeal to the Council of State in order to obtain a legal response to their dispute with the Minister of the Interior. They would thereby have exhausted domestic remedies and could, if they judge it necessary, assert their right before the international courts, such as the European Court of Human Rights.

      E.  The supervision exercised by the Flemish authorities

      27.  As previously indicated, mayors in the Flemish Community are appointed by the Flemish government. This appointment is not a simple endorsement of the local election results. The Minister asks for the opinion of the provincial governor and the public prosecutor. He then has discretionary power enabling him to validate the election results by appointing the mayor or not. Insofar as Belgium, and the Flemish government and parliament in particular, have made a reservation on Article 3.2 of the Charter, there is no need to discuss the scope and extent of the Minister’s discretionary power. However, the rapporteurs would point out that this situation leads a considerable degree of supervision of the municipalities by the governmental authorities, which could be seen as interference, given that despite the votes cast by the electorate, the governmental political authority imposes its own decision. This is contrary to the general spirit of the European Charter of Local Self-Government.

      F.  Failure to comply with Recommendation 131 (2003)

      28.  In 2003, a report on the situation of local democracy in Belgium was drafted by the rapporteur, Ms Brigitta Halvarsson (Sweden)5, and Recommendation 131 (2003) was adopted by the Congress.

      29.  To a certain extent, this recommendation foresaw the current dispute between the candidates for mayor and the Flemish Ministry of the Interior. The text recommended that the Belgian authorities opt for a system whereby mayors are elected by the population or by the municipal council rather than appointed by the executive.

      30.  The recommendation also urged the authorities to sign and ratify the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities.

      31.  Since then, in 2004, Belgium ratified the European Charter of Local Self-Government but has not complied with the above recommendation, at least with regard to the Flemish region and Brussels-Capital region, where the election of mayors is still subject to validation by the government executive. In contrast, the Walloon regions appears to be on the way to introducing reforms in order to comply with the recommendation.

      32.  On this point, the rapporteurs can only reiterate the terms of the aforementioned recommendation, urging the Belgian authorities to conform fully to the provisions of the European Charter of Local Self-Government which they have ratified and therefore to comply with Recommendation 131.

      III. Conclusions

      33.  The rapporteurs believe that the above points raise serious questions which are worrying in relation to the Charter which Belgium has ratified. The delegation does not believe that a further fact-finding visit to Belgium is necessary, since overall the political authorities it met provided satisfactory answers. The rapporteurs ask the Bureau to approve this report and agree to its being transmitted to the Institutional Committee.

      34.  The rapporteurs believe that it is for the Bureau to decide whether an immediate recommendation should be drafted on the situation regarding the failure to appoint the mayors, or to undertake subsequently general monitoring, or whether both courses of action would be appropriate.

      35. In connection with the dates of any such future visit to Belgium, they would like to draw to the attention of the Bureau and the Institutional Committee the need to ensure that it did not coincide with major dates in the country’s political calendar, so that the visit could preserve the objective distance required for completing its work and so that it could not be exploited in the context of internal political events taking place at the same time.

      IV. Other general remarks

      36.  In addition to the problems outlined above, the rapporteurs would like to make more general comments which extend beyond the situation in Belgium alone, and which the Bureau may make use of as it sees fit.

      37.  The rapporteurs noted that while the various authorities in Belgium have signed and ratified the text of the Charter, reservations have nonetheless been made in respect of important provisions in the text, on the basis of Article 12 of the Charter which authorises them to do so. For example, Belgium declares itself not to be bound by Articles 3.2 and 8.2 of the Charter. The rapporteurs can merely note the reservations made in respect of these provisions but believe that this can raise more general issues regarding the applicability of the Charter where reservations are made in respect of substantive provisions.

      38.  It could be very useful to have a comprehensive report on the provisions in respect of which reservations have been made, the countries that have made them and the consequences this could have on their internal administrative, legal and political system. This would make it possible to gauge on a case-by-case basis the effective scope of the European Charter of Local Self-Government.

      39.  The rapporteurs also note another question arising from the institutional configuration of Belgium which is unique in Europe. This is the lack of hierarchy between the federal and the federated entities. The result is that each entity ratifies an international text, may make reservations and accordingly, independently of the other entities, is bound by that text. In the event of a failure to comply with the Charter, the question of responsibility arises. Who is to be held to account for the signature? The reply given to the delegation differed depending on who was asked and it is the rapporteurs’ view that this point, which is a fundamental one if the Charter is to have its full binding force, should be clarified.

      40.  There is also the question of the existence and nature of an effective arbitration body in a federal state divided essentially along linguistic lines. An independent judicial body with an impartial membership (for example, chambers with an equal number of native speakers of the languages in question) and impartial functioning is one of the keys to cohesion between the federated entities.

      41.  Lastly, language problems such as those found in Belgium seem to have surfaced in other countries of Europe which have ratified the Charter on Local Self-Government. The rapporteurs believe that these language-related points have a clear impact on local political life and should be carefully examined.

      42.  It is the rapporteurs’ view that these matters should be referred to the Institutional Committee.

      Appendix

      Programme of the fact-finding mission of the Congress of Local and Regional Authorities

      to Belgium

      (Brussels, 13 and 14 May 2008)

      Congress delegation:

      Rapporteurs:

      Mr Michel GUÉGAN France, Chamber of Local Authorities, Mayor of Chapelle-Caro,
      President of the Community of municipalities of Val d'Oust et Lanvaux, Head of the delegation

      Mr Dobrica MILOVANOVIC Serbia, Chamber of Regions, Mayor of the Assembly of the City of Kragujevac

      Expert:

      Prof. Dian SCHEFOLD Germany, Vice-President of the Group of Independent Experts on the European Charter of Local Self-Government

      Congress secretariat:

      Mr Jean-Philippe BOZOULS Executive Secretary of the Chamber of Local Authorities

      Mrs Stéphanie POIREL Co-Secretary of the Institutional Committee

      Tuesday 13 May 2008

      7.30 am Working breakfast of the Congress delegation for the fact-finding mission

      9 am Meeting with Mr Charles PICQUÉ, Minister-President of the Government of the Brussels-Capital Region and Mr Benjamin CADRANEL, Head of the Private Office

      11 am Meeting with Mr Patrick DEWAEL, Deputy Prime Minister of the Federal Government and Minister for Home Affairs

      12.30 pm Working Lunch

      2.30 pm Meeting with the delegation of the Flemish Ministry for Home Affairs, Urban Policy, Housing and Civic Integration:

        Mr Marino KEULEN, Flemish Minister for Home Affairs, Urban Policy, Housing and Civic Integration

      Mr Sami SOUGUIR, Deputy Head of Private Office

      Mr Didier DETOLLENAERE, Deputy Head of Private Office

      Mr Guido DECOSTER, Chief Administrator of the Agency for Internal Supervision

      5 pm Meeting with the three non-appointed mayors of Linkebeek, Kraineem/Crainhem and Wezembeek-Oppem:

        Mr Damien THIÉRY, non-appointed mayor of Linkebeek

        Mr Arnold D’OREYE DE LANTREMENGE, non-appointed mayor of Kraineem /Crainhem

        Mr François VAN HOOBROUCK D’ASPRES, non-appointed mayor of Wezembeek-Oppem

      8 pm Working dinner with members of the Belgian Congress Delegation and the Municipal Secretary of Schaerbeek at the invitation of the CoE

        Mr Jacques BOUVIER, Municipal Secretary of Schaerbeek and expert of the GIE

        Mr Marc COOLS, échevin/schepen at the municipality of Uccle, President of the Association of the City and the Municipalities of the Brussels-Capital region

        Mr Jef GABRIELS, President of the Association of Flemish Cities and Municipalities and Mayor of Genk

        Mr Marc THOULEN, Director of the Association of the City and the Municipalities of the Brussels-Capital region

        Mr Jean-Claude VAN CAUWENBERGHE, Deputy of the Walloon region

        Mr Etienne VAN VAERENBERGH, échevin/schepen at the municipality of Lennik

      Wednesday 14 May 2008

      8 am Working breakfast with Mr Karl-Heinz LAMBERTZ, Minister-President of the Government of the German-speaking Community

      9. am Meeting with Mr Etienne VAN VAERENBERGH, President of the Association of Flemish Cities and Municipalities and Mrs Betty de Wachter (Co-ordinator of the Association)

      11 am Meeting with Mr Hervé DOYEN, Chairman of the Parliamentary Committee for Home Affairs, responsible for local and regional authorities in the Parliament of the Brussels-Capital Region and Mayor of Jette

      12 noon Working lunch at the invitation of Mrs Marleen VANDERPOORTEN, Speaker of the Flemish Parliament and Mayor of Lier

      2.15 pm Preparation of the press conference

      Venue: Crowne Plaza Europa Hotel Brussels, rue de la Loi –Wetstraat 107, B-1040 Brussels, tel. +32 2 2301333

      4.30 pm Press Conference

      Venue: Schuman Meeting Room, Crowne Plaza Europa Hotel Brussels, rue de la Loi - Wetstraat 107, B-1040 Brussels, tel. +32 2 2301333

      6.30 pm Meeting with Mr Michel DANDOY, President of the French-speaking Association of the Brussels periphery

      and 4 co-presidents of the Association:

        Mr Christian VAN EYKEN

        Mr Jean-René DEGAND

        Mr Jean-Louis ROEFS

        Mr Georges CLERFAYT

1  The reservations relate to Articles 3.2, 8.2 and 9.2, 9.6 and 9.7.

2  CPL (10)2 Part II

3  The municipalities in question are Linkebeek (approx. 5 000 inhabitants), Kraineem/Crainhem (approx. 13,200 inhabitants) and Wezembeek-Oppem (approx. 13,200 inhabitants)

4 Linkebeek: 10 seats out of 15; Kraineem: 18 seats out of 23 and Wezembeek-Oppem: 18 seats out of 23

5 CPL (10)2 Part II



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