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

Alice P.

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

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Résumé du document

‘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.

Sommaire

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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Extraits

[...] This can happen if the Federated Entity considers that either the legal preconditions for the substitution have not been completed or the limits of substitution have been exceeded' (Andersen, 1996)[16]. The second mechanism deals with financial measures: indeed, the Federated State has the right to deduct in advance the costs of lack of respect for an international or supra-national obligation from the transfers affected to the Communities and Regions by a consequence of the article 171 of the Treaty of Rome. [...]

[...] The studies of the implementation of three European directives in Belgium by Wright (1996) set out in Sepos' article (2000)[22] illustrate this fact. The directives selected for examination are: the ‘Municipal Voting' directive (94/80/EC of 19 December 1994), the ‘Television without Borders' directive ((97/36/EC of 30 June 1997) and the ‘Tobacco Advertising' directive (98/43/EC of 6 June 1998). As explained, choice of these particular directives was determined by the fact that they have been among the most controversial and sensitive issues in Belgian EU policy-making in the last decade. [...]

[...] The indirect form rests on the co- operation of the European institutions and actors within the member states. It is the responsibility of national governments and their agents though it is sometimes shared with the European Commission. It can be divided into two stages: legal and practical implementation. Direct implementation is, with some exceptions, the sole responsibility of the European Commission. Executive rule making by the Commission involves filling in the gaps in EU legislation. As most commentators, we are going to consider, mainly, the indirect form of implementation. [...]

[...] The concern about both implementation of EU law by the Member States and the role of the regions in the European Union policy- making process are linked to the broader question about the legitimacy of the European Union and its democratic deficit. The EU legislation makes changes to the ordinary lives of the European citizens and it might give rise to a European conscious among the European people. Graver H.P., ‘National Implementation of EU Law and the Shaping of European Administrative Policy' ARENA Working Papers WP 02/17 www.arena.uio.no/publications/wp02_17.htm Com final p.25 Knill, Christoph (2001), The Europeanisation of National Administration: Patterns of Institutional Change and Perspectives. [...]

[...] A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force.' The articles 226 (ex Article 169) (ex Article 170) and 228 (ex Article 171) make explicit the possibility of condemnation of the Member States in case of non-compliance/non-adaptation of national law with EU commitment (to see the appendix). [...]

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