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 reservations[1]. 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 2003[2].
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 municipalities[3] 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 6February2008, 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 elected[4]. 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 23December2004. 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).