Article 35 of the Constitution Belge — Wikipedia

L’ Article 35 of the Belgian Constitution is part of title III Powers . It attributes to communities and regions residual competence, that is to say all skills with the exception of those attributed to other entities. This article has not entered into force, it is on the contrary the federal authority which holds residual jurisdiction.

• It dates from 1993 and was originally – under the old numbering – article 25 to have .

“The federal authority has only skills in matters that formally attribute to it the Constitution and the laws brought under the very constitution.
The communities or regions, each with regard to it, are competent for other subjects, under the conditions and according to the terms set by law. This law must be adopted by the majority provided for in article 4, the last paragraph.

Transitional arrangement

The law referred to in paragraph 2 determines the date on which this article comes into force. This date may not be prior to the date of entry into force of the new article to insert in title III of the Constitution, determining the exclusive powers of the federal authority. »»

This article was inserted into the Constitution following the Saint-Michel agreements in 1992 aimed at transforming Belgium into a federal state. For certain reforms, the special majority is required and to reach it, the government coalition needs the support of environmental parties (Agalev and Ecolo) and Volksunie. The Volksunie declares that they want to converse only if the residual competence is transferred to the federated entities. Article 35 is then written but will only be in force only a subsequent constitutional revision and a new special law are taken. Neither has ever been so far.

The drafting of the text is inspired by that of article 105 which provides that the only powers of the king are those that the Constitution attributes to him.

If it came into force, article 35 would be incompatible with articles 38 and 39.

The transitional provision has this particular that it attributes to a law the power to bring into force a constitutional article. This law can only be taken if a new article is inserted into the Constitution. However, the current revision declaration does not allow such a revision (as well as that of 1999 and that of 2003). Unless there is a revision of article 195, the article to be inserted could therefore not come into force during the current legislature.

Policy [ modifier | Modifier and code ]

Currently, no agreement exists on the entry into force of article 35: no party, whether Dutch -speaking or French -speaking, claimed it. In addition, assuming that a community would like to see the residual jurisdiction attributed to the federated entities, it could not impose it on the other since the federal government must produce a declaration of revision, that this government is jointly composed of Dutch and French -speaking ^{[ first ]} And that decisions are made by consensus.

Finally, the special law should include a list of federal skills.

Legal [ modifier | Modifier and code ]

The application of article 35 would pose legal difficulties. Indeed, it would be necessary to choose who communities or regions would receive residual competence. If it is the communities that receive it, it would be necessary to determine how these new skills will be allocated to Brussels where two communities are competent. Conversely, this problem would not arise if it is the regions which would inherit all the skills but this solution would put, in a certain sense, the Brussels Region above the Flemish community, which is politically unthinkable currently in Flanders.

Added to this is the complication of the interpretation of the constitution which would follow. Today, the articles comprising the word “law” subsequent to 1970 refer to federal laws, previous articles require knowing the distribution of skills to be interpreted ^{[ 2 ]} . A new upheaval would require finding a new interpretation rule.

Residual competence in other federal states [ modifier | Modifier and code ]

The level of power in which the residual competence is found is revealing of the movements which gave birth to the federal state. Thus, in the United States of America and in the Federal Republic of Germany, it is the states and the Länder that have residual jurisdiction. These states were born from a movement of union coming from smaller entities. Conversely, in Canada it is the federal authority which has residual jurisdiction and not the provinces and territories.

Notes and references [ modifier | Modifier and code ]

Internal links [ modifier | Modifier and code ]

external links [ modifier | Modifier and code ]