After proclaiming the independence of the country, the National Congress of Belgium (the ancestor of the current Parliament) adopted on February 7th, 1831 the text of the national Constitution, whose 1st article stipulates that «Belgium is divided into provinces». By means of this wording, the national Congress expresses in an implicit but inevitable way that the local power (represented by the provinces) stands at the very basis of the Belgian state. Consequently, it is historically evident that, in effect, both provinces and municipalities preexisted before the foundation of Belgium and that they constitute the essential foundation of that state.
This importance of the local level of government is reproduced at several points of the Constitution. Thus, the Fundamental Law dedicates its title 2 to the «Individual liberties», while title 3 deals with the political «Powers». Here, and following a classical approach, the Magna Carta depicts the trinity of «legislative power» (chapter 1), «executive power» (chapter 2) and «the judiciary» (chapter 3). Finally, chapter 4 of that third title regulates «the provincial and municipal institutions». This constitutional relevance of local government, which is situated at the same level with the other three «classical» powers, justifies the assertion of some commentators that local administration in Belgium stands as the real fourth power.
Apart from this key place of local government within the constitutional text, the Belgian Constitution establishes certain essential elements and principles of the local administration:
– The management by the municipal and provincial authorities of all affairs which are of exclusive municipal and provincial interest;
– The exclusive competence of the legislative power to organize provinces and municipalities;
– The direct election of the members of the municipal and provincial councils;
– The supervisory higher authority (autorité de tutelle) can intervene only when this is necessary to prevent that the local authorities exceed in the exercise of their competences or do hurt the general interest;
– The prescriptions on the running of the public register of the civil status, and of other public, administrative registers;
– The fiscal autonomy of provinces and municipalities.
The Municipal Act, as well as the provincial Acts (as amended) have implemented these various constitutional principles since their adoption in 1836.
The Belgian Constitution has known several amendments since 1831, which have affected local government in a more or less direct manner. These amendments deal with the following aspects:
– The capacity of local authorities to create associations;
– The power of local bodies to create intra-municipal organs;
– The capacity of local entities to carry out popular, local referendums, concerning matters of municipal or provincial interest;
– The power of local authorities to create urban agglomerations and federations of municipalities, and their ability to put under this legal regime the agglomeration where the capital city is placed;
– The creation of 4 linguistic regions in the country. Every municipality in the nation must be connected with one of such linguistic regions.
Apart from these constitutional developments, the municipal and provincial institutions also knew several important legislative evolutions in the XIX and XXth centuries. Let us quote here the following ones:
– The abolition of the municipal right of fiscal «granting» (droit communal d’octroi) in 1860, and its replacement by a mechanism of general financing of the municipalities (see, infra, point 7);
– The merger of municipalities;
– The abolition of the communal police (police communale), and its replacement by a local police.
Notwithstanding the importance of this abovementioned legal changes, the most important public-Law development in the history of the country has been the inception and the establishment of Federalism in Belgium. Thus, Section 1 of the Belgian Constitution - such as modified in 1980- provides today as follows: «Belgium is a federal state, consisting of communities and regions». According to this new constitutional depiction, the powers of the Belgian State are thus awarded to three different, constituent political elements: one federal state ([c57][c4b][c48][c03][c4e][c4c][c51][c4a][c47][c52][c50][c03][c52][c49][c03][c25][c48][c4f][c4a][c4c][c58][c50][c0c][c03]three «Regions» (Flanders, Wallonia and Brussels-cap-
ital) and three «Communities» (the French linguistic community, the Flemish linguistic community and the German-speaking linguistic community).
The organization of these three constitutional cogs and the determination of their powers are settled either by the Constitution or by statutes adopted with a special parliamentary majority («organic statutes», lois organiques), which can be qualified as «para-constitutional laws». This dismemberment of the powers of the Belgian state has a fundamental importance as regards the local powers: under the new system of federalism and the process of devolution, the three mentioned Regions (Flanders, Wallonia and Brussels-capital) became competent to regulate all matters dealing with the so-called «subordinate powers», that is, provinces and municipalities. This regulatory power in the hands of the Regions covers, among others, the following aspects of the legal regime of local authorities: (a) their composition, organization, competences and functioning; (b) the change or the rectification of their territorial limits; (c) the composition, the organization, the competences and the functioning of the institutions of the agglomerations and federations of cities; (d) the election of the provincial, municipal and intra-municipal organs; and (e) the disciplinary regime of the mayors (bourgmestres).
As said at point 1, supra, the entities of the local level of government in Belgium are essentially provinces (second-tier bodies) and municipalities («communes» in French, cities and towns), which form the essential and first tier authorities. There are ten provinces in the country, covering the territory of the Flemish and the Walloon region. The Brussels region is not covered by a division in provinces. There are 5 provinces in the Walloon region and 5 provinces in the Flemish region.
On the other hand, there are at present 589 municipalities in the country. Their size is very uneven, as it may go from 113 hectares (for the smallest) up to 21,375 hectares (for the biggest one) the average surface being thus 5,181 hectares. The number of inhabitants also present strong variations: the actual figure can move from more than 450,000 inhabitants (for the city of Antwerp) to just one hundred (in the case of the town of Herstappe). The average figure ranges around 17,400 inhabitants. It is also important to point that the distribution of the municipalities among the three regions is not balanced, because the region of Brussels-capital contains only 19 municipalities, while the Flemish region counts 308 municipalities and the Walloon region has 262 municipalities.
As said before, the Regions, and not the «central» legislative or executive powers, are today competent for deciding the organization and the legal regime of «their» municipalities and provinces. This fact has a crucial legal consequence, as there is not a single or even a homogeneous regulation of local government in Belgium. On the contrary, municipalities will thus be organized and regulated in a different way in Brussels, in Flanders and in Wallonia. At the same time, prov-
inces will be organized and regulated in a different way in Flanders and in Wallonia (as there is no province within the Region of Brussels-capital). In the light of this legal variety, it is thus possible to find differences even in terminology, as we shall find that municipalities can be called cities (villes) or towns (communes). This is mainly a symbolic difference, whose origin goes back to the Dutch regime (1815-1830), a time when this diverse names served at making a difference between rural and urban local authorities.
The relations between provinces and municipalities are hardly regulated in the Constitution, which confines itself to providing that provinces manage the provincial interests, while municipalities do run the municipal interests. This constitutional wording allows supporting the view that there is no supremacy of one type of local authorities over the other, or that there is even an organic link among them, whatsoever. A logical way of legal thinking, though, requires to understand that the municipal administrative regulations do respect the provincial administrative regulations, and that they do not oppose them.
On the other hand, from 1836 the municipal legislation granted the provinces an important role in the administration of the...