The COVID-19 pandemic raises a crucial question for federal systems: how can the government respond quickly and coordinated if powers are spread across different levels? The question becomes even more urgent in divided states with disintegrative dynamics. Such systems easily turn into what Requejo calls ‘distrust federalism’. The fundamental distrust between the entities raises extra obstacles to harmonized crisis management.
Belgium is an interesting example, for three reasons. First, it is an example of distrust federalism. Powers have been gradually and consistently transferred to the Communities and Regions on the basis of distrust, whenever the language groups at the central level were unable to find an agreement on how to address a specific issue. The basic principle for the distribution of powers is exclusivity, precisely to avoid cooperation and to exclude any sense of hierarchy. Belgium, secondly, is a small country. Where the pandemic affects some areas in particular, differentiated measures are justified. In Belgium, however, the entire country is a virus ‘flashpoint’, which calls for national intervention. Finally, the country was at the verge of a mental breakdown when the virus hit Belgium. After the government’s fall in December 2018, the election turnout in May 2019 widened the ideological gap between the major parties in French-speaking Wallonia and Dutch-speaking Flanders. The antagonism between the francophone socialist party Parti Socialiste (PS) and the Flemish-nationalist party Nieuw-Vlaamse Allicantie (N-VA) blocked all attempts to form a new government, and the N-VA’s proposal for confederalism was on the political agenda. Even the pandemic could not bring the parties together. Instead, the resigning minority government was turned into an emergency government for the duration of the crisis.
Despite the disintegrating dynamics, the centralization of power in these times of emergency was uncontested, but backed by a system of ad hoc cooperation. At the same time, the framework for cooperative management of a nation-wide pandemic is deficient. Usually, failing coordination furthers tendencies towards centralization. In Belgium, it is seized to put calls for decentralized ‘homogeneous’ competences back on the table.
Cooperation
Belgium is designed as a dual state, based on the principle of exclusivity. Intergovernmental relations were formalized to a great extent, out of fear that the antagonist language communities would not easily cooperate spontaneously. Yet, in matters that involve international decision-making, the intensity of inter-federal co-operation and coordination has led scholars to argue that Belgium, in these areas, has moved towards co-operative federalism. In recent times, even in the area of EU affairs this mechanism started to sputter. One example is the Walloon threat to block the CETA Agreement between the EU and Canada. Another example is the failure to develop a coordinated action plan for the fragmented policies in the field of climate change. And even recently, the N-VA abstained in the European Parliament when the EU’s response to the Covid-19 crisis was voted that involved mobilizing funds from the European Structural and Investment Funds and making it eligible under cohesion rules. The reason was that, following the logics of European cohesion policy, most funding in Belgium would go to the Walloon part.
Nevertheless, it seems that, apart from European affairs, the COVID-19 virus is another external factor able to bring the language communities together. This confirms the observation in another post on this blog, that what matters more than formal arrangements, is the attitude of the actors involved.
As I will argue below, the federal government’s powers in this matter was questionable. Even if it could refer to its police powers to safeguard civil security, the scope of its measures was unprecedented, and had an enormous impact on regional policy. For example, schools and cultural institutions were closed, although these are regional competences, and the regional measures to mitigate the social and economic implications of the federal preventive measures will weigh heavily on the regional budget. Therefore, intergovernmental cooperation was organized immediately and spontaneously. The National Security Council, a body established to fight crises, consists of the prime Minister and federal ministers of internal affairs, foreign affairs and justice. This is because when the law on the Security Council was enacted, Parliament had terrorism attacks in mind. To fight the pandemic, the Council was now extended to the Minister-Presidents of the Regions and Communities, in a de jure advisory position, but as de facto partners in the decision-making process. They were prominently seated next to the prime Minister at press conferences.
In the media, some people expressed their dissatisfaction with the way intergovernmental cooperation took place. In the National Security Council, only the Minister-Presidents were involved, and only in an advisory position. However, there is no legal ground to impose negotiation through inter-ministerial conferences, preferred by these voices. Informal cooperation took shape by way of improvisation, in a manner that enabled swift decision-making as much as possible.
As a result, the system of exclusive powers turned into a system of shared powers. The federal government (after consultation with the Minister-Presidents) brought the country in a lockdown, which urged the Communities and Regions – along with the federal government – to take measures to moderate the economic, social and administrative effects. The federal government decided when, for example, schools could resume, and gave instructions and recommendations to the Communities on how to organize this.
Horizontal cooperation also grew spontaneously. For example, despite different views on the closing of schools, the French and Flemish Communities compromised on the measures to be taken and – with some disturbances – on the date to resume lessons. The particular situation of Brussels, where the French and Flemish Communities both have jurisdiction for uni-linguistic institutions, might play a role. After all, it is difficult to hold that specific limitations on the entering and functioning of schools, museums and residential care institutions are necessary for health reasons, if they are not imposed on the schools, museums and institutions around the corner.
Deficiencies
At the same time, the system showed its deficiencies for managing pandemics in a coordinated way. First, the distribution of competences is fragmented and unclear. Second, no adequate coordination mechanisms are designed for this type of crises.
It was uncontested in political circles and the media that the federal government had the power to take preventive measures to contain the spread of the virus. This is surprising, because preventive health care, including the fight against infectious diseases, is a power assigned to the Communities. The federal government referred to its powers pertaining to civil security. This also enabled the government to enact measures by a simple Ministerial Decree. This might justify the first measures, when immediate action was crucial, leaving no time for negotiation or coordination. It is, however, questionable whether this justified continued action, including a lockdown, an exit strategy, and drastic interference in fundamental rights and subnational powers.
Also, it is doubtful whether it was up to the federal government to decide that schools, while closed, should still take childcare arrangements and that higher education institutions have to work through distance learning; to give instructions on how Communities should decide which groups can go back to school – namely backed by expert advice – and to make recommendations. In turn, subnational entities encroached upon federal powers, for example when the Walloon Region, instead of the federal government, regulated procedures before the Council of State, division administrative litigation, in cases concerning Walloon acts.
Still, there was general agreement on a centralist approach. What caused more irritation, was that fragmented competences sometimes hindered swift action.
A prominent example are the tracing apps, that are considered an important tool to enable the exit strategy. The federal government started a procedure to examine and select tracing apps, then left it to the regions considering their competences in the field of health prevention, then introduced (via parliamentary initiative) a bill for a framework for tracing apps, balancing privacy and health considerations, and was finally stopped by the Council of State, division legislation. This advisory body argued that preventive health measures are Community competences and the federal government could only outline general rules to protect the right to privacy and to regulate the use of anonymized data for epidemiological studies. Considering these converging competences, it suggested to conclude a cooperation agreement.
This is just one example of fragmented competences. Another is that it is for the Communities to detect and contain infectious diseases, but once a vaccine is developed, it is up to the federal government to make it mandatory.
Also, communication by federal and subnational agents on decisions taken by the National Security Council were not always coordinated, leading to confusion. There was uncertainty as to who was responsible to order and supply medical protection for caregivers in residential care institutions. And the question was raised whether the centralized approach, with its focus on the capacity of hospitals, kept the speed at which the virus was circulating in (some) residential care institutions under the radar for too long.
In the media, political actors as well as experts complained that the separate yet intertwined competences brought several governments to the table, leading to endless squabbling. In the absence of one person clearly in charge, it was difficult to make prompt and clear decisions. These complaints revived cravings for homogeneous powers, with some voices calling for a complete decentralization of health care, and others for a centralization. It is, however, typical of federal systems that powers are distributed, and by definition not homogeneous. Interestingly, the tool available in most federal systems to enable central intervention in regional competences when required for the public interest, namely competitive powers, are not in the picture. Yet, it is the exclusivity principle that caused far-reaching fragmentation in the first place.
With the exit strategy unfolding now in full swing, it starts to dawn that social and economic life need to be restarted, and reinvented. This potentially increases the cleavages in the political landscape that brought the country in a political crisis in the first place. Renewed attempts to form a full-fledged government threaten to bend up once more to the antagonism between the major parties. It is not unlikely that proposals for yet another state reform will come up for discussion. At least this can be used to build more solid structures for a coordinated approach to health crises.
Posted by Professor Patricia Popelier (University of Antwerp)
British Association of Comparative Law 
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