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3. The Belgian Constitutional Court and federalism
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3. The Belgian Constitutional Court and federalism [44.197.113.64] Project MUSE (2024-03-19 03:53 GMT) – 87 – 3.1 Different ways of examining (case-)law 63. General examination. Constitutional Court Judge André Alen explains: [d]uring the first years, the Court of Arbitration has laid the foundations for the allocation of competences [case law], which has resulted in a wide conception of the competences of Communities and Regions, without however, when necessary, losing track of the unity of policy, and in the upholding of an exclusive territorial division of competences. These foundations were clearly affirmed in the subsequent phases and can as such be deemed to be “established jurisprudence”281 This general characterization of the first five years of Constitutional Court jurisprudence refers to three tools the Court has used during its first years, ie exclusivity, a broad interpretation of federated competences and the economic and monetary union which requires unity of policy from time to time. Alen further explains that in the 1989-2003 period, the Court, pursuant to some adaptations of the SLIR, relaxed its interpretation of implied competences and expanded the notion of the economic and monetary union, at the same time allowing for a limited ‘deviation’ from the rule of territoriality. Moreover, he notices how there has been a change of interpretation of the reserved competences, and how more competences were construed as “parallel”. Since 2003, the most important evolutions were – again according to Alen – in the jurisprudence on telecommunication and radiodiffusion matters, where the Court decided that, although these competences resort under different legislatures, the principle of proportionality forces the legislatures to work together, at least when infrastructure is in question. Finally, he believes that the Court’s recognition of the principle of federal loyalty might have some further effects on the future.282 This description seems to be an adequate general categorization of what had been happening in the Constitutional Court, at least up till the beginning of 2005. Afterwards, no real revolutions seem to have occurred. Perhaps the 281 André Alen, Twintig jaar grondwettigheidstoezicht op wetgevende normen. Krachtlijnen van de rechtspraak van het Arbitragehof van 1985 tot en met 2004, in 20 Jaar Arbitragehof 5, 6 (André Alen ed. 2005). 282 Ibid., at p. 7-16. He was right about this, as evinced by the new institutional agreement of October 2011 (supra note 10), where it is decided that the Court may review legislation in terms of ‘the principle of federal loyalty’ (ibid. at p. 11). The Belgian Constitutional Court and federalism – 88 – growing tendency to refer to the European Court of Justice for preliminary rulings should be underscored. It can also be noted that in for instance in Case 202/2009283 , the Court allowed an alone-standing argument based on the principle of proportionality and federal loyalty, which seems to underscore Alen’s point, even if the Court generally still does not read any other arguments into the principle of federal loyalty than proportionality requirements284 . It could also be argued – although it might be too early to call this assertion grounded – that the Court is confronted with an ever more assertive Flemish Government in terms of a wide interpretation of its own competences285 , which could result in a new interpretation of implied competences. The latter might be somewhat a-historic though286 . Even so, because of a limited distance, it is harder to describe a general evolution of the case law after 2005. At the same time, explaining case law from such a generalist perspective elides the required depth. More importantly even, it presumes, rather than explains, certain concepts and ways of thinking, such as the concept of “implied competence” or that of “economic and monetary union”. These concepts require some sense of analytic examination in order to procure understanding. 64. Reframing of dogmatic analysis. However, characterizing the Court’s jurisprudence more analytically poses serious dangers, at least when one construes analytic examination in the traditional (dogmatic) style. Even if some forms of modern dogmatics allow for a more case by case approach – an approach which comes closer to understanding competence case law than mere abstract concept analysis does287 – an overemphasis on the particularities would elude any theory’s aspirations of generality. We try to redeem (part of) that generality (methodologically) by reframing the arguments commonly figuring in dogmatic analysis as tools. Without this adaptation, generally, the analytical scheme easily pushes someone into the groping arms of dogmatics, which does not seem appropriate as an explanatory or predictive device, as...