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Conclusion
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Conclusion [54.81.185.66] Project MUSE (2024-03-19 12:21 GMT) – 279 – 185. The Constitutional Court: looking for the right balance, with many weights in the scales. The Belgian Constitutional Court holds an ambiguous position towards European law. Whereas, generally, it has recognized its power to review the conformity of a legislative act approving a treaty with the Constitution, it also deploys these treaties, and more broadly European law as enshrined in treaties and other instruments, to decide upon the constitutionality of other laws. Especially in reviews that rely upon the constitutional principle of non-discrimination, European law can play an important role, providing content to that principle. At the same time, the Constitutional Court has had to fulfill the difficult task of finding an adequate balance between different political forces in Belgium. Especially communautarian political forces have had to be held in check, so as to give content to the so-called federal principle, establishing a balance between different (sociological) communities. 186. A pragmatic stance as the best representation of the Court’s action. I have argued throughout this book that the Court has tried to accomplish its task rather pragmatically, both employing pre-existing texts and context and developing new principles. Accordingly, the different ‘principles’ underlying Belgian federalism have been described as tools, which the Court deploys in order to restore or ensure the necessary balance between Communities and Regions amongst themselves, and between these federated entities and the federal government. Even if this characterization of Constitutional Court jurisprudence is not entirely novel, it does stress – (much) more than more ‘classic’ rendition of constitutional law in Belgium – the leeway the Court has in deciding different cases on federalism issues. At the same time however, I stress that the Court is bound by some rule of law values. 187. European law as a precarious tool: adding complexity, but also opportunity. Furthermore, I have tried to show how European law fits in this picture. European law for the Court seems to create a new tool for solving practical conflicts. Indeed, the Court has not only availed itself of European law politically, in the sense that it sometimes allows for an evacuation of conflicts, but also more legally, in the sense of supports arguments imposing cooperation or supporting the Belgian EMU principle. Even so, European law has shown itself to be a precarious tool. I have argued that also when European law is brought into play before the Court, rule of law values sometimes get in the way of it being employed merely as a (politico-legal) instrument. I have moreover suggested that in fact, European law can sometimes Beyond Federal Dogmatics – 280 – exacerbate the existent tension which exists in the constitutional toolbox, a tension primarily caused by an already utterly complex interplay of rule of law related and more instrumental forms of reasoning by the Constitutional Court. 188. A problem for the future. In the final chapter, I have first tried to point out some explanations for the tension. Although these explanations are somewhat too abstract, I have pointed out that the conflict potential comes (ever more) to the fore because of an increasing integration of EU law into constitutional jurisprudence, an ever expanding reach of European law, and a lack of coordination between concepts constituted within different legal orders. Finally, I have warned for some possible increased tensions due to the imminent sixth stage of state reform. Focusing on one aspect of the relationship between European law and constitutional law1118 , I have tried to establish that the Belgian legislature should be careful to avoid a catch 22 situation: for relying on the premise that federalization of social and fiscal competences is warranted, a severe tension is observed between the (European) EMU and the principle of territorial exclusivity. 1118 To bring the issue back to the Constitutional Court: if the Court ‘widens’ its own perimeters and brings issues of ‘discrimination’ (EMU) to bear on federalism matters, rationalization in terms of a classic sectorial classifying system such as exclusivity becomes utterly problematic, and it seems that European law plays a (precarious) role primarily in this dimension. To recharacterize it (and simplify it) in the language of the book: European law presents itself here, not so much as a tool, but as (constraining) rule of law values (hierarchy (primacy)/ coherence (EMU)), here in conflict with other rule of law values, which were deployed as tools, earlier, especially the principle of territorial exclusivity, as enshrined in the constitutional text and in...