EUROPEAN PUBLIC LAW Volume 15 March 2009 Number 1 Rapports BELGIUM The Brussels-Halle-Vilvoorde Question: A Linguistic Trap Patrick Peeters, Jens Mosselmans 5 ISRAEL The Governmental Commission of Inquiry for the Second Lebanon War, 2007 Suzie Navot 17 SCOTLAND Scotland’s Constitutional Future Tom Mullen 33 Scrutiny Beyond Participation: Administrative-Law Type Mechanisms in Global Environmental Governance. Toward a New Basis of Legitimacy? Francesca Spagnuolo 49 Articles Evidence and National Security: ‘Belief Evidence’ in the Irish Special Criminal Court Liz Heffernan 65 A New Status for the ECHR in Italy Silvia Mirate 89 ‘Free Speech is not Valued if only Valued Speech is Free’: Connolly, Consistency and some Article 10 Concerns Paul Wragg 111 Book Reviews 133 Published by: Kluwer Law International PO Box 316 2400 AH Alphen aan den Rijn The Netherlands Website: www.kluwerlaw.com Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 United States of America Email: [email protected] Sold and distributed in all other countries by: Turpin Distribution Services Ltd. Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom Email: [email protected] European Public Law is published quarterly (March, June, September and December). Subscription rates, including postage (2009): EUR 424/USD 565/GBP 312. European Public Law is indexed/abstracted in the European Legal Journals Index. Printed on acid-free paper. ISSN 1354-3725 © 2009 Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th Floor, New York, NY 10011- 5201, USA. Email: [email protected] Periodicals postage paid by Rahway, NJ, USPS No. 017-382. POSTMASTER please send all corrections to European Public Law, c/o Mercury Airfreight International Ltd, 365 Blair Rd, NJ 07001, USA. Printed in Great Britain. Professor John Usher It is with deep regret that the journal announces the untimely death of Professor John Usher. Professor Usher was a member of the International Advisory Board of European Public Law since the journal’s inception in 1995. Legal scholarship has lost a great fi gure in European Law and the journal a great friend. — The Editor Rapports BELGIUM The Brussels-Halle-Vilvoorde Question: A Linguistic Trap Patrick Peeters and Jens Mosselmans* 1. Introduction Just before the 2003 federal parliamentary elections, the federal electoral code was amended to establish broader electoral constituencies for the House of Representatives. Constituencies by district were replaced with larger electoral units based on the division of Belgium into provinces. There remain, however, two important exceptions. Namely the legislature refrained from changing the bilingual electoral district of Brussels- Halle- Vilvoorde (BHV) and the electoral district of Leuven. The Constitutional Court held in a much debated judgment of 26 May 2003 that the newly introduced system, which provides for common electoral lists for Dutch-speaking candidates for both districts, violates the Belgian Constitution. However, the Court granted the federal legislature a period of four years within which to come up with adequate remedies. During the 2003-2007 administration, several bills were introduced into the federal Parliament in an attempt to implement the Constitutional Court’s aforementioned BHV judgment. However, by the end of this administration, it became clear that a ‘negotiated’ solution would not be found. In order to avoid new criticism from the Court and pass the thorny BHV issue on to the next administration, the federal government took care to ensure that the 2007 parliamentary elections were held on 10 June 2007, just one week before expiry of the four-year period granted by the Constitutional Court. Immediately after the federal elections of 10 June 2007, the Flemish and French- speaking political parties brought new bills before the newly composed Parliament. The parliamentary Internal Affairs Committee, which, as will be explained below, was not bound by coalition solidarity since the federal government had not yet been formed, adopted the bills which called for a split-up of BHV. It should be noted, however, that the French-speaking members of the committee left the room before the vote. With the * Patrick Peeters is professor of constitutional law, Law School, University of Leuven; Jens Mosselmans is attorney at law at the Brussels bar. Peeters, Patrick and Jens Mosselmans. ‘Belgium – The Brussels-Halle-Vilvoorde Question: A Linguistic Trap’. European Public Law 15, no. 1 (2009): 5-16. © 2009 Kluwer Law International BV, The Netherlands 6 EUROPEAN PUBLIC LAW exception of a single member of the Groen/Ecolo group who abstained, the Flemish parties passed the bills unilaterally. The day after the vote in the committee, the French Community Parliament fi led a motion, raising a confl ict of interest. The French Community Parliament deemed that the French Community’s interests were harmed by the bills. The motion was passed unanimously the next day. As a result, the discussion of the bills in the federal Parlia- ment has been suspended and a complex consultation procedure implemented. This consultation procedure has failed to achieve any results thus far. In order to further hold up the bills in Parliament, the Commission of the French Community has also raised a confl ict of interest, which has given rise to a new round of consultation. This procedure can still be used by the parliaments of the Brussels-Capital Region and the Walloon Region. Due to these consultation procedures, the bills can be placed on the agenda of the House of Representatives no earlier than mid-October 2008. In this way, some time has been bought to seek a ‘negotiated’ solution to the BHV problem. Most likely, a solu- tion will be sought within the broader framework of a new state reform. 2. Origins of the BHV Debate The origins of the BHV issue are not particularly clear but probably date back to at least 1962, when Belgium was split into three linguistic regions (Dutch-, French- and German-speaking) and the bilingual Brussels-Capital Region.1 Belgium’s constitutional, administrative and judicial organization is based on a ter- ritorial division along linguistic lines. The country’s electoral districts are also based on this division. An exception is made for the electoral district of BHV, which spans two linguistic regions including the bilingual Brussels-Capital Region, and thirty-fi ve municipalities in the Flemish Region (Flanders). Owing to this division, the French-speaking parties can canvas for votes with their leading politicians in federal and European elections in the thirty-fi ve Flemish municipalities. In return, Flemish residents of Brussels can vote for Flemish candidates in Halle-Vilvoorde. In order to prevent ‘encroaching Frenchifi cation’, the Flemish Community has repeatedly called for the splitting up of the BHV electoral district. This division would result in three electoral districts: Flemish Brabant (consisting of Halle-Vilvoorde and Leuven), Walloon Brabant and Brussels. These requests have so far fallen on deaf ears. The split-up of BHV would not mean, however, that French-speaking parties would no longer be able to present candidates on lists in Halle-Vilvoorde. The only conse- quence of this division would be that leading French-speaking federal politicians would no longer be eligible to stand for election in Halle-Vilvoorde. This would mean that they 1 S. LINDEMANS, ‘Het probleem Brussel-Halle-Vilvoorde – Analyse van een staatsrechtelijke doos van Pandora’, Jura Falc., 42 (2005-2006): 473, Ch. 4. BELGIUM 7 would lose the approximately 75,000 votes of French-speaking residents in the peripheral Flemish municipalities bordering Brussels. Indeed, past regional elections have shown that ‘local’ French-speaking parties are not very successful in Halle-Vilvoorde without their national fi gures (cf. the Union Francophone).2 Another consequence of the split-up of BHV would be that federal MPs elected in Halle-Vilvoorde would necessarily be considered to belong to the Dutch linguistic group rather than the French-speaking group, even if they were actually French speakers. This division along linguistic lines is important for the adoption of legislation that requires a special parliamentary majority. In order to pass such legislation, not only is an overall 2/3 majority required, but also a majority in each linguistic group. This division is also important for the so-called alarm-bell procedure (see below). Although the Flemish political parties have been calling for the split-up of the BHV electoral district for decades, it should be noted that the band between Brussels and Halle-Vilvoorde is also of the essence for Flemish residents of Brussels. Without this band, these residents would be even more marginalized and could even end up without any representation in the federal and European parliaments. 3. The Constitutional Court’s Judgments of 26 February and 26 May 2003 In a decision of 22 December 1994, the Constitutional Court indicated that the exis- tence of the BHV electoral district does not violate the Belgian Constitution. The Court found that: preservation of the Brussels-Halle-Vilvoorde electoral district is based on the need to achieve an essential balance between the interests of the communities and the regions in the Belgian state (…).3 The Constitutional Court reached a turning point in its judgments of 26 February and 26 May 2003, however.4 The background to these judgments can be summarized as follows. In April 2002, the Verhofstadt I administration reached a political compro- mise, which was converted into the Elections Act of 13 December 2002.