Belgium

V - 136(3) TFEU

At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”  
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.

Negotiation
V.1
What political/legal difficulties did Belgium encounter in the negotiation of the amendment of article 136 TFEU?

None. Conversely, Belgium was an active proponent of the amendment at the European level. Belgium chaired the Council in the fall of 2010 and submitted the formal request to amend article 136 TFEU. The explanation offered by the Minister of Foreign affairs refers to the constitutional objections of the Bundesverfassungsgericht that necessitated an amendment of the TFEU.[1]

Approval
V.2
How has the 136 TFEU Treaty amendment been approved in Belgium and on what legal basis/argumentation?

The first legal issue that arose is the classification of the amendment in the internal distribution of powers related to foreign affairs. Belgian federated entities, Regions and Communities enjoy large powers in the external sphere, following the adage ‘in foro interno, in foro externo’.[2] In other words, when Regions and Communities are competent within the national sphere to – predominantly exclusively – regulate a matter, this competence is extended to foreign affairs. Whereas monetary affairs is an exclusive federal matter, the stringent conditions mentioned in the proposed article 136(3) TFEU could have repercussions on economic and budgetary policy of the Regions and Communities. Hence, the intergovernmental negotiating committee, the Committee Mixed Agreements of the Intergovernmental Conference for Foreign Policy[3], decided to qualify the amendment as a mixed treaty, hence requiring approval of all parliamentary assemblies of Regions, Communities and the federal state.[4]

The table below indicates the formal approval per parliament:

Level

Assembly

Date of approval
(formal act)

Document nr.

Federal

House

Law of July 9, 2012[5]

53K2189

Senate

5S1536

Regions

Parliament of the Flemish Region

Decree of July 6, 2012[6]

1520

Parliament of the Brussels Region

Ordinance of April 26, 2012[7]

A228

Parliament of the Walloon Region

Decree of January 12, 2012[8]

501

Communities

Parliament of the Flemish Community

Idem Flemish Region

Parliament of the French Community

Decree of December 20, 2011[9]

277

Parliament of the German Community

Decree of March 19, 2012[10]

95

United Assembly of the Community Commissions (Brussels)

Ordinance of April 26, 2012[11]

B46

Ratification difficulties  
V.3
What political/legal difficulties did Belgium encounter during the ratification of the 136 TFEU Treaty amendment?

The Council of State had no objections.[12]

Case law         
V.4

Is
there a (constitutional) court judgment in Belgium on the 136 TFEU Treaty amendment?

No substantive challenges were brought before the Constitutional Court.[13]

Miscellaneous
V.5
What other information is relevant with regard to Belgium and the 136 TFEU Treaty amendment?

None.

[1] Parl. Doc. House, 2011-12, nr. 53K1536/2, p. 2. http://www.dekamer.be/FLWB/PDF/53/1536/53K1536002.pdf

[2] Article 167 Const.: “§ 2. The King concludes treaties, with the exception of those regarding matters described in § 3. These treaties take effect only after they have received the approval of the Houses.

§ 3. The Community and Regional Governments described in Article 121 conclude, each one in so far as it is concerned, treaties regarding matters that fall within the competence of their Parliament. These treaties take effect only after they have received the approval of the Parliament.” http://www.const-court.be/en/basic_text/belgian_constitution.pdf

[3] In Dutch: “werkgroep gemengde verdragen, adviesorgaan van de Interministeriële Conferentie Buitenlands Beleid”.

[4] See Parl. Doc. Flemish Parl., 2011-12, nr. 1520/1, p. 9; https://docs.vlaamsparlement.be/docs/stukken/2011-2012/g1520-1.pdf ; see also Parl. Doc.  Parl. Brussels Region, 2011-12, nr. A228/2, p. 5 where the Minister pointed out that budgetary consequences, and possible sanctions, would implicate all governments.

[5] http://www.ejustice.just.fgov.be/mopdf/2012/10/02_1.pdf

[6] http://www.ejustice.just.fgov.be/mopdf/2012/08/17_1.pdf

[7] http://www.ejustice.just.fgov.be/mopdf/2012/05/07_1.pdf

[8] http://www.ejustice.just.fgov.be/mopdf/2012/01/26_1.pdf

[9] http://www.ejustice.just.fgov.be/mopdf/2012/01/24_1.pdf

[10] http://www.ejustice.just.fgov.be/mopdf/2012/04/18_1.pdf

[11] http://www.ejustice.just.fgov.be/mopdf/2012/05/07_1.pdf

[12] Parl. Doc. House, 2011-12, nr. 53K1536/1, p. 14. http://www.dekamer.be/FLWB/PDF/53/1536/53K1536001.pdf

[13] Direct constitutional challenges to an Act assenting to a Treaty can only be brought within 60 days of publication: see article 3(2) of the Special Act on the Constitutional Court. Indirect challenges (prejudicial questions posed by ordinary judges) to assenting Acts concerning the TEU, TFEU and ECHR are not allowed (article 26, §1bis of the Special Act on the Constitutional Court).