Inequality as National Identity – the Federal Paradox.

The Flemish Care Insurance Case in a Comparative Perspective

Fundamental rights and the principle of equality may be part of a Member States’ national identity and thus protected by Article 4 (2) TEU. This blogpost argues that within federal states such as Belgium, paradoxically the same holds true for the principle of (federal) inequality, which allows federal entities to treat similar situations differently than other federal entities.

The bigger picture

In September/October 2018, I had the pleasure of a four-week research stay at the Leuven Centre for Public Law . The aim of my research stay was to identify the properties of the Belgian federal constitutional system that qualify as “national identity” according to Article 4 (2) TEU and thus have to be respected by EU institutions when legislating or interpreting the EU Treaties. This forms an integral part of a bigger research project I am currently undertaking, concerning “Federal Identities” (“Bundesstaatliche Identitäten”). The project addresses the question of “federal national identities” from a comparative constitutional law perspective and analyses the legal orders of the EU Member States qualifying themselves in their constitutional law as “federal states” (“Bundesstaaten”): Belgium, Germany and Austria.

In my analysis of the constitutional orders of Belgium, Germany and Austria and their respective federal properties I take the federal division of powers (“Kompetenzverteilung”) as a starting point, as all federal states have to allot competences to the federal players in one way or another. I then ask which constitutional provisions

  1. form preconditions of the division of powers;
  2. establish conditions for the allocation of powers or;
  3. are a direct consequence of the division of powers.

Unequal Treatment as a consequence of federal structure

The most interesting category is the one concerning consequences of the division of powers. Here, my analysis revealed that within all federal states, the right to equality and non-discrimination is limited by the federal structure of the state. This seems necessary to realise the goals of a federal structure: enabling the federal entities to decide autonomously on the issues allotted to them by the federal division of powers. “Inequalities” resulting from the differing exercise of competences by different federal entities are thus not qualified as unconstitutional within the constitutional systems of Belgium, Germany and Austria.

Interestingly, this important exception from the right to equality is not explicitly stated in any of those constitutions, but established by the case-law of the respective constitutional courts (e.g. decision 75/2017 of the Belgian Constitutional Court). This is usually done by arguing that laws adopted by different federal legislators, such as the parliaments of the Flemish Community on the one hand and the French Community on the other, are not addressing “comparable situations”. Another – and in my opinion: more suitable – reasoning would be to argue that the situations are comparable, but an occurring different treatment is justified by the federal structure of a state.

The Flemish Care Insurance Case – Territoriality or Inequality?

A good example for a differing exercise of competences by federal entities is the Flemish Care Insurance Case: the Flemish Community established a care insurance scheme, which included persons residing in Flanders (and certain persons residing in Brussels). Due to EU law, the Decree was amended to include all persons working in Flanders (and certain persons working in Brussels), except those working in Flanders who resided in the French or German language area. This, again, gave rise to possible conflicts with EU law, as one could argue that persons living in Wallonia were discriminated against when exercising their EU freedoms (to work in Flanders). The ECJ had to decide on the issue and found the Flemish decree to violate EU freedoms.

This has been widely criticised in Belgian (and especially: Flemish) legal scholarship (cf. Vandamme, European Constitutional Law Review 2008, pp. 127-148 as well as the contributions of Verschueren and Feyen in Cloots/de Baere/Sottiaux (eds.) Federalism in the European Union (2012)). The main point of critique was that the ECJ did not take into account the “territoriality principle”, according to which the Flemish Community may not issue decrees concerning persons not living in Flanders. This territoriality principle is often qualified as part of Belgian national identity.

However, it seems more coherent to argue with the principle of “federal inequality”: it can easily be argued that the Belgian federal state would be fundamentally different if all federal entities were obliged to treat situations falling within their sphere of competence the same as other federal entities treat similar situations. Thus, the federal limitation to the principle of equality can be qualified as fundamental constitutional structure and part of national identity according to Article 4 (2) TEU. The ECJ has to take account of this specificity of the Belgian constitutional order when interpreting the fundamental freedoms of the EU.

The Digibet Case – same constellation, different outcome

That the ECJ in principle is open to this argumentation, is shown by the decision in the Digibet case. In this case, all but one of the German Länder prohibited online gambling. The case thus has structural similarities to the Flemish Care Insurance Case. It was argued before the ECJ that the difference between the laws of the Länder established a violation of the freedom of services, as the liberal regime in the one renegade Land proved that it was not necessary to prohibit online gambling. The ECJ, however, did not follow this reasoning, as it would undermine the alloted competence of each German Land to decide autonomously on the regulation of gambling. In essence, the ECJ thus recognised federal inequality as part of German national identity. This has consequences not only for the application of the EU freedoms, but also for the right to equality in Article 20 of the EU-Charter of Fundamental Rights.

Federal Inequality as National Identity

If the Flemish Care Insurance Case were to repeat itself, the ECJ in taking account of Article 4 (2) TEU thus would have to decide differently. This can be seen as either good or bad news, depending on one’s political stance on this issue. The same holds true for the fact that “(federal) inequality” – unequal treatment in matters governed by the laws of different federal entities – forms a part of Belgian national identity. This may be seen as paradox, as equality and non-discrimination are also said to be fundamental constitutional structures– but it is a direct consequence of the federal structure of Belgium.

Teresa Weber is an Assistant Professor at the University of Salzburg, Department of Public Law, European and International Law (teresa.weber@sbg.ac.at).


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