Doc. 8182

4 September 1998

Situation of the French-speaking population living in the Brussels periphery

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Dumeni Columberg, Switzerland, Group of the European People's Party

Summary

This report focuses on the situation of the French-speaking population in the six communes with linguistic facilities on the Brussels periphery. These communes situated in Flanders but with a large share, sometimes a majority, of French-speaking inhabitants, are the current flashpoint of a long-standing linguistic conflict in Belgium, which – this time – seems to have been sparked off by an increased tendency of the Flemish government to restrict as far as legally possible the use of the communes’ linguistic facilities for French speakers, with the aim of reinforcing the Flemish, Dutch-speaking character of the region. This tendency of the Flemish government seems itself to have a perceived “Frenchification” of the Brussels periphery at its origin, a fear to which some French-speaking politicians have probably contributed.

The Assembly considers that this linguistic conflict in Belgium can only be solved if all parties concerned (and especially the politicians) are good-willed, open-minded, tolerant, pragmatic and flexible, willing to further the peaceful living-together of different linguistic groups, and refrain from stoking up or using these conflicts for political ends.

The Assembly recommends a variety of measures to all parties concerned – the Flemish government, the French-speaking inhabitants of the Brussels periphery (and in particular their political representatives), and the Belgium government – to promote intercommunity peace. The proposals include, inter alia, the gradual introduction of bilingualism in Belgium, the possible use of instruments of direct democracy to consult the citizens on a possible renegotiation of the Belgian language compromise, and the signing and ratification of the European framework Convention on the protection of national minorities.

I.       Draft resolution

1.       The communes in the Brussels periphery are characterised by special linguistic conditions. The situation of the French-speaking population living in this periphery must be evaluated in its overall context of Belgium’s constitutional development and the country’s complex linguistic arrangements, resulting from historical evolution and compromises reached after lengthy negotiations.

2.       The Belgian state has evolved from a unitary decentralised structure to a federal state made up of three Communities, three Regions, and four linguistic Regions (three monolingual, one bilingual). The Belgian Constitution guarantees the optional use of languages current in Belgium; only the law can rule on this matter, and only for acts of the public authorities and for legal matters.

3.       Since 1932, as regards linguistic legislation, the territoriality principle has been applied, which stipulates that in monolingual regions, the use of the language of that region is compulsory for all public administrative acts. The 1962-1963 language laws demarcated the language boundary still valid today. The same laws also provided for linguistic facilities for the inhabitants of 27 communes contiguous to a different linguistic region, who have the right to request that, in their dealings with the authorities (regarding i.e. administrative matters, education, and industrial relations between employers and their employees), a language other than that of the region in which the communes are located should be used. Since a constitutional amendment adopted in 1988, the linguistic facilities in these 27 communes cannot be changed except by a federal law with a special majority.

4.       Six of the 27 communes with facilities lie on Flemish territory in the Brussels periphery, and have a large share, sometimes a majority, of French-speaking inhabitants. Though the official language in these communes is Dutch, these inhabitants have the right to request that, in their dealings with the public authorities, French be used. This right also extends to written communication, nursery and primary education, industrial relations, and certain court cases.

5.       A conflict has arisen involving the six communes with linguistic facilities on the Brussels-periphery (and, to a lesser extent, involving the other communes without facilities on the Brussels-periphery) about the treatment of the French-speaking inhabitants. The current conflict seems to have been sparked off by an increased tendency of the Flemish government to restrict as far as legally possible the use of the linguistic facilities, with the aim of reinforcing the Flemish, Dutch-speaking character of the region, including the six communes in question. This tendency of the Flemish government seems itself to have a perceived “Frenchification” of the Brussels-periphery at its origin, a fear to which some French-speaking politicians have probably contributed.

6.       The Parliamentary Assembly considers that this and other linguistic conflicts in Belgium can only be solved if all parties concerned (and especially the politicians) are good-willed, open-minded, tolerant, pragmatic and flexible, willing to further the peaceful living-together of different linguistic groups, and refrain from stoking up or using these conflicts for political ends.

7.       The Assembly reminds all parties concerned that the decisions of the different conflict-resolving mechanisms (e.g. Permanent Linguistic Control Commission, Deputy Governor of the Province of Flemish-Brabant) and the courts (e.g. Court of Arbitration, Council of State, European Court of Human Rights) should be respected. This also applies to the decision of the European Court of Human Rights of 23 July 1968, inter alia stipulating that children of parents not resident in the six communes with linguistic facilities in the Brussels periphery should nevertheless be allowed to attend the French-speaking schools in these communes.

8.       In the particular case of the situation of the French-speaking population living in the Brussels periphery, the Assembly recommends that the Flemish government:

i.       seek to integrate, but not assimilate, speakers of other languages (especially French-speaking Belgian citizens) in Flanders;

ii.       recognise that members of the French-speaking minority in Flanders have a right to keep their own identity and language, and develop their own culture;

iii.       cease trying to erode the linguistic facilities of the six communes in question, by withdrawing the circular letters of Ministers Peeters and Martens, and by modifying its action plan to exclude any assimilation attempts, in particular attempts at forced assimilation.

9.       The Assembly recommends that the French-speaking inhabitants of the Brussels periphery, and in particular their political representatives:

i.       seek to integrate into the region they live in, i.e. Flanders, by (for example) trying to learn Dutch or improving Dutch language skills, and taking part in the cultural life of Flanders;

ii.       recognise that they live in communes with linguistic facilities situated in a monolingual region, not a bilingual region, and respect the rights of the Dutch-speaking inhabitants;

iii.       cease trying to enlarge the linguistic facilities into de facto bilingualism, except in the framework of a possible renegotiation of the entire Belgian language compromise.

10.       The Assembly further recommends that the Belgian government:

i.       in view of the evolution towards close European integration coupled with increased respect for minority rights, consider whether the national and international parameters which led to the introduction of the territoriality principle in 1932 and the demarcation of language borders in 1962/63 have not changed, and the peaceful living together of the different Belgian linguistic groups might not be better served by a renegotiation of the language compromise;

ii.       study the possibility that the gradual introduction of bilingualism (which could constitute such a cultural enrichment for everyone) in Belgium, starting with bilingual education in schools, might be the solution of Belgium’s language problems and secure the survival of the Belgian state;

iii.       keep in mind that very difficult and seemingly intractable problems can often be solved by means of direct citizen consultation;

iv.       with reference to Resolution 1121 (1997) on instruments of citizen participation in representative democracy, consider the possibility of using instruments of direct democracy to consult the citizens on a possible renegotiation of the Belgian language compromise; in particular, a national referendum could be organised on the desirability of the gradual introduction of bilingualism in Belgium;

v.       also consider the possibility of organising local or regional referenda on a possible attachment of the six communes with facilities on the Brussels-periphery to the Brussels-Capital Region, thus augmenting the number of Dutch-speakers in that region;

vi.       encourage cultural communication and co-operation across the language borders within the Belgian state, for example by concluding cultural co-operation accords between the different Communities and the different Regions;

vii.       consider signing and ratifying the European Framework Convention on the Protection of National Minorities as a means to diffuse Belgium’s linguistic conflicts;

I. Explanatory Memorandum by Mr Dumeni Columberg

A.       Introduction

1.        On 7 July 1997, Assembly members MM. Georges Clerfayt, Armand de Decker and others tabled a motion for a resolution on the need for a just democratic status for the French-speaking population living in the Brussels periphery (Doc. 7878). This motion was referred to the Committee on Legal Affairs and Human Rights, which appointed me Rapporteur on 29 January 1998. In the motion, the authors claimed that the French-speaking minority living in the Brussels-periphery was subject to discrimination by the political authorities of both the Flemish Region and the Flemish Community. From their point of view, the problem had arisen because the linguistic boundaries had not been drawn up democratically, leading to 120.000 French-speaking people living in the Brussels suburbs finding themselves in the Flemish monolingual Dutch region in 1993. The situation was aggravated by the government of the Flemish Region which challenged the regime of linguistic facilities in six of the communes in question, and aimed at reducing, or indeed eliminating totally the use of French on Flemish territory. They regretted the fact that Belgium, under pressure from the Flemish authorities, had not yet signed the Framework Convention for the Protection of National Minorities, and asked for the preparation of a report by the Assembly.

2.        From 25 to 27 May 1998, I was able to go on a fact-finding mission to Brussels and its periphery (accompanied by Mrs Tanja Kleinsorge, Co-Secretary of the Committee on Legal Affairs and Human Rights), visiting Wezembeek-Oppem, Rhode-St-Genèse, Linkebeek and Hoeilaart. The programme of the visit (which was very heavy and is reproduced as Appendix I) included inter alia meetings with the President of the Belgian delegation, Mr Dirk Van der Maelen, the Prime Minister of Belgium, Mr Jean-Luc Dehaene, the Speaker of the Parliament of the French Community, Mrs Anne-Marie Corbisier, the Minister-President of the Government of the Flemish Community, Mr Luc Van den Brande, the First President of the Council of State, Mr Gustav Baeteman, and the President of the Court of Arbitration, Mr Melchior, as well as meetings with local mayors, aldermen, town councillors, and representatives of local cultural organisations. The fact-finding mission was very well arranged by the Belgian parliamentary delegation to the Council of Europe, and was covered extensively by the media – which shows that Belgian linguistic problems are extremely sensitive and delicate.

3.        This draft report intends to present the situation of the French-speaking population living in the Brussels periphery in its overall context of Belgium’s constitutional development and its complex linguistic arrangements, resulting from historical evolution and compromises reached after lengthy negotiations.

B.       Brief overview of historical developments and current constitutional provisions

      a.        State structure

4.        The Belgian Constituent Assembly of 7 February 1831 conceived Belgium as a constitutional monarchy and a unitary decentralised state. The unitary decentralised structure remained intact until 1970, and was based on the “triple circle doctrine” (State, province and commune1), mirroring the “triple powers doctrine” (legislative, executive and judicial branches of power) on the central government level.

5.        In 1970, the Constitution gave recognition to three “cultural Communities” (the Dutch, French and German), each equipped with its own Council vested with the power to enact decrees with legislative force for the territories under their authority in matters relating to cultural affairs and (to a more limited extent) in education and the use of languages. In the 1980 Constitutional amendment, “cultural autonomy” mutated into “Community autonomy”, following the extension of their powers to the “personalised” services and the acquisition of their own executive bodies. The expression “cultural” was dropped, and the Dutch, French and German-speaking Communities became simply “Communities”. In the 1988 revision of the Constitution, the autonomy of the Communities was further strengthened by the assignation of a virtually exclusive responsibility for education.

6.        The outcome of the 1970 constitutional revision was also the recognition of three Regions2: the Flemish Region, the Walloon Region, and the Brussels Region, although their exact responsibilities – mainly social and economic3 - and boundaries were not defined until later. In effect, the Flemish politicians appear to have sought “communitarisation” and the French-speaking politicians “regionalisation” of the Belgian unitary state. The result is a certain asymmetry in Belgian’s current constitutional make-up. Following the 1993 State Reform, Belgium is now a federal State made up of Communities and Regions. There are three Communities: the French Community, the Flemish Community and the German-speaking Community. There are also three Regions: the Walloon Region, the Flemish Region and the Brussels Region. However, Belgium has four linguistic regions: the French-speaking Region, the Dutch-speaking Region, the bilingual Region of Brussels-Capital and the German-speaking Region4.

7. Following the 1993 State reform, Community and Regional legislative organs have the power to enact legal rules (“decrees” 5) which have the same force as federal statutes. Thus the general rule for resolving conflicts between rules of law – namely, that the higher law prevails over the lower law – was rendered inapplicable in Belgium. In principle, each jurisdiction is empowered to enact legislation only in its area of competence (enumerated above)6. The settlement of jurisdictional conflicts between statutes and decrees was entrusted to the (relatively new) institution of the Court of Arbitration7, while the Council of State8 controls the legality of all administrative acts of public bodies (e.g. communes, universities).

8.        Article 30 of the current Belgian Constitution states: “The use of languages current in Belgium is optional; only the law can rule on this matter, and only for acts of the public authorities and for legal matters.” In fact, the constitutional principle that “the use of the languages spoken in Belgium is optional” dates from 1831, although French was the sole official language for statutes and decrees until 1898. The reason for the predominance of French in the 19th century was mainly social: French was the language spoken by the higher classes, including the (ruling) bourgeoisie, even in Flanders. However, the extension of the voting franchise by the constitutional revisions of 1893 and 1921 translated the numerical superiority of the Dutch-speaking inhabitants of Belgium into political power, thus reducing the predominance of French even in political circles.

9.        The watershed came in 1932 with the adoption of linguistic legislation which laid the foundation for the – still valid – “territoriality principle”, which stipulates that in monolingual linguistic regions the use of a given language – that of the monolingual region – is compulsory for all public administrative acts. At the time, there seem to have been two options open to the Belgians: either make Belgium a totally bilingual country (which the French-speakers opposed), or separate the French-speakers from the Dutch-speakers. The second option was chosen9, and consolidated by the 1962-1963 language laws which demarcated the language boundary, and divided the country into the four linguistic regions still existent today.

10.        The language laws of 1932 foresaw the possibility of changing the linguistic borders every ten years by royal decree, after a population census had been held. If the percentage of a linguistic minority in a commune reached 30%, linguistic facilities were introduced in the commune; if a majority of 50% or more pronounced themselves in favour, the linguistic status of a commune could be changed10. The census due to be held in 1960 was boycotted by roughly 300 Flemish Mayors, apparently because they feared that the census would prove the existence of French-speaking minorities in their communes, with the possible results outlined above.

11.        After the adoption of the 1962-63 language laws, the linguistic borders could only be changed by law, and it was forbidden to include questions about one’s mother or usual tongue in a population census. Thus it is currently impossible to state with any surety the exact number of French-speaking inhabitants in Flanders, Dutch-speaking inhabitants in the Walloon Region, etc. The existence of these minorities and their size has to be extrapolated from other information.

12.        The language laws of 1962-1963 also provided for linguistic facilities for the inhabitants of 27 communes contiguous to a different linguistic region, who have the right to request that, in their dealing with the authorities (regarding i.e. administrative matters, education, and industrial relations between employers and their employees), a language other than that of the region in which the communes are located should be used11, and that cases brought to court be treated by a court in a different linguistic region.

13.        In practice, the linguistic borders have become practically unchangeable through the 1970 Constitutional and the 1993 State Reform, since Article 4 of the Belgian Constitution now stipulates that these borders can only be changed by a federal law requiring a special majority (a law adopted by majority vote in each linguistic group in each House of Parliament, on the condition that the majority of members of each group are present and that total votes in favour within the two linguistic groups attain two-thirds of votes cast). Since a constitutional amendment adopted in 1988, the linguistic facilities in the 27 communes mentioned above also cannot be changed except by a federal law with the same special majority (Article 129 of the Constitution).

14.        The principle of territoriality upon which the Belgian linguistic legislation is based has been attacked as discriminatory in the past. However, the European Court of Human Rights on 23 July 1968 in the case “relating to certain aspects of the laws on the use of languages in education in Belgium” effectively recognised this principle as non-arbitrary - based on the objective element which the region constitutes, and based on a public interest - such that any difference in treatment arising out of it (in principle) does not count as unlawful discrimination (at least as far as education is concerned). In its judgment of 2 March 1987 in the case of Mathieu-Mohin and Clerfayt against Belgium, the European Court of Human Rights further implicitly recognised that French-speaking electors in the Dutch-speaking region are not deprived of their electoral rights by the fact that they must vote for candidates who speak Dutch12.

15.        According to information13 given by the Prime Minister of Belgium, currently, about 60% of the population is Dutch-speaking, 40% is French-speaking, and there is a small community of about 67.000 German-speakers14. The Constitution does guarantee the right of choice which language to use in private life, which is understood as encompassing family, social, cultural, religious, economic and commercial life15. It is only as regards administrative matters, education and justice16 where the territoriality principle applies, i.e. the official language of the region must be used in monolingual regions.

16.        The Belgian institutional system consists of a complex system of checks and balances, the exact portrayal of which would be beyond the scope of this memorandum. Suffice it to say that – like the country as a whole – the Belgian institutions are divided along linguistic lines, as well. The elected members of both houses of parliament (on the federal level) are divided into a French language group and a Dutch language group. In the federal executive, there is a constitutional requirement for equal representation of Dutch-speakers and French-speakers within the Cabinet, i.e. an equal number of Dutch-speaking and French-speaking ministers (with the possible exception of the Prime Minister). There are so-called “alarm-bell procedures” to prevent any legislation being adopted “of such a nature as to have a serious effect on the relations between the two (major) Communities”; and, as mentioned before, special majorities are required for the adoption of a wide range of legislation, thus effectively fixing the status quo. The higher organs of judicial power – the Court of Arbitration, Court of Cassation and the Council of State – must be staffed by equal numbers of French- and Dutch-speaking judges. Even the federal civil service (from a certain grade upwards) must be equally divided between employees in the French-speaking service and those in the Dutch-speaking service.

C.       The situation of the French-speaking population in the Brussels periphery

a.       Communes “with facilities”

17.        The language laws created linguistic facilities for 27 communes, 6 of which lie on Flemish territory in the Brussels periphery. These six communes are (see map reproduced as Appendix II): Drogenbos, Kraainem, Linkebeek, Rhode-Saint-Genèse, Wemmel, and Wezembeek-Oppem. As explained above, the official language in these communes is Dutch, but the residents have the right to request that, in their dealings with the public authorities, French be used. This right encompasses:

These facilities do not amount to official bilingualism, however. The facilities are only accorded to the administrated, not the administrators; thus, all documentation in the communes must be kept in Dutch.

18.        In fact, all six communes offer nursery and primary education both in Dutch and in French (for secondary education, French-speaking parents must enrol their child in a French language school in Brussels or in the Walloon Region). The French language nursery and primary schools in the six communes with facilities are subsidised and run by the Flemish Community18, but are inspected by the French Community as regards pedagogic matters.

19.        Dutch language schools in principle accept all pupils, both from outside the commune in question and of French-speaking parents (as long as the Flemish identity of the school is clearly affirmed, and the children have a basic knowledge of Dutch). However, a child may only be enrolled in a French language school in the six communes on the condition that the parents are residents of the commune in question and that the head of family declares that the French language is the child’s mother or usual tongue. The language inspectorate may challenge the correctness of this declaration19, as a result of which it seems the child can be expelled from the French-speaking school20. The mayor of Rhode-Saint-Genèse said that she knew of at least one local boy who had suffered that fate, and that, in practice, language inspectors even came to nursery school and asked the children such questions as “which newspaper does your papa read?” to determine whether the parents were really French-speaking. This seems a very undignified and unnecessary procedure today, which might usefully be abolished21, if it is indeed still practised.

20.        In fact, in its decision of the 23 July 1968, the European Court of Human Rights held that the section of the 1963 language laws which stipulated that children of parents not resident in the commune with facilities in the Brussels periphery were not allowed to attend the French language schools in these communes, did not comply with the requirements of the European Convention on Human Rights and its First Protocol, “in so far as it prevents certain children, solely on the basis of the residence of their parents, from having access to the French-language schools existing in the six communes on the periphery of Brussels invested with a special status…”22. It is thus very surprising that this provision still seems to be applied today, although it has been judged a violation of the European Convention of Human Rights23. The judgments of the European Court of Human Rights should always be fully respected.

21.        In recent years, in the communes with facilities (and, to a certain extent, also in those without facilities in the Brussels-periphery), more French-speaking politicians have been elected to the communal councils; in four of the communes with facilities, French-speaking politicians are in the majority, and the mayor is French-speaking. The co-operation between these communes and the current government of Flanders often seems to leave something to be desired. For example, the Flemish government holds that, since the facilities apply only to the administrated, not the administrators, only Dutch may be spoken in the council of the commune24. The French Community, citing a decision of the Court of Arbitration of 10 March 1998, claims that the obligation to speak Dutch only extends to the mayor and his deputies, not to individual councillors. French-speaking politicians claim that the higher Flemish authorities (for example, the Governor of the Province of Flemish-Brabant) are annulling an increasing number of communal decisions taken in the communes with facilities where French-speaking politicians are in the majority in the communal council, often – they claim – for no real reason, but to try and block important administrative decisions25 so as to make the French-speaking politicians unpopular.

22.        Similarly, a recent (dated 16 December 1997) – contested – circular letter of the Minister of the Interior of the Flemish government, Mr Leo Peeters, instructed these communes only to issue documents in French “every time an individual has made the express demand”26, which is contrary to the current practice that the individual inhabitant only has to demand once that all documentation be sent to him in French. The French Community, the Walloon Region and the commune of Linkebeek together with three of its inhabitants, seized the Council of State, which must now take a decision as to the validity of the Peeters circular letter (and a similar one applying to social centres by Minister Martens of 9 February 1998). So far, the Council of State issued on 7 July 1998 a decision not to suspend the circular letter’s application, a decision on form which does not prejudge its decision on content on whether to annul the circular letter. The reasoning of the Council of State, as reported in the press, was that the French Community and the Walloon Region have no legitimate interest in the matter, while the inhabitants of Linkebeek do not run a risk of irreparable damage of interest if the letter is not suspended, because the communal council of Linkebeek has decided not to apply the letter.

23.        A typical problem in this context is that of public libraries: According to a decree of the Flemish parliament, every commune with more than a certain number of inhabitants must run a public library. For the library to be recognised and subsidised, however, the decree stipulates that at least 75% of books have to be in Dutch, with all other languages making up the remaining 25%. This decree, the Flemish government maintains, is applicable also in the six communes with facilities. The result has been the establishment of private libraries27 in some of these communes (with more than 25% of French books), which are, however, not eligible for subsidies from the Flemish Community and Region. Recently, some communes seem to have given modest subsidies to these private libraries, giving rise to much protest from Flemish politicians. On 9 July 1998, during a speech given at Wezembeek-Oppem, the Interior Minister of Flanders, Mr Leo Peeters, is reported to have threatened to close the commune’s public library28, which only boasts 57% of books in Dutch instead of the required 75%. The same day, the Flemish Minister of Culture, Mr Luc Martens, is reported to have instructed his administration to withdraw the library’s accreditation as of 1 January 1999 for the same reason29.

24.        The situation is similar with regard to youth associations and cultural organisations. In particular, the distribution of a French language magazine, “Carrefour”, in these six communes, is very disputed. This magazine, Flemish politicians allege, is subsidised to the tune of 10.5 million BF by the French Community, which they consider a flagrant violation of the territoriality principle. The Flemish authorities, together with the province of Flemish-Brabant, themselves subsidise a monthly Dutch language magazine (to the tune of 70 million BF, French-speaking politicians allege), “Randkrant” (with a résumé in French, English and German of the four most important articles). Both magazines are rather pronounced in their “linguistic ideology” – the magazine “Randkrant” is slightly aggressive towards people who do not want to integrate/assimilate into Flanders, and the magazine “Carrefour”30 is slightly aggressive towards people who attempt to undermine the linguistic facilities. Basically, this is probably a matter of freedom of expression, which both magazines should enjoy31, unless they start inciting hatred towards the other linguistic group.

25.        Even the diffusion of French-speaking television channels has become a source for dispute in the communes with facilities. For example, “Télé-Bruxelles”, a French-speaking regional television channel, is not allowed to broadcast outside the Brussels-Capital Region (neither is the Dutch-speaking equivalent, though). Some French-speaking local politicians allege that TF1, TV5 and Eurosport are eliminated by the communal cable-distributors, so that these channels cannot be watched, either. The Flemish politicians assert that the fact that TF1 is not available on cable any more has to do with copyright problems, and that TV5 and Eurosport are commercial channels which have to be paid for, and everyone can subscribe to.

26.        The question of social housing has also raised some problems in these six communes. Apparently, social housing is preferentially accorded to the autochthonous population, who have to show a strong link with the Flemish periphery, which is interpreted locally as sending children to Dutch language schools, being members of Dutch-speaking cultural organisations, etc. Since it seems to be the Region (with the investment company “Vlabinvest”) which runs most social housing projects, the communal administrations do not seem to have the power to redress this discrimination.

       b.       Communes “without facilities”

27.        The other communes on the Brussels periphery have no linguistic facilities (irrespective of the percentage of French-speakers living there), so that Dutch is the only official language. According to French-speaking politicians, this poses quite a problem, as the communal authorities are not willing to be flexible – apparently, even if the administrator in question does speak or understand French, he is not allowed to use French with French-speaking inhabitants of the commune, but must instead ask that the inhabitant be accompanied by a Dutch-speaking interpreter. Residents of these communes are not allowed to send their children to French-speaking schools in the neighbouring six communes with facilities (see paragraph 20); if French-speaking parents want their child to be educated in French, they have to enrol him or her in a French-speaking school in Brussels or in the Walloon Region.

28.        When, on 1 January 1995, the Province of Brabant was split into a Flemish and a Walloon Province, the post of Deputy Governor of the Province was created to safeguard the rights of the French-speaking minority in these six communes “with linguistic facilities” which lie in the newly created Province of Flemish-Brabant. The Deputy Governor is a commissar of the federal government, and thus independent from the Provincial government. He has the power to suspend decisions of the Communal authorities, and may receive and investigate complaints emanating from all physical and moral persons against the administrative authorities for violations of the language laws. If he cannot procure an amiable settlement between the parties concerned, he can refer the matter to the Permanent Linguistic Control Commission. In practice, the Deputy Governor has received about 100 complaints so far (about 50 from each linguistic group), only two of which led to the suspension of administrative decisions.

29.        It is the role of the Permanent Linguistic Control Commission (created in 1963) to receive and investigate complaints emanating from all physical and moral persons against the administrative authorities for violations of the language laws. The Control Commission may formulate an opinion, refer the matter to the Council of State, or – in extreme cases (since 1993) – substitute itself for the administrative authority in violation of the law (e.g. have a brochure translated, printed and distributed). Since its inception, the Commission has treated about 2.000 complaints; only ten of the Commission’s decisions were contested, and – so far – the Commission has not needed to use its right of substitution.

      d.       In general

30.        There are three general linguistic problems, which I came upon by chance during my visit to Belgium, and which also merit consideration, although they do not entirely fall into the scope of this memorandum. The first is the fact that people seem to be classed as “French-speaking” or “Dutch-speaking” not according to which language they consider their mother tongue, but in which language they received their university degree32. This seems to lead to some aberrations, which need to be addressed: For example, I was told that a Walloon with French as his mother tongue, but who had studied and obtained his law degree at a Dutch-speaking university, was not allowed to join the bar association or become a judge in the Walloon region, even if he passed the strictest French language test, and vice versa. The irony is that for holders of non-Belgian degrees (e.g. a British or German citizen with a British or German degree) there seem to be no such barriers, provided the language test is passed. This situation seems to be contrary to EU-legislation on the recognition of degrees, and should be brought into line as soon as possible.

31.        The second related problem is the introduction of the right to vote in local elections for EU-citizens. On 9 July 1998 the European Court of Justice found Belgium to be in violation of EU-law, since the right to vote in local elections had not yet been accorded to EU-citizens (according to the Maastricht Treaty, it should have been introduced at the latest on 1 January 1996). The reason for the delay seems to be the fear of some Flemish politicians, that the EU-foreigners (most of them deemed to be French-speaking) resident in Brussels and its periphery might further skew the delicate language balance in town and communal councils towards French-speaking politicians, i.e. their votes might lead to a further “Frenchification” of what is considered Flemish (or historically Flemish) territory. For this reason, these Flemish politicians would like to link the right to vote for EU-foreigners to preconditions, e.g. a minimum residence period of 5 years, and/or knowledge of the Dutch language. It seems that pressure from the EU is slowly melting away this insistence on preconditions, and that there is hope that the right to vote for EU-citizens in local elections may be introduced soon33.

32.        The third observation I would like to make in passing is the non-existence of bilingual schools - even in Brussels, the bilingual region. I was even told of one school in the Brussels-periphery where a wall had been built in the middle of the school courtyard to separate the French language and the Dutch language schools. If this is true, it is regrettable and unacceptable, since it helps to polarise Belgian society even more into two linguistic camps. No doubt bilingual school education would significantly help to build understanding and communication between the two (bigger) linguistic communities and thus avoid an escalation of Belgium’s linguistic problems. Belgium’s education policy might benefit from a review in this regard.

D.       The point of view of French-speaking politicians

33.        The French-speaking politicians met did not all share exactly the same point of view regarding the situation of the French-speaking population on the Brussels periphery. However, the big majority drew the attention to the fact that the linguistic boundaries were fixed in the 1960s before the revision of the Constitution in 1970, that is to say, with a simple majority only (the need for a special majority to change these borders was not inscribed into the Constitution until 1988). In addition, in the 1960s Belgium was still a unitary state – no-one could have known at the time that the linguistic boundaries would develop into full-fledged borders between federal state entities. Some politicians argued further that the delimitation of the linguistic borders at the beginning was arbitrary, pointing out that the local inhabitants were never asked (they just woke up one morning on the wrong side of the border).

34.        The Peeters and Martens circular letters are universally condemned by French-speaking politicians as an attempt to limit and phase out the rights of the French-speaking population in the six communes with facilities, and these circular letters are being contested before the competent authorities (Council of State, Permanent Linguistic Control Commission, etc.). French-speaking politicians are also united in their evaluation of the linguistic facilities in the six communes on the Brussels-periphery as a permanent (not a temporary) Constitutionally-guaranteed right of the French-speaking population living there. They all fight against the perceived attacks on these facilities (for example, the suppression by the Flemish Ministry of the Interior of a monthly “linguistic” allowance for civil servants who speak French in the six communes with facilities).

35.        French-speaking politicians put the number of French-speakers in the Brussels-periphery at approx. 120.000, of which 40.000 live in the six communes with linguistic facilities, and 80.000 in communes without. Many French-speaking politicians complain that they feel like “strangers in their own country”. For example, the Flemish Community, on the one hand, is unwilling to subsidise any French-speaking activities (e.g. in the cultural, sport or youth field), because the Flemish want the Brussels-periphery to be a monolingual, culturally homogeneous region. On the other hand, the Flemish Community also claims that no other Community or Region has the right to subsidise these activities (because of the territoriality principle). The French-speaking politicians disown this as an unwillingness to live together peacefully, and demand that – since the Flemish Community is unwilling to subsidise these activities - the French Community be allowed to do so. They would also like to see the territoriality principle less strictly applied in general.

36.        The Group of elected French-speakers of the Brussels-periphery demands that the Brussels-Capital Region be enlarged to include some of the periphery communes with a French-speaking majority, following a local referendum, and that the regime of linguistic facilities be extended to other communes situated in Flemish-Brabant with large French-speaking minorities (it being understood that the Dutch-speaking minority in the Walloon region be offered the same extension of the facilities if the need arises there).

37.        All French-speaking politicians support the rapid signature and ratification of the Council of Europe Framework Convention for the Protection of National Minorities, in the hope that its provisions would have a positive impact on the French-speaking population in Flanders, but especially in the Brussels-periphery, and in other flash-points along the language border (e.g. Fourons).

E.       The point of view of Flemish politicians

38.        The point of view of practically all the Flemish politicians met was surprisingly similar, and it is also reflected in publications by the Flemish government. The emphasis is on Flanders as a unilingual region-state34, with wide and exclusive powers in matters concerning education, environment, public works, the economy, sport and culture, tourism, social welfare policy, accommodation, public health; town and country planning, foreign commerce and scientific research. The majority of Flemish politicians seem to want the powers of Flanders to be increased even further, to encompass some of the remaining federal prerogatives such as justice or social security.

39.        In this context, the linguistic facilities accorded to the French-speaking residents of the six communities in the Brussels-periphery are understood as a transitional measure, intended only as a means of helping French-speaking residents to adapt to their Dutch-speaking environment. Flemish politicians stress that the legislator did not want to install bilingualism in these communes, that the length of the “transitional period” in which the facilities have to be offered to the French-speaking residents has never been fixed, and that the facilities might thus eventually be abolished.

40.        Flemish politicians seem to view the problem of the six communes on the Brussels-periphery as an outflow of the perceived problem of Brussels itself. They consider Brussels to be a Flemish town – historically speaking – which lies on Flemish territory. The fact that Brussels-Capital, made up of 19 (formerly Flemish) communes, is now a region in its own right, has a bilingual status and a large majority of French-speakers, is seen as a “Frenchification” of a Flemish town that started to spill over into the Brussels-periphery 50 years ago and still continues to do so. Whether this interpretation is factually correct or not, is irrelevant here; fact is that this is what most Flemish politicians seem to believe and which motivates them to try and stop further “Frenchification” of traditionally Flemish territory.

41.        In this context, the Flemish government approved an “action plan” on 26 June 1996 for the Flemish periphery of Brussels35. This action plan aims at reinforcing the Dutch-speaking character and culture of the Flemish periphery and at fighting the social exclusion of the autochthonous population, especially in the six communes with facilities. The plan follows a double strategy: On the one hand, a wide range of measures is to be taken to promote the Dutch language and the Flemish culture:

on the other hand, speakers of another language are to be given a maximal chance of integration (via language courses, etc.), and their assimilation is to be actively encouraged (via Dutch-speaking cultural, youth and sport activities).

42.        All Flemish politicians are against the ratification of the Council of Europe Framework Convention for the Protection of National Minorities, without the formulation of a reservation which would exclude the possibility of the French-speaking population in Flanders being considered a minority38 – probably because they fear a “Frenchification” of Flanders via increased language rights for the French-speaking population.

43.        It was astonishing during the meetings held in May 1998 with Flemish politicians, that all of them, when asked whether there was room for flexibility or negotiation as to e.g. an extension of the linguistic facilities to other communes in the Brussels-periphery, replied in unison: no – that would lead to the break-up of the Belgian state.

F.       The possible impact of the Council of Europe Framework Convention for the Protection of National Minorities

44.        Following the 1993 reform of the State, treaties which appertain to federal and Community or Regional matters alike – which is the case with the Council of Europe Framework Convention for the Protection of National Minorities – must be assented to by all the legislative assemblies concerned. The withholding of such assent by any one of the assemblies (Federal, Community or Regional) would effectively prevent the federal Government from ratifying the treaty. Only a partial ratification of the treaty (such as entering the federal clause or reservations) would then be possible.

45.        In the case of the Council of Europe Framework Convention for the Protection of National Minorities, the Flemish Government adopted a decision on 23 July 1997 which would allow for the signature of the Convention only under the condition that a reserve or interpreting declaration be attached to the signature, according to which the French-speakers and the Dutch-speakers could not be considered a national minority in the sense of the Convention neither on the whole territory of the kingdom, nor on a part of that territory39. The French Community favours ratification without reservations.

46.        In fact, the Council of Europe Framework Convention does not define the term “national minority”, although the Parliamentary Assembly did in its Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights. According to that definition40, however (a definition which is, of course, not binding onto the Framework Convention), French- and Dutch-speakers could be considered national minorities in the respective regions of the state where they are not a majority.

47.        If this definition were indeed applied, and French-speakers were considered as a national minority in the Flemish Region, and the Dutch-speakers in the Walloon Region, significant changes would have to be made to Belgium’s linguistic legislation, since many provisions of the Framework Convention would probably be judged directly applicable. As concerns the Brussels-periphery, the territoriality principle would probably be weakened, since language-based discrimination in the exercise of rights (as is now the case) would no longer be legitimate in all cases. The culture and language of the French-speaking minority in Flemish-Brabant would probably have to be better protected, e.g. it would be difficult for the Flemish authorities to refuse subsidies for cultural organisations, youth associations or even for schools (if there was enough demand), or to demand that Dutch be the only language spoken in communal councils, or to give priority to the autochthonous population in social housing projects.

G. Conclusions

48.        Having studied all the documents I was provided with, and following the many meetings with politicians I had, I have realised that the language question is indeed a very difficult and delicate problem which has long preoccupied the Belgian state. The discussions on this matter raise many emotions. Linguistic criteria determine the state structure of Belgium, and touch upon all aspects of social, political and economic life. The composition of state organs and other institutions also largely follows linguistic criteria. The present situation is the result of long and difficult negotiations. Any change in this fragile equilibrium must thus be the result of serious and diligent reflection. However, if the circumstances which led to the current compromise are deemed to have changed fundamentally, a review of this compromise might be called for.

49.        When attempting to make a contribution to finding a solution to the conflict, one asks oneself whether the experiences of other multilingual countries could not be of benefit to Belgium. Thus, for example, Switzerland, a country with four national and three official languages, has always been able to find solutions to its linguistic problems that the whole population could agree upon. Only on 10 March 1996, the Swiss sovereign people agreed to a change of the Constitution, which improves the status of linguistic minorities in Switzerland41.

50.        Finland, a country with a relatively small Swedish-speaking minority, is a bilingual country with two official languages (Finnish and Swedish). Both Finland and Switzerland live in linguistic peace compared to Belgium. Thus it is tempting to apply Switzerland’s and Finland’s experiences to the Belgian case. As a former mayor of a Romanic-speaking commune in Switzerland (the smallest national language), I was especially tempted to transfer my experiences to Belgium. However, I soon found out that the Belgian case is totally different from the Swiss case, due to different historical parameters. It is not possible to just transpose one country’s solution of its language problems upon another.

51.        In the whole development of the linguistic separation of the Belgian people, one can observe the extraordinary power of Belgium’s centrifugal forces. Since 1932, when the first decision to separate the Belgian people along linguistic boundaries was taken, the process of linguistic apartheid seems to have developed its very own dynamism. What once only concerned which language you filled your tax return form in, has snowballed into a process which has already divided Belgium into – effectively bipolar - federal state entities (communities and regions) appropriating more and more powers, and which threatens the existence of Belgium as a state itself. Personally, I think that if it were not for Brussels, and its importance as the quasi-capital of the European Union, Belgium might have already split in a “velvet divorce” like Czechoslovakia. In fact, it cannot be ruled out that the complex Belgian model based on the principle of territoriality might yet prove a failure in containing these centrifugal forces.

52.        This having been said, it is heartening to witness that the language problems do not seem to hinder good-neighbourly relations between the different language groups. There are still intermarriages between French- and Dutch-speakers; some parents with one native language still send their children to school in the other language; and many Belgians still speak (or at least understand) the other state language. Which makes one wonder whether Belgium’s language problems have not been furthered more by the ambitions of the political class, rather than by popular discontent. At no time have the various linguistic compromises (from 1932 to 1993) been submitted to the people themselves in a referendum.

H.       Recommendations

53.        It should be underlined here that the Parliamentary Assembly of the Council of Europe is not a court; it cannot issue binding judgments. Persons living on the Belgian territory who have legitimate grievances should apply to the judiciary; the national one in the first instance, and international courts in the second instance (European Court of Justice, European Court of Human Rights, etc.). A political body like the Parliamentary Assembly cannot redress grievances, which have failed to win redress before the courts. However, the Assembly can make political recommendations to the Committee of Ministers, or address a resolution to the Belgian government and/or parliament.

54.        The matter of the French-speaking population in the Brussels periphery lends itself more to a resolution to Belgian institutions than to a recommendation to the Committee of Ministers. In such a resolution, the Assembly could make proposals on the basis of the following evaluation of the situation: The current conflict involving the six communes with linguistic facilities on the Brussels-periphery seems to have been sparked off by an increased tendency of the Flemish government to restrict as far as legally possible the use of these facilities, with the aim of reinforcing the Flemish, Dutch-speaking character of the region, including the six communes in question. This tendency of the Flemish government seems itself to have a perceived “Frenchification” of the Brussels-periphery at its origin, a fear to which some French-speaking politicians have probably contributed with their talk of “enlarging” the facilities or uniting the Brussels-periphery with Brussels.

55.        The offer of the Flemish government to integrate speakers of other languages in their region should nevertheless be welcome. Speakers of other languages (including French-speakers) should take up this offer and try to integrate into the region they live in, for example, by learning or improving their Dutch language skills. However, integration is not the same as assimilation, and in particular not as forced assimilation (for example, assimilation under the threat of otherwise not receiving priority social housing, etc.). The Flemish government should recognise that the French-speaking minority in Flanders has a right to keep their own identity and language, and develop their own culture. Thus the Flemish government should cease trying to erode the linguistic facilities of the six communes in question, by withdrawing the Peeters and Martens circular letters, and modifying its action plan to exclude any forced assimilation.

56.        All parties concerned (especially the politicians on both sides) should be open-minded, pragmatic and flexible, and thus further the peaceful living-together of the two linguistic groups, instead of stoking up resentment as they are currently doing. In fact, multilingualism could constitute a real chance and enrichment for Belgium. In this context, politicians should try to find more pragmatic solutions, and improve the understanding of the linguistic communities through appropriate measures, especially in areas with large linguistic minorities. For example, when the percentage of books in public libraries in one or the other language is fixed, and public libraries which do not conform to these criteria (because they conform to the readers’ preferences!) are threatened with closure and/or withdrawal of subsidies, one is already way down the slippery slope of waging war on books. Threatening with the break-up of the Belgian state is even less constructive. Instead, the interests of individual Belgian citizens who, more often than not, have other concerns than linguistic quarrels, should be looked after. Thus, it goes without saying that in communes with linguistic facilities, the percentages fixed for public libraries in the rest of Flanders should not apply (if they have to be fixed at all!).

57.        Thus, the Committee recommends that the Flemish government:

58.        The Committee recommends that the French-speaking inhabitants of the Brussels periphery, and in particular their political representatives:

59.        The proposal of signature and ratification of the Council of Europe Framework Convention for the Protection of National Minorities is being used by French-speaking politicians in Belgium as a means of enlarging the rights of the French-speaking population in Flanders without giving the Flemish something in return (for example, increased rights for the Dutch-speaking minority in Brussels-Capital), and without re-negotiating a whole new state structure. However, in the framework of a possible complete change in the state structure of Belgium that does not accommodate the centrifugal forces, i.e. if a bilingual state is introduced, the ratification (without reservations) of the Council of Europe Convention could be constructive and positive.

60.        At the beginning, I thought that such a comprehensive overhaul of the Belgian state was totally unrealistic. However, I now find that the national and international parameters which led to the introduction of the territoriality principle in 1932 and the demarcation of language borders in 1962/63 have changed dramatically. Today, Europe is moving towards close European integration coupled with increased respect for minority rights, while Belgium seems to be hostage to pre-World War II ideas (such as the territoriality principle), and seems to be, more and more, under the influence of nationalistic forces. In these circumstances, it might be considered whether the peaceful living together of the different Belgian linguistic groups might not be better served by a renegotiation of the language compromise.

61.        Of course, such a renegotiation of the language compromise can only lead to linguistic and community reconciliation if a spirit of co-operation and mutual understanding, and the will to preserve Belgium as one (albeit federal) state prevails. In fact, very difficult and seemingly intractable problems can often be solved by means of direct citizen consultation; recent examples include the Northern Irish Agreement or divorce proceedings in Ireland. Considering that the whole language compromise as it has developed over the last sixty years in Belgium has never been submitted to the people’s direct approval, I would recommend the use of instruments of direct democracy to consult Belgium’s citizens on a possible renegotiation of the Belgian language compromise.

62.        In my opinion, the result of such a renegotiation could be the gradual introduction of bilingualism in Belgium, starting with bilingual education in schools. This might well be the solution of Belgium’s language problems and secure the survival of the Belgian state. A national referendum could be organised on the desirability of the gradual introduction of bilingualism in Belgium. However, it might also be useful to consider the possibility of organising local or regional referenda on a possible attachment of the six communes with facilities on the Brussels-periphery to the Brussels-Capital Region, thus at the same time augmenting the number of Dutch-speakers in that region, and making life easier for the French-speaking inhabitants in these communes without making it more difficult for the Dutch-speaking inhabitants.

63.        Cultural communication and co-operation across the language borders within the Belgian state could also help improve mutual understanding. In this respect, the conclusion of cultural co-operation accords between the different Communities and the different Regions should be actively encouraged.

64.        Finally, all parties concerned should respect the decisions of the different conflict-resolving mechanisms (e.g. Permanent Linguistic Control Commission, Deputy Governor of the Province of Flemish-Brabant) and the courts (e.g. Court of Arbitration, Council of State, European Court of Human Rights). This also applies to the decision of the European Court of Human Rights of 23 July 1968, inter alia stipulating that children of parents not resident in the six communes with linguistic facilities in the Brussels periphery should nevertheless be allowed to attend the French-speaking schools in these communes.

APPENDIX I

Programme

Visit of Mr Dumeni Columberg,

Rapporteur of the Committee on Legal Affairs and Human Rights

Brussels, 25-27 May 1998

Monday 25 May 1998

17h00        Arrival of the Rapporteur

17h45-19h15        Communal Centre of Wezembeek-Oppem

      Meeting with the members of the Bureau of the Group of elected French-speakers of the Brussels Periphery (GFP):

      Mr Arnold d’Oreye de Lantremange, Chairperson of the GFP and Town Councillor of Kraainem

      Mr Marco Schetgen, Alderman of Linkebeek

      Mr Michel Dandoy, Member of the Flemish-Brabant Provincial Council et Town Councillor of Dilbeek

      Mr Guy Pardon, Town Councillor of Dilbeek

      Mr François van Hoobrouck, Mayor of Wezembeek-Oppem

      Mr Philippe Sala, Member of the Flemish-Brabant Provincial Council and Deputy Mayor of Wezembeek-Oppem

      Mr Pol Willemart, Alderman of Kraainem

      Mr Xavier Jacque, Member of the Flemish-Brabant Provincial Council and Town Councillor of Sterrebeek

      Mr Alain Caluwaerts, Town Councillor of Overijse

      Mr Georges Clerfayt, Member of Parliament

19h15-19h45       Communal Centre of Wezembeek-Oppem

      Meeting with the persons responsible for the French-language cultural magazine “Carrefour”: MM Maziers and Carlier, as well as Mr Jean Cornant, Chairperson of the Cultural Association of Leeuw-St-Pierre and Mr Poels, Chairperson of the Cultural Association of Beauval-Vilvorde

19h45-20h15       Community Centre “De Kam”

      Meeting with Mr Schamp, Mayor of Overijse, Mr De Craen, Alderman of Dilbeek and Mr Dirk Dewolf, Alderman of Overijse

20h15-21h15       Meeting in Brussels with the Chairperson of the Belgian Delegation to the Parliamentary Assembly of the Council of Europe, Mr Dirk Van der Maelen

Tuesday 26 May 1998

8h30-9h00       Communal Centre of Rhode-St-Genèse

      Meeting with Mrs Myriam Delacroix-Rolin, Mayoress of Rhode-St-Genèse and Mr Xavier Deleenheer, Chairperson of the Public Commission on social assistance of Rhode-St-Genèse

9h00-9h15       Communal Centre of Rhode-St-Genèse

      Meeting with Mrs Anne Sobrie, Alderwoman of Rhode St-Genèse and Member of the Flemish-Brabant Provincial Council

9h30-9h45       French-language library of Rhode-St-Genèse

      Meeting with Mr Charles Bertin, Chairperson of the Cultural Association of Rhode-St-Genèse

10h00-10h15       Communal Centre of Linkebeek

      Meeting with Mr Christian Van Eyken, Mayor of Linkebeek and Member of the Flemish Parliament

10h15-10h30       Community Centre “De Moelie” at Linkebeek

      Meeting with Mr Norbert Cael, Town Councillor of Linkebeek

10h30-11h15       Community Centre “De Moelie” at Linkebeek

      Meeting with the persons responsible for Flemish cultural organisations of the periphery

      Mr Fernand Vanhemelryck, Chairperson of the “Davidsfonds”

      Mrs Mija Degreef, Chairperson of the Cultural Council of Rhode-St-Genèse

      Mr Jan Pollaris, Chairperson of the Cultural Council of Wezembeek-Oppem

      Mr André De Moor, Chairperson of the association “De Rand”

12h00-13h00       Parliament of the French Community

      Meeting with representatives of the French Community:

      Mrs Corbisier, Speaker of the Parliament of the French Community

      Mr Manuel Merodio, Deputy Director of the Private Office of the Minister-President of the French Community, Mrs Onkelinx

14h30-15h30       Flemish Parliament

      Meeting with representatives of the Flemish Community:

      Minister-President of the Flemish Government, Mr Luc Van Den Brande

      Mr Léo Peeters, Minister of the Interior of the Flemish Government

      Mr Francis Vermeiren, Vice-Speaker of the Flemish Parliament and Mayor of Zaventem

16h00-16h30       Private Office of the Prime Minister

      Meeting with Mr Jean-Luc Dehaene, Prime Minister of Belgium

16h45-17h15        Council of State

      Meeting with Mr Gustav Baeteman, First President of the Council of State

17h30-18h00        Court of Arbitration

      Meeting with Mr Melchior, President of the Court of Arbitration

19h30-21h00        Communal Centre of Hoeilaart

      Meeting with elected Flemish officials of the Brussels periphery

      Mr Vic Laureys, Mayor of Hoeilaart and Member of the Flemish-Brabant Provincial Council

      Mr Jan Walraet, Chairperson of the Conference of elected Flemish officials of the communes "with facilities" and Town Councillor of Wezembeek-Oppem

      Mr Luk Van Biesen, Town Councillor of Kraainem

      Mr Luc Voets, Town Councillor of Rhode-St-Genèse

      Mr Herman Van de Voorde, Town Councillor of Wemmel

      Mr Hubert Lyben, Alderman of Tervueren

      Mr Richard Peeters, Town Councillor of Wezembeek-Oppem and Member of the Flemish-Brabant Provincial Council

      Mr Hugo Casaer, Mayor of Beersel

Wednesday, 27 May 1998

8h30-9h00 :       Federal Parliament

      Meeting with Mrs Annelies Van Cauwelaert, Chairperson of the Permanent Linguistic Control Commission

9h00-9h30       Federal Parliament

      Meeting with Mr Lodewijk De Witte, Governor of the Province of Flemish-Brabant

9h30-10h00       Federal Parliament

      Meeting with Mr Guy Desolre, Deputy Governor of the Province of Flemish-Brabant

10h00-10h30       Federal Parliament

      Meeting with the Chairperson of the Delegation of Belgium to the Parliamentary Assembly of the Council of Europe, Mr Dirk Van der Maelen

10h30-11h00       Federal Parliament

      Press conference

11h00       Departure of the Rapporteur

APPENDIX II

Map of the Brussels periphery*

APPENDIX III

Map of Belgium

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 7878, Reference No. 2245 of 26 January 1998

Draft resolution adopted by the committee on 3 September 1998 with 24 votes in favour, 1 vote against and 2 abstentions.

Members of the committee: MM Hagård (Chairperson), MM Schwimmer (Alternate: Mrs Gatterer), Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg, Contestabile, Dees, Demetriou, Mrs Dumont, MM Enright, Eörsi, Fogaš, Forni, Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fydorov, Mrs Gelderblom-Lankhout, Ms Jäätteenmäki, MM Jaskiernia, Jeambrun, Kelam, Kelemen, Lord Kirkhill, MM Kostytsky, Mrs Krzyzanowska, MM Loutfi, Magnusson, de Marco, Martins, Marty, McNamara, Micheloyiannis, Moeller, Mozetic, Nastase, Pantelejevs, Pavlov, Mrs Plechatá, Mrs Pobedinskaya, MM Pollo, Polydoras, Poppe, Rippinger, Robles Fraga (Alternate: Lopez Henares), Rodeghiero, Simonsen, Solé Tura, Solonari, Staciokas, Lord Steel, MM Sungur, Symonenko, Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend.

N.B. The names of those members who were present during the vote are printed in italics.

Secretaries to the Committee: Mr Plate, Ms Coin and Ms Kleinsorge.

1 The French term “commune” describes the smallest administrative territorial division in Belgium, comparable to a municipality.

2 See Appendix III, map of Belgium.

3 Currently, the Regions have exclusive or partial jurisdiction over land use and planning, the environment and water policy, rural development and nature conservation, housing, agricultural policy, economic policy (subject to the principle of economic and monetary union), energy policy, subordinate authorities, employment policy, public works and transport.

4 To make matters even more complicated, the Flemish Community and the Flemish Region have de facto merged, with the same bodies (the Flemish Council and the Flemish Government) exercising the competencies of both the Community and the Region.

5 “Ordinances” for the Brussels-Capital Region.

6 As an exception to the power of the Communities in regulating the use of languages in administrative matters, education and industrial relations between employers and their employees, the federal authority retains sole jurisdiction on this matter for the German-speaking region, the bilingual Brussels-Capital region and the 27 communes with special linguistic facilities (“communes with facilities”).

7 The Court of Arbitration was set up by virtue of the 1980 constitutional revision (Article 142 of the Constitution), and, since its inauguration on 1 October 1984, has steadily developed into a constitutional court in its own right. The Court is composed of 12 judges, six of whom are senior judges, legal officers and academic lawyers, and six former MPs; six are French-speaking, six Dutch-speaking.

8 The Council of State is divided into two sections: a section which deals with bills and other draft legislation (with 12 councillors), and a section which fulfils the function of an administrative court (with 24 councillors). The latter section is divided into chambers according to language: there are four Dutch-language chambers, four French-language, and one bilingual chamber.

9 As regards primary education, however, children whose maternal or usual language was not that of the region were still entitled to primary education in their own language (according to the reality of the need and the expediency of meeting it).

10 For example, the first census was held in 1947; its results lead to the inclusion of Evere, Ganshoren and Berchem-Saint-Agathe into the bilingual Brussels region, and the introduction of linguistic facilities in the communes of Drogenbos, Crainhem, Wemmel and Linkebeek (by virtue of a law which came into force on 2 July 1954).

11 There are four types of such communes with linguistic facilities: the six peripheral boroughs of Brussels – communes with facilities - dealt with in this memorandum (situated in the Dutch-language region, with facilities for French-speakers), nine municipalities in the German-speaking region (with facilities for French-speakers), two boroughs in Malmédy (situated in the French-language region, with facilities for German-speakers) and ten linguistic boundary boroughs, some of which are situated in the Dutch-language region with facilities for French-speakers, and others in the French-language region with facilities for Dutch speakers.

12 To take their seat in the Flemish legislatures, the oath has to be taken in Dutch, and only Dutch may be used during the sittings of these legislatures.

13 This information can only be approximate, since linguistic questions are currently excluded from any population census by law.

14 The national population census of 1 March 1991 attributed a population of 9,978,681 to Belgium, distributed as follows: 5,768,925 in the Dutch-speaking region (57,81%), 3,188,093 in the French-language region (31,95%), 954,045 in the bilingual Brussels-Capital region (9,56%) and 67,618 in the German-speaking region (0,68%).

15 The exception are industrial relations between employers and employees, which have to be conducted in the language of the region.

16 With the exceptions foreseen by the European Convention on Human Rights as regards the Criminal Justice system.

17 The exception are documents coming from the Province of Flemish-Brabant, which issues its documentation in the language of its capital (Leuven) only, i.e. in Dutch, even in the six communes with facilities. This is contested by the Deputy Governor of the Province as emptying the language laws of their content.

18 Some French-speaking politicians (and the President of one school concerned) complained that pressure on the administration of the French language schools was mounting; e.g. the directors of the schools were accused of not having passed certain Dutch-language exams which were never considered necessary before or had simply not been organised by the authorities, and part of their salaries were thus being withheld – this pressure apparently started only a few years ago, while some of the directors are said to have been in post for decades.

19 It seems that in the early 1930s and 40s, some Dutch-speaking parents made false declarations to allow their children to go to a French language school, which was considered more “upper-class”.

20 There are possibilities of appeal for parents in these cases.

21 A Flemish politician explained that, in fact, there was no working language inspectorate at the moment in Belgium, and there had not been one in working order since 1988. The question of the language inspectorate was highly political, and currently blocked.

22 European Court of Human Rights, Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” (Merits), Judgment of 23 July 1968, p. 64.

23 One Flemish politician told me that the reason why this part of the Court’s judgment had not been applied, was that the situation of the communes with facilities had changed, since they no longer constituted a separate administrative district, but had been incorporated into the monolingual Flemish Region in 1970. Their situation was thus comparable to the situation in Leuven and Heverlee in 1968, the complaints regarding which had been rejected by the Court. I cannot agree with this interpretation of the Court’s judgment, which very clearly stated that the reason why the situation in the six communes was different from that in Leuven and Heverlee was their “special facilities” – which, of course, still exist today. In any case, it is not for the Belgian state to try and re-evaluate the Court’s judgment instead of implementing it!

24 This stance was also taken by the Minister of the Interior of the Flemish government (Mr Leo Peeters) in his circular letter to communes in the Brussels-periphery No. BA-97/22 (hereafter called the Peeters-circular letter).

25 For example, the nomination of a police chief in Rhode-Saint-Genèse.

26 Ibid, p. 9, translation of “… hetgeen impliceert dat de particulier telkens uitdrukkelijk moet verzoeken om het Frans te gebruiken”.

27 In Linkebeek, the communal library has 80% French books, 20% Dutch, and is thus not subsidised by the Flemish government any more. The Rhode-St-Genèse (private) French language library is often attacked by Flemish extremists, though they seemed to be bussed in from outside (i.e. they are not local).

28 Press articles, e.g. in “Le matin” and in “La libre Belgique”, 10-11 July 1998.

29 Ibid.

30 From the copies of the magazines available to us, “Carrefour” actually seemed less aggressive than “Randkrant”. However, Flemish politicians assert that “Randkrant” is regularly criticised for its missing “Flemish profile”.

31 In November 1989, the distribution of this magazine in Overijse was forbidden by police order. The editors took the matter to court: the judgment is expected to be delivered on 15 September 1998.

32 I was also told from a different source that I was (partly) wrongly informed, and that there was no general classification according to French or Dutch-language degrees.

33 See “Belgiens Probleme mit dem EU-Wahlrecht”, in “Neue Züricher Zeitung”, 10 July 1998.

34 In one recent publication handed to me by Mr Luc Van den Brande, the Minister-President of Flanders, “Welcome to Vlaanderen”, Flanders is even described as a European “country”(!), p. 13.

35 I was given a copy of the action plan in Dutch and in French by Mr André De Moor, Chairperson of the association “De Rand” (I based myself on the French version).

36 Plan d’action du gouvernement flamand pour la périphérie flamande autour de Bruxelles, Eléments pour une approche globale et structurée de la partie sud du Brabant flamand, approuvé le 26 juin 1996 par le gouvernement flamand, p. 9.

37 Ibid, p. 21: (translation) “Although the use of languages as regards advertising is not regulated by law, experience shows that interventions by the communes with companies can have a positive effect.”

38 The Flemish government took the following decision on 23 July 1997(unofficial translation): “When the Federal Government and the Governments of the French Community, the Flemish Community, and the German-speaking Community take the decision to proceed with the signature of the Framework Convention for the Protection of National Minorities, a reserve or an interpreting declaration should be attached to the act of signature, with the following content: “Taking into account the institutional equilibrium within the federal authority and the constitutional framework concerning linguistic legislation, the French-speakers and the Dutch-speakers in Belgium cannot, neither on the whole of the territory of the Kingdom, nor on a part of that territory, be considered as a national minority in the sense of the present Framework Convention for the Protection of National Minorities.””

39 The recognition of the German-speakers as a national minority does not seem to pose a problem, neither for the French- nor for the Dutch-speakers.

40 Article 1: “… the expression “national minority” refers to a group of persons in a state who:

41 The new Article 116 of the Swiss Constitution reads as follows: (unofficial translation)

* Provided by a French-speaking politician.