The issue of the 'non-appointed mayors'

Introduction

After the municipal council elections of 2006, a conflict arose between the Government of Flanders and the candidate-mayors of the municipalities with facilities Wezembeek-Oppem, Kraainem and Linkebeek. The reason was an infringement of the language legislation during the preparation of the elections. The mayors concerned had sent the convocation letters to the citizens in French, whereas the language legislation requires that all official communications in these municipalities must be in Dutch in the first place. The competent Flemish Ministers therefore refused to approve the appointment of the mayors.

Strict application of the language legislation

The Peeters circular from 1997 (named after the then Flemish Minister Leo Peeters) stipulates that the municipal authorities in municipalities with facilities send all documents, including the convocation letters, in a standard way in Dutch. Inhabitants who wish to do so, may request a translation of the document in French from the municipal authorities. The Peeters circular caused a lot of displeasure among French speakers, who considered it to be a form of administrative harassment. Legal means were called on to obtain the annulment of the circular. Successive complaints were lodged about this issue with the Council of State, the Council of Europe and even with the Human Rights Council of the United Nations. In 2004, the (Dutch-speaking chamber of the) Council of State rejected the appeals for annulment of the circular and reconfirmed its legal validity in 2008.1 The supervision of the municipalities and the appointment of the mayors is a regional competence since the Lambermont Agreement.2 However, the three candidate-mayors claim that the federal language legislation prevails over the Flemish circulars. Moreover they invoke the fact that the municipal electorate gave them a mandate, which makes it undemocratic to refuse their appointment. French-speaking politicians therefore kept asking for the appointment of the trio. The successive Flemish Ministers in charge of Local and Provincial Affairs Marino Keulen (VLD) and Geert Bourgeois (N-VA) from their side stuck to the argument that the law must be enforced. According to Keulen this is a legal matter that does not involve any political motives.3 A committee of inquiry of the Council of Europe dealt with the case in May 2008 and claimed that the non-appointment was harmful to the good governance of the municipalities.4 The rapporteurs adopted a critical attitude towards the position of the Government of Flanders. This showed once again that the Flemish points of view on the Vlaamse Rand (Flemish periphery around Brussels) are rarely supported by international bodies, contrary to the discourse of the French-speaking politicians.

Language register?

On the occasion of the municipal council elections of 2006, the three candidate-mayors5 were guilty of sending French convocation letters to inhabitants who are presumed to have French language affiliation. Since the abolition of the language censuses, the municipalities can no longer keep registers in which the language of the inhabitants is listed. Sending the French convocation letters implies that the municipality draws up such a language register, which contravenes the law. Moreover, for the following elections as well, the municipal authorities concerned sent French convocation letters. As a result, the provincial governor, as responsible authority, had to send the convocation letters again, this time correctly in Dutch.

Trial of strength

The repeated violations of the language laws by the French-speaking boards in three municipalities with facilities were considered provocative at the Flemish side, whereas the straightforward manner of thinking of the Flemish policy makers caused incomprehension at the French-language side. The issue of the non-appointment of the candidate-mayors disturbed the relationship between the Communities for a long time. The turbulent relations between the Communities reached fever pitch when, in 2010, Flemish Minister for Local and Provincial Government Geert Bourgeois declared in the Flemish Parliament about these three candidate-mayors that 'They are not and will never be mayors'. Although he was formulating the position of the Government of Flanders, he also received criticism from the majority parties because of his timing. At that moment, federal government negotiations were indeed being held, and the last thing royal mediator Jean-Luc Dehaene wanted was for disagreements between the Communities to be carried to an extreme. According to Flemish Minister Bourgeois, the candidate-mayors concerned 'did not have the moral capacity and moral authority required to act as representatives and confidential advisors of the Governments'.6 The mayor is indeed responsible for carrying out and enforcing compliance with the laws imposed by the higher authorities.

The appointment procedure

The appointment procedure prescribes that the municipal council nominates a candidate-mayor by means of a nomination act, signed by more than half of all elected candidates on the lists that participated in the elections and by a majority of the candidates elected on the list of the candidate-mayor. The nomination act is submitted to the provincial governor. As a responsible authority, he studies the admissibility and examines whether this is a suitable candidate and whether there are any incompatibilities. In case of a favourable advisory opinion, the file is sent to the Government of Flanders. The Flemish Minister for Local and Provincial Government then has 60 days to carry out his own investigation and to appoint the candidate or not. A copy of the appointment decree is sent to the provincial governor, the municipal authority and the mayor. Only then will the latter be invited to take the oath before the governor. With regard to the candidate-mayors concerned, their nomination acts were submitted by the municipalities in the weeks following the elections, and received a negative advisory opinion from the governor. Flemish Minister Keulen thereupon decided not to sign the appointment, a position also adopted by Flemish Minister Geert Bourgeois. The candidate-mayors were repeatedly nominated and not appointed. In the meantime, they continued to have their seat of alderman in the Board of Mayor and Alderman, in their capacity of acting mayors. This had implications for the functioning of the board. Since the aldermen are directly elected in the municipalities with facilities, an additional alderman could not be appointed before the mayor was appointed. The three municipalities were therefore governed with one less board member. The wages of the acting mayor also differ from those of the appointed mayor.

The ‘designated mayor’

The sixth state reform, also called the 'Butterfly Agreement' has recently changed the appointment procedure. The situation of the non-appointed mayors had indeed weighed on the relations between the Communities during the federal government formation. The French-speaking negotiators used the appointment of the mayors as change for a new agreement, whereas the Flemish side stuck to the compliance with the relevant legislation. Nevertheless, all parties at the negotiation table looked for a solution in order to prevent such an impasse in the future. The changes imply that, in future, it is no longer the administrative majority but the municipal council that is responsible for nominating the candidate-mayor. From the moment a candidate is nominated, he can bear the title of 'designated mayor' and perform all competencies related to the position. The responsible Minister then has two months to examine the appointment and take a decision. In case of a non-appointment, an appeal can be lodged with the Council of State. From now on, the bilingual Chamber will deal with this type of disputes. The Council of State has 90 days to appoint the designated mayor as mayor, or not. If the general assembly of the Council of State nullifies the decision of the Government of Flanders, the appointment immediately becomes a fact. This means the Council of State has the final word. However, as a result of additional legislative work by the Flemish Parliament, it is no longer possible to nominate the same candidate for the second time following a previous refusal, unless new facts or information are available. In this way, a nomination carousel of candidate-mayors is excluded in the future.7

Beyond 2012

Since the municipal council elections of 2012, a number of candidate-mayors are still waiting for their appointment, including the nominated mayors in three municipalities with facilities. On 25 February 2013, Flemish Minister Geert Bourgeois decided not to appoint the nominated mayors Veronique Caprasse (Kraainem), Damien Thiéry (Linkebeek) and François Van Hoobrouck (Wezembeek-Oppem). Just like after 2006, they reputedly declared that they would not comply with the language legislation and particularly the circulars of the Government of Flanders. Following the decision of Bourgeois, the three candidate-mayors moved on to the Coucil of State, hoping to be put in the right by its bilingual Chamber. In anticipation thereof, they may bear the title of 'designated mayor'. However, the Council of State called on the Constitutional Court to examine the constitutionality of the regulation of the appointment of the mayors in the Flemish periphery around Brussels. This may once more cause a delay of the decision about the appointment of the three candidate-mayors. In Drogenbos, Sint-Genesius-Rode and Wemmel, the appointment did not cause any problems.

FOOTNOTES

1 Cf. Peeters Circular and the judgements of the Council of State 2004 and 2008.

2 The Lambermont Agreement (2000) regulated the transfer of the supervision of the local administrations from the federal authorities to the Regions. On 31 July 2001 the Special Act was adopted, and on 3 August it was published in the Belgian Official Journal. De Bijzondere wet houdende overdracht van diverse bevoegdheden aan de gewesten en gemeenschappen, Belgian Official Journal, 03/08/2011, pp. 26636-26645.

3 Benoeming burgemeesters is juridische kwestie, in De Standaard, 15 september 2008.

4 Guégan Michel, Milovanovic Dobrica, Local democracy in Belgium: non-appointment by the Flemish authorities of three mayors, Council of Europe, Chamber of Local Authorities, 31 October 2008.

5 It concerns François Van Hoobrouck (MR/Lijst van de Burgemeester – Union) in Wezembeek-Oppem, Arnold d’Oreye de Lantremange and later Véronique Caprasse (FDF)) in Kraainem and Damien Thiéry (FDF) from Linkebeek. Initially, there was a fourth non-appointed candidate-mayor. In 2006, Myriam Delacroix from Sint-Genesius-Rode also sent French convocation letters, but since she strictly observed the rules during the subsequent elections of 2007, the Government of Flanders appointed her in return.

6 VRT, Terzake, 31 March 2010. This programme shows an excerpt from the speech of Flemish Minister for Local and Provincial Government, Geert Bourgeois, in the Flemish Parliament, confirming the non-appointment of the mayors, and from the comments made by other politicians.

7 Chamber of Representatives, Draft Special Act modifying the Act of 9 August 1988 modifying the Municipalities Act, the Municipal Elections Act, the Organic Act on Public Centres for Social Welfare, the Provinces Act, the Electoral Code, the Act regulating the Provincial Council Elections and the Act regulating Concurrent Parliamentary and Provincial Council Elections (the so-called 'Pacification Act') and the 8 August 1980 Special Act on Institutional Reform, with regard to the appointment of the mayors of the municipalities in the Flemish periphery around Brussels, Parliamentary Document 53K2286, 19 July 2012 Act (Belgian Official Gazette of 22 August 2012) and Draft Flemish Parliament Act modifying the Flemish Parliament Act on Municipalities of 15 July 2005, adopted by the plenary meeting, 20 June 2012, Flemish Parliament, Document 1467, nr. 18.

MORE INFORMATION

• Van Drooghenbroeck Sébastien et Delgrange Xavier, La nomination des bourgmestres de la périphérie. Le Conseil de l’Europe met les pieds dans le plat pays, in: Journal des Tribunaux, 2009, pp. 113-115.
• Lokale en provinciale Mandaten. Agentschap voor Binnenlands Bestuur, Vlaamse overheid, (last consulted on 15/3/2013).