Over the last few years, it has not been easy to form a government in Belgium. For instance, it took 194 days to form a government after the June 2007 federal elections. Currently, it's been 175 days since the last federal elections this past June, and there's still no government in sight. While negotiations to form a government are in progress, the outgoing government is only authorised to conduct what is known as "current business". The longer the negotiations drag on, the greater the number of problems that arise with respect to the limitations on the powers of the outgoing government, as demonstrated by some recent headlines.

For example, the outgoing government cannot beef up Belgium's military presence in Afghanistan,[1] renew strategic long-term urban policy plans,[2] or appoint high-ranking officials (e.g., Fedasil has been without a director-general since April 2010).[3] This article focuses on the powers and limitations on the powers of an outgoing government.

General principles

In Belgium, an outgoing government can only conduct so-called current business. This concept, which is not defined in either the Belgian Constitution or the law, is based on two constitutional principles: the continuity of public service and ministerial responsibility. Pursuant to the first principle, an outgoing government must remain in office until a new government is formed in order to guarantee the continuity of public services. Pursuant to the second principle, Parliament must be able to keep an eye on and, if necessary, sanction the government. Since it is difficult to effectively sanction an outgoing government (which obviously cannot be forced to resign), the powers of such a government are expressly limited to the conduct of current business.

The concept of current business has been clarified in the case law of the Council of State and in the legal literature. In general, three types of decisions are considered to constitute current business:

  1. day-to-day administration, i.e., matters which arise on a regular basis and which are of limited political importance as they do not involve policy questions;
  2. urgent matters on which decisions must be taken as soon as possible in order to prevent serious harm to essential interests of the country or of certain categories of citizens;
  3. important decisions that fall outside day-to-day administration but which represent the continuation or completion of a decision-making process initiated before the resignation of the government, for which all policy decisions have already been taken.

It should be noted that the concept of current business does not apply to areas where power is exercised jointly by the government and Parliament.[4] Indeed, the concept of current business is intended to protect the prerogatives of Parliament. When power is exercised jointly, Parliament can fully oversee the government so there is no reason to limit the government's powers in this instance.

In practice: The powers of an outgoing government

Enactment of laws

It is generally accepted that enacting legislation falls outside the scope of current business.[5] Since legislative power is exercised jointly by Parliament and the government, there is little risk of Parliament's prerogatives being undermined in this instance. Indeed, Parliament can simply reject proposals or amendments introduced by the government. Therefore, the legislative process can proceed normally with a lame-duck government.

Thus, when an outgoing cabinet is in office, both Parliament and the government can introduce bills and amendments. Parliament can discuss a bill in committee and during a plenary session and vote on it. As for ratification, the King, backed by the government, can either decide to ratify the bill or decide not to do so and wait until there is a new government. However, the King cannot expressly veto legislation since Parliament does not have the power to force the government to resign under these circumstances.[6]

Adoption of resolutions to amend the Constitution

During a period of current business, Parliament and the government can adopt a resolution to amend the Constitution, since this is a joint power.[7] The King, backed by the government, and both houses of Parliament must declare which articles of the Constitution they wish to amend. The articles which appear on all three lists will constitute the resolution to amend the Constitution.

Once again, since no article of the Constitution can be declared open for amendment against the will of Parliament, the concept of current business does not apply here.

Implementation of laws

The power to implement laws is an exclusive prerogative of the government. Therefore, in this area, the concept of current business applies in full.[8] However, it should be noted that the laws express Parliament's intent and have no effect without implementing measures. Thus, according to the Council of State, a decree which is "indispensable" for the implementation of a law which has already entered into force should be adopted as soon as possible.[9] An implementing decree will be considered "indispensible" when the law would not achieve its desired effects without it.

However, the mere fact that a decree is indispensable does not mean that it qualifies as current business. Implementation should also be urgent, for example when the law stipulates a deadline for implementation.[10] Even if implementation is not urgent, however, the implementing decree can still be adopted provided the decree does not concern a matter of general political importance and forms the end stage of a procedure, initiated before resignation of the government, which has been handled normally.

Finally, an implementing decree can be adopted if it qualifies as day-to-day administration, for example if it merely lays down the date of entry into force of a law.

Conclusion

As demonstrated above, the powers of an outgoing government are not as limited as might first appear. The government can fully exercise all powers shared with Parliament. Thus, the concept of current business does not apply to the legislative process or to resolutions to amend the Constitution. Only those powers which the government exercises alone, as exclusive prerogatives of the executive branch, are restricted, in which case the government can only take decisions on matters of current business.

Hence, when an outgoing government restricts its activities, this may be due more to political reasons than any legal impediment. In view of the lengthy negotiations currently underway to form a new government, the question arises as to whether the government's unwillingness to take action in many areas can be justified.