Abstract :
[en] In a federal system, each level of government – the central one and the several states – is in principle vested with a large degree of autonomy, and is allowed to to develop the policies it prefers by enacting legislation in its field of competence (K.C. Wheare, Federal Government, 3rd ed., Oxford, OUP, 1963; G. Berger et al, Le Fédéralisme, Paris, PUF, 1956; C. Behrendt and F. Bouhon, Introduction à la théorie générale de l’État, 4th ed., Brussels, Larcier, 2021). Many federal systems, including Belgium, have in this respect a distribution of powers that allow the several states to take a certain range of decisions of economic policy ; this economic autonomy is not limited to taxation.
However, the central constitution puts limits to this economic autonomy of the sub-state authorities.
On the one hand, the central constitution aims to prevent the several states from breaking with the basic principles of economic organization of the Federation as a whole (such as the principle of a free market). This has been called ‘the economic constitution’, and academic writing has addressed the topic (see recently L. Fontaine, Capitalisme, libéralisme et constitutionnalisme, Paris, Mare & Martin, 2021, and G. Grégoire and X. Miny, The Idea of Economic Constitution in Europe, Leyden, Brill). Naturally, this gives rise to various debates about the relationship between concepts of economy, the rule of law, democracy and parliamentary sovereignty.
On the other hand, the central constitution will try to preserve national cohesion by impeding excessive inter-state competition. Indeed, state legislation can have effects which go well beyond the respective state lines and which can render ineffective legislation of neighbouring states (e.g. in the field of closing hours of shops, state aids, prohibition to sell certain goods, workers’ social protection legislation, etc.). While stimulating a certain degree of competition among the several states can represent an added value for the Federation as a whole, excessive freedom left to state legislators often is detrimental. The example of workers’ social protection statutes are well known, under more in the US Supreme court case law, but there are much more examples, such as in budget law, etc. (C. Behrendt and X. Miny, « Les motifs budgétaires dans le contentieux constitutionnel », in L. Mezzetti and E. Ferioli, Giustizia e Costituzione agli albori del XXI secolo, Bologna, 2018, pp. 393-399).
Federal constitutional law does not necessarily resort to prohibitions (which forbid states to enact certain statues) but sometimes prefers other mechanisms (duty of inter-state consultation, prior information, etc.) and sets guidelines for what one could call decent interstate competition. One has also to bear in mind that the several states may differ sharply in economic profile and wealth, so that both excessive competition and undue solidarity can lead to social and political tensions : the role of constitutional law is to help avoiding them.
Our contribution is based on Belgian law but will also address this issue in a more general way, by integrating aspects of comparative law.
