Belgian Federalism in the Face of the Health Crisis, or the Art of Asking the Questions When the Problem Arises
(2026) CAP-CF research papers — Vol. 1, p. 26-42 (2026)
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- This article analyses how Belgian federalism responded to the Covid-19 pandemic and what the crisis revealed about the strengths and weaknesses of Belgium’s highly fragmented allocation of competences in the field of public health. Built through successive state reforms driven by political compromise rather than by a coherent constitutional design, Belgian federalism distributes health-related powers across multiple levels of government. While this model functions in ordinary times, it offers limited guidance for the management of exceptional situations. The article first examines the constitutional framework that existed before the pandemic. It shows that neither the Belgian Constitution nor the special institutional reform laws provide a specific competence for health crises. The principle that each authority remains responsible for addressing crises within the limits of its own material competences, combined with the constitutional prohibition on suspending the distribution of powers in emergencies, left significant uncertainty regarding leadership and coordination during a pandemic. The second part explores how these uncertainties were addressed during the Covid-19 crisis. Despite the absence of an explicit federal competence for pandemic management, the federal government assumed a predominant role through administrative policing and public-order powers. Building on key opinions of the Council of State and subsequent Constitutional Court case law, the article demonstrates how a jurisprudential framework emerged that effectively reconstructed Belgian “crisis federalism.” This framework recognized broad federal intervention powers, imposed proportionality and consultation requirements, and established a form of federal primacy in situations where federal and federated authorities exercised overlapping crisis-related powers. Finally, the article assesses the post-pandemic landscape. Although the crisis prompted important doctrinal developments regarding the exercise of competences during emergencies, it did not resolve fundamental questions concerning preparedness, responsibility, and intergovernmental cooperation. The authors argue that Belgium remains insufficiently equipped to face future health crises and that its constitutional architecture continues to struggle with negative competence conflicts and collective action problems. More broadly, they question whether the solutions developed during the Covid-19 pandemic can be transposed to other systemic challenges, such as climate change. By tracing the evolution of Belgian federalism before, during, and after the pandemic, the article highlights the tension between constitutional orthodoxy and the practical demands of crisis management, showing how legal actors temporarily adapted a dual federal system to ensure effective protection of the population while leaving many structural questions unresolved.
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Clarenne, J., & El Berhoumi, M. (2026). Belgian Federalism in the Face of the Health Crisis, or the Art of Asking the Questions When the Problem Arises. CAP-CF research papers, 1, 26-42. https://hdl.handle.net/2078.5/278592 (Original work published 2026)