JOINT DISSENTING OPINION OF JUDGES CREMONA , BINDSCHEDLER-ROBERT, BERNHARDT, SPIELMANN AND VALTICOS

(Translation)

To our regret we are unable to share the opinion of the majority of the Court, since it appears to us that in law the position in which the French-speaking electorate and the French-speaking elected representatives of the administrative district of Halle-Vilvoorde are placed is not compatible with Belgium ’ s obligations under Article 3 of Protocol No. 1 (P1-3), whether taken by itself or together with Article 14 (art. 14+P1-3) of the Convention.

The system currently in force in respect of that district (which as an administrative district comes within the Flemish Region, while for electoral purposes - with different boundaries - it is part of the electoral district of Brussels) has the effect in substance, under the Special Act of 8 August 1980 (section 29(1)), that the members of the House of Representatives and the Senate elected in the district of Halle-Vilvoorde cannot, if they take the parliamentary oath in French, sit on the Flemish Council (a body which indisputably has legislative powers) and are therefore unable to defend their Region ’ s interests in a number of important fields (such as regional planning, environment, housing, economic policy, energy and employment), whereas elected representatives who take the oath in Dutch are automatically members of the Flemish Council. Halle-Vilvoorde has a population of more than 100,000 French-speakers out of a total population of more than 500,000, the average number of votes required to elect a member of the House of Representatives varying from 22,000 to 25,000.

The practical consequence is that unless they vote for Dutch-speaking candidates, the French-speaking voters in this district will not be represented on the Flemish Council.

In our opinion, such a situation, excluding, as it does in practice, representation of the French-speaking electorate of Halle-Vilvoorde at regional level, does not ensure "the free expression of the opinion of the people in the choice of the legislature" as stipulated in Article 3 of Protocol No. 1 (P1-3), and it creates a language-based distinction contrary to Article 14 (art. 14) of the Convention.

None of the reasons put forward to justify this incompatibility appears to us to be convincing.

In the first place, it is true that the French-speakers elected in Halle-Vilvoorde could belong to the (Flemish) regional Council if they agreed to take the oath in Dutch. In that eventuality, however, the representatives concerned would lose their status as French-speakers in Parliament, and this - in addition to the psychological and moral aspect of the issue - would have important political consequences, given the role played by the parliamentary language groups.

The argument based on the fact that under the Belgian Constitution elected representatives are considered as representatives of the whole nation is irrelevant in the case of the regional Councils, which are vested under the Constitution itself with the responsibility of watching over the interests of the Regions concerned and to which the elected representatives of those Regions should therefore be entitled to belong.

Nor can the limitations in question be compared with those often found in electoral systems (such as those inherent in majority systems or various systems of proportional representation, or again in the fact that a minimum percentage of votes is sometimes required for election). These various limitations are general in nature and apply to all voters without distinction, whereas the system applicable to Halle-Vilvoorde restricts the right of only the French-speaking voters and elected representatives of the Region, and on the sole basis of the language criterion.

It was also argued that despite its limitations, the position of the French-speaking voters of Halle-Vilvoorde was more favourable than that of the French-speaking voters in the Flemish Region in general. One of the specific features of the Halle-Vilvoorde district is that it contains a large concentration of French-speaking voters, who are in a position to elect a substantial number of candidates to Parliament. In any case, apart from the fact that the position of the other parts of the Flemish Region was not in issue in the instant case, a relative advantage of this kind cannot compensate for the effective loss by the French-speaking voters of Halle-Vilvoorde of their right to be represented on the regional Council.

It has been pointed out that the current system was adopted in 1980 by a very large majority in both the language groups in Parliament. But this was by definition a transitional stage, and from this point of view the argument is more an empirical one than a legal one and is of very doubtful force. In our opinion, the system should be assessed on its own merits. Furthermore, the transitional nature of the current system was itself relied on in argument. This transitional state of affairs, however, has already lasted for over six years and, while a Study Centre for Reform of the State has indeed been set up, the Government has not indicated to the Court even an approximate date on which a permanent system might be adopted, let alone what kind of change might be made.

Lastly, it cannot be said that the state of affairs submitted to the Court represents the only conceivable solution of the problem; indeed, the very fact that it is regarded as transitional indicates that other acceptable arrangements are contemplated or are at least not being ruled out. Merely by way of example and without in any way claiming to offer practical proposals (which we are not qualified to do), one could imagine allowing the various French-speaking elected representatives of the Halle-Vilvoorde district to belong to the Flemish Council even if they have taken the parliamentary oath in French - which does not preclude their speaking Dutch in the Flemish Council. Or again, one might envisage holding separate elections at regional level and national level, on the understanding that the representatives elected at regional level would have to be able to be members of the relevant regional Council. But obviously it is for the Government themselves to find the best means of solving the problem.

Falling back on the margin of appreciation is no answer in this case, because that margin is subject to effective respect for the rights protected in the Convention.

DECLARATION BY JUDGE BERNHARDT

The joint dissenting opinion sets out the reasons why I voted in favour of finding a violation of Article 3 of Protocol No. 1 (P1-3). On the other hand, I voted against finding a violation of Article 14 of the Convention (taken together with Article 3 of the Protocol) (art. 14+P1-3), since in my view no separate issue arises under this heading. It is the exclusion of certain representatives from the regional Council and not any discrimination which is decisive.