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Home arrow Law arrow Constitutional Sunsets and Experimental Legislation: A Comparative Perspective

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(b) Germany

In Germany, experimental legislation is not a recent phenomenon,[1] but it has been traditionally implemented in the context of municipal law.[2] In addition, it has constituted an important tool in the last decade in the process of modernizing the public administration.[3] In the last two decades, experimental laws have been placed in the context of the regulation of innovative fields in order to guarantee legislative updates.

However, in the 1990s experimental legislation and other types of temporary legislation raised doubts as to their constitutionality.[4]

The debate regarding the introduction of experimental acts and sunset clauses has re-emerged in the past decades and occurred, for example, in the postal and telecommunications sectors in the context of the process of deregulation. Sunset clauses have also been suggested in Germany as a tool to combat excessive bureaucracy and regulatory pressure.[5]

(c) The Netherlands

The Netherlands does not have a long experience with either experimental legislation or sunset clauses. However, this jurisdiction has revealed a growing curiosity as to these instruments, which has been accompanied by a vast silence in the literature and the Dutch Council of State’s frequent critical remarks.[6] This may explain why sunset clauses and experimental legislation have been regarded here as an ultimum remedium. A number of constitutional objections have been raised against experimental legislation and sunset clauses, namely, the potential violation of the principles of legal certainty, equal treatment, proportionality and legality.

Method

The research underlying this book was mainly based on qualitative research into the nature of sunset clauses and experimental legislation and the literature on the regulation of innovation. Empirical data was only indirectly used in the process of exploring the outcomes of the implementation of sunset clauses and experimental laws.[7] For this purpose, evaluation reports elaborated by sunset commissions, ministries and national or local committees, and other documents containing empirical data about the execution of pilot projects, have been selected. Since most lawyers are not familiar with sunset clauses and experimental legislation, a number of examples of these instruments from different jurisdictions will be provided throughout the book.

  • [1] See Julius Ofner, ‘Das Experiment im Recht, Vortrag gehalten in derJuristischen Gesellschaft in Wien 28 Dezember 1881’ in Beitrage zur exacteRechtswissenschaft (1883).
  • [2] Georg Stratker, ‘Experimentierklauseln im Kommunalrecht’ in MaximilianWallerath (ed.), Verwaltungserneuerung (Nomos, 2001).
  • [3] Volker MaP, Experimentierklauseln fur die Verwaltung und ihre verfas-sungsrechtlichen Grenzen (Duncker & Humblot, 2001) 19.
  • [4] Hans-Detlef Horn, Experimentelle Gesetzgebung unter dem Grundgesetz(Duncker & Humblot, 1989).
  • [5] In 2005, the introduction of a sunset clause was suggested in every newregulation in order to tackle overregulation, see for example, the proposalsubmitted to the Bundestag, on the enactment of sunset clauses in the context ofthe combat of terrorism, available at www.bundestag.de/blickpunkt/101_Themen/0507/0507044_3.htmlhttp://www.bundestag.de/dokumente/analysen/2007/Terrorismusbekaempfung_kor.pdf.
  • [6] The opinions of the Dutch Council of State regarding the legality ofexperimental legislation in the light of the basic principles of law will beanalyzed in Chapter 3.
  • [7] For an empirical study of the enactment of temporary legislation, seeFrank Fagan, Law and Limits of Government: Temporary versus PermanentLegislation (Edward Elgar, 2013).
 
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