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Considering the multiplicity of functions that sunset clauses and experimental legislation can perform, these legislative instruments deserve the preference of legislators in various situations. The decision on whether to choose a lasting law or a temporary legislative instrument requires consideration of different elements and posing a number of questions.

Nature of the Problem or Sector

According to Daniel Farber, the nature of the underlying problem or the characteristics of the sector at stake determine to a great extent the choice of a permanent or a temporary legislative or regulatory instrument. If the circumstances and available information change slowly and sufficient information is available, then a permanent law or regulation will be more


appropriate (for example, laws on land tenure).[1] However, a dynamic approach to legislation might be required to ensure constant adaption to social needs and technological innovation. This occurs, for example, in technologically innovative sectors such as telecommunications, or socially innovative fields like poverty reduction or integration of minorities. Under a scenario of limited and rapidly changing information, sunset clauses and particularly experimental legislation have been argued to be the most effective instruments.[2]

In Germany, the literature has also acknowledged that in rapidly changing sectors, including telecommunications, the uncertainty as to the effects of regulations justify the need to adopt experimental laws or regulations and grant regulators the competence to deviate temporarily from existing laws in order to experiment with regulatory solutions that advance innovation.[3] Rupert Stettner argues that in complex fields, where forecasting the effects of new regulations may seem particularly intricate, experimental laws and regulations would be valuable tools. These would help legislators ‘define our future in a more rational and organized [way]’.[4] The scholar adds that this rationalization of the lawmaking process based on ‘trial and error’ and ‘conjectures and refutations’ pertain to the central task of the legislator.[5] This position is supported in the jurisprudence of the German Constitutional Court which acknowledges that legislators should be allowed to ‘build legislation by incorporating gathered information and experience’.[6]

The argument that sunset clauses and experimental legislation should be employed in fast changing fields characterized by lack of information, risk and uncertainty has also been defended in the Netherlands. Here, Van Gestel and Eijlander argue that, under uncertain circumstances, the use of sunset clauses would not only be appropriate but would also contribute to the reduction of uncertainty, particularly when the latter derives from risks such as potential harms to the environment or food safety.[7] The scholars refer to the use of sunset clauses on an experimental basis to limit the risks of the introduction of new regulations. They consider that, by ‘precautionary’ experiment with the regulation of new products, it would be possible to gather more information and evidence, and verify whether this regulation is effective.[8] This would enable legislators to protect the general public from regulatory risks, without depriving them of the benefits of potentially innovative products. It must be underlined that the use of sunset clauses or experimental legislation does not replace sufficient laboratory testing.

  • [1] Daniel A. Farber, ‘Environmental Protection as a Learning Experience’(1993) 27 Loyola of Los Angeles Law Review 791, 798.
  • [2] Ibid. 798.
  • [3] Holznagel, ‘Innovationsanreize durch Regulierungsfreistellung vomUmgang mit neuen Diensten und Markten im Medien und TK-Recht’, n. 96above.
  • [4] Stettner, ‘Verfassungsbindungen des experimentierenden Gesetzgebers’,n. 61 above, 812.
  • [5] Ibid. 812.
  • [6] Decision of the German Constitutional Court, 1 BvR 213/58, 27 January1965, BVerfGE 18, 315.
  • [7] Eijlander and van Gestel, Horizonwetgeving: effectief middel in de strijdtegen toenemende regeldruk?, n. 75 above, 23.
  • [8] Ibid. 23.
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