Home Law Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
Experimental regulations can in principle be enacted in a number of fields but their enactment must be bound by the principle of legality and grounded on a clear legal basis. Depending on the subject matter, the constitutional requirements in a given legal system, the nature of the underlying problem or situation at stake or desired experimental intervention, the experimental legislative instrument might require that ‘the essential decisions’ are taken by Parliament. This is important for the safeguarding of the principle of legality, particularly for jurisdictions that do not possess a Constitutional Court (such as the Netherlands) which can control ex post the constitutionality of these essential decisions or their omission.
The US Supreme Court and the German Constitutional Court (see German Constitution, article 93) are entitled to review statutes for consistency with the Constitution, principles of law and other statutes, and in the German case, with EU law as well. The power to proceed to judicial review is not explicitly mentioned in the US Constitution but it results clearly from the scope, text and history of the Constitution. An important document in this context is Federalist Paper No. 78 by Hamilton where the courts are described as ‘the intermediate body between the legislator and the people’ whose duty ‘must be to declare all acts contrary to the manifest tenor of the Constitution void ... [because] no legislative act ... contrary to the Constitution can be valid’.
In the Netherlands, there is no court comparable to the German Constitutional Court nor does the Supreme Court (Hoge Raad) have the competence to review acts of Parliament in the light of the Constitution or unwritten principles (Dutch Constitution, article 120). A superficial analysis of article 120 of the Dutch Constitution, which forbids such judicial review, would bring us to the immediate conclusion that there is no ex post control of sunset clauses or experimental laws in breach of the Constitution or unwritten principles of law. This is not, however, entirely true. First, since the case of Pothuis in 1864, it has been acknowledged that ordinary courts can control the constitutionality and legality of regulations. Secondly, in the light of article 94 of the Dutch Constitution, statutes (or acts of Parliament) which are enacted in breach of international treaties will not be applied (but they cannot be declared unconstitutional). Thirdly, regulations can be subject to judicial review and most experimental acts are in fact regulations (secondary legislation), which means that they can be judicially reviewed in all the three countries under analysis. This judicial review refers not only to the appreciation of the consistency of regulations with the Constitution, EU law and international treaties (Dutch Constitution, article 94), but also, since the 1986 HR Landbouwvliegers case, the conformity with unwritten principles of law.
A legality framework for the enactment of experimental legislation requires the following:
On essential elements reserved to Parliament, no delegation is allowed.
These essential decisions can be concretized in a myriad of elements that
should be exclusively and explicitly determined by the legislator in the
statutory basis delegating the competence to experiment:
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