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Legality Framework

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’.[1]

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,[2] 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.[3] 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.[4] 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).[5] 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.[6]

A legality framework for the enactment of experimental legislation requires the following:

  • (1) 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 made by Parliament.
  • (2) ‘Essential decisions’ will be in question when:
  • (i) an experimental regulation or provision is susceptible of affecting to a considerable extent the concretization of fundamental rights;
  • (ii) the experiment may hinder the materialization of a fundamental constitutional principle;
  • (iii) the experiment interferes with the granting of substantial benefits or implies the imposition of considerable burdens on citizens;
  • (iv) the Constitution explicitly reserves the subject to the legislator;
  • (v) in the case of EU Member States, the implementation of EU law may be put at stake.

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:

  • (a) the goal(s) of the experiment: the legislator should formulate as unambiguously as possible its intent and the need for the experiment. The definition of goals does not exclude the possibility to employ indeterminate concepts, particularly when the experimental regulation aims to assist the legislator in gathering more information regarding a new approach to a new problem. However, guidance as to the interpretation of these indeterminate concepts should be provided in order to avoid granting excessive discretion to administrative organs;
  • (b) the ‘direction’ and ‘extent’ of the experiment: the term ‘direction’ refers to the type of delegation to be executed. This means the legislator should be explicit about whether authorization is given to derogate from existing laws enacting parallel experimental rules applicable to a part of the population or rather exempt or waive a number of rules or standards for a determined period. In addition, the ‘extent’ of the experiment should be defined, notably by including an explicit list of the articles or sections of a law that the experimental regulation can waive or derogate from;
  • (c) the duration of the experiment;
  • (d) the evaluation criteria and deadline to submit the public evaluation report of the experiment to Parliament: if possible and adequate to the situation in question, the institution performing this evaluation and the auxiliary expert commissions assisting the evaluation should also be mentioned. Ethical commissions[7] can be of great assistance when socially and ethically controversial regulations are at stake;[8]
  • (e) a reasonable deadline for the institution implementing the experiment to decide on the evaluation report: the establishment of internal sanctions in case of the violation of this deadline or the obligation to decide could ensure that this framework is respected. This possibility depends, however, on national rules regarding delegation, notably the possibility of parliamentary or judicial scrutiny of legislation. In some cases, statutory dispositions are derogated from by experimental secondary legislation because the legislator wishes to verify whether these new dispositions would be more effective than existing law. Should this be the case, it is up to Parliament to consider the results of this experiment and decide whether the statute should be amended according to the information obtained.

  • [1] Alexander Hamilton (Publius), Federalist Paper No. 78, IndependentJournal, 14 June 1788, available at http://avalon.law.yale.edu/subject_menus/fed.asp.
  • [2] In the Netherlands, there is a long-standing belief that laws (statutes) areabsolute and inviolable. This was expressed in the expression ‘de wetten zijnonschendbaar’ which was included in the original version of art. 131 of theDutch Constitution of 1848. In art. 120 of the current Dutch Constitution(version as of 2013) it is stated that ‘the constitutionality of Acts of Parliamentand treaties shall not be reviewed by the court’ (‘De rechter treedt niet in debeoordeling van de grondwettigheid van wetten en verdragen’).
  • [3] See HR, 14 April 1989, NJ 1989, 469 (Harmonisatiewetarrest).
  • [4] Hoge Raad, 6 March 1864, W2646 (Pothuis).
  • [5] Dutch Constitution, art. 94 reads: ‘Binnen het Koninkrijk geldendewettelijke voorschriften vinden geen toepassing, indien deze toepassing nietverenigbaar is met een ieder verbindende bepalingen van verdragen en vanbesluiten van volkenrechtelijke organisaties’.
  • [6] HR, 16 May 1986, NJ 1987, 251 (Landbouwvliegers).
  • [7] W. Hoffmann-Riem, ‘Les lois experimentales en Allemagne’ in C.Morand (ed.), Evaluation legislative et lois experimentales (Presses Univer-sitaires d’Aix-Marseille, 1992).
  • [8] See Chapter 2 for examples on the temporary law on experiments withembryos and stem cells.
 
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