Home Law Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
LEGALITY FRAMEWORK AND THEORIES OF DELEGATION
Although the theory of essentiality constitutes the main source of inspiration for the legality framework presented above, the American non-delegation theory and the Dutch literature on delegation have also played an important role in the design of the above-suggested legality conditions. These three doctrines are here extensively described and analyzed in an attempt to identify the ‘essential elements’ of any experimental legislative act that may be common to these three jurisdictions.
Theory of Essentiality (Wesentlichkeitstheorie)
In the German literature, the areas reserved to Parliament (Vorbehalt des Gesetzes), the traditional intervention in ‘freedom and property’ (Ein- griffe in Freiheit und Eigentum), do not encompass the possibility to delegate the competence to experiment with essential decisions. This traditional concept has been expanded in the last decades and reinterpreted by the German Constitutional Court as the imperative that ‘the essential decisions for the concretization of fundamental rights’ should be made by the legislator (Gesetzgeber).38 It is on these grounds that the first part of the suggested legality framework will be explained:
(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 taken by Parliament.
This part of the legality framework raises the following questions: what type of underlying problems or situations should be considered here? What are the essential elements that should be reserved to the formal legislator and, therefore, excluded from legislative delegation?
The answer to the first question is inspired by the doctrine of the parliamentary reservation (Gesetzesvorbehalt) and the criteria of the ‘theory of essentiality’ (Wesentlichtkeitstheorie). This section develops their concretization so as to distinguish between the elements that should be determined by the formal legislator and those that can be delegated. The parliamentary reservation and the theory of essentiality derive from the Rechtsstaatsprinzip and the Demokratiegebot, which require that no delegation of decisions on essential aspects of the concretization of fundamental rights - not even on an experimental basis - should occur. This is, however, far from being a rigid rule of thumb, instead further clarification and illustrations are required.
In the light of the Wesentlichkeitstheorie, the greater the relevance for or the interference of a regulation with fundamental rights (Grund- rechtsrelevanz), in other words, the interference with the fundamental rights in the sphere of stakeholders, the more necessary the intervention of the Parliament will be.  According to the German Federal Administrative Court, the enactment of legal provisions on ‘the benefits granted to civil servants, judges and elderly beneficiaries’ is reserved to the formal legislator.
In the case of experiments, it must be determined how relevant the experimental rules will be in concrete for citizens: the greater the relevance, the more accurate the legislative dispositions on the experiment should be. This theory is based on democratic concerns: democratically elected legislators should be the ones issuing the essential decisions that affect the citizens’ fundamental rights because of their democratic legitimacy. Therefore, the first criterion to determine whether an element is essential and points in the direction of the Wesentlichkeitstheorie is its ‘fundamental rights’ relevance (Grund- rechtsrelevanz), in other words, its significance for the materialization of fundamental rights.
The main concretizations of the so-called Grundrechtsrelevanz have been: (a) the ‘intensity of the affected fundamental rights’ which can be measured by the individual or collective long-term effects of the regulations enacted; and (b) the proximity of the possible interdependency of the law and the intervention in the fundamental rights, in other words, ‘essential elements’ will only be the immediate and direct intended effects of a rule. An Act of Parliament will not be required when the relation between the experiment to be enacted and the intervention in fundamental rights is not immediate but rather the result of a chain of actions. This theory is of particular importance, for example, in the field of education where it is widely accepted that regulations with a direct and immediate interference with fundamental rights should be determined by the parliamentary legislator.
A second criterion to determine ‘what is essential’ refers to decisions that are significant for other founding principles of the Constitution and their materialization. This is the case of the Rechtsstaatsprinzip and the principle of separation of powers, namely, the independence of the judiciary.
A third category of essential decisions in the organizational or administrative sector is connected with the elements that are fundamental for the performance or grant of state subsidies or benefits and that are not unilateral and exclusively reserved to the executive.
In light of the mentioned criteria developed by the German Constitutional Court, it is possible to name clear examples of ‘essential decisions’ that should exclusively be taken by the Parliament: decisions on war and peace involving the concrete and verifiable expectation of the involvement of German soldiers in armed conflicts; or decisions on the absolute requirements constraining the admission and choice criteria (‘numerus clausus’) at public universities. In contrast, decisions concerning the execution of benefits, rather than their attribution, can be left to the executive.
According to the German Constitutional Court ‘only the legislator has a prerogative of evaluation to assess the actual developments ... and react to the changed circumstances’. The measure in which the legislator should ‘determine the guidelines necessary for [the situation at stake] depends on its relation to fundamental rights’. The constraint of fundamental rights cannot be derived from general duties, for example, under civil service law or of other public nature; instead, and as demonstrated in example 3.1, an explicit statutory basis should be provided.
EXAMPLE 3.1 PROHIBITION TO WEAR HEADSCARVES
In this case, a constitutional complaint was made against a decision of the Stuttgart Higher School Authority, considering that the petitioner could not be appointed as a civil servant as a teacher at German primary schools on the grounds of her declared intention to wear a headscarf. The German Constitutional Court affirmed that in this case ‘the necessary and sufficiently determined statutory basis [did] not exist to decide that teachers of the Islamic faith [wearing headscarves] lack aptitude for service at the primary school and non-selective secondary school and thus to restrict their fundamental right under Article 4 of the Basic Law’. The German Constitutional Court affirmed that a restriction on the freedom of religion (German Basic Law, article 4(1) and (2)) - a fundamental right which is unconditionally guaranteed - required ‘a sufficiently definite statutory basis’. The Court explicitly recognized the possibility for the legislator to introduce the lacking statutory basis, namely, on the grounds of the ‘social change’ associated with ‘the increasing religious plurality’. In this context, the Court declared that ‘the provision that one of the duties of a teacher is to refrain in class from wearing a headscarf or any other indication of religious conviction is a material [essential] (wesent- lich) provision in the [sense] of the case law on the requirement of parliamentary reservation’.
The Wesentlichkeitstheorie is equally applicable to experimental restrictions on fundamental rights: any direct and substantial restriction of these rights, either on a permanent, temporary or experimental basis, should have a clear and definite statutory basis.
As to the definition of ‘essential decisions’, it is important to underline that the fact that there is a political controversy connected with an element does not convert it into ‘an essential one’. Nevertheless, whenever serious interventions in fundamental rights are at stake, the participation of Parliament, if possible associated with a form of demonstrated public opinion, should be required so as to obtain sufficient social support. In the cases where experimental legislative instruments are used to seek political consensus (more than in other areas), the legislator is thus advised to be clear and explicit as to the determination of the essential elements, instead of leaving them to the discretion of the executive. Although the Wesentlichkeitstheorie guarantees that the formal legislator does not lose sight of the legislative process on essential matters, the expansion of this doctrine by state constitutional courts has been criticized for constraining the leeway of the executive of adopting innovative organizational forms. This doctrine has equally been criticized for its lack of clarity, indeterminacy and unpredictability, it even being affirmed that ‘wesentlich ist, was das Bundesverfassungsgericht halt’.
All in all, the reference to the Wesentlichkeitstheorie serves the purpose of enhancing the legitimacy of experimental laws and regulations. Parliament remains the institution that translates the people’s sovereignty and, as such, constitutes the greatest source of legitimacy due to its central role in the representation of the people.
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