Home Law Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
Delegation in the Netherlands
Legislative delegation in the Netherlands is presumed to be prohibited unless the Constitution explicitly grants this option to the formal legislator. A specific terminology referring to the possibility to ‘regulate’ (‘bij of krachtens de wet’, ‘regels’ ‘regelen’ or ‘regeling’) indicates whether the formal legislator can delegate its legislative competence. Parliament has, on the grounds of article 81 of the Dutch Constitution, a general competence to legislate but, as mentioned earlier, this does not mean that this organ is always allowed to delegate about any subject. In order to ensure this, it is not sufficient to impose this obligation to refer to the statutory ground but to provide adequate guidance while leaving enough discretion to the executive.
Just as in Germany, the constitutional prohibition to delegate does not mean that administrative actors are not allowed to regulate in the fields covered by such prohibition but rather that the ‘essential provisions concerning the subject in question must be legislated by an Act of Parliament (wet in formele zin)’.
The interpretation of instructions 22, 23 and particularly 24 of the Instructions for Legislative Drafting (aanwijzingen voor de regelgeving) provides more information as to what should be defined by Parliament and what should be understood as an ‘essential’ or ‘main’ element. The choice as to ‘which elements should be in the statute and which ones can be delegated’ should be guided by the primacy of the legislator. This primacy does not mean that Parliament should define all elements of a statute, but rather the most important legal-political choices that should be included in it. According to the explanatory note to instruction 22 ‘essential elements’ are the ‘scope’, ‘the structural elements of the regulation’ and, when applicable ‘the main permanent norms’. Van Gestel argues that this note is misleading since it further reads that ‘in the interest of accessibility, it may be advisable not to include substantive norms in an Act of Parliament, but to leave it to a subordinate legislative authority to draw up an integrated substantive regulation’. The mentioned scholar considers that this part appears to ‘undermine the whole idea behind the primacy of the parliamentary legislator’.
According to instruction 23, whenever the Constitution requires the intervention of the formal legislator, this should be interpreted as a prohibition to delegate. As in Germany, in the areas reserved to Parliament, the ‘essential elements’ (wezenlijke elementen) should be defined by the formal legislator. In the Netherlands, this concept is less concretized and almost leads us to a word game: ‘the main elements of a regulation are the structural elements of a regulation, which should constitute the essential provisions with reference to the subject at stake’.
According to Zijlstra, since delegation, broadly considered, implies the transference of a competence which will be directly exercised by the delegatee, the legislator is not allowed to provide the former with instructions regarding the execution of the delegated competences. Nonetheless, this does not mean that, in the case of legislative delegation, the legislator cannot explicitly declare whether the enactment of regulations on an experimental basis should be allowed. Instead, as demonstrated in the context of the analysis of German and US literature and case law, the decision to delegate the possibility to enact experimental regulations must be explicitly stated in the statutory basis. Moreover, a close connection between delegation and experimental regulation should be expected, since in the words of Eijlander, Voermans and Lokin, delegation is the appropraite mechanism to ‘experiment and anticipate new developments’ which also means diverging from the existing legal standards and allowing (and assessing) the introduction of innovative solutions on a small scale. The authors quote the example of article 18(1) of the Telecommunications Act which foresaw the enactment of rules in deviation from it. The idea was then to test if certain developments could promote the achievement of the statute’s objectives.
The executive is usually not obliged to experiment with rules, but it can do so. The legislator must, however, find it ‘necessary’ to grant this possibility, which may at first convey the idea that experimental regulations should not be a first choice. Such conclusion can be drawn from the Instructions for Legislative Drafting (aanwijzingen voor de regel- geving): instruction 10a provides an explicit legality framework for the enactment of experimental regulations. This instruction provides a ground of delegation for experimental regulations, specifying that ‘a [hierarchically] lower regulation can diverge from a [hierarchically] higher regulation on an experimental basis’. Nevertheless, in the higher act, it should be listed from which provisions or parts this derogation is allowed. The lower and experimental regulation should refer to the ground of delegation.
Instruction 10a(2) of the Dutch Instructions for Legislative Drafting contains further guidelines for the divergence from a statute: only a governmental decree (algemene maatregel van bestuur) can deviate from the rules laid down in a statute (see example 3.2). The instruction also adds that ‘subdelegation’ may be allowed if a more detailed implementation is required.
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