LEGAL CERTAINTY AND EXPERIMENTAL LEGISLATION
While sunset clauses can conflict with a static perception of legal certainty interpreted as a synonym of continuity, experimental legislation poses an augmented challenge. First, termination is not the only possible destiny of experimental regulations: these may be terminated at the end of the period determined beforehand; extended to a larger part of the territory or group; or converted into a permanent law. Secondly, legal uncertainty can equally result from the lack of clarity or determinativeness of the objectives and implementation of experimental rules. Similarly to sunset clauses, experimental laws and regulations can be regarded as ‘friends’ or ‘foes’ to the principle of legal certainty.
Experimental Legislation: A ‘Foe’ to Legal Certainty
The Dutch Council of State has expressed on numerous occasions its apprehension as to a potential tension between experimental legislation and the principle of legal certainty. This institution has not been the only one to do so. In the context of parliamentary discussions, there has equally been reference to the risk of uncertainty arising from experimental regulations. In Germany, the use of experimental legislation has also been criticized and there have been voices in the literature calling for a return to the traditional paradigms of continuity and constancy of law for the sake of the protection of the principle of legal certainty. This was the case with Walter Leisner, who in the 1980s called for a reinforcement of the ‘Zukunftssicherheit der Gesetze’ (the future certainty of laws), which should include a prohibition on experimenting with legislation and the enactment of temporary laws. Although the European Union does not play a central role in this study, the scepticism of the jurisdictions under analysis may also be visible in EU policy and rulemaking documents. Example 4.1 on the experimental Directive on VAT rates on labour-intensive services illustrates the potential uncertainty caused by the enactment of experimental rules and their impact on citizens.
EXAMPLE 4.1 EXPERIMENTAL REDUCED VAT RATES
In the EU context, the relationship between experimental legislation and the principle of legal certainty has not always been peaceful. It has been claimed that the uncertainty inherent to experimental legislation can produce negative effects on private actors who may decide to delay investment decisions until the permanent law is enacted. For example, in the EU experiment with reduced VAT rates on labour-intensive services, in the Dutch evaluation report it was stated that the lack of impact of the reduced rate on consumer prices was partially explained by the ‘uncertainty as to whether the measure would be made permanent (35%)’.
The uncertainty allegedly caused by experimental legislation does not produce the same impact on entrepreneurs who are in principle endowed with better means of making prognoses regarding future legislative changes and complying with them. The average citizen might find exposure to temporal laws inconvenient; however, an experimental law or regulation does not expose her to a ‘bare uncertainty’ concerning future legislative developments. This argument was put forward (and accepted) by a German county (Landkreis) before the Berliner Gerichte fur Arbeitssachen in a case involving an experimental clause (see example 4.2).
EXAMPLE 4.2 EXPERIMENTAL CLAUSES AND ‘BARE UNCERTAINTY’
In this case, the parties were disputing the effectiveness of the provisional employment contract of the petitioner. The influence of an experimental clause on the duration of the labour contract was one of the main legal issues under analysis. This experimental clause was incorporated in section 6a SBG II which conferred on municipalities, on an experimental basis, the competence to grant unemployment benefits. This power used to pertain to employment agencies. The experimental period was six years and it imposed a restructuring of the services of the defendant (the Landkreis). The court decided that when the petitioner signed her labour contract, she was not exposed to ‘bare uncertainty’ regarding the termination of her contract in 2010 (sunset of the experimental clause). The Berlin court pointed out that at the time of the signature of the labour contract, it was unclear what the legislator would do at the end of the experiment. Therefore, the petitioner could not count on an extension of her contract beyond the experimental period, because the results of the experiment were not then known. Should the defendant be given the competence to grant employment benefits, it would be required to maintain the current number of employees, otherwise some of them would have to be dismissed.
In the case described in example 4.2, the defendant argued that the enactment of an experimental regulation introducing alternatives to the existing rules on the reintegration of job-seekers should be regarded as an appropriate technique for gaining experience and knowledge, which being clearly limited to a five-year period does not expose the citizen to ‘bare uncertainty’. The employment of experimental clauses was not criticized by the Berlin court.
The argument that private actors might be hesitant to invest due to the lack of trust generated by experimental legislation has not been sufficiently proven and remains at the theoretical level. Entrepreneurs do not expect to encounter absolute certainty: uncertainty is ‘part of the innovative business’ and is inherent to doing business. Under uncertain circumstances and constant changes caused by rapid technological developments, sunset clauses and experimental regulations may be regarded as regulatory options that grant the greatest ‘planning certainty’ to private actors. This has been argued in Germany in the context of the regulation of access networks in the field of telecommunications. In this context, experimental regulations can be regarded as ‘a friend’ rather than a ‘foe’ to legal certainty.
-  An example of this objection was the Opinion of the Council of State of 8June 2009, No. W13.09.0098/I, Voorstel van wet tot wijzing van de Drank- enHorecawet met het oog op de terugdringing van het alcoholgebruik onder metname jongeren, de voorkoming van alcoholgerelateerde verstoring van de open-bare orde, almede ter reductie van de administratieve lasten.
-  This is the case of the discussion of the 1998 Telecommunications Law inthe Dutch Senate, see Eerste Kamer, Telecommunicatiewet, Wet van 19 oktober1998, Toelichting op artikel 18.1 lid (Kamerstuk 25 533, no. 3, blz. 135). It isexplicitly affirmed that legal certainty should be taken into account whenenacting experimental laws/regulations which derogate from the existing regime.
-  See Walter Leisner, ‘Gesetz wird Unsinn ... Grenzen der Sozialgestaltungim Gesetzesstaat’ (1981) Deutsches Verwaltungsblatt 849. See also WalterLeisner, Staatsrenaissance. Die Wiederkehr der guten Staatsformen (Duncker andHumblot, 1987).
-  Leisner, ‘Gesetz wird Unsinn ...’, n. 67 above, 855.
-  LAG Berlin-Brandenburg, Berliner Gerichte fur Arbeitssachen, Judgmentof 25 August 2011, 14 Sa 977/11, BeckRS 2012, 70177.
-  Ibid.
-  Christian Kirchner and Thorsten Kaseberg, ‘§9a Neue Markte’ in Klaus-Dieter Scheurle and Thomas Mayen (eds), Telekommunikationsgesetz: Kommen-tar (C.H. Beck, 2008) 123, 125.