Patricia Popelier

Preliminary Comments on the Role of Courts as Regulatory Watchdogs

Abstract This article is an introduction to the special issue on the role of courts as regulatory watchdogs. It offers an oversight of process review and the use of regulatory tools in administrative and constitutional adjudication. In discussing the most common objections against attributing to courts a role as regulatory watchdog, this article touches upon several aspects related to this topic and introduces the contributions in this issue.

Five Paradoxes on Legal Certainty and the Lawmaker

Abstract The principle of legal certainty is becoming popular as a legal tool to fight uncertainty in the legal order. At the same time the very fundaments of the principle are at issue. The transformation of the principle of legal certainty into a legal tool may lead to unrealistic expectations. In order to grasp its meaning and to understand what the principle of legal certainty can and cannot do as a legal tool, the paper aims to disentangle five paradoxes. In suggesting solutions, it focuses on the meaning of legal certainty as a principle of proper law making, directed to the authors of written laws.

The role of courts in legislative policy diffusion and divergence

ABSTRACT A particular blueprint of legislative policy seems to have conquered western democracies. It comprises a set of regulatory tools such as impact assessments, consultation procedures, ex post evaluation and alternatives for regulation. At the same time, policy diffusion does not seem to lead to policy convergence. Literature in political science and public administration has pointed out a variety of factors to explain both policy diffusion and policy divergence, omitting, however, the potential role of courts. This article takes a legal perspective to this issue, by arguing, first, that courts contribute to policy diffusion of a rational model of regulatory policy and exploring, second, the extent to which courts take into account factors that hamper policy convergence.

Europe Clauses and Constitutional Strategies in the Face of Multi-Level Governance

This paper is confined to the question how national constitutional systems secure the jurisdictional integrity of both national and European law within national boundaries while at the same time providing legitimacy for European claims of authority within the national legal system. Constitutional strategies are composed along three strands: enabling strategies, impact strategies and three-layered strategies. This paper focuses on enabling strategies, using a comparative analysis to identify efficacy strategies vs legitimacy strategies. It concludes with criteria for the adoption of the ‘best strategy’, based upon considerations of national tradition and sentiments, legitimacy interdependency and the duty to challenge, and a striving for harmonious co-existence.

Bicameralism in Belgium: the dismantlement of the Senate for the sake of multinational confederalism

Abstract Belgium was established in 1830 as a unitary state with a bicameral parliament, with symmetrical powers for the upper and the lower house. While federalism and bicameralism are often considered a pair, the Belgian system shows an inverse relationship. The Senate gradually turned into a house representative of the sub-states, but its powers declined inversely proportional to the level of decentralisation of the Belgian state. This paper inquires how the dismantling of the Belgian Senate fits in the increasingly devolutionary nature of the Belgian state structure. First, it nuances the link between bicameralism and federalism: bicameralism is an institutional device for federalism, but not by necessity, and only under specific conditions. The official narrative is that the Belgian Senate was reformed to turn it into a house of the sub-states in line as a federal principle, but in reality the conditions to fulfil this task are not fulfilled. Instead, the paper holds that bicameralism in Belgium is subordinate to the needs of multinational conflict management, and that complying with the federative ideal of an upper house giving voice to the collective needs of the sub-states would stand in the way of the evolution of the Belgian system towards confederalism based on two major linguistic groups.

Evidence-based judicial review of legislation in divided states: the Belgian case

ABSTRACT This paper presents a case study on the Belgian Constitutional Court to examine why courts in some countries are more inclined to review legislation on an evidentiary basis than courts in others. It analyses how the Court, when assessing Parliamentary Acts, deals with scientific evidence used in the legislative process or the lack thereof. Subsequently, four hypotheses are examined that might explain the limited use of scientific evidence in the jurisprudence of the Belgian Court. Of these hypotheses, the judges’ expertise, the infancy of better regulation programmes, and the political context seem to offer the most plausible explanations.

Article 260 TFEU Sanctions in Multi-Tiered Member States

Abstract The question at hand is located at the intersection of EU law and national constitutional law, and aims to answer the following problem: namely, how to mitigate federal concerns in the context of infringement procedures and financial sanctions under art. 260 TFEU. This article approaches this question both from the perspective of the Commission and the Court of Justice, as well as from the vantage point of the central and regional governments involved. After analysing the composition of the financial sanctions, we cover the involvement of subnational entities in the infringements proceedings in six tiered Member States (Austria, Belgium, Germany, Italy, Spain, and the UK) and the relevant national provisions for the partition of financial sanctions. The conclusions pertain to both the central and regional level and the EU institutions concerned, adhering to the multi-level relationship subjacent to this article.

The Ability to Deviate from the Principle of Retroactivity: A Well-Established Practice Before the Constitutional Court and the Council of State in Belgium

In Belgium, every judicial decision has, in principle, retroactive effect. Parliament gave the Constitutional Court and the Council of State the ability to deviate from this initial retroactive effect when the Court or Council deems this necessary. It appears from the Constitutional Court’s case law that the Court repeatedly makes use of this ability to attach prospective effects to its decisions. A variety of reasons is given to justify a temporal modulation, such as the protection of legal certainty, the prevention of financial and/or administrative difficulties and the possibility for Parliament to revise the annulled norm. Similar considerations are invoked before the Council of State, but the latter is much more reluctant to deviate from the initial retroactive effect and it imposes a higher burden of proof on to the requesting parties. Since the recent law reform of 2014, the Council is moreover deprived of the power to modulate ex officio the retroactive effect of its annulment decisions.

The Constitutional Adulthood of Multi-Level Governance

It is hardly an overstatement that the discipline of constitutional law is in a state of fl ux. Triggered by decades of growing globalization and localism, the hierarchical paradigm installed by the nation-state, with a national constitution at its apex, is untenable and increasingly lacks explanatory force. Reconsidering the scope of operation of constitutional systems, and moving beyond a national nucleus, gives rise to questions pertaining to the nature of constitutional law, its objects and subjects, and its ability to convey legitimacy in the 21st century. At the etymological heart lies the question: who or what is constituted, in both a positive and negative sense, and in what manner?1 Th is special issue approaches this question from the angle of multi-level governance (MLG), a concept originating in political science that captures the multilayered dynamics of power-exercise and policy-making beyond a narrow, rigid and national structure. Multi-level governance off ers a potent conceptual framework for understanding the actual process of decision-making.2 It captures three contemporary phenomena: political mobilization within and beyond national boundaries through both conventional and non-conventional procedures; a policy-making process that includes a wide range of actors, public and private,3 across diff erent levels; and the rise and conversion of diff erent

Constitutional Tort Liability and the Prudent Legislature

Abstract In 2006, the Belgian Court of Cassation laid down the liability of the Belgian State for loss and damages caused by a fault for which the legislature can be held responsible. This is the next step in the evolution of State liability, which had been triggered earlier by European Court of Justice case law in the case of a violation of European Union law. In this paper it is argued that objections against State liability for the legislature are mainly arguments against constitutional review. Once constitutional review is accepted in a legal system, the case for State liability for the legislature rests on the rule of law and corrective justice. Considering the specific nature of statutes, restrictions to State liability are acceptable, but only in so far as there is an actual danger of disproportionate harm. The Belgian courts, when dealing with State liability for the legislature, do not directly review against a standard of care, but a standard of care is nevertheless incorporated in the review against constitutional rules and principles.