Introduction to Public Law of EU Countries PDF

Introduction to public law of EU countries LESSON 1: the concept of nation states I - INTRODUCTION: What is a “nation”? Cambridge dictionary: a large group of people of the same race who share the same language, traditions, and history but who might not all live in one a...

Introduction to public law of EU countries LESSON 1: the concept of nation states I - INTRODUCTION: What is a “nation”? Cambridge dictionary: a large group of people of the same race who share the same language, traditions, and history but who might not all live in one area Ernest Renan: a nation is a desire to live together, “nation is a soul, a spiritual principle” What is a “nation state”? territorially bounded sovereign policy ruled in the name of a community of citizens identifying themselves as a nation II – EMERGENCE OF NATIONS AND NATION STATES 1st nation state in EU: Spain 1478: king John II Aragon died Ferdinand the catholic his son married Isabel queen of Castilla and Leon The new king decided to unify these kingdoms 1492: Granada was defeated Ferdinand deported population out the country – wanted a population with the same language and history 2nd nation state: France Concept of nation important in France because nation= a way to fight absolutism BEFORE: the rule of God justified the source of the power – they justified the source of the power by the nation Article 3 DHCR: “the principle of any sovereignty lies primarily in the nation. No corporate body, no individual may exercise any authority that does not expressly emanate from it” War against Prussia 1870 –> we lost the war –> reinforced national feeling 3rd nation state: Italy Same as France and Spain Mazzini (writer): feeling that there was an Italian nation Italy was divided in several kingdoms King of Piemonte and his PM Cavour asked for help for France to unify Italy France got 2 territories in exchange: Nice County and Savoie Official reason: the population wasn’t real Italian Mass revolution started everywhere in Italy –> monarch left, and the population voted in favor of unification with Piedmont-Sardinia 1860: garibaldi-led army helped annexing southern Italy 1861: victor Emmanuel II became the 1st king of Italy 4th nation state: UK In 2019: 67 million people lived in the UK  56 England 6 Scotland 3 Wales 2 Northern Ireland UK = multinational state Difference between nationality and citizenship =/nationalities but 1 citizenship Nationality: ethnic concept Citizenship: legal concept The crown has also dependencies overseas (own parliament and tax system) – Jersey, Guernsey territories (self-governed) – Gibraltar, Chacos, Bermuda Historical process England 5th to 8th century: several German tribes invaded England and established 7 kingdoms 8th century: invasions by Vikings and Norsemen 1016 Saxons defeated by Danes 1066: Norman invades the England – battle of hasting Wales 1283: annexation of Wales 1536: England and Wales came under 1 administration Scotland 1312: failed invasion of Scotland 1707: act of union – unification of the kingdom of England and Scotland Ireland 1611: colonized –40 years later natives Irish men defeated : British rules applied XX century: Irish nationalism grew – executed the leader and send people to jail: repression 1918: general elections in Ireland and the pro independent party won Northern Ireland decided t remain with the UK 1949: republic of Ireland was proclaimed 5th nation state: Germany XIXs Holy roman empire was made of lots of kingdoms No common national feeling but they shared culture, language, and laws 1815: congress of Vienna: creation of the German confederation – 39 states Those states came closer thanks to Technological dvp Liberalism Rejection of Austrian rules: emperor of Austria decided to be at the head of the German confederation during the congress of Vienna (wanted to prevent Prussia from extension  again) Creation of Zollverein: creation of the custom union – Austria refused to be part of it –> consolidated the union of the members 1848: mass demonstration started everywhere in the confederation In favor of German unity and freedom 1st time the German flag was used Emergence of a national feeling Bismark: Prussian state man who had plans for unification of Germany Did several wars to this end 1864: against Denmark who defeated – lost several territories 1866: Prussia defeated Austria – creation of north German confederation with Bismark as a ruler 1870: France declared war to Prussia – France lost January 1871: German empire was proclaimed in the gallery des Glaces in Versailles Start kulturkampf: German language became compulsory Bimsark showed considerable distrust toward catholics III – NATIONAL SOVEREIGNTY AND POPULAR SOVEREIGNTY Section 1: Introduction 1. National sovereignty National sovereignty: Conceptualized by Montesquieu and Seyes Sovereignty One: the nation may only have one will Indivisible: cannot be shared Inalienable: limited length of the mandate Imprescriptible: only temporary 2 consequences Representative mandate Not necessarily universal election 2. Popular sovereignty Popular sovereignty: conceptualized by Rousseau (the addition of the individuals makes the nation) Universal elections Imperative mandates Everyone can vote – election is necessarily universal Direct democracy must be favored but it can hardly be applicable so created “semi direct” = representative democracy + referendums 3. Synthesis of these approaches Semi direct democracy: combination of the 2 approaches Section 2: conceptions of sovereignty in eu states  1. Spain Mix of national and popular sovereignty - References to the nation in the article 1&2 of the constitution Art 92: referendum shall be called by the king – semi direct democracy 2. France Art 3: sovereignty of the population is exercise by the representatives Referendum art 11 Semi direct democracy 3. Italy Semi direct democracy Sovereignty belongs to the people, but the members of parliament represent the nation (Art 1 & 67) Art 75: referendum 4. The UK Parliamentary sovereignty: Parliament represents the people = can pass legislation on everything No parliament may bind another Referendum not compatible with parliamentary sovereignty But in practice they did some referendums: 2016 Brexit 5. Germany Semi direct democracy Representatives (art 30) + referendums for some situations (art 29) LESSON 2: the territorial organization of the European States Introduction: what are the main forms of territorial organization Non unitary – federal state: Germany, Switzerland Unitary state: France I – UNITARY STATES Section 1: The concept of a unitary state THERE IS only the central government which has capacity to pass laws which will apply to the hole  population Everyone is subject to the same government, rules, constitution, laws… Decisions can still be adopted locally (like municipalities) BUT they must comply with those rules defined by the central government Still local decision but to enact legislation - Empowered by central State - Specific fields attributed - Monitored by representative of the central government Ex: France art 1 “France shall be indivisible, secular, democratic and social republic.” Reasons why unitary model Fear of secession States previously annexed: to preserve peace and respect to the new authorities Works very well for small countries Even though France is often viewed as an unitary state – there are some exceptions Alsace and Moselle – specific regime and laws in a couple of fields: heath Holidays Social aids New Caledonia Section 2: Deconcentration and decentralization Deconcentration is a very French concept Centralization may work in a very small state – can be the case otherwise France has never been perfectly centralized: distinction between regions, departments 1. “deconcentration” Definition: the central government of a unitary states decides to delegate some competencies to its own agents who are appointed y the state at a local level They are subject to the hierarchical and sanctioning powers of the latter Sanctions may apply to the acts adopted by their agents: they may be ordered to issue a specific act, to amend or to withdraw it to the agents themselves they may be dismissed if they fail to act properly France: prefets and sous prefets: represents the prime minister and government at the department level Mayors: act in the farmwork of the deconcentration and decentralization Odilon barrot : « c’es tjrs le meme marteau qui frappe on en a raccourci le manche » 2. Decentralization Definition: consists in transferring state competences to a moral person governed by public law (elected, autonomous and no hierarchical power) France’s decentralized authorities: Communes: municipal councilors Departments: prefet Regions: councilors with specific missions, business aids… Section 3: regionalized unitary states – regional states 1. The concept of “regional state” Ex : Italy, Spain, UK… Definition: “intermediary” btwn a federal state and a unitary state: Main = with federal state Autonomy local parliamentary assemblies capacity to adopt regulations within their prerogatives Main =/ with federal state Source of their autonomy: central institutions agree to create these regions and consents to transfer the power to them What is the main weakness of regions in this type of states? Central power is free in theory to take back what he decided: take back the power he gave to regions Dependency of the regions on the will of the central power 2. Spain 1. Introduction Art 2 constitution: the constitution is based on the indissoluble unity of the nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all 15 autonomous regions 2. Power sharing Art 148 = matters where the self-governing communities may have competences Art 149 = matters where the state has exclusive competence Regalian fields: international relations, army, Intellectual property, monetary system, resources What appends if a competence is not in the list – if it wasn’t attributed –> autonomous communities Art 143 §3: “matters not expressly assigned to the state by virtue of the present constitution may fall  under the jurisdiction of the Autonomous Communities by the virtue of their respective statutes” 3. Statute of autonomy Art 147 1. Statutes of autonomy shall be the basic institutional rule of each self-governing community and the state shall recognize and protect them as an integral part of its legal system 2. The statutes of autonomy must contain The name of the community which best correspond to its historic identity Its territorial boundaries The name, organization, and seat of its own autonomous institutions The powers assumed within the framework laid down by the constitution and the basic rules for the transfer of the corresponding services 3. Amendment of Statutes of Autonomy shall conform to the procedure established therein and shall in any case require approval of the Cortes Generales through an organic act Art 146: the draft statute of autonomy shall be drawn up : by an assembly consisting of members of the provincial council or inter-island body of the provinces concerned the respective members of the congress and senators elected in them and shall be sent to the cortes Generals for its drafting as an act + democratic Art 150: The Cortes Generales (parliament), in matters of State competence, shall confer upon all or any of the Autonomous Communities the power to enact legislation for themselves within the framework of the principles, bases and guidelines established by State law. Without prejudice to the competence of the Courts, each basic law shall contain the method of control by the Cortes Generales over the Autonomous Communities’ legislation [… The cortes generals can allow the autonomous communities to adopt laws to regulate themselves. These laws dictate de control of the cortes generals over the autonomous communities legislation 4. Institutions of the autonomous communities Art 152 : each community has Legislative assembly: (universal suffrage) Governing council (president elected by the assembly) Politically accountable to the assembly Local high court of justice Responsible for the acts that occur within the community 5. Relations btwn the central state and the autonomous communities Art 154: there is a delegate who is appointed by the Government in each community Art 155: If communities transpass in competencies which are not their – there is a procedure  The representative must lodge a complaint with the president of the community If the Spanish senate agree – the government can “take all measures necessary ti compel the community t meet said obligations, or to protect the abovementioned general interest” 6. Financial autonomy Art 156: financial autonomy of the communities Art 157: list of the taxes that the communities may decide to collect Art 158: common tax regime: the central government still have power to create and collect taxes and then dispatch it among communities Tensions with Catalonia (richest community) : pays more than recieve 3. Italy 1. Introduction Art 5: “the republic is one and indivisible. It recognizes and promotes local autonomies and implements the fullest measures of administrative decentralization in those services which depend on the state. The republic adapts the principles and methods of its legislation to the requirement of the autonomy and decentralization” The republic is one and indivisible Very strong local autonomy Actors which have a piece of autonomy 8000 municipalities 14 metropolitan citices 80 provinces 20 regions Art 114 “autonomous entities having their own statutes power and functions in accordance with the principles laid down in the constitution” 2. Power sharing Art 116 – distinction btwn 2 types of regions Regions with an ordinary statute Region with a specific statute (5 regions: have greater autonomy than the others) Based on geographic and linguistic criteria (islands) Art 117 : Exclusive power of the state Regalian fields: foreign policy, social security, money, army … Field of concurring legislation: state defines the key priorities, and the regions are responsible for adopting further acts Art 117 : fields not expressly covered by State legislation are attributed to Regions 3. Statutes of autonomy Art 123: Contains Form of government Organization of regions Regulate legislative initiation and referendums Responsible for : Defining the form of government basic principle Organizing the regions the conduct of its business publication of laws and regional regulations 4. institutions Regional council: shall exercise the legislative powers attributed to the regions (may adopt motion of non confidence) Regional executive: executive body of the region – psdt functions directs its policymaking promulgate laws and regional statutes directs the administrative functions delegates to the regions by the state Administrative tribunals may be established at the regional level 5. relations btwn the central state and regions Art 126: central institution can remove the regional council and the regional psdt in case of breach of the constitution, serious violation of the law… Role of the constitutional court: the central government or regional government can go in front of the court if they think one stole its power 6. financial autonomy financial autonomy, independent resources (collect taxes) solidarity found in Italy too (like Spain) 4. The UK 1. Introduction =/ nations in the UK – devolution process consists in transferring powers to the nations Northern Ireland: Excepted matters: powers which remain under the exclusive control of the central authority cannot be transferred regalian matters Transferred matters: remain under the exclusive control of the central authority but can be transferred in the future Reserved matters: transferred to Northern Ireland Scotland & Wales Reserved matters: fields which are under the exclusive control of the central authority Non reserved matters: free to pass legislations 2. Statues & institutions : prendre cours hugolin Local institutions in northern irland, Scotland and wales Northern Ireland Parliament Unicameral legislative assembly (90 members) Assembly directly elected by people for 4 years Members must define themselves: unionist, nationalist or other Executive: appointed by the assembly Scotland Parliament Election: mix system (majority + proportionality) Possibility of vote of non-confidence Executive: appointed by the 1Minister among the members of the Assembly Wales Parliament Unicameral parliament “Senedd” Elected for 5 years through mix system Executive: gov appointed by Welsh 1 minister 3. Financial economy 0 full tax autonomy: most taxes collected by London then dispatched (even if sometimes nations can be free to collect local taxes) Distinction btwn taxes collected in the fields reserved or transferred matters Section 4 : FEDERAL STATES 1. The concept of a federal state A composite state in which the sovereignty of the entire state is divided btwn the central or federal government and the local government of the several constituent states (black’s law dictionary) Federal court in every state but the supreme court is a federal court Law of participation: if federated states don’t agree on a constitution, there’s no federal state -> they choose to create a federal state Law of autonomy: each of federal and federated state has its own legal system 2. Germany 16 landers 1. Power sharing Exclusive power of the federation Art 73 : list of the exclusive powers mostly regalian : federal state leads international relations but if a treaty affects a lander, it is consulted if authorized by central government, lander may legislate Art 75 : Art 32 : Concurrent powers Art 74: economic law , labor law, environment law, management road Lander has subsidiarity powers Art 72 Exclusive powers of Lander Art 30: the exercise of state powers and the discharge of state functions is a matter for the lander Lander free to pass legislation until the field of competences of Federal States 2. The bundesrat Art 50: chamber responsible for representing the interests of the landers: Legislation Administration European law Particularity: each Lander representatives, number depends on the number of inhabitants In each land there is A Landtag (unicameral) Land government led by a minister of the Psdt 1 constitution 1 constitutional court 3. Russia 1. Introduction Several categories of the Russian federation Art 65 constitution Regions (46): legal regime close to territories Territories (9): specific minority on a large territory, little autonomy under soviet era Republics (22): specific ethnic minorities with language and anthem, more power City of federal importance: Moscow, Sebastopol and st petersbourg Autonomous regions (4+1) Each federal subject has  A governor A legislature A constitutional court Own constitution/statute Legislation 2. Power sharing Exclusive powers of the federation: list art 71 Join powers all the jurisdictions are adopting the federal laws & other acts of the subject of the Russian federation responsible for the treaties Residual powers: subjects shall possess full State powers 3. The council of Federation 2 representatives sent Each chamber has its “domaine reservé”, - Approval of changes in borders - Impeachment of President 4. Switzerland 1. Introduction Swiss is no longer a confederation, now pure federal state 2. Power sharing Principle of subsidiarity: Cantons should act whenever its possible, only if action isn’t sufficient at the upper legislative level Powers are widespread in the Constitution (not 1 article) Exclusive powers of Confederation: foreign relations, armed forces, general aspect of culture/education, environment, housing, employment Exclusive powers of cantons: aspects of culture/education Joint responsibilities: universities, water management 3. The council of states Each canton sends 2 representatives. They are free to determine the rules to elect them At federated level, there is a council LESSON 3: the parliamentary systems of EU states Section 1 : Introduction: the separation of powers and the =/ types of systems “Scared principle” –> democracy Art 16 DHCR: “any society in which no provision is made for guaranteeing rights or for the separation of powers, has no constitution” Concept born in England: island so from a geographical pov they were subject to invasions –> easier to challenge the central authority –> texts were adopted to limit the power of the king Magna carta, charter of liberties and the bill of rights Founding father of the division of powers Locke and Montesquieu 1688 Locke’s Two treaties of Government 3 =/ powers: legislative, executive, and federative (includes international relations) Legislative and executive powers had to be separated Montesquieu 3 =/ powers: legislative, executive and judiciary Differences btwn the presidential and parliamentary system separation of powers Strict (presidential) Flexible (parliamentary) Reciprocal means of action Whom has the legislative initiative 1. The presidential system Strict separation of powers : each organ has its own one Only the parliament can do the bills (not the gov) No reciprocal destruction actions No dissolution No destitution 2. The parliamentary system More flexible actions Dual executive power: head of State not responsible but head of gov yes (in return, the executive power may decide to dissolve the parliament) Executive may introduce a bill along with legislative Most European regimes are parliamentary 3. Dictatorships No separation of powers A legislative organ does exist but deprived of any power A legislative organ is totally absent All powers are concentrated in the hand of the parlieament Section 2: a traditional parliamentary system : the UK 1. The parliament House of lords + house of commons The monarch must give royal assent to the bill 1. Composition House of the commons 650 MPS First past the post : don’t need the majority to be elected (candidate how has the higher number of votes) Majority of seats = leader = prime minister appointed by the monarch House of lords 780 Lords Lors spirituals: 26 senior bishops (évêques) Lord Temporal: 92 hereditary Peers (House of Lords act 1999 reduced the number) Life peers: more than 600 To become life peers, appointment commission before HL -> attributed to eminent members of British life (soldiers, politicians…) 2. Legislative mission legislative mission: debate and pass laws = acts of parliament both chambers can introduce a new bill Bill process 3 readings in each house before transmitting the bill in the other house Then chambers can do the amendments Both houses agree –> sent to the monarch for the royal Assent Rare: house of common can ask for the royal assent without the consent of HL (taxation and public funds) Salisbury doctrine Lord Addison: member of the labour party Viscount Cranborne: conservative guy 1945: Labor party won the election, but most members of HL were conservative, so they opposed to the readings of the manifesto proposal Lord Salisbury said: if you prevent the labor party from doing what they were elected for = undemocratic In Salisbury view the HOC was democratically elected 3. Monitoring function Powers of HOC against the gov Before 2011 – 2 possibilities If a government lost a confident motion, they have to resign or call for a general election  (parliament dissolved) Parliament act 2011 – changes Self-dissolution of the parliament: HOC decides for general elections (to have an even greater majority) 4. Budget Common mission for the parliament 5. The end of judicial mission ofr the HL Judgment section in the house of lords 12 judges (lords) responsible for hearing appeals Lords how had judgment function weren’t taking part in the legislative power – but in fact sometimes they were (was contrary to separation of powers) 2005 reform: new court (supreme court) and the most judging powers of the HL were transferred to the supreme court 2. The monarch Powers of the monarch Royal assent: necessary for a bill to become binding Formally opens the session by the speak of the throne, drafted by the PM Summoning and dissolving the HC (by a proposal of the PM) Creates peer hereditary Relations between monarch and religion Defender of the faith and supreme governor of the church of England Symbolic missions: travelling abroad Oath (serment): “maintain and preserve inviolably the settlement of the church of England, and the doctrine worship, discipline, and government thereof, as by the law established in England 3. The prime minister and the cabinet PM : Appointed by the monarch regarding the majority at the HOC Chooses the members of the cabinets among the MPS – PM also make the decision to dismiss them Cabinet can adopt delegated acts when the parliament authorize the cabinet to do so Section 3 : A rational parliamentary system : Germany Germany = federal state (impact on institutions : federal actors only act in the limits of powers delegated) 1. Parliament 2 chambers: Bundestag and bundesrat 1. Composition the Bundestag 709. S (representatives of the German people – elected directly for 4 years) Each elector has 2 votes and vote twice (election with mix first past the post and proportionality) 50% elected first past the post 50% elected proportionally The bundesrat 69 seats – number of members in each Land depends on population Members are concurrently ministers of president or minister of the Land : they are involved in the federal and land policy –> influence on their decisions Art 51: must take into account the interest of the land when they pass national laws may be evicted if the take a wrong decision 2. Legislative missions 2 chambers share the legislative mission Process Both have legislative initiatives (+ gov) BUT easier for the Bundestag to pass one bcs must only be supported by 5% of its member (absolute majority for bundesrat) 3 readings by chamber 1st reading: the draft bill is assigned to 1 or more committees 2nd reading: amendment 3 rd reading = vote Bundesrat’s consent compulsory in 3 cases Bill amending the constitution Bills which affect the finances of lander Bills which affect the organization and administrative jurisdiction of lander If legislate emergency, only the Bundesrat legislates Outside these 3 situations the bundesrat consent is not necessary If the majority of the bundesrat rejected the bill, the majority of the bundestag can overcome the rejection by a decision of the majority (same with 2/3 at Bundesrat) 3. Monitoring mission Bundestag has more explosive powers for the committee of inquiry and motion of no-confidence Motion of no-confidence: Bundestag has to appoint a successor to the chancellor Constructive vote of confidence: bcs of the appointment of a new government – otherwise they don’t have a gov Votes of no confidence are very rare : only twice (1992 : willy brant & 1982 succeeded) 4. Budget Bundesrat & bundestg are linked for the budget – the approval of the bundesrat is required in the budget  2. The federal president Election: Elected by the Federal convention without debate (federal convention = Bundestag members + an equal number of members elected by the parliamentary assemblies of the Lander by proportional representation) Candidate: any minimum 40 yo german who can vote for Bundestag elections Candidate with the majority of vote is the one elected (if after 2 rounds none has the majority, the 3rd is with the + of vote) Missions Theory: the president has full veto on any bill Practice: self-restrained, only used when the constitution may be breached 3. The federal chancellor and the government Composition of the federal government : chancellor and federal ministers Election of the federal chancellor: 3 rounds 1st round: federal president suggests a name and the candidate may or may not be elected (majority of vote) by the Bundestag 2nd round: if the person proposed by the federal president isn’t elected, the Bundestag make the choice of the name and the person must receive the majority of vote (and the larger number of votes) 3rd: the person who will receive the larger number of votes will be elected (if it doesn’t represent the majority the federal president can appoint him anyway) If the chancellor only have a relative majority of vote, the psdt can dissolve the Bundestag Federal ministers shall be appointed and dismissed by the federal president upon the proposal of the federal chancellor Art 65 : power to determine policy guidelines – department and collegiate responsibility Federal chancellor determines and is responsible for general guidelines of policy Federal ministers conduct the affairs of his department identity and on his own responsibility Federal Government resolve =/ of opinions btwn the federal ministers Federal chancellors conduct the proceeding of the federal government in accordance whith rules of procedure adopted bu the government and approved by tge federal president Incompatibilities Impossible to have any other salaried office or engage any trade or profession Impossible to belong to the management to the supervisory board of an enterprise conducted for profit without the consent of the Bundestag Vote of confidence  If a motion of the federal chancellor for a vote of confidence is not supported by the majority of the members of the Bundestag – the federal president (upon the proposal of the federal chancellor) may dissolve the Bundestag within 21 days The right of dissolution shall lapse as soon as the Bundestag elects another federal chancellor by the vote of a majority of its members 28 hours shall elapse btwn the motion and the vote Section 4: Semi - presidential regime: Russia 1. The parliament Art 95: Parliament with 2 chambers Council of federation State Duma 1. Composition The duma: 450 deputies appointed for 5 years – proportional representation The council of federation: 2 representatives of each federal subjects 2. Legislative mission Federal laws are adopted by both chambers – duma examine and adopt bills first In case of disagreement: state duma has the possibility to bypass the vote of the council (can adopt a bill alone with 2/3 if the council voted against the bill) Exceptions: list of question which requires the approval of the council Federal budget Federal taxes and levies Financial, currency, credit and custom regulation, money emission Ratification and denunciation of international treaties of the Russian federation Status and protection of the state border of the Russian federation War and peace 3. Monitoring functions Possibility to impeach the Psdt only if high treason or serious crime Vote of no-confidence Parliamentary inquiries by the Duma and council 4. Budget art 106 / budget decided by the duma and the council of federation 2. The president 1. Election Art 81: President 6 years term Direct universal suffrage Impossible to hold the office of the president for more than 2 consecutive terms (ok if isn’t consecutive) Reform 2020 (§3 art 81) : controversial because it said that the interdiction to do more than 2 consecutive terms apply form the moment of the amendment (-> Putin can do another term) 1. Powers Art 83: power of nominations (president make the proposal and then the duma votes) Art 84: referendums, submit draft laws to the duma and sign and promulgate federal laws Art 86: foreign policy Art 87: national defense Art 90 edicts and regulations Suspension: right to suspend acts adopted by local government (condition: if it’s in conflict with the constitution, human rights, international law … ) veto a bill 2. Relations with the duma Art 117: the federal president has large powers in its relation with the Duma President free to accept of reject the resignation of the government President can dissolve the duma if she try to dissolve the gov anther time (after a first reject) Art 111: appointment of the chairman of the government (Prime minister) President appoints the PM but need the accept of the duma If duma reject it the president can dissolve the Duma LESSON 4: the protection of fundamental rights Section 1 - Introduction: the concept of fundamental rights in France Constitution 1958: vague reference Became important thanks to the bloc de constitutionnalité 1971(liberté association) and 1973 (taxation office: DDHC) : created bloc de constitutionality – possible to verify the constitutionality of a law from a text of the bloc de constitutionalité Section 2 : liberties (UK) Concept of liberties – protected by Bill of rights Magna carta 1. The dvp of liberties Several “constitutional” (uncodified constitution) texts drafted over the centuries Purpose: to combat royal absolutism & grant more powers to the parliament (NOT necessarily give more rights to people) Mix btwn 3 types of rights: increase in parliamentary powers, limiting monarch power procedural rights 1100: charter of liberties Henri the 1st wasn’t popular –> did a concession: agreed to comply with principles regarding the treatment of nobles and church officials 1215: magna carta King John wasn’ t popular –> proclaimed principles: arbitrary use of power = unlawful + judgement contrary to mc were illegal 1628: petition of rights Charles 1st wanted to establish absolute monarchy – entered into conflict with the parliament, they tried to make him sign the petition of right 1641: grant remonstrance the King refused to sign the Grant Remontrance which consisted in limiting the powers of the king 1679: habeas Corpus prevent arbitrary use of power and detention 1689: bill of rights gave + powers to the parliament 1701: act of settlement the monarch may not be a catholic and may not marry a catholic reinforces the parliamentary independence: MP may not work for the monarch Difference btwn “constitutional rights” and “liberties” – explained by decision House of lords 2006 constitutional rights isn’t precise enough to define a class of right upon whose a tort give rise to an action without proof of damage 2. the human rights act 1998 HRA implement (Part of the uncodified constitution: translation of the treaty in the domestic law)) art 2 and 12 of the convention HR art 1 and 3 oF the first protocol: protection of property rights to education, right to free elections Art 1 of the thirteenth protocol: abolition of death penalty ECHR Individual rights: right to life (art 2) prohibition torture (art 3)  prohibition slavery(art4) Collective rights: freedom of assembly and association (art 11) Procedural rights: right to a fair trial (art 6) no punishment without law art Absolute rights // rights subject to interference (if they are authorized by the law, the aim is legitimate, the restriction is proportionate) How are the judgment of the ECHR taken into account in England? Couple of court decisions about that: House of lord Ullah 2004: British court needs to stick to the decision of the ECTHR : must not provide more generous guarantees than convention ton maintain an uniform meaning Smith: British court must take into account the ECHR jurisprudence Deputy corner : CEDH jp must be taken into account (be careful of the mixed messages) 3. Common law Some HR were indirectly protected as part of common law Common law did not create human right: they acknowledge their existence Criminal law: Abuse of process want of prosecution natural justice procedural guarantees which may be considered as fundamental rights Tort law: based on the concept of property integrity and physical integrity Public law: “good administration”: way to constrain a relation between authorities and citizens 4. Other conventions The prohibition of torture: ECHR, UNCAT -> criminal justice Act The right to compensation in the event of a miscarriage of justice: ICCPR -> criminal justice act The right to asylum: convention on the status of refugees -> immigration act 1971 Section 3: basic rights (Germany) First articles German Constitution are about basic rights (20 articles) 1. A particular consideration for basic rights Purpose: prevent the reiteration of the Reich’s crimes 19 articles related to basic rights Individual rights Collective rights Criminal procedure Art 46 C° : this basic law applies to the entire German people (at the time of the creation of the constitution, Germany was divided : western Germany always had this basic law but not eastern Germany) 2. the main categories of rights individual rights right to free dvp right to life and physical integrity Collective family life freedoms of assembly and association Criminal procedure judicial independence 3. Derogable and non derogable rights In some German basic law articles: “restrictions may be ordered only pursuant to a law” – Ex : freedom of assembly (art8) Means that those rights are Derogable 4. Rights of German and foreign nationals “Every person” or “all persons” -> apply to German and foreign nationals “All German shall have the right to” -> only apply to Germans Freedom of assembly Freedom of association Freedom of movement Occupational freedom Decision of the FFC heilpraktikergzesetz (2004) : distinction btwn national citizens and foreigners is valid But with the principle of non-discrimination of UE law, the All Germans should be understood as All Europeans 5. State duties Art 1§3 : “the following basic rights shall bind the legislature the executive and the judiciary as directly applicable law State organs must comply with them 2 situations in which private actors must comply with them Private actor is endowed with state power (ex: private security firms or private schools) Private actors owned – fully or part – by the state (ex: state companies) Public/private company: must comply with the fundamental rights if more than the half of shares are hold by public actors (Fraport case 2011) 6. Assessment of a breach on basic rights Test in =/ steps 1 step: determine if there was an interference 4 conditions:  A legal act Which eventually results in a reduction of a basic right Inflicted deliberately Mandatory character In practice: softened (like factual violations) nd 2 step: the lawfulness of an interference (art 19) Conditions Derogable right The right must be interfered in the basis of a law General nature of the law Proportional Art 20 §4: mention that “all Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available” Section 5: Spain – rights and liberties Regime in Spain from 1939 to 1975 : FRANCO 1. The emergence of rights and liberties 1936-1939: Spanish civil war, Franco 1975: Franco’s death:1975 Successoral : Juan Carlos de Borbon (son of Alfonso XII) 1976: Dismissal of PM Carlos Arias Navarro (Juan Carlos wanted a liberal) 1977: Adolfo Suarez: new PM (liberal) 1978: Approval of the new Spanish constitution Following the Spanish civil law (1936-1939), Franco knew he’ll die sooner (1975), so he decided that Juan Carlos de Borbon will be he’s successor. In 1977, Carlos appointed his new PM, Adolfo Suarez (liberal) and decided the next year to draft a new Spanish constitution. Within 3 years, Spain became a democracy (1978) Spanish constitution: 15 articles protect the rights and liberties 2. Derogations Constitution admits restrictions of the R & L – conditions only through a law Shall not interfere with the essential content of this right 3. Assessment of a violation Art 53 §2: Recurso de amparo: right to appeal before the constitutional in case of violation of constitutional liberties and rights =/ steps: to recognize a violation 1st : verify the Autor of violation : can only be the central gov or autonomous communities (public authorities) 2nd : legal basis and proportionality ? Art 50 (controversial: restricted the possibility to have an appeal before the constitutional court) : decision of admissibility confirmed by an unanimous vote and the violation of fundamental right is no longer enough, there must be a special constitutional relevance LESSON 5: constitutional review Section 1: the models of constitutional review European creation: is it a constitutional review? Origin Concept in France: Sieyes had the idea of creating a popular body to review the compliance of law Introduction in US: Marbury vs Madison - Madison decision allowed for the creation of constitutional review in USA Section 2: a taxonomy of review Characteristics of constitutional review Concrete or abstract Concrete: occurs during a trial Abstract: occurs before the enactment A posteriori or a priori Posteriori: after the law is passed Priori: before the law is passed Diffuse or concentrated Diffuse: every court has the possibility to carry out a constitutional review Concentrated: autonomous constitutional court Relative or absolue res judicata (autorité de la chose jugée) Relative: act is avoided for the parties Absolute: Act is avoided, annulled for everybody Section 3: the main types of constitutional review 1. American Vague reference to the USSC and to its powers in the constitution Art 3 §3: “the judicial power shall extend to all cases, in alw and equity, arising under this constitution, the laws of the united state, and treaties made, or which shall be made under their authority” Art VI: Actual creation of constitutional review = Marbury v. Madison (1803) Syllogism of the supreme court The constitution is superior to anu ther norms The 1789 judiciary act is contrary to the constitution The 1789 judiciary act in unconstitutional and shall not apply Constitutional review must be Diffuse A posteriori  Concrete Relative, res judicata 2. European model Sieyes Kelsen is the father of the concept of European type of constitutional review the hierarchy of law constitution has primacy so there must be this mechanism of constitutional review =/ from the American one concentrated (specific court) a priori abstract erga omnes effect Section 4: the UK The UK has been wary towards constitutional review for a long time because : parliament is sovereign – principle of parliamentary sovereignty -> constitutional review was perceived as antidemocratic (no constitutional court) the constitutional reform act of 2005: created as a “supreme court” -> BE CAREFUL: powers = no similar to those constitutional courts in continental Europe UK supreme court 12 justices Final court of appeal For civil cases: England, Wales, Northern Ireland and Scotland For criminal cases: England, Wales and norther Ireland Other types of cases Cases of “the greatest public or constitutional importance affecting the whole population” Cases about the division of power btwn the institutions in Scotland, Wales or Northern Ireland on the one side and the UK on the other side. Section 5: Germany What happened btwn 1929 and 1939 in Germany? why was constitutional review necessary in Germany? Republic of Weimar 1920-1929: golden twenties 1929: sort of the greatest depression Proportional representation without a sufficient threshold: parties with a little part of vote had a seat = hard to build a coalition -> system favoring minor extremis parties Possible to remove the chancellor even if no other chancellor was designated Broad emergency powers: art 48 Weimar constitution: possibility pass law contrary to the constitution if 2/3 MPs agreed possibility to amend the constitution if = 2/3 MPs agreed The enabling act of 1933 art 1: executive power can pass laws: no separation of powers anymore (Hitler was Chancelor) art 2 : not possible to adopt laws that are contrary to the constitution if they affect the institutions of Reichstag & Reichsrat Laws of 1949: reaction to that 1. powers of the federal constitutional court =/ powers of the court Control of the Bundestag elections Disputes related to the non-recognition of political parties for an election at the Bundestag The division of powers btwn Lander and the federal State The breach of basic rights warranted by the basic law (by public authorities) The breach of municipalities ‘rights to self-government by a federal law (and not by the land law) In fact municipalities must be represented by an elected public body and must regulate local affairs 2. Types of control Constitutional review Abstract form: By the Landtag, federal government or 1/3 of bunestag members Make sure that the laws comply with the basic law Following the adoption of the law Concrete form: Possibility to interrupt a trial to ask a constitutional question Direct effect of a rule of international law Whenever a land constitutional court propose t oerogate from a decision of the federal constitution court or of the constitutional court of another land Basic rights: art 93 §1 federal court ceased by citizen if basic rights have been breached by a public authority 3. Members of the federal constitutional court 16 judges divided into 2 “senates Elected by the Bundestag by the Bundestag (50-50) : quite democratic They may not have any other function 12 years mandate Reelection OK Members must be at least 40 yo and retire at 68 yo Must be well trained jurists Section 6: Spain Long tradition of constitutional justice Creation of a federal constitutional court was in the air in 1893 and 1929 – influenced by kelsen s ideas Implemented for the 1st time with the republican constitution 1931 Art 122: powers of the republican constitutional court quite similar to the today constitutional court Constitutional challenges against de laws Recurso de amparo Conflicts of legislative competecnes btwn the state and the autonomous regions Examination and approval of the powers of the delegates (no en vigueur in the new constitution) Criminal responsibility of the head of states … Franco died 1975: Juan Carlos = king Dismissal PM 1978: new constitution 1. Powers of the constitutional court Aer 161 §1 : Constitutional challenges against the law Recurso de emparo (individual appeal for violation of R & L) Conflict of jurisdiction btwn state and autonomous communities constitutionality of provisions and resolutios adopted by the agencies of the autonomous communities 2. Forms of control Abstract and a posteriori Abstract: court seased by PM ,50 deputes or senators, executive or legislative assemblies of autonomous communities Concrete: citizens have the possibility to do an individual appeal – recuso de amparo 3. Members f the constitutional court 12 members 8 by the legislative powers 4 members by congress 4 senate 2 by the government 2by the judicial power general council of the judiciary Mandate 9 years No other functions LESSON 6: the sources of administrative law Introduction: Source of law dual role = can created rules of law + by someone who has the power to create law Most European countries do a hierarchy of norms Constitution International law Parliamentary acts Delegated acts (ordonnances) Regulation Administrative acts Section 1 : France 1. Constitutional norms France: constitutionality bloc is on the top Identified by the constitutional council Liberté d’association 1971 a Taxation d’office 1973 Identified by the CE Dehaene 1950 Eky 1960 Eaux rivieres de Bretagne 2006 Same framework of reference but =/ control Laws by constitutional council Administrative acts by the CE 2. Acts of parliament Administrative authorities must comply with acts of parliament 3. Regulations Must comply with acts of parliament 4. General principles of law 5. International law 1. Treaties Art 55 C° : treaties > acts of parliament and must comply with the constitution CE Sarran 1988: administrative acts must respect treaties 2. Customary law CE aquarone 1997: customary law < national law Section 2 : Germany 1. Concept and origins of administrative law Administrative law = the body of rules which apply to the administration Definition of administration, several approaches Material: public duties which are legislative and other that are jurisdictional, and administration is in the middle Formal: administration carries out activities that serve the common good Organic: Federal and land entities as well as various entities that are governed by public law Emergence and prerogative of the administration For a long time, administration interfered in citizen rights and economic and social affairs Free to act as they wanted Not subject to a proper judicial court The Allegemeines Preussiches Landrecht 1794 : goal was to codify rules to make those interferences more bearable : Still not possible to challenge the lawfulness of interference but able to claim for compensation (money) 19s century: statue: only interference with people’s rights only if law authorize to do so protection of public safety and order principle of proportionality access to court was limited because you had to demonstrate that a subject right had been breached no judicial review cases heard by a separate order: theories of otto Mayer: end 19 century, prof in Strasbourg (influenced by the French approached) proposed a theory of administrative law hierarchy of German norms: A SAVOIR EXAM Building laws of the federal constitution Federal constitutional law State constitution = federal law State law = federal laws State regulation + federal regulations Judgments + notifications + contracts Compulsory enforcement, execution took time before the ideas succeed: middle 20 century that it succeeded Weimar Republic IIIrd Reich: no separation of powers and no protection of basic rights 2. The basic law 1949 : creation of basic laws, idea that the states have to protect private persons + protect the legal order Art 1: human dignity, human rights, legally binding force of basic rights (1) Human dignity = inviolable (3) Basic rights bind the legislature, the executive and the judiciary as directly applicable law Indirect effect: way basic rights are binding for the private persons –> from a constitutional pov only the authorities are bind by basic law BUT private law shall also be interpreted in the light of basic rights Administrative judge = has jurisdiction to settle dispute regarding the non-compliance of an administrative act with the constitution Similarities with France Federal structure = a specificity of Germany : =/ fields of competences – BL competences might fall under : Executive legislative power of the federal state art 72 Exclusive legislative power of the lander’s art 70 shared art 74 3. International and European law International law: art 25 of the Basic Norm basic norms > international law > domestic law EU law: National rules must comply with EU law constitutional court doesn’t judge the compliance with EU law : case law 1986 4. Legislation 2 codes The code of administrative court procedure Administrative procedure act Codify some of the general principles Art 20(3) of basic law : “the legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice” Case law federal constitutional court 1978 Kalkar I IT MUST BE UNPOWERED TO do so by the legislation Only an empowerment by the parliament may enable the admin to interfere with constitutional basic right  Exception: if the subject isn’t too sensitive, and intensity is minor you may not require to add a legislative 5. Regulations IN France : principle of autonomous regulatory (some specific matters are attributed to the parliament and outside these field it’s up to the administration to interviene) Not the same in Germany There are 2 types of regulations (rechtverodnung/satzungen) Rechtverodnung – art 80 basic law Only adopted by the federal government, federal ministers, or the lander government Need the authorization of the parliament beforehand 0 autonomous regulatory power in contrast with France Different uses Used to facilitate the application of another law Used to amend the law Statutory instrument Satzungen Adopted by local authorities and public bodies (ex : professional orders) Defined in the medical specialists case “Provisions which may be enacted by a legal person governed by public law under the jurisdiction of the state within the framework of the autonomy conferred on it by the law and producing effects with regards to the persons who from part of and depend on it “ provisions enacted by a legal person governed by public law (professional orders) within the framework of the autonomy conferred by law Produced effects merely toward persons concerned by the legal person Section 3 : the UK 1. The long-lasting inexistence of administrative law Administrative law didn’t exist in UK for a long time Albert Venn Dicey “the words admin law is unknown to the English judges and courts and are in themselves hardly intelligible without further explanation” Same rules for the public person and private persons Lasted until las 60s –> ridge v. Baldwin : lord Reid “ we don’t have a developed system of administrative law” Emergence of an early from admin law from the late 70s 1977: Creation of judicial review – order 53 about the Rules of the Supreme Court 1983 House of lords: “order 53 provided a procedure by which every type of remedy for infringement of the rights of individuals that are entitled to protection in public law can be obtained in one and the same proceeding by the way of an application for judicial review” Revolution: start talking about admin law : challenge lawfulness of an administrative law by a specific procedure : judicial review There were already remedies available in public law it wasn’t efficient, so people used the private law  remedies Ex : recovering damages procedures were very limited in scope Supreme norm in the UK No formal one What is considered as the supreme norm are the acts of parliaments 2. Acts of parliaments Hierarchy in norms = exists but in a more informal fashion Parliamentary sovereignty = several consequences Powers of the parliament = unlimited It can pass a legislation in any field, and is not bound y previous legislation The judge must apply the law + cannot declare that a given legislation is void Limits to this principle of parliamentary sovereignty Only valid for the acts passed by the parliament in WESTMINSTER Acts of execution (adopted by the government) mays still be challenged Even if an act of parliament excludes a judicial review, the courts are still able to do a judicial review 3. Secondary legislation An authorization given by the parliament to the gov to pass legislation –> the government may even ve authorize to amend the law Ex: human right act : section 10 §2 : a minister can amend the legislation where it is incompatible with an act of parliament Because the parliament adopted the HR act Delegated acts may be cancelled 4. International law Difference between dualism and monism Dualism: international and domestic order are distinct but there is no hierarchy – international agreement are valid only if they are translated into a domestic provision Monism: single order but constitutional norms > international treaties > domestic laws UK : dualist state – international law isn’t automatically applicable 1. The treaties Lord Oliver 1989: Treaties are not self-executing A treaty isn’t part of English law unless it has been incorporated into the law by legislation 2. Customary law Case law 1938 Chung chi Cheung v. Regina: distinction between treaties and customary law Treaties aren’t part of domestic law whereas rules of customary law are considered as being part of customary law (unless it is contrary to a case law or an act of parliament)  Confirmed in the Pinochet 2000 case law 5. EU law Principle of parliamentary sovereignty but EU law has also primacy Factortame decision 1990: house of lord position vis a vis EU law Parliament accepted to be bound by European community law : consent Join EU when EU law primacy was already established: UK knew it and accepted it Human rights act included EU convention of Human Rights Judges have to take into account the UH act when they interpret the law They may decide not ot apply certain types of legislation that do not comply with the HR act. In practice the parliament repeals the law in those situations Section 4 : Spain 1. Preliminary remarks Functioning of the administration is a bit defined in the constitution Art 9: constitution applies = to the citizens and the administration Art 103: administration serve the general interest Art 106: Rule of law prevail in administrative actions – admin needs to comply with the constitution – must compensate for damages Art 149(3) : division of powers between the central authorities and regions 2. Constitution Before the 1978 constitution: Military dictatorship: no constitution only fundamental laws 1942-1943: Stalingrad battle – USSR started to win : franco received help from Italy and Germany during the civil war but refused to help them during WW2 (relations were ok with URSS) Didn’t want the allies to turn back – did laws to liberalize the country Juan Carlos: made Spain a democracy Spanish constitution Distinction between the Rights and freedom: automatically binding for the administration Principle governing economic and social policies: public authorities must only comply with the parliamentary acts that were adopted on the basis of the constitutional principle 3. International law Art 96: Treaties are part of the internal legal order: bellow the constitution but = rank as national law Art 94: treaties may be ratified by the executive power Art 10: Universal declaration of Human rights + treaties can have primacy over the constitution If it is about human rights Principle: constitution > treaties  Exception: treaties > constitution concerning human rights 4. EU law before joining the EEC Spain knew it would join it – wrote the constitution 1978) to make the eu integration possible (1980) Art 93 constitution Judgment 28/1991 Eu law > constitution or EU law < constitution? Spanish constitutional court said constitution > EU law : “the proclamation of the primacy of the union legislation doesn’t contradict the supremacy of the constitution” 1/2004 5. Legislation Organic laws : art 81 – related to the dvp of fundamental rights, public liberties, statues of autonomy, general electoral system (constitutional value) Legislative delegations: art 82 parliament delegate legislative power to the government on a specific matter Decree laws: art 86 extraordinary and urgent need Art 53: rights and liberties are binding for all public authorities No specific area of the law in the constitution 6. Regulations and administrative acts Administrative acts are made on the basis of regulations: cannot be contrary to a regulation LESSON 7 : public order Section 1 : Introduction – France Administrative police = preventive mission (preserve public order) // NOT an organ Public law Administrative court Judicial police = punitive mission Private law Judicial court Distinction btwn general and special administrative power General Special: when there is a precision Public order: 3 levels to respect  Public security Public peace Public health Proportionality test (CE 1933 Benjamin): Measures adopted by admin must be legitimate Appropriate (efficient) Proportional Admin police: 0 contracted out Exceptional circumstances State of siege: art 36 State of emergency Exceptional circumstances: art 16 Health emergency Section 2: Germany Distinction administrative / judicial police 2 systems In some lander (ex: berlin) there is a distinction btwn the gefahrenabwehrrecht (admin) the polizei (judicial) in other lander there is only the polizei divided in units verwaltungspolizei – admin (preventing) vollzungspolizei – judicial (sanctioning) there is always a distinction on the mission, but the difference is who will do the mission §1 of polizeigesetz: missions of the admin police = preventing threats to public security and public order when required by public interests Situation of basic rights Art 30 (sovereign powers of the lander) : except as otherwise provided or permitted by this basic law the exercise of state powers and the discharge of state functions is a matter for the lander judicial: federal state admin: lander emergency powers state of defense state of tension: art 80 legislative emergency: art 81 internal emergency: art 91 Section 3: the UK Entick vs. Carrington 1765 case: Harrison v. Bush 1855: maintenance of the peace – executive power keep peace through the police forces reaffirmed 1988 case public authorities may act to maintain peace but hey must comply with couple of requirements (2006 case) actions taken must be reasonable proportionate imminent breach of the peace not a totally discretionary power anti-social behavior act : enable the admin too act and take measures power to grant injunctions meaning of anti-social behavior exceptional circumstances civil contingencies act 2004 Public health act 1984 (control of disease) Health protection regulation 2020 (coronavirus, restrictions) Section 4: Spain “Limitation activities” but cannot erase rights. In the name of general interest Decree 17 June 1955 About powers of municipalities Municipalities have the possibility to act in the exercise of the police functions under certain conditions Grounds: the decree of March 31st 2015 Restriction of individual liberties can be necessary for the exercise of collective liberties Art 3 : details about when public authorities can act Measures Law April 1985 : list of measures which may be adopted by public authorities : ordnances and edits authorizations prior communication: sharing information with the administration responsible declaration post activities control Individual orders: suspicion of an imminent and extraordinary health risk : restrictive measures can be adopted Principles Art 14: equality of all Spanish citizens Art 4: conditions for the lawfulness of the admin actions  Necessity Adequacy proportionality LESSON 8: judicial review Section 1: Remedies France: The internal administrative appeal : “recours gracieux”, “recours hiérarchique » Germany :