Constitutional Law PDF

Constitutional law 25.11. Lecture one Why do courts have jurisdiction over legal matters? (case-study of the lazy lecturer, see presentation) Because the constitution says so. Why does the constitution have authority? Why is it binding? In Britain, the lawmaker’s (parliament) legal acts and statut...

Constitutional law 25.11. Lecture one Why do courts have jurisdiction over legal matters? (case-study of the lazy lecturer, see presentation) Because the constitution says so. Why does the constitution have authority? Why is it binding? In Britain, the lawmaker’s (parliament) legal acts and statutes are binding because of the Monarchy. The King allows the creation of legislation. The reason for the binding nature of the constitution of a country is an idea generally known as natural law. Nature/God has designed the system in this way Humans are not permitted to change this in any way In other words, the constitution or law originates from: nature, God, justice, conscience, reason. 2 “{...} all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness” - Declaration of the Thirteen United States of America “The human person possesses rights because of the very fact that it is a person, a whole, a master of itself and of its acts, and which consequently is not merely a means to an end, but an end {...}” Features of natural law: 1) Unwritten rules; natural and inalienable human rights, the basis and reason for the existence of a state and a people is the protection of these inalienable human rights 2) Determines the difference between the concepts of law and justice, natural law and positive law. 3) Conceptually connects law and morality - Natural law is a legal norm as of its structure and a moral norm as of its content. Problems with natural law - Who is competent to determine the nature of natural law? - Who has the authority to say what is the law of nature, what are the contents? John Locke: Natural law requires a democratic state order. Sir Robert Filmer: Because nature has not created states or certain specific societal rules, every man has the right to be of what kingdom he pleases, individualism, the exact opposite of the views of John Locke. If the source of authority is a supernatural or external source, you will need someone there to interpret the law that this authority has authorised. Etienne Gabriel Morelly: Where no property exists, none of its pernicious consequences could exist - everybody should share all the resources that are available. Nature gives you the opportunity to consume as you see fit. Richard Cumberland: natural law requires that private property should be protected. No one can take away my property; the clothes on my back, The animals i hunt, and so on It can be stated that there are different interpretations of natural law and how they differ. In the end, natural law and what natural law says is up to the people that interpret it and implement it into legislation. Legal positivism Developed as an opposition to the principles of the Natural law doctrine - The constitution is binding because it has been adopted by the state 1) Law is a system of written, positive legal norms adopted by the state - it is a closed system. 2) Law and Justice is one and the same, as one can find law only in written normative acts 3) Impermissibility of moral assessment of the law In legal positivism there is an emphasis on the fact that the legal norm is written and has been adopted by the state. There is no room for personal interpretation in relation to personal and moral perspective.It is not permissible to morally assess the law. The law say this, so that consequence brings about justice. The law serves justice. Positive legal norms - a product of the legislative process, the norms that have been adopted in accordance with legislation and its rules General principles of law, customary law are not positive legal norms, because they are not adopted by legislation. Issues with legal positivism: 1) What if the state is despotic/tyrannical/dictatorial? What if legal authority has enacted and enforced laws that are oppressive but at the same time have to be considered legally valid? This raises the question of whether such laws should always be obeyed or resisted on moral grounds. 2) Why would the state be interested in protecting minorities? Legal positivism does not inherently require the protection of minorities; that fully depends on the values encoded in the law and the values of the legislative body codifying these laws. 3) What to do if the law does offend morality? The basis of legal positivism is the fact that it separates law and morality, suggesting that a law may be invalid even if it is immoral. Natural law theorists obviously argue that laws offending morality lack legitimacy. If you rely on written legal acts and restrict the possibility of moral argumentation and implementation, it does not allow for a really just legal system. Reasonable people would not support a legal system based on unwritten rules, but they also would not support a legal system where you cannot question the written rules and intentions of the legislator. (natural law v. legal positivism). There is a conflict between the two theories as the principle of each differs so greatly. That is why the law and legal systems as we know them in democratically-aligned states are a mix of both legal positivism and natural law. H. Kelsen in The Pure Theory of Law - Questioned how the law works and the upper hierarchy of law and why it is enforceable 1) Legal norms ought to be followed not because they are valid but because a higher norm says so 2) The highest norm could be God’s will or Nature’s law but see the previously identified problems 3) The highest norm is the Basic Norm (Grundnorm) Basic norm - the concept The basic norm of a positive legal order is essentially the subjective meaning of the constitution-creating act of will of the historically first constitution of a particular entity. In other words, The Basic Norm refers to the assumption that provides the ultimate validity for all other legal norms within a legal system. - When a society first decides to define itself - How the society saw itself at the particular moment - What were the society’s intentions - Not looking at the first constitution itself, but what the people wanted - their intentions - The subjective will of what the people wanted to achieve, that is the Basic Norm The Basic Norm cannot be positive law (it cannot be man-made law) The Basic Norm does not refer to the constitution itself but the foundational intent that led to its creation. Reflects what a society envisioned for itself at the moment of its establishment. - Each legal system has its own Basic Norm The effect of the Basic Norm - The sovereign is the source of a basic norm, and its contents represent the sovereign will. - The Sovereign’s will, in other word, Defines the content of the Basic Norm. - It speaks to the type of country in which the sovereign wishes to live. The Basic Norm does not equal the constitution  - The Basic norm gives validity and legitimacy to the constitution and all subsequent laws. Without this, the legal system lacks coherence and justification. The Basic Norm represents the type of country and governance structure the sovereign aims to establish. This is why The Basic Norm is often described as an abstract principle rather than a tangible document. - Kelsen: “The Basic norm is a hypothetical assumption of the regulations which define the procedure for approving the initial constitution or a new constitution.” Kelsen views that the constitution is bound by the Basic Norm, and every source of law in the hierarchy is under the Basic Norm. Kelsen also says that while the constitution is a product of the Basic Norm, the Basic Norm itself exists outside of and prior to any written legal framework. It serves as the ultimate point of reference for the legitimacy of the legal system. The term hypothetical assumption is used here because the very basis of the Basic Norm is that it cannot be written. It is the assumption of what we think was behind the sovereign at the time of creation of the constitution. 26.11 Lecture two Criticism of the Basic Norm - Kelsen was not convinced of the Basic Norm, whether it was created by the people or state, or whether the Basic Norm was assumed. - Difficult to reconcile national and international legal systems. Is it a united legal system? Or two legal systems that exist in parallel? - Subjectivity of the Basic Norm - since the Basic Norm is presumed, believed, and enforced by its user (who is also imaginary) Generally speaking, a constitution is an instrument of control. “If men were angels.no government would be necessary” James Madison, The Federalist The concept of Direct Democracy Direct democracy is a system of governance where citizens have the direct power to make decisions on laws and policies, rather than relying on elected representatives. Often takes the form of referenda or popular initiatives. Key terms in Direct Democracy: - Referenda: A vote by the public on a specific policy or legal issue. - Initiatives: Proposals brought forward by citizens to be voted on - Plebiscites: A form of referendum typically initiated by the government to test public opinion. The problems with Direct democracy - Complexity of issues - Number and nature of issues to be resolved (should there be some issues which may not be resolved by referenda? Should there be issues that have to be resolved by referenda?) In other words, complex topics like tax reform and international treaties require nuanced understanding, debate, and compromise. - Cost: Organizing elections is a costly process, and holding frequent referenda can strain budgets and reduce voter turnout due to “voter fatigue” - Who asks the question: The entity framing the referendum question plays a crucial role in influencing the outcome. Often it is the executive or legislative branch that initiates referenda and drafts the questions. This in turn can lead to biased wording that can influence voters. - Who protects minorities? A majoritarian rule in a direct democratic system can overlook the interests of minority groups. Agenda of the Latvian Parliament - 28.11.2024. 1.Amendments to the Education Law 2.Draft decision «On immediate action concerning the decreasing number of Latvians in Latvia and the immigration of third-country nationals» 3.Convention on avoidance of dual taxation between Latvia and Andorra 4.Amendments to the Law on the Circulation of Fertilization Products 5.Re-appointment of two judges of first-instance courts and retirement of a judge of the Supreme Court The main principles of the legislative branch The legislative branch is the core institution of democratic governance, tasked with creating, amending, and repealing laws that govern a country. - Legislative branch acts as the voice of the people, ensuring that laws reflect the needs, desires, and values of the society it serves. Legislators are elected (or appointed) to represent the sovereign interest. - Legislatures ensure laws are debated thoroughly, representing diverse opinions  - The legislature serves as a check on the executive and judicial branches, ensuring power is not concentrated in one part of government (upholding the principle of the separation of powers) - The laws that are enacted have to apply equally to all citizens. Serves to promote justice. The legislative branch in Germany Germany has a bicameral legislature, meaning that it has two houses: - Bundestag: The lower house, directly elected by the people. - Bundesrat: The upper house, which represents Germany’s 16 federal states. - The Bundesrat ensures that that state governments have a say in national laws, especially on issues affecting their interests. The legislative branch in Latvia Latvia has a unicameral legislature, meaning it has one houseL - Saeima: Composed of 100 members, directly elected by citizens. The Saeima elects the president, approves the government, and has the power to make laws and amend the constitution. - Members are elected based on political party lists in multi-member districts, reflecting voter preferences. The legislative branch in the US The United States have a bicameral legislature - The house of representatives: The lower house, where representation is based on population - The Senate: The upper house, where each state has two members, regardless of size. The system balances representation for both the House and Senate. Congress (both houses together) creates federal laws, approves budgets, and oversees the president and the executive branch. Comparison of the different legislations Questions regarding elections - Should as many views and opinions as possible be represented or should majorities be manufactured? Representation has the possibility to lead to fragmented parliaments and unstable conditions. - How to avoid Fragmentation?  - Parties or individual candidates? (+should the state control what happens inside the parties?) - Who controls the outcome? - Who finances the candidates? - What about the parties who do not win - do they get a say? The legislative process - Who proposes laws? - Should there be some initial control of constitutionality? Who should / can do it? The promulgation of laws The promulgation of laws refers to the formal act by which a law, passed by the legislature, is officially announced and given legal force. It is typically carried out by the head of state or another designated authority, and marks the final stage of the legislative process. Promulgation ensures that the public is informed of the law and that it becomes enforceable. - Is it a ceremonial function or can the promulgator actually check the substance / legislative procedure? - What if they do not like what they see? - Can the parliament force promulgation? Dismissal of the legislator - Should the voters be able to dismiss the parliament they do not like? - Should anyone else? - What about individual members of the parliament? 27.11 Lecture three Recap of last class: 1: design of legislature: one or two chambers, depending on the specifics of the state. 2: Direct democracy: necessary but not adequate for all needs 3: Elections: it is important who “counts the votes” The executive branch The Executive Branch is responsible for enforcing and administering the laws. It ensures that policies and laws made by the legislature are implemented and that the government operates efficiently. The Executive Branch acts as a check and balance on the legislative process and judicial decisions. It ensures that laws passed by the legislature are put into action. This includes overseeing public services, security, and governance through a network of agencies, ministries or departments. It may veto or block legislative decisions and appoint judges to the judiciary, creating a system of interdependence and oversight among the branches of government. Germany - Chancellor selected by the Bundestag, upon proposal of the Federal President. - May only be removed by a constructive vote of no-confidence - Bundestag cannot simply propose a vote “We don’t like …”, there is a necessity to recommend a better person for the job. You cannot vote against, you need to vote for a different chancellor. Latvia - Prime minister elected by parliament, upon the proposal of the president - Possibility of non-constructive vote of no-confidence (but technical government remains) United States - President elected indirectly by the people - May not be removed from office, except for impeachment What does the executive branch do? - A negative definition: “That activity of the state which is neither legislation nor administration of justice” - A positive definition: The cabinet shall deliberate on draft laws prepared by individual ministries as well as matters which pertain to the activities of more than one ministry, and issues of state policy raised by individual members of the cabinet. In Latvia the administration of the state is fully subordinated to the cabinet (except for independent institutions; but effective supervision is mandatory) Legislative function of the executive branch: - When delegated by the parliament : The parliament may delegate legislative powers to the executive branch, allowing it to make secondary legislation (also called delegated subordination). This typically takes the form of regulations, decrees, or rules that detail how laws passed by parliament should be implemented. - When ratifying international agreements (only the parliament may ratify agreements in matters requiring the Parliament to legislate): The Executive branch usually plays a leading role in negotiating and signing international agreements, but parliamentary ratification is required in specific cases. How this works: The executive (usually the head of state or government) negotiates and signs treaties with other  countries and international organizations. After the exec signs the agreement, it is sent to the parliament for ratification in cases where the parliamentary approval is constitutionally required. - Implementation of EU Law: When implementing EU Law in an area not covered by legislation (but no restrictions of fundamental rights are permissible) The judiciary branch The primary purpose of the judicial branch is to interpret and apply the law to resolve disputes and ensure justice. It acts independently from the legislative and executive branches to ensure impartiality and uphold the rule of law. Judicial independence is often guaranteed by constitutional provisions, such as lifetime tenure for judges, fixed salaries, and protections against interference by other branches. Most judicial systems have a multi-tiered structure: Lower courts; appellate courts; supreme or constitutional courts. The functions of the judiciary branch - Courts examine ordinary disputes: The judiciary acts as an arbiter when disputes arise between constitutional bodies, such as the executive, legislature, or regional governments. If the executive enacts a regulation that parliament believes exceeds its authority, the judiciary can resolve the issue. - Adjudication of disputes between constitutional organs - Judicial review Judicial review: Judicial review is one of the judiciary’s most critical functions, allowing courts to assess the constitutionality of laws, government actions, and decisions. It ensures that no law or executive action violates the principles of the constitution. It is the power of the courts to assess whether a law, policy, or executive action complies with the constitution. - Marbury v. Madison (U.S. Supreme court, 1803) - It is a proposition too plain to be contested, that teh constitution controls any legislative act repugnant to it, or, that the legislature may alter the constitution by an ordinary act. Summary of the functions of the Judiciary Initiating judicial review: Judicial review can be initiated in various ways: - By Individuals challenging the constitutionality of laws or government actions in court - By public officials or constitutional bodies referring matters to constitutional courts - By courts themselves raising constitutional questions during proceedings. The process Once judicial review is initiated, courts analyze whether the law or action: - Contradicts constitutional principles or rights - Was enacted or executed in violation of procedural rules. Courts may use constitutional interpretation to clarify ambiguities in the law. If a law or action is found unconstitutional, - Courts can annul the law (in centralized systems) or refuse to apply it in specific cases (in decentralized systems) - The government or legislature may be directed to amend or repeal the law. Functioning of judicial review - Constitutional court as a negative legislator (Kelsen) vs. Constitutional court as a judicial legislator with an added role of constitution writing. Constitutional court as a negative legislator (kelsen’s model) - Role: The court acts as a negative legislator by annulling unconstitutional laws but does not create new laws or substitute its decisions for legislative action - Focus: Ensuring that laws comply with the constitution by striking down invalid provisions while leaving law-making to the legislature. - Example: This is characteristic of centralized judicial review systems, such as Austria and Germany. Constitutional court as a judicial legislator - Role: The court not only nullifies unconstitutional laws but may also engage in constitutional interpretation that effectively creates new legal norms. In some cases,  courts may take on an active role in constitution writing by filling gaps or resolving ambiguities in constitutional texts. - Criticism: This blurs the separation of powers ny allowing judges to perform quasi-legislative functions. Centralised v/ decentralised types of judicial review Centralized judicial review Definition: A specialized constitutional court has the sole authority to decide constitutional questions and annul unconstitutional laws. In this system, ordinary courts cannot perform judicial review but may refer constitutional questions to the constitutional court. - Centralised: Germany, Latvia, Austria - Germany: The Federal constitution court adjudicates constitutional issues independently of ordinary courts. - Latvia: The constitutional court resolves disputes regarding law’s conformity with the constitution. Decentralized judicial review: Definition: All courts have the authority to assess the constitutionality of laws and refuse to apply unconstitutional provisions in specific cases. - Decentralised: US, Argentina, Norway - United States: All federal and state courts can perform judicial review, as established in Marbury v. Madison. - Argentina: The judiciary generally follows the US model, with all courts empowered to engage in constitutional review. - Norway: Ordinary courts apply constitutional norms in specific cases. Hybrid Judicial review Hybrid: lower courts can only refuse to apply unconstitutional law, but only the highest court has a right to invalidate it (Latin America) Abstract V. Concrete judicial review Definition: Courts review laws’ constitutionality without reference to a specific case or controversy. This allows con courts to address potential constitutional violations preemptively. This system is prevalent in the legal systems of Germany and Latvia. Concrete Judicial review Definition: Judicial review occurs in the context of specific legal disputes, where a party challenges a law’s application in their case. For example, in the US, judicial review is performed within the framework of an actual case, as in Marbury v. Madison. In Norway, ordinary courts review laws in concrete disputes and determine their applicability. Special case of France (a priori review but also parties to cases heard by ordinary courts may ask for the opinion of the Conseil Constitutionnel). Ordinary courts cannot annul laws, but parties to cases may request a constitutional ruling from the constitutional council regarding the law’s application in their case. Criticism of judicial review  - Critics argue that judicial review transfers power from elected representatives to judges, who are not directly accountable to the public. - Give to the Judges a power of annulling {the law}; and you transfer a portion of the supreme power from assembly which the people have had some share, at least, in {choosing}, to a set of men in the choice of whom they have had the least imaginable share. - By invalidating laws or interpreting constitutional provisions broadly, courts may effectively legislate, blurring the separation of powers. 02.12 lecture four The separation of powers The separation of powers is a fundamental principle in constitutional law that divides the powers and responsibilities of government into distric branches to prevent the concentration of power and protect individual liberties. The core idea is to ensure that no single branch exercises unchecked authority, creating a system of checks and balances. Quick recap: The three branches of government: Legislative: Makes the laws Executive: Implements and enforces the laws Judiciary: interprets the law and resolves disputes. The principle of the separation of powers is designed to prevent the abuse of power by distributing responsibilities among branches that can act as checks on one another. The legislative function cannot be the same as the judiciary function De l'esprit des loix (1748) Main aim: an all-encompassing study of government with a focus on bounds to the exercise of arbitrary power. - If the right sort of government were to be established, correct laws would “flow thence as from their source” Montesquieu: - Montesquieu’s doctrine emphasizes the importance of separating legislative and judicial functions. Separation matters because if the legislature also controlled judicial powers, it could create biased laws and enforce them in its favor. If the judiciary had legislative powers, it could create laws favoring its interpretations, leading to arbitrary decision making. - three ideal types of government (according to Montesquieu) - Republican (people have the supreme power)  - The people in Montesquieu’s understanding are actually aristocracy. In this model the legislative and executive branches are morphed (also true in modern day republics?) - A democracy where the people are in fact all of the people - the danger of incompetent decision-making. This model would only be suitable for small societies. - Monarchical: a single person governs by fixed and established laws - Despotic: a single person directs everything by his own will and caprice. In a despotic government, there are no fixed laws, which leads to the abuse of power and oppression. In Montesquieu’s view this form of government represents the ultimate failure of checks and balances. Montesquieu believed that there were four branches of government, not three: legislative, judicial, executive,(executing laws that are clear) and prerogative (also fulfilled by the executive branch, where law cannot be laid down in detail). The “prerogative” or “Fourth” branch of government according to Montesquieu The prerogative branch, in M’s interpretation, refers to a specific function of governance that falls outside the strict boundaries of legislative, executive and judicial powers. It focuses on the discretionary power necessary to deal with situations where the law is unclear, silent, or cannot provide specific guidance. M emphasized that these powers should be exercised responsibly and within a broader constitutional framework to prevent arbitrary rule. The main contribution of Montesquieu to the doctrine of separation of powers is the separation between the legislative and the judiciary branch. Montesquieu believed that the same people cannot operate both legislative and judicial branches of government, because that would skew everything. What is in the separation of powers? - Actual separation: different functions are in fact carried out by different institutions and different people. - Checks and balances between the different institutions - but not excessive ones. Since that may result in a deadlock. - Equal footing of the three branches. How does the separation of powers operate in practice? 1) Legislative branch in practice - Law-making: Legislatures pass the laws that define the rules and structure of society. - Oversight: Legislatures oversee the executive branch, holding it accountable through tools such as debates, inquiries, and impeachment proceedings.  - Budget Approval: Legislatures approve national budgets and expenditures, which limits executive discretion. 2) Executive branch in practice - Policy implementation: Implements and enforces laws passed by the legislature. - Foreign affairs: Negotiate treaties and conduct foreign relations, often with some legislative approval. - Discretionary powers: May act in areas where laws are unclear, particularly during emergencies (e.g., issuing executive orders.) - Checks on the legislature: Executives can veto laws or dissolve legislatures 3) Judiciary branch in practice - Dispute resolution: Courts resolve legal disputes and interpret laws - Judicial Review: Courts check the constitutionality of laws or executive actions. For instance, in the U.S., the Supreme Court can strike down laws that violate the constitution. - Checks on the executive: Courts can limit executive power by ruling on the legality of its actions (e.g., invalidating unlawful executive orders) Interaction between the branches Checks on the legislature - By the Executive: - They may veto legislation - In parliamentary systems, the executive may dissolve the legislature or call for new elections. - By the Judiciary: - Courts can declare legislative acts unconstitutional or void if they conflict with higher laws (e.g., constitutions or international treaties) Checks on the Executive - By the Legislature: - Legislators can impeach executive officials - They can also refuse to approve budgets or treaties - By the Judiciary: - Courts can strike down executive actions if they overstep legal authority or violate rights Checks on the Judiciary: - By the Legislature: - Legislatures can amend constitutions to override judicial decisions - In some systems, legislatures control judicial appointments and budgets. - By the Executive: - The Executive appoints judges 03.12 lecture five Constitutional law and international law Constitutional law determines how states interact with international law. “One of the most fundamental functions of the constitution of any state is to identify the sources of its law” The UK Supreme Court This statement by the UK Supreme Court emphasizes that a constitution not only establishes the domestic legal framework but also defines the interaction between domestic and international law. It ensures clarity regarding: - The hierarchy of legal norms; - The process of ratifying international treaties; - The enforceability of international law in domestic courts The procedure of Germany Article 59 of the German Federal Constitution (1) The federal president shall represent the Federation for the purposes of international law. He shall conclude treaties with foreign states on behalf of the federation. (2) Treaties that regulate the political relations of the federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. This procedure ensures checks and balances between the executive and legislative branches. It prevents unilateral treaty-making by the executive, safe-guarding democratic principles and ensuring treaties align with domestic interests. The types of international obligations States can undertake international obligations through: 1) General Principles of Law 2) Customary International Law 3) International treaties - The state does get involved in the formation of GPL and CIL, with respect to international treaties Article 38 (1) (a)-(c) of the statute of the International Court of Justice - International conventions; - International custom; - The general principles of law recognized by civilized nations Art 25 of The German Federal Constitution - Says that Rules of International law are an integral part of national law - Rules of int law prevail over federal laws  - Obligations of German Citizens can originate from international laws Art 13 of the law on international Treaties on the Republic of Latvia - Constitution prevails over international law - Aim is to achieve mutual harmony between domestic and international legal norms Article VI, clause 2 of the US Constitution - The federal constitution, federal laws, international law is the supreme law of the land - All state constitutions and state laws ar subordinate to constitution and international law. - Any treaty is subject to enforcement, modification, or repeal. - International treaties are a distant third among the other two superior sources of law (fed. Constitution and fed. statutes) Constitutional law and European Union Law - EU Law cannot be separated from domestic law like international law can - Most national law of EU Member states is directly or indirectly governed by EU laws and regulations. - It is difficult to distinguish between these two legal systems (EU Law and Domestic Law of EU member states) Article 24(1) of the German Federal Constitution The federation may by a law transfer sovereign powers to international organisations. → Legal basis for joining the ECSC Joining the EU - Latvia Article 68 of the Satversme Membership of Latvia in the EU shall be decided by a national referendum, which is proposed by the Saeima. Referendum held on 20th September, 2003, 71,5% of eligible voters participate, 65% of those vote in favour of joining the EU. 09.12 lecture six - INternational law is a source of law in domestic legal systems, therefore a constitution should regulate how the international law enters into the domestic system - EU law by nature is different from ordinary international law, EU law can develop independently, regardless of the wishes of the member states. - EU can implement or impose obligations on member states that these states disagree with, as it is binding. (see recap of last class) Constitutional law and European Union law Article 42 of TEU The EU should respect the national identities of its member states. The equality of member states should be respected and national identities should be taken into account. Controlling the powers of the EU (subsidiarity) TEU, article 5 (3) The principle of subsidiarity -. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. In short, the principle of subsidiarity aims to ensure that decisions are made as closely as possible to the citizens while respecting the capacities and competencies of Member States. The principle of proportionality TEU, Article 5(4) “ Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.” - The EU has to prove that it has the right to do whatever it is planning to do IN short, the principle of proportionality ensures the EU acts within the limits of what is necessary to achieve its objectives, preventing overreach and safeguarding Member States’ sovereignty. These two principles allow member states to question the practices of the EU, and this in turn allows for assessment whether the principles have been followed in legislation. These two principles can be used as a basis for disputing the legality of EU actions. Article 23(1a) of the German Federal Constitution The Bundestag and the Bundesrat shall have the right to bring an action before the Court of Justice of the European Union to challenge a legislative act of the European Union for infringing the principle of subsidiarity. The Bundestag is obliged to initiate such an action at the request of one quarter of its Members. By a statute requiring the consent of the Bundesrat, exceptions to the first sentence of paragraph (2) of Article 42 and the first sentence of paragraph (3) of Article 52 may be authorised for the exercise of the rights granted to the Bundestag and the Bundesrat under the contractual foundations of the European Union. Once the bundestag states something about EU legislation, the federal government has to bring it to the Eu in objection to it. (Article 23(3) of the German federal Constitution) The possibility of exiting the EU Article 50 of TEU Article 50 of the Treaty on European Union provides for a mechanism for the voluntary and unilateral withdrawal of a country from the European Union (EU). An EU Member State wishing to withdraw must notify the European Council of its intention to do so. The European Council is then required to provide guidelines for the conclusion of an agreement setting out the arrangements for that country’s withdrawal. This agreement is concluded on behalf of the EU by the Council of the European Union, acting by qualified majority, having obtained the European Parliament’s consent. The EU treaties cease to apply to the country in question from the date of entry into force of the agreement, or 2 years after the notification of the withdrawal. The European Council may decide to extend that period. Any country that has withdrawn from the EU may apply to rejoin. It would be required to go through the accession procedure. Human rights “All men… are endowed by their creator with certain unalienable rights” Just because laws and legislation can be changed, the rights of the people cannot be taken away Article one of the German Federal Constitution (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) … These rights derive from the inherent dignity of the person.. Scalia suggests that human rights should not be changed in any way other than democratically. Protects individuals against human rights abuses by the government. - vertical directions of HR. Directions of HR - Horizontal 1 “”The state shall recognize and protect fundamental human rights in accordance with this constitution, laws and international agreements binding upon Latvia. - Holding the state responsible for human rights violations. - Extends the states obligations to the enforcement of human rights 11.12 lecture seven Recap of last class  1. Safeguards against a possible over-expansion of EU law are provided in domestic law (procedural and substantive) as well as in EU law itself (national identities, subsidiarity, proportionality) 2. Human rights cannot be guaranteed just in written legal acts, they are inherent and inalienable (opinions may differ as to why is that - God, nature or perhaps the uniqueness of human beings) Limitations of Human Rights 1. The restrictions are inherent in the nature of the human rights themselves (absolute rights); 2. Restrictions arising from conflicts between rights; 3. Specifically listed Prohibition of torture - an example of an absolute right. - Does not have an exception, everyone has that right Definition of ill treatment - No one shall be subjected to torture or to inhuman or degrading treatment or punishment (Article 3, European Convention on Human Rights) Absolute rights - Freedom from torture - Freedom from slavery - Prohibition of debt imprisonment - Right to not be expelled from and the right to return to the country of which one is a national Bouyid V. Belgium, para 86 says that Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on al the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Conflicts between rights See the decision of the Federal Constitutional court in the Mephisto case, ppt and online The German Constitutional Court held that dignity and protection of reputation prevails even after death. There is no clear mechanism for deciding the right that prevails when there is a conflict. In this case, the right to dignity prevailed, despite the fact that the right to artistic liberty was also involved in that case. Specifically listed restrictions on human rights Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for compensation Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law… the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants. Article 8 of European Convention on HUman Rights: Right to respect for private and family life. - Describes the steps that need to be taken in order to assess whether human rights have been restricted in compliance with the European Convention. Vavrichka and others v. The Czech Republic - Grand Chamber judgement Questions that need to be answered: 1. Is there a right? 2. Is there a restriction/interference? Restriction needs to be in accordance with the law 3. Is the restriction in accordance with the law? 4. Does it have a legitimate aim? 5. Is it necessary in a democratic society? In the case of Vavrichla and others - is there a right? 261. It is common ground among the parties that the complaint raised under Article 8 of the convention relates to the right to respect for the private life of the applicants. Is there a legitimate aim? - The interests of national security - The interests of public safety - The interests of economic well-being of the country - Prevention of disorder or crime - The protection of health - The protection of morals - The protection of the rights and freedoms of others