APE Flashcards

Question

What are the legislative powers in the Netherlands?

Answer 1

States General (bicameral) - House of Representatives (Tweede Kamer, main legislative power) - Senate (Eerste Kamer, reviews laws) - Provincial states - Municipal Councils

Answer 2

- Monarch - Prime Minister and Cabinet (main executive power) - Provincial executives - College of Mayor and Aldermen (municipal executive body) - Mayors (appointed by government)

Answer 3

- Supreme Court (Hoge Raad) - Council of State (advisory and administrative court) - District Courts and Courts of appeal

Answer 4

- Bundestag (directly elected, lower house) - Bundesrat (represents states, not directly elected) - State Parliaments (Landtage)

Answer 5

- Federal President - Chancellor (head of government) - Federal cabinet - state governments - Mayors and municipal councils

Answer 6

- Federal Constitutional Court (Bundesverfassungsgericht) (constitutional oversight) - Federal Court of Justice (Bundesgerichtshof) (highest civil and criminal court) - State courts and local courts

Answer 7

- Strict separation and checks and balances - Congress = legislature - President = (head of) executive - Supreme Court = (head of) judiciary - Congress makes laws, but the President can veto them - President is not accountable to Congress, but can be impeached by it - Judiciary checks whether laws are constitutional

Answer 8

- Judges do not check laws for constitutionality - Focus is on applying the law, rather than questioning it - Cabinet members cannot be MPs - There is judicial restraint

Answer 9

- Blurred executive-legislative line - The government and monarch both play roles in legislation - Government (executive) often drafts bills, parliament debates/approves them. - Legislative power is shared between parliament and government - Cabinet members cannot be MPs

Answer 10

- Blurred executive-legislative line - fusion of powers - The government and monarch both play a role in legislation - Government (executive) often drafts bills, parliament debates/approves them. - Monarch formally enacts laws but does not refuse consent - Ministers must be MPs (from House of Commons or House of Lords) - Prime Minister and Cabinet are drawn from Parliament - The executive and legislative branches are interdependent – the government must maintain the confidence of Parliament (especially House of Commons) to retain power

Answer 11

- Blurred executive-legislative line - Ministers can be MPs - Government (executive) often drafts bills, parliament debates/approves them.

Answer 12

The defining feature of a presidential system is whether the head of the executive is elected with a mandate of their own, or whether they owe the constitution of their office to parliament and are therefore accountable to parliament in the sense of a confidence rule. The president owes their authority to being elected, and they are therefore not accountable to Congress in the sense of a confidence rule. This is not to say that parliament may not exercise oversight over the executive, but that no accountability in the sense of the existence of a confidence rule exists. Whether Congress has confidence in them or not, the President stays in power. (e.g. USA, Brazil, Philipines). Typically, presidential systems have a stronger parliament. Presidents in presidential systems may be formally safer in office, but their clout to push through legislation or secure a budget of their liking is limited. Elected independently from Congress, they do not need a loyal majority in Congress in order to stay in office, and the majority in Congress does not need to be loyal to the President. It is Congress that adopts statutes and decides on budgets. Parliaments in presidential systems tend to be more independent, and more assertive with regard to the executive, than parliaments where the executive is formed by the majority within that parliament.

Answer 13

The head of the executive is not directly elected, but stays in office because they enjoy the confidence or tolerance of the parliament. They can be voted out of office via a parliamentary vote of no confidence. (E.g. Netherlands, Germany and UK). Typically, parliamentary systems have weaker parliaments, and leaders with stronger (political) power. This is because they are typically the heads of a loyal parliamentary majority, also often chair of the main active political party. Through their majority in parliament, prime ministers can have desired legislation adopted, so that their parliamentary power-base for executive action is at the same time their lever for implementing legislative strategies.

Answer 14

A hybrid between a presidential and parliamentary system. (e.g. France). The defining feature is that there is a directly elected President, who exercises many executive functions, and who is accountable only to the people, and a Prime Minister, who also holds executive power, and who is accountable to parliament (though they are appointed by the President). This means there is a two-headed executive with both a President and Prime Minister.

Answer 15

Presidential- but hybrid in many ways. - Parliamentary features: European Parliament aids in appointing the President of the Commission and the Commission itself, and the European Parliament can hold the Commission accountable with votes of no confidence. It is also parliamentary since the Commission and European Parliament and Council must collaborate when adopting legislation. - Presidential features: Independence of the President of the European Council, who is appointed (not elected), and who has a separate (indirect) mandate from the Member States.

Answer 16

Parliamentary

Answer 17

Parliamentary

Answer 18

Parliamentary

Answer 19

European Parliament: Legislative branch. Shares legislative power with council, exercises democratic supervision of EU institutions, shares authority with Council over EU budget. Council of Ministers: Legislative branch. Coordinates member states’ policies and defines the EU’s foreign policy. European Court of Justice (ICJ): Judiciary branch. Gives legal judgement on cases brought before it. Judiciary. European Commission: Executive branch. Proposes legislation and policies and represents the EU in external negotiations. European Council: Ambiguous. High-level policymaking to set the EU’s strategy and budget. Sets the EU’s overall political direction and priorities and consists of heads of states/government of EU Member States. Closest is probably legislative.

Answer 20

The government must have parliamentary confidence. If not, the government (or a minister) must resign. Resignation Example: The Dutch child benefit scandal: Ministers resigned due to major government errors.

Answer 21

- The government can participate in the legislative law-making process, having a collaborative role - So long as each power performs checks and balances on the others, there can still be a functioning state- the purpose is to prevent abuses of power - This can be achived by spreading state powers over different organs as a way to make sure that no organ can act without the consent of others

Answer 22

- Impeachments : A criminal trial for a very serious criminal offence, whereby the legislature (e.g. US Senate) acts as the court of law. It is used to remove high officials from office. - Votes of no confidence : Used in parliamentary systems (e.g. Germany, UK, NL) to remove a prime minister/government without proving wrongdoing- losing political support is enough.

Answer 23

- A debatable relation between the judiciary and other branches of government- it gives judges the power to check whether laws made by the central parliament comply with the constitution. - This means that (unelected) judges can sometimes simply choose not to apply laws because they have deemed them to be non-compliant with the constitution.

Answer 24

all judges have the power of constitutional review of legislation

Answer 25

Judges are not allowed to invalidate legislation for alleged breaches of the constitution – legislative supremacy is instead stressed. The principle of parliamentary sovereignty would not tolerate it if judges contradicted/ignored the will of lawmakers

Answer 26

Judges are not allowed to invalidate legislation for alleged breaches of the constitution – legislative supremacy is instead stressed. Dutch doctrine says that it is a responsibility of the lawmaker itself to obey the Constitution, subject to democratic control.

Answer 27

It is allowed, but generally occurs before laws are enacted. Regular French courts are not allowed to review laws. Constitutional Council is not a true constitutional court: It only reviews laws in specific instances when referred (not automatically).

Answer 28

Parliamentary: PM is not directly elected- they are appointed by parliament. Requires parliamentary confidence to stay in control Presidential: Directly elected by the people. Does not need parliamentary confidence to stay in power Hybrid: President is directly elected, PM is appointed by parliament

Answer 29

Parliamentary: vote of no confidence Presidential: impeachment Hybrid: president is independent, but PM must have parliamentary confidence

Answer 30

Parliamentary: Executive and legislature are fused (PM comes from parliament) Presidential: Strict separation Hybrid: president is separate from parliament, but PM is dependent on it

Answer 31

A principle relating to the territorial distribution of power within a constitutional system. Federalism obtains where the component regions of a state have their privileges, especially their constitutional autonomy, their legislative competences and their participation in federal decisions, enshrined in the national constitution. Federations are composed of territorial subdivisions whose privileges are enshrined in the constitution itself. The State’s autonomous legislative powers, the participation of the State in federal decision-making and the involvement of the State in the procedure by which the federal constitution is amended are all protected in the Constitution. Generally, federations are decentralised, because sub-units have their own constitutionally recognised legislature, executive and judicial powers. In federations, sub-units participate in federal decision-making, and amending the Constitution often requires their consent, preventing unilateral centralisation. In federations, there is a centralised power which distributes power between the central element and the participatory states. Not all power is located at the top- it is in fact distributed from the bottom- it is held locally and often distributed toward the central element. Powers are shared with national and regional governments through a constitution in which regional powers are guaranteed.

Answer 32

The opposite of a federation. Power can be devolved to regions but can also be taken back from them by a decision of the central authority without the involvement of the regions themselves. Unitary state subdivisions receive their power from the central authority. In unitary states, sub-units receive their power from the central authority. The powers enjoyed by sub-units are laid down in laws enacted in the national capital by the national lawmaker. Such powers can thus be withdrawn. Unitary states can be heavily centralised (e.g. France), but this varies (e.g. decentralised states like the UK, with Scotland, Wales and Northern Ireland). In unitary states, sub-units may have some consultation rights, but decision-making remains with the (core) national government. Constitutional amendments typically do not require approval from sub-units, allowing for easier restructuring. Power is thus located at the top! Central government which has competences, subunits exists but through decentralisation. Competences find their origin in the central government.

Answer 33

Federal (national) law has supremacy over the law of the sub-units. If federal law did not override conflicting regional law in the areas where the federation is competent, then the regions would be completely autonomous. In that case, there would not be sufficient cohesion to call the state federal, and the system would be rather called a confederation of otherwise independent states. Alternatively to federal supremacy, a very strict separation of mutually exclusive competences may apply. If any one power can be exercised by only one level at a time, federal supremacy is not necessary. Most federations in the world award supremacy to federal law. No matter what, federal law does fully apply within the sub-levels. Supremacy and application of the rules and decisions made by the ‘federal’ level within its jurisdiction can be observed in the US, Germany and the EU.

Answer 34

- The sub-units are represented at federal level. This is one of the most crucial criteria, in that federations provide for the participation of their regions in federal decision-making. Resultingly, the regions are not merely the passive recipients of federal law, and they are not isolated from the national level. Instead, apart from having autonomy for their own affairs, they have a stake in the system as a whole as well. Regional representation in the national capital is typically ensured via an upper chamber of a bicameral parliament (US Senate, EU Council etc.). The lower chamber would then represent the population of the federation as a whole.

Answer 35

The autonomous powers of the sub-units and their representation at federal level are enshrined in the national written constitution. Usually, this is done by defining the powers/competences of the federal government. Regions in unitary states may receive their powers from ordinary national legislation; the insertion of these principles into the constitution (coupled with the involvement of the sub-units in constitutional amendment) ensures that federalism is a fundamental and entrenched feature of the state.

Answer 36

The sub-units are involved in the process when the constitution is changed. Without such involvement, the regions would depend on the will of the central authority for the maintenance of their autonomy and prerogatives. Involvement in federal constitutional amendment usually takes the form of a two-chamber approval at national level or of the ratification of amendments in the regions themselves, or both.

Answer 37

An independent arbiter resolves conflicts between the central authority and the sub-units over the scope of their powers. This arbiter has to watch over the competences transferred to the federal entity and to supervise that these are not to be extended to the detriment of the sub-entities. Such arbiter is usually the judiciary, more specifically a constitutional court or court of arbitration. Allowing the central authority to unilaterally interpret the scope of regional powers would make the system de facto unitary; allowing the states individually to define their own powers would weaken national cohesion and might tear the federation apart.

Answer 38

- Federal law prevails over State law - Federal law must be applied by State courts - Federal powers are limited - State powers are protected - An independent arbiter decides over federal-State conflicts - Representation of States in parliament - States’ participation in constitutional amendments Divergences in Federal Systems - Execution of federal laws: by federation and/or states - Existence of shared competences

Answer 39

A system based on the idea that citizens do not take all decisions on their public affairs themselves. Instead, persons or institutions elected by citizens take these decisions on the behalf of citizens. Parliament plays a crucial role in ensuring that the rulers properly represent the ruled. In this context, parliament has 3 core tasks under constitutional law: - Legislation: taking decisions that bind the citizens on the citizens’ behalf, including the budget - Scrutiny: Checking, on behalf of citizens, other governmental institutions, especially those who have not been elected - Representing the people: articulating concerns of the voters and translating these concerns into policy and other actions

Answer 40

- Legislation: taking decisions that bind the citizens on the citizens’ behalf, including the budget - Scrutiny: Checking, on behalf of citizens, other governmental institutions, especially those who have not been elected - Representing the people: articulating concerns of the voters and translating these concerns into policy and other actions

Answer 41

It describes an assembly where policies are debated. Other Parliamentary functions include: * Budget Approval * Executive Scrutiny * Policy Influence * Approving Treaties Before Ratification * Consultation in Specific Areas (e.g. war, emergency measures)

Answer 42

* In Parliamentary Systems (e.g. UK, NL, Germany): o The government relies on parliamentary confidence to stay in power. o Opposition parties scrutinise government actions most strongly. * In Presidential Systems (e.g. US, France (hybrid)): o Parliamentarians are more independent from the executive. o Government does not automatically fall if parliament withdraws support.

Answer 43

Discussions about direct elections and democratic representation through parliament usually focus on unicameral parliaments or the lower chambers of bicameral parliaments. Many parliaments in the world are bicameral, meaning that they are not a single assembly, but rather comprise two assemblies, or chambers, next to each other. The ‘lower’ chamber is usually directly and democratically elected, and it is more important politically, and more powerful constitutionally. The ‘upper’ chamber is typically the additional chamber that complements the lower chamber.

Answer 44

- The key difference between a parliamentary and presidential system of government is whether or not the government is accountable to parliament. - Accountability refers to whether parliament can dismiss the government if it is dissatisfied with its performance. If parliament can do this, then the system under consideration is a parliamentary one. Accountability entails not only the duty for the government to explain and justify its policies, but also the possibility of a sanction in the form of removal from office if parliament finds the justification wanting.

Answer 45

- Responsibility: Historically, monarchs took ultimate responsibility for government policy, which essentially meant that nobody could be directly held accountable for political failures. Now, ministers can be held accountable because of their input into policy making. - Accountability: This describes the actual process of rendering account, and the consequences attached thereto. Ministers are accountable to parliament for everything for which they are competent and responsible. This implies that ministers must inform parliament, justify conduct, and remain subject to dismissal by parliament.

Answer 46

* Stability vs. Parliamentary Prerogatives: Procedural conditions on no-confidence votes aim to stabilise government, even though they restrict parliament’s power. * Loss of Majority: A coalition withdrawal often leads to a loss of majority support, and if the new minority cannot govern, early elections may be triggered.

Answer 47

Parliament can hold individual ministers accountable, forcing resignation.

Answer 48

The entire cabinet can be held accountable, meaning the whole government can be dismissed by parliament.

Answer 49

Accountability is generally to the lower chamber in bicameral parliaments. The upper chamber may not necessarily trigger government resignation, though it can be politically impactful.

Answer 50

1. Attribute power to public authorities 2. Regulate the fundamental relations between public authorities 3. Regulate the fundamental relations between the public authorities and the individual (this is often regulated by rights)

Answer 51

You cannot be fired (as a member of the judiciary) for what you rule on

Answer 52

Linked to impartiality. When you are a judge, you can’t rule on your own political opinion.

Answer 53

- Poland lowered the retirement age of judges, but gave the president the authority to extend the terms of judges based upon specific circumstances and choices - In this way, Poland violated the independence of the judiciary (first complaint), and the president overstepped boundaries on prescribed power and discretion (second complaint). - By making rules for firing judges, their aim was not legitimate- Poland justified what they did by stating that it was to regulate foreseeability of terms of judges- yet it was clear that the real aim of Poland was to regulate employment- the President essentially aimed to keep judges he liked (and sacrifice those he did not), thus threatening judicial independence. This means the motives of Poland were questioned, and the external-irremovability is seen as the likely true intent. - Typically, you can fire judges on grounds (for example) of dementia etc., since this is proportionate to the legitimate goal. - The second complaint is not in line with the independence of the judiciary- the president can arbitrarily decide whether to extend the employment of judges under the guise of formal rules and predictable terms. - The ICJ determined that Poland had refused to comply with EU rules on judicial independence, and Poland’s supreme court was not impartial and independent (as mandated by the separation of powers/rule of law).

Answer 54

- The law itself had a legal basis- there is a law which authorises the overreach in Poland, but it is against EU law. Lowering of the retirement age and granting the president discretionary power with regards to extending periods of judicial activity of judges occurred by law and with consent of the Polish parliament. Thus, legality was not the central rule of law issue here.

Answer 55

- The position of judges beyond the age of 65 was made dependent on a decision of the president (executive), and this decision was not bound by objective criteria set beforehand by the legislator. Thus, there is a substantive violation of the principle of the separation of powers.

Answer 56

- Prohibitions, e.g. no parking zones, leading to parking tickets - Granting authorisations/permits, e.g. cutting down trees, building structures, authorisations/bans on short term rentals - Allocation of benefits, e.g. disability benefits or study grants - Imposing of sanctions, e.g. parking tickets, fines for illegal letting of houses as short term facilities

Answer 57

Definitions of administrative organs/acts, procedures for administrative decision-making- who can make an application, what time limits are there for the citizens and administration during the application), norms for the administration (e.g. the right to a hearing, the duty to motivate a decision by the body), access to courts(e.g. time limits for judicial decisions), e.g. saying that the law must be in writing. E.g. “General Act on Administrative Law”. Typically developed along the lines of case law, then later defined. Lex generalis. General and specific administrative legal rules should be applied together when looking at cases.

Answer 58

Developed in areas of case law, then centralised in specific acts. Concerns rules pertaining to specific areas of administrative law. For example, environmental law (e.g. control on emissions, and protections of species), tax law, migration law (e.g. housing permits, asylum seekers), social security law. Might contain derogations from the general norms- for example, environmental law may contain a provision which changes the length of a deadline for response from the authorities. Lex specialis (meaning it has priority over generalis). General and specific administrative legal rules should be applied together when looking at cases.

Answer 59

The administration is composed of public legal persons, which are entities that have legal personality under public law and are responsible for carrying out public functions. While some private legal persons or individuals may be entrusted with public tasks, they do so under the appointment and responsibility of a public legal person. Public legal persons are entities that have legal personality and can engage in legal activities such as concluding treaties, entering contracts, and being sued as legal entities. They exist at different levels of government and include: * The European Union * The State * Regions, provinces, and municipalities * Bodies with legal personality under private and/or public law

Answer 60

* The European Union * The State * Regions, provinces, and municipalities * Bodies with legal personality under private and/or public law

Answer 61

Public legal persons act through public/administrative organs, which do not have independent legal personality but are entrusted with specific competences. These organs exist at different levels of government and ensure legal certainty by clarifying which entity is responsible for specific administrative tasks. Examples of public/administrative organs at different levels: * European Union: European Commission, Council of Ministers, organs of agencies. * The State: Government, ministers, other state organs (e.g., human rights institutions). * Regions/Provinces: Provincial states, regional governments, prefects. * Municipalities: Local councils, mayors, aldermen. Public/administrative organs are divided into two categories: * Individual organs: Officials who act on behalf of public legal persons (e.g., ministers, mayors, directors of public establishments). * Assemblies: Elected or appointed bodies responsible for decision-making (e.g., councils of local entities).

Answer 62

French administrative law covers more topics than in most other countries because it includes special procedures and cases that other legal systems treat as private law. Two main reasons for its broad scope: 1. Special proceedings: French administrative courts deal with cases beyond just reviewing the legality of government decisions. They also handle public contracts and liability claims against public bodies (which other systems usually treat under private law). 2. Special rules for different areas: Many administrative activities (e.g. public employment, government-owned property, infrastructure) have their own special administrative laws. Not all government activities must be under public law, but they often are, if they meet certain criteria. Why is French administrative law so broad? o French law strongly separates public law and private law (this comes from its Roman law roots). o Public law is designed to meet the special needs of government activities. - No administrative activity in France is entirely outside public law - The state holds most administrative power, mainly through the President and Government

Answer 63

- Apply generally (no named addressee) - Do not confer rights - (therefore) are easier to revoke/modify

Answer 64

- Addresses specific people - Often confers rights - (therefore) harder to revoke/modify

Answer 65

It is mostly held by the President and the Government- these are the executive national authorities.

Answer 66

* The State holds most administrative power, mainly through the President and Government. * Key administrative bodies include: o Executive national authorities:  President  Government o Independent administrative authorities (e.g., data protection, banking supervision). o Parliament:  National Assembly (elected by citizens)  Senate (elected by local authorities and National Assembly members). * Decentralisation: France has strong local administrative organs. o Prefects represent the State at regional and departmental levels. o Appointed by the President and Government, they exercise extensive local authority under central oversight.

Answer 67

Administrative decisions automatically take effect and are directly enforceable. Complaints do not suspend enforcement.

Answer 68

o Penal proceedings (fines or prison for violating administrative decisions- criminal courts can impose fines/imprisonment for breaching administrative decisions- courts must first assess the legality of the administrative decision) o Administrative sanctions (imposed directly by authorities) o Forced execution (exceptional, requires justification)

Answer 69

* Increasingly common, especially with independent regulatory bodies. * Examples: reprimands, bans, financial penalties (e.g., Minister for Ecology can fine for waste storage violations). * Requirements for legality: o Justified and preceded by a hearing. o Must respect impartiality (Art. 6-1 ECHR). o Must be subject to judicial review (usually "recours de plein contentieux" → judges can modify sanctions). * Constitutional guarantees (inspired by criminal law): o Legality of sentences o Non-retroactivity of harsher laws o Proportionality between sanctions and offences o Right to appeal

Answer 70

* General rule: Police force cannot be used unless judge authorises it. * Exceptions: 1. No alternative legal remedy exists. 2. Law explicitly allows forced execution. 3. Emergency situations (evaluated by judge). * Conditions: o Decision must be legal. o Individual must be recalcitrant. o Proportionality of the measure. * Liability risks: Administration can be held liable for illegal enforcement. In severe cases (affecting personal freedom/property), judiciary courts may gain jurisdiction.

Answer 71

Hierarchy of the Bloc de Légalité (from highest to lowest): 1. Constitution – Supreme national legal authority. 2. International rules – Treaties & agreements prevail over parliamentary law (Art. 55 French Constitution). o Exception: Constitutional provisions prevail over EU law (Conseil d’État ruling). o Some EU principles (e.g., equality & precaution) reinforce constitutional principles. 3. Parliamentary law – Legislation passed by Parliament. 4. General principles of law – Unwritten but judicially recognised principles governing administration. 5. Regulations – Lowest level, governing administrative actions: o National regulations > Local regulations. o Regulations from superior administrative organs prevail over those from subordinate organs.

Answer 72

1. Existence and scope of administrative law. 2. Judicial review and its scope. 3. Protection of fundamental rights (e.g., equality, freedom of education). 4. Administrative functioning (e.g., continuity of public services).

Answer 73

- Dualism: Refers to the separation of powers between the government and parliament. In a dualistic system, parliament and the executive operate independently, meaning ministers are not simultaneously members of parliament. This contrasts with monism, where there is a closer connection between the executive and legislative branches - Bicameralism: Refers to a legislative system with two chambers (e.g. House of commons and House of lords). The purpose of bicameralism is often to provide checks and balances within the legislative process.

Answer 74

* The State administration (ministries, central government bodies) * Local authorities (such as municipalities and regions) * Public establishments (such as universities and hospitals)

Answer 75

The most important legal competence (public power prerogative) attributed to administrative organs under French administrative law is the principle of legality, which means that the administration must conform to all superior legal rules. This includes the power to issue unilateral administrative acts that bind individuals without their consent.

Answer 76

An administrative organ is said to have discretion when it has a choice between multiple lawful options in exercising its competence. This means that while the administration must follow the law, it may decide how to implement it based on circumstances. However, there are no purely discretionary decisions; all contain elements of bound competence.

Answer 77

* Direct application (e.g. regulations automatically apply in national law) * Transposition of directives into national law * Judicial enforcement through national courts

Answer 78

* Reparatory sanctions aim to restore a lawful situation (e.g. ordering a company to remove illegal construction). * Criminal sanctions are punitive and intended to punish an offence, often through fines or imprisonment. They relate to private and criminal law

Answer 79

o Communication with the administration (e.g., applications, decision processes). o Issuing of unilateral administrative acts. o Access to administrative documents and open data. o Administrative dispute resolution mechanisms. o Special provisions for overseas territories. * Unwritten principles identified by judges form part of the legality bloc. * Many principles protect individuals from administrative harm (e.g., equality, non-retroactivity, fair hearing). * Influence of general principles has declined due to the increasing importance of constitutional and international law. * Legal certainty is now recognised as a key value in administrative law. * Legitimate expectations are not yet recognised in French law but apply within EU law per ECJ rulings.

Answer 80

- The provisions of GALA and relevant case law - The unwritten principles of law, as developed by case law - The generally applicable regulation (AVV) on which the power to act in question is based - Higher generally applicable regulations, e.g. the Constitution - Erga-omnes (conferring rights and duties) treaty provisions and decisions by international organisations (art. 93 and 94 Dutch Constitution), human rights as laid down by ECHR being particularly relevant - EU Treaty provisions and secondary legislation (and decisions) taken by EU organs. The EU is a supranational legal order

Answer 81

Art. 120 Dutch Constitution

Answer 82

1. EU decisions/erga omnes treaty provisions (international laws) 2. Dutch Constitution 3. Statutes (national law) 4. General administrative orders/crown decrees 5. Ministerial orders 6. Provincial ordinances 7. Municipal ordinances

Answer 83

when an administrative organ is granted a previously non-existing competence. For example, before a provision there is nothing- then a provision creates a public competence/authority by saying what a public organ can (not) do. E.g. the constitution defines what an act of parliament is (regulatory act of legislation), and the government has the right to make them. The executive competence is not only the competence to make regulations/laws/ordinances/acts, but also executing these laws.

Answer 84

Freedom of decision is left to the organ that is given the executive power. Discretionary is the power to distinguish whether or not to use an act when applying the law. In the wording of an article or act, “may”, typically means discretionary, while “shall” typically implies non-discretionary.

Answer 85

When an administrative organ transmits its competence to another organ. For example, “Dutch nationality shall be regulated by Act of Parliament”, or “Declarations and requests shall be made and submitted in person, except in cases designated by General Administrative Orders.”

Answer 86

Constitutional legislator -> (via attribution) -> Legislator (act) -> (via delegation) -> Government

Answer 87

1. Constitution 2. International/EU law (sometimes above the constitution) 3. Acts of parliament (statutory acts) 4. Government decrees 5. Ministerial decrees 6. Regional/provincial regulations 7. Local ordinances In most states, international law and EU law only apply by way of the constitution. However, in NL, international and EU law precede even the constitution. This is exemplified in NL- but it doesn’t apply to all international law provisions- it is conditional.

Answer 88

Act of parliament (statutory act) -> local ordinance -> college of mayor and aldermen decision -> individual decision (application)

Answer 89

- Principle of due care - Prohibition of bias - Prohibition of arbitrariness - Equality principle - Détournement de pouvoir (abuse of power) and specificity - Legitimate expectations - Proportionality principle - Duty to motivate - Legal certainty

Answer 90

- Administration must collect all necessary information, facts and interests before making a decision (if necessary, by consulting experts and hearing the person concerned) - The weighing of interests is also relevant here- there should be careful preparation of a decision. - There is also a close link to the obligation/duty to forward documents which are obviously linked to the competence of another administrative organ - As well as a close link to the obligation of the administrative organ to expressly include the possibilities of objection, appeal, and judicial review in the decision

Answer 91

- This principle has 2 limbs: - The administration itself must act without prejudice - The administrative organ has to ensure that persons working for it or under its responsibility (e.g. civil servants, experts etc.) with a personal interest in the outcome cannot influence the decision-making process. This means the administration is responsible for ensuring that the decision-making process takes place in an objective manner and improper interests do not play a role in the outcome of this process.

Answer 92

- Decisions have to be guided by the law (any not by any other interests, e.g. personal interests of the public organ) - The court can only interfere in the way in which the administration exercises its discretionary power if the decision of the administration is an act of arbitrariness. The courts assume this is the case if the weighing of interests has led to an evidently unreasonable outcome.

Answer 93

- Obligation to treat similar cases equally - (and therefore, to treat unsimilar cases unequally to the extent that they are unequal) - 2 cases are seldom equal, and the administration can often rely on grounds for justification of the unequal treatment.

Answer 94

- An administrative organ must not use a competence for a different purpose than that for which it was given - For example, an administrative organ acts outside of its competence, in violation of a higher act - The limits of an assigned competence must be specified. - The principle of specificity is closely linked to the legality principle. The administration may only weigh the public interest aspect against the private interests of interested citizens which the statute in question aims to protect. - Detournement de pouvoir has emanated from the principle of specificity. - Strictly speaking, the principle of specificity, together with detournement de pouvoir, is not a general principle of administrative law, but a constitutional principle based on the concept of Rechtsstaat, a state governed by the rule of law.

Answer 95

- Related to legal certainty and legality - An administrative organ must honour legitimate expectations created by it - E.g. a municipality suddenly requiring a permit for something it has not asked for before- the question becomes whether enforcement (a fine) is justified in this case. Certain conditions must be met (a balance) for it to be justified

Answer 96

- The core principle that is in the recent years mainly invoked in court - Administrative organ must seek a fair balance between the interests involved (public interests v. individual interests) - Is about the duty of the administrative/public organ to balance these interests, in a reasonable manner, and accounting for the way an individual is affected by a certain decision. The weighing of these interests must therefore be transparent- e.g., are there less intrusive measures that could be implemented? - This norm prescribes that the adverse effects of an administrative decision on one or more interested parties must not be disproportionate to the aims pursued by that decision.

Answer 97

- Administrative organs must provide reasons for their decisions - This is a formal principle, i.e. it regulates the form in which you understand a decision (e.g. parking tickets must be backed up by rules, records of infringements etc.)

Answer 98

- Related to good faith. Legal certainty protects existing rights or interests and regulates under which conditions decisions can be altered or revoked (material aspect of the principle of legal certainty) - Can imply conditions for the revocation or termination of laws, and the relevance to non-retroactivity

Answer 99

- Criminal law – a sanction imposed by a criminal court, e.g. after discharging non-regulated waste water into sewers. (“punishable by the fine provided for offenses of the fifth class… punishable by criminal… see slide”) - Civil law – a sanction imposed by a civil court in the case of a tort - Administrative law – a sanction is imposed by an administrative organ itself, e.g. an order under recovery, which is a reparatory sanction- the competence is given to the municipality to impose the order under recovery.

Answer 100

- Order under recovery - Order under penalty - Withdrawal/revocation of permit - Recovery of a subsidy

Answer 101

- Administrative fine (also those falling under criminal law, e.g. prison)

Answer 102

By national authorities within the state

Answer 103

o Monitor compliance within their territory. o Investigate violations. o Impose sanctions for breaches of EU law.

Answer 104

* Member States decide which authorities enforce EU law and which enforcement system they use. * They can choose from three types of enforcement: 1. Administrative Law  Uses national administrative sanctions.  Can be reparatory (e.g., withdrawal of a subsidy, enforcement actions) or punitive (e.g., administrative fines).  Imposed by national administrative authorities and challenged in national administrative courts. 2. Criminal Law  Violations may lead to criminal prosecution and imprisonment.  Initiated by the national public prosecutor.  Sanctions imposed by national criminal courts. 3. Civil Law  Enforcement through private individuals affected by an infringement.  Lawsuits are filed in national civil courts.  Common in competition law (e.g., companies suing for anti-competitive behaviour).

Answer 105

o Equivalence (same level of enforcement as national laws). o Effectiveness (ensuring EU law is enforced properly). o Dissuasiveness (sanctions must deter violations). o Proportionality (penalties must match the severity of the offence).

Answer 106

The term “judicial review” means that a judge can examine a legal decision or norm, or another object of scrutiny, and check its compatibility with a higher norm. Thus, a judge may, depending on the system, test whether a regional law is in harmony or in conflict with a higher, national law. If a lower law conflicts with a higher law, then the judge (providing they have a review power) can establish a conflict. Similarly, they may check whether an administrative decision by a public authority complies with the authorising general legislation. They may further (again, depending on the system) examine the validity of a national statute by setting it against the national constitution- this is called constitutional review of legislation. In some systems, the judge may review the compatibility of national law with general principles of law, such as proportionality, or with an international treaty, e.g. the ECHR. Conversely, they may also check the compliance of treaties or acts of international organisations with the national constitution. Judicial review is thus a court’s power to detect conflicts in law, and possibly to attach consequences to resolve the conflict.

Answer 107

pertains to the constitutionality of statues made by the central or national lawmaker.

Answer 108

pertains to the possibility for individuals or legal persons to challenge the legality of actions, omissions, or decisions by administrative organs, other than the legislature and other than regulations made by administrative organs. In most states, administrative actions and decisions can be ultimately challenged before the courts, which then assess the legality of those acts on the basis of non-compliance with legal norms or violation of general principles, embodying such notions as legal certainty, legitimate expectations, equality, absence of arbitrariness and others. Some countries let general courts deal with these public law issues, while others have set up specialised administrative courts for this purpose. The body of law on these issues is generally called administrative law, or procedural administrative law. Such legal protection is one of the tools used to implement the rule of law aspects of holding the executive organs of the state to legal standards and to enable citizens to access courts to enforce the legality of administrative decision-making and protect the legal interests of civilians.

Answer 109

This stresses that the constitution is the highest norm in a legal system, and that all other law derives from its authority. Thus, legislation should not be allowed to violate the constitution. Consequently, judges should refuse to apply normal statutes if they violate the constitution. Thus, having a constitution and no constitutional review powers for courts would be pointless, since the lawmaker could violate the constitution with impunity. It is argued that laws derive their authority from their compliance with higher law, that non-compliant laws cannot be normative and that a constitution cannot be supreme unless it is enforced by judicial review of legislation. This relates to the US Supreme Court case of Marbury v. Madison (1803). However, one may equally argue that while the constitution is supreme, this does not mean that judges should be able to “frustrate the will of the lawmaker”- the lawmaker should take account of the constitution when passing statutes in the first place, and make the right choices itself, subject to democratic oversight from the voters. NL, France and UK follow these ideas, trusting democratically elected office-holders rather than unelected judges.

Answer 110

This holds that checks and balances are necessary to provide a counterweight against the majority of the day. Democracy is not the same as tyranny of the majority; it also includes protection of minorities and individual rights. In the rule of law, minorities and individuals can find such protection, as even the majority is bound by law. In the US, this very counter-majoritarian character of judicial review is often perceived as problematic, particularly when judges are accused of pursuing their own political agenda against the preferences of the elected institutions. The question of whether judges are more/less likely than legislators to respect minorities also comes into question.

Answer 111

- Abstract/concrete - Ex post/ex ante - Centralised/decentralised

Answer 112

This refers to the verification of whether a law that is about to be applied in adversarial judicial proceedings is actually constitutional. It arises out of a concrete dispute between two parties before a court.

Answer 113

Here, a law is submitted to scrutiny outside of the context of an actual application in a dispute, and is typically triggered by office-holders, e.g. the government.

Answer 114

This takes place before the law has entered into force, and strictly speaking, it targets bills rather than existing legislation.

Answer 115

This subjects legislation that is actually in force to judicial scrutiny.

Answer 116

This means that any court may check the constitutionality of legislation.

Answer 117

This means that a special constitutional court or quasi-judicial body exists exclusively to review legislation

Answer 118

Modern constitutional review is rooted in US constitutional law. In 1803, the US Supreme Court held that the US Constitution had to prevail over ordinary legislation, and that it followed from their professional tasks that in the course of proceedings before them, judges should detect whether different applicable norms conflict with each other. As a result, all US courts have the power to verify whether legislation that they are about to apply is constitutional. This means that abstract review in the form of advisory opinions or otherwise does not exist, because that would take place outside of the context of an actual court case, and would therefore not fall within the professional responsibilities of the judiciary.

Answer 119

Germany has a special constitutional court that carries out review functions. This system is called the continental, Austrian or Kelsenian model of judicial review. These systems allow courts to examine the constitutionality of statutes, but keep the power to invalidate these statutes centralised in one constitutional court set up specifically for that purpose. Review is therefore decentralised when arising from concrete cases, but the final decision on constitutionality is always centralised. In addition, Kelsenian systems typically allow constitutional courts to engage in abstract review of legislation upon request from specified state institutions.

Answer 120

Historically, France has had a system whereby laws could only be reviewed before they had entered into force- a task carried out by the Constitutional Council (this was not strictly a court, since it was not completely staffed by lawyers). Since the constitutional reform of 2008, France allows its 2 supreme courts to refer questions regarding the constitutionality of statutes to the Constitutional Council as well, which they in turn may receive from lower courts (meaning that it can receive questions on constitutionality from any French court). Thus, in addition to its ex ante review in the abstract, France also features concrete review ex post.

Answer 121

In the UK there is no central document which codifies the most fundamental rules governing the state. Also, a principle of the UK constitution is that parliamentary sovereignty is the supreme legislator, so second-guessing parliament could go against the Constitution. In this way, only the UK Parliament can make or unmake a statute.

Answer 122

NL explicitly prohibits its judges from questioning the constitutionality of statutes. There is some, but it is limited to abstract and ex ante in form- and this can only occur in a centralised way, through the Council of State.

Answer 123

Within the EU, the ECJ operates as a constitutional court- national courts may refer issues of (secondary) EU law infringing on Treaties to the ECJ. EU legislation, such as a regulation or directive, may also be contested in annulment proceedings for an alleged violation of the Treaties.

Answer 124

refer to the same thing- this is when the court leaves the statute/case as it stands, but refrains from applying it to a particular case.

Answer 125

means that the statute is struck out and ceases to exist. This technically means that it never existed, however retroactive effects of annulment of statutes are generally limited to preserve legal certainty.

Answer 126

In a monist system, national statutes and provisions form treaties ratified by the state are treated as forming part of one and the same national legal order (“monism”). This allows individuals to invoke treaty provisions before a national court, in the same manner as they would invoke a national law. If a conflict arises between national law and a treaty provision, the latter prevails. The argument for the monist approach says that it is pointless to have treaties if citizens cannot rely on them before their national judge; and such reliance would be pointless if treaties did not also override conflicting national legislation. Monism may also signal to the outside world a system’s willingness to open up to the international legal order, for example free trade regimes, by making up its international commitments enforceable in its regular domestic courts.

Answer 127

In a dualist system, national law and treaties are treated as falling under two separate realms. Individuals can invoke national provisions only; in order to benefit from treaty provisions, they would have to wait until their lawmaker has transposed them into national law, in pursuance of the state’s international obligations. The argument for the dualist approach says that under the private law concept of privity of contact, contracts are binding upon the parties thereto, not upon a third party; a treaty may be likened to a contract between the state and a foreign state making mutual promises, not between the state and its own citizens. To a dualist state, treaty enforcement should be a matter for international diplomacy and public international law, not domestic judicial action. Another argument against unconditional monism might be that it would allow treaties to undermine the national constitution via ‘imported’ law taking precedence over national law: constitutional review of treaties might be called for. Even where there is no conflict with the constitution, it may be noted that not all systems allow their national parliament to be involved in the approval or ratification of treaties to an extent that would match their role in domestic lawmaking; thus, it may be argued that domestically enforceable rights and obligations should only be created in an ordinary legislative procedure for the adoption of domestic statutes, with full parliamentary involvement.

Answer 128

A challenge arises for dualist systems when it comes to giving domestic effect to human rights treaties such as the ECHR. It may be reasonably argued that human rights commitments are only credible if they endure and override conflicting national legislation. For example, national legislation implementing international human rights treaties in a dualist system is not necessarily superior in rank with respect to any other piece of national legislation. Thus, the lex posterior rule, and implied repeal in the UK (meaning that a later law overrides the earlier law), threaten to render earlier human rights commitments obsolete. Both Germany and the UK therefore have found techniques to circumnavigate the hierarchy dilemma, to take into account EU human rights and still hold on to a dualist model with respect to treaties. The UK has incorporated the rights from the ECHR in a national statute, the Human Rights Acts 1998. It compels judges to interpret national legislation in the light of these rights, and it allows higher judges to make it known if they deter a violation by another statute (however, judges are still not allowed to disapply the statute for that reason). German courts take Convention rights into account when interpreting the rights enshrined in the Basic Law; the fact that the Basic Law already contains a human rights catalogue that goes far beyond the minimum guarantees in the Convention makes the issue less pressing. These approaches have not been chosen for other human rights treaties (though in Germany the Constitutional Corut might in forthcoming cases also resort to the same interpretation technique, using any other treaty as a source of interpretation of the national human rights catalogue in the Constitution). In the UK other human rights treaties do not play the same role as the EU and ECHR since these other treaties have not been transposed as is the case with the ECHT, in am equivalent of the human rights Act.

Answer 129

Through the Marbury v. Madison case, which established that judicial review powers flow from the constitution- the US Constitution does not explicitly allow for it. - The Constitution is defined as the highest law of the land, and judges (as well as other functionaries) take an oath to uphold it. - The Constitution derives directly from the will of the people through a solemn and rarely repeated act. - The Constitution would lose all practical effect if Congress could violate or change it via simple legislation; the complicated amendment procedure, even the effort of writing constitutional rules down in the first place, would become pointless if simple statutes would do just as well. - Legislation is only possible thanks to the Constitution, and the conferral of power upon Congress. Statutes can only have authority if made in pursuance of the Constitution, whereas a statute that violates the Constitution is clearly not made in pursuance of it.

Answer 130

- General jurisdiction (civil and criminal law) - Administrative law - Social security law - Labour law - Tax law

Answer 131

- The constitutionality of the contested statutory provision must be relevant to the proceedings - The statute may not already have been declared constitutional by the Constitutional Council at an earlier stage, unless there has been a change of circumstances - The question must represent a necessary degree of seriousness

Answer 132

- The administrative jurisprudence division of the Council of State - The Central Council of Appeals for social security and cases involving rules on civil servants - A tribunal for commercial matters

Answer 133

The Dutch child benefit scandal stemmed from a flawed childcare allowance system under the 2005 AWIR law, which required parents to estimate childcare costs in advance and prove payments. The Tax and Customs Administration used an AI-based risk model that disproportionately targeted parents of foreign origin, leading to excessive fraud investigations. A strict "all or nothing" repayment policy meant that even minor discrepancies led to full refunds of allowances, causing severe financial distress for many families. The anti-fraud crackdown intensified in 2013, culminating in the unjust termination of benefits for many innocent parents in the "CAF 11" case. Despite early warnings, legal challenges, and an Ombudsman report in 2017, compensation was delayed. The issue gained political traction in 2019, leading to a policy shift, a government apology in 2021, and the eventual resignation of the Dutch government. The Data Protection Authority later confirmed that the AI system had violated GDPR through discriminatory profiling.

Answer 134

The Netherlands is unique among Council of Europe and Venice Commission member states in completely prohibiting constitutional review under Article 120 of its Constitution, meaning courts must apply laws even if they are flagrantly unconstitutional. Instead, the Advisory Division of the Council of State provides constitutional advice on draft legislation, though this does not extend to all amendments or issues that arise in practice. In most cases, this is not problematic due to Article 94 of the Constitution, which allows courts to disregard national laws that conflict with international law, particularly the ECHR. However, in the Childcare Allowance Case, this safeguard failed because the Council of State ruled that ECHR provisions were not applicable. This case highlights that certain issues may not be covered by international human rights law, suggesting a potential role for constitutional review. While constitutional review is not obligatory, most Venice Commission member states provide some form of it. It is unclear whether such a system would have prevented the Childcare Allowance Case, as its effectiveness depends on the constitutional norms in place. Dutch authorities are encouraged to consider whether Article 120 should be amended or alternative mechanisms introduced, but any reform should be based on a thorough evaluation rather than being seen as a simple solution.

Answer 135

The case concerns an identity check carried out by German police on a train near the Czech-German border. The applicant, a German national of Indian origin, argued that he was singled out due to his dark skin, constituting racial profiling in violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private life) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. The Dresden Administrative Court dismissed his claim in 2015, ruling he lacked a legitimate interest in challenging the identity check's legality after it had ended. The Court of Appeal upheld this decision, stating that such checks near borders were routine, did not have lasting consequences, and were not inherently discriminatory. The Federal Constitutional Court declined to hear the case in 2018. The European Court of Human Rights (ECtHR) examined whether the identity check fell within the scope of Article 8, particularly considering the threshold of severity required to claim an interference with private life. It also reiterated that racial discrimination is particularly serious and requires strict scrutiny by the authorities.

Answer 136

* The applicant argued that he was denied effective judicial protection under German constitutional law (as enshrined in the Basic Law, Grundgesetz), specifically in relation to his right to an effective remedy (Rechtsschutzgarantie). * The German courts dismissed his case on procedural grounds, finding that he lacked a legitimate interest in challenging the police action after it had taken place. This raises questions about access to justice and whether procedural barriers unjustly prevent judicial scrutiny of potential fundamental rights violations.

Answer 137

* The case concerns potential racial profiling, engaging with equality before the law (Article 3(3) GG), which prohibits discrimination based on race, origin, or other protected characteristics. * The applicant’s reliance on Article 14 ECHR (prohibition of discrimination) and Article 8 ECHR (right to private life) mirrors fundamental rights protections in the German Basic Law. * The German courts determined that an isolated identity check, without stored data, was too minor an interference to warrant constitutional review. This raises a broader constitutional law debate on whether racial profiling constitutes a systematic rights violation even when individual cases appear minor.

Answer 138

* The case examines the lawfulness of police identity checks under section 23(1)(3) of the Federal Police Act (Bundespolizeigesetz), which allows checks near borders without specific suspicion. * The applicant contested whether this provision provided a sufficient legal basis for the identity check, engaging principles of proportionality and legal certainty in administrative law. * The decision reinforces the wide discretionary powers of police in border controls, but it also exposes the lack of specific safeguards against racial profiling.

Answer 139

For a judiciary to comply with rule of law, it must function independently from the other 2 branches, especially from the executive branch, because it must ensure that the executive branch complies with the laws made by the legislative branch. Courts must be able to control the executive, to decide if the administration acted within the boundaries of the law. It must not act in subordination to the executive as a consequence of the executive having more power to decide to not live up to the court’s expectations. The people sitting on the bench in the judiciary should not be the people working within the executive.

Answer 140

Legislator: ensures human rights through legislation (makes laws which respect and uphold rights) (e.g. prohibition for the state to enter a home) Executive: Ensures human rights through administrative acts etc. (e.g. the obligation for the administration to enter a home only with a court order) Judiciary: Judicial review of administrative acts and legislative statutes. Scope of review: constitutional review: yes/no, Review of compliance with treaty law: monist/dualist (in dualist system, you cannot invoke a treaty provision directly before a national court- you have to invoke an act which transposes…) (e.g. if the right to home was infringed, individual review of the “act”/ruling would occur)

Answer 141

France pre-2008: constitutional review by the Constitutional Council could only review of bills before they entered into force as part of the legislative process (ex ante) France post-2008: the Constitutional council is competent to decide on questions on the constitutionality of statutes that arise in individual cases after the statute has been enacted (ex post)

Answer 142

Art. 94 NL Constitution: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons. Self-executing provisions are provisions which are so clear that they can be implemented immediately without interpretation (e.g. right to free speech). In general, NL has a monist system, you can invoke international treaties directly in national courts. You cannot invoke the constitution to address statutes, but you can do it with international laws. The council of state said the case did not fall within the provisions (protocol 1 etc. labelled in 128 para). The monist system of Art. 94 of the Dutch Constitution provides for direct application of (self executing provisions of) international law including human rights treaties. Human rights provisions take precedence over national statutes. Courts assess the compatibility of national laws with international human rights provisions. However in this case, human rights protection was absent because the AJD determined that the decision of the Dutch Tax and Customs Administration (To reclaim large sums of money from parents) fell outside the Scope of their jurisdiction.

Answer 143

- Guarantees the supremacy of the constitution. This stresses that the constitution is the highest norm in a legal system, from which all other laws are derived- thus, legislation should not be allowed to violate the constitution. Judges should therefore refuse to apply statutes if they violate the constitution. A constitution cannot be supreme unless it is enforced by judicial review of the legislation. - Judicial review provides a check on the legislator for the protection of minorities and of human rights and rights of individuals. In this way, there is a counterweight against the majority. - The separation of powers, used to maintain a distance between legislator, judiciary and executive to avoid an excess/arbitrary use of power in one area, can be applied to enforce checks and balances on the legislators by the judiciary, to make sure they are complying. - One could argue regarding legal certainty, in that since judges are not democratically elected, they maintain a less biased or politically-motivated position when compared with legislators, making them more trustworthy and appropriate overseers of the legislators. - The application of the rule of law is arguably something that judges are qualified to enforce, since they are trained to interpret written law

Answer 144

- While the constitution is supreme, judges should not be allowed to undermine the legislator- the lawmakers should take account of the constitution when making laws, since they are subject to democratic oversight from voters. There is thus a ‘violation’ of democratic legitimacy. - While judicial review can protect the rights of minorities, this can also be problematic, particularly when judges are accused of pursuing their own political agenda against the preferences of the elected institutions. Not only this, but one questions whether judges are really more likely than legislators to actually respect rights of minorities. - The separation of powers also implies that the judiciary should simply apply the law, not criticise or second-guess it, which is arguably interference with the legislature’s purpose. - Regarding legal certainty, judges are arguably less competent to conduct constitutional reviews than legislators because they are not democratically elected. Also, legal certainty could arguably require that statutes, once in force, should stand until they are repealed by citizens and real cases- rather than courts casting doubts on their validity. - It could be argued that the rule of law does not have one “correct” application to constitutional provisions, and there is no justification in assuming that the interpretations of judges are any more sound than those of legislators.

Answer 145

Default: contractual freedom of parties prevails Mandatory: Limits contractual freedom of parties

Answer 146

Vague: "Within a reasonable time" Strict: "within 2 working days"

Answer 147

- National level - International level - European level (e.g. Regulations – directly applicable – meaning the national legislator has not to intervene, and the rule prevails above any contrary national rule. Or, directives – not directly applicable – the national legislator has to adopt, through for example an Act, the European rules from the directive into its national law. There is a margin for appreciation for this as to the appropriate legal tool as to how to transpose the directive into the legal system) - Written law (acts, codes) - Case law (this can vary in authority depending on jurisdiction, i.e. common law or civil etc) - Legal doctrine - Hard law - Soft law (e.g. codes of conduct, or model rules)

Answer 148

- You are free to/to not conclude a contract (banks are sometimes obliged to contract, whether they want to or not, so assuming that there is a choice always is incorrect) - You are free to determine its content - You are free to decide with whom to conclude a contract

Answer 149

It is the binding force. The effect of a contract is that it is legally binding on parties. This makes a contract a law that binds two parties. This law creates rights and duties which parties must abide by- it is binding. A party can also claim enforcement of its rights which are based on a contract Exceptions: Rights of withdrawal after a cooling-off period

Answer 150

- The declaration (or objective) theory – here, the declaration of a party prevails above its inner will. - The will (or subjective) theory – here, the inner will (not intent!!) of a party prevails above its declarations, subject to proof by that party. - The reasonable reliance theory – reasonable belief of the addressee induced by the conduct of addressor in light of all circumstances. So, there is an attempt to combine both the will theory and the declaration theory. This relates to part 1(a) and 3 in Act. 30 CESL. The reasonable reliance theory is the default theory to apply unless otherwise specified. If we conclude that a party could not reasonably believe the intention of the other party, the contract is not valid. How does declaration theory differ from reasonable reliance theory? Under declaration theory, a contract is concluded- but under reasonable reliance theory, it may not be.

Answer 151

deals with the rights and duties of individuals (including other private actors such as companies) with respect to one another. At the core of private law lies the value that society wants to place upon people in pursuing their own individual goals without the need for authorisation by other people or the state. Thus, private law allow people to shape their own legal relations with others by choice and to enforce the ensuing rights in court whenever necessary. Private interests are only created and maintained if private individuals wish to do so. Private law: - Facilitates people in keeping or transferring their property - Facilitates in making contracts about anything a person could wish or to refrain from doing so - Facilitates in claiming compensation for other peoples’ unlawful conduct or to turn the other cheek on the wrongdoer - Facilitates in deciding to marry, divorce and whether to have children - Facilitates in disposing of one’s property after death or relying on the default rules of succession

Answer 152

about the organisation of the state and the relationship between the state and its citizens. Public interest is actively upheld by the state, which has received special powers to make this possible.

Answer 153

Aside from regulating legal relationships among individuals, private law arguably has other goals, of which there are two competing claims: 1. The instrumental view: Private law works primarily as an instrument to reach some external goal. This goal is often found in economic efficiency, which implies (for example), that contracts must only be enforced if they promote social welfare by making both parties to a contract better off. 2. The normative view: Private law is a means to an end to make the success (hence the adoption) of a rule dependent on whether this rule influences behaviour of individuals in the way desired. In this view, the only reason why private law influences people is because it creates incentives for the right behaviour or penalises wrong behaviour. 3. The bonus view: A third variation of private law as a means to an end is to consider it from the perspective of distributive justice- private law, like tax law or constitutional law, must deal with the fair (re)allocation of resources such as wealth, income and liberties among the members of the political community. This type of justice would then also apply to contract and tort law, refuting the standard view that these areas are about corrective (or commutative) justice in that they deal with interpersonal rights and wrongs,- or with correcting any interference of fair distribution in a specific relationship between two people. ‘

Answer 154

once the contract is formed, both parties are legally obliged to adhere to the legal provisions within the contract. This is somewhat the opposite of the freedom of contract- they balance each other. Trusting in the performance of the agreed upon terms. If you enter into a contract, it is as enforceable as state law- it has a strong binding force. Pacta sunt servanda- you have to do what you agreed upon. Also not possible to get out of a contract (though there are of course exceptions- this is part of the reason for contract law existing).

Answer 155

a person is free to enter into any contract, and decide its form. Allows consumers to negotiate/consent to terms. Before you enter a contract, there is nothing you are obligated to do. You can decide whether you want to enter into a contract at all, you are free to decide on the content of the contract, and you are free to decide with whom you want to contract. You are not obligated to do anything, and if you do decide to act, you can act in your best interests. We need default rules (e.g. made by the state or EU), otherwise every party would have to negotiate a lot of basic scenarios. Contract law can step in with mandatory rules to protect the weaker party because they may not always have the starting point of freedom- for example when people are obliged to have health insurance.

Answer 156

A negotiated contract is generally considered fair under classical contract law because both parties have had equal opportunity to negotiate and agree upon their own rules. The law assumes that the contract reflects their true intentions and interests based on this equal influence on the contract, making it fair. Mutual agreement, free will, only agreeing on a contract when it is in the best interest of the parties.

Answer 157

Non-negotiated contracts, though often convenient for parties (they save time and effort for both sides) are not always considered fair because (for example) there can be an imbalance of power between the contracting parties- if a (typically economically) “stronger” party devises the contract, it can be difficult for “weaker” contracting parties to have a say, which can lead to exploitation. Also, there can be a lack of proper consent, for example with a phone bill, where people may have no choice but to accept the terms of a contract- or they may not even read the contract before signing/read it and not understand the content, which can be disempowering. The implications of these involve inequality, imbalances of power, consumer coercion, and legal disputes between parties.

Answer 158

- When the contract itself contains an ambiguous expression (e.g. making each interpretation more advantageous for different parties), or - In case of discrepancy between a contract term and the intention of one of the parties (e.g. a misunderstanding between the units a seller intends to sell) Interpretation is a tool to establish: - parties’ common intention - The meaning of the contract (terms) This can have an impact on: - What the parties’ rights and obligations are

Answer 159

Default rules: Fill gaps in the parties’ agreement – and here, you look to CESL Mandatory rules: These prevail above the parties’ agreement, e.g. in the case of unfair terms, where you look to Directive 93/13/EEC

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