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Rulings

ECJ 13 December 2018, case C-385/17 (Hein), Paid leave

Torsten Hein – v – Albert Holzkamm GmbH & Co. KG, German case

Journal European Employment Law Cases, Issue 1 2019
Keywords Paid leave
Abstract

Case Reports

2019/9 The right to object against a transfer in case of incorrect information is not unlimited (GE)

Journal European Employment Law Cases, Issue 1 2019
Keywords Transfer of undertaking, Employees who transfer/refuse to transfer
Authors Nina Stephan
AbstractAuthor's information

    According to German law, every employee has the right to object to the transfer of their employment relationship to the transferee in the case of a transfer of business. However, the right to object is not unlimited. The Federal Labour Court (Bundesarbeitsgericht (‘BAG’)) held that an employee who had worked for the transferee for seven years had lost this right if they had been informed about the transfer.


Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltgesellschaft mbH
Article

The Eternity Clause

Lessons from the Czech Example

Journal European Journal of Law Reform, Issue 3 2019
Keywords eternity clause, constitutional amendment, Czech Republic
Authors Ondřej Preuss
AbstractAuthor's information

    This article presents lessons from the Czech example of the so-called Eternity Clause’ i.e. a legal standard declaring certain principles, values or specific constitutional provisions to be unalterable and irrevocable. The Eternity Clause is viewed and applied in the Czech Republic as a substantive legal ‘instrument’ that enables society to preserve its values. It is used to limit practical ‘power’ and to maintain desired values and the political system.
    That the Eternity clause is a practical instrument has already been proved by the Czech Constitutional Court in its famous ‘Melcák’ decision. However, recent developments show that the Czech Constitutional Court is no longer open to such a ‘radical’ approach. Nonetheless, it still seems that the court is prepared to defend the values of liberal democracy, just not in such a spectacular way. It is, therefore, more up to the political actors or the people themselves to use Eternity Clause arguments to protect liberal democracy and its values.


Ondřej Preuss
Faculty of Law, Charles University (preuss@prf.cuni.cz). This article was written under the “Progress 04: Law in a Transforming World” programme.
Article

Limited Constitutional Amendment Powers in Austria?

Journal European Journal of Law Reform, Issue 3 2019
Keywords total revision, amendment, constitutional principles
Authors Manfred Stelzer
AbstractAuthor's information

    In Austria, constitutional amendments can be attained rather easily. A two-thirds majority in parliament allows for engineering constitutional amendments. The Austrian constitution only knows one exception to its flexibility: the principles of the constitution (‘Verfassungsprinzipien’). When the constitutional principles were to be affected by formal amendment in terms of a ‘total revision’ (‘Gesamtänderung’), a higher threshold needs to be met in order to engineer an amendment. In addition to a two-thirds majority in parliament, a referendum is required. Two questions are of particular interest: First, when does a constitutional amendment amount to a total revision and what are its limits? Second, and even more important, which core principles are recognized by the Austrian constitution and what is their content? These questions may be briefly outlined.


Manfred Stelzer
Manfred Stelzer is Professor of Public Law at the University of Vienna.
Article

Unamendability and Constitutional Identity in the Italian Constitutional Experience

Journal European Journal of Law Reform, Issue 3 2019
Keywords Unamendability, constitutional identity, republic, counterlimits, European integration, Italy
Authors Pietro Faraguna
AbstractAuthor's information

    The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability.


Pietro Faraguna
Pietro Faraguna is Assistant professor of constitutional law, University of Trieste.
Article

Constitutional Narcissism on the Couch of Psychoanalysis

Constitutional Unamendability in Portugal and Spain

Journal European Journal of Law Reform, Issue 3 2019
Keywords unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater
Authors Catarina Santos Botelho
AbstractAuthor's information

    Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch.
    Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: Can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries?
    Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars, or the judiciary. Therefore, the vexata quaestio remains unanswered: Given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialized outside of the constitutional framework)?


Catarina Santos Botelho
Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law, Universidade Católica Portuguesa. Email: cbotelho@porto.ucp.pt. I thank Paul Kahn, Nuno Garoupa, Richard Albert, Gonçalo Almeida Ribeiro, Yaniv Roznai, Ana Teresa Ribeiro, and Luís Heleno Terrinha for their very helpful comments.

Lech Garlicki
Lech Garlicki is a Former Judge of the European Court of Human Rights and a Professor of constitutional law at the University of Warsaw.

Yaniv Roznai
Yaniv Roznai is Senior Lecturer, Harry Radzyner Law School, IDC Herzliya.
Article

A View on the Future of Judicial Review of Constitutional Amendments in Turkey

An Invitation to Judicial Dialogue

Journal European Journal of Law Reform, Issue 3 2019
Keywords basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments
Authors Ali Acar
AbstractAuthor's information

    In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue.


Ali Acar
Cankaya University Faculty of Law and visiting researcher at Osgoode Hall Law School. I thank Richard Albert, Vicente F. Benítez-Rojas, and Mehmet Turhan for their comments and critiques, which were insightful to develop the ideas in this article.
Article

Judicial Review of Constitutional Amendments in Turkey

The Question of Unamendability

Journal European Journal of Law Reform, Issue 3 2019
Keywords judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism
Authors Ergun Özbudun
AbstractAuthor's information

    This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary.


Ergun Özbudun
Ergun Özbudun is Professor of Constitutional Law at İstanbul Şehir University. This is an enlarged and updated version of my article ‘Judicial Review of Constitutional Amendments in Turkey’, European Public Law, Vol. 15, No. 4, 2009, pp. 533-538.
Article

Transitional Constitutional Unamendability?

Journal European Journal of Law Reform, Issue 3 2019
Keywords transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court
Authors Gábor Halmai
AbstractAuthor's information

    This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism.
    In order to discuss the issue of transitional unamendability, the article engages in the scholarly discussion on transitional constitutionalism in general, and deals with the relationship of constitutional law and constitutional culture. Another side topic of the article is whether such transitional unamendability provisions should also contain international or transnational values and principles, and what happens if those are not in conformity with the unamendable provisions that serve to build up a national constitutional identity. Again, the example of Hungary can be important here, how national constitutional identity protected by the Constitutional Court can serve to abandon the European constitutional whole.


Gábor Halmai
Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; email: gabor.halmai@eui.eu.
Article

Access_open Constitutional Norms for All Time?

General Entrenchment Clauses in the History of European Constitutionalism

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional amendments, constitutional law, constitutional politics, constitutionalism, entrenchment clauses, eternity clauses
Authors Michael Hein
AbstractAuthor's information

    ‘General entrenchment clauses’ are constitutional provisions that make amendments to certain parts of a constitution either more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. This article examines the origins of these clauses during the American Revolution (1776-77), their migration to the ‘Old World’, and their dissemination and differentiation on the European continent from 1776 until the end of 2015. In particular, the article answers three questions: (1) When, and in which contexts, did general constitutional entrenchment clauses emerge? (2) How have they migrated to and disseminated in Europe? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfil?


Michael Hein
Adult Education Center Altenburger Land, Altenburg, Germany. Email: mail@michaelhein.de. All cited websites were visited on June 18, 2018. Unless stated otherwise, all references to constitutions in this article are taken from M. Hein, The Constitutional Entrenchment Clauses Dataset, Göttingen 2018, http://data.michaelhein.de. All translations are by the author.

Otmar Hagemann
Otmar Hagemann is professor of social work at Kiel University of Applied Sciences, Kiel, Germany.
Article

Consensus Democracy and Bureaucracy in the Low Countries

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, bureaucracy, governance system, Lijphart, policymaking
Authors Frits van der Meer, Caspar van den Berg, Charlotte van Dijck e.a.
AbstractAuthor's information

    Taking Lijphart’s work on consensus democracies as our point of departure, we signal a major shortcoming in Lijphart’s focus being almost exclusively on the political hardware of the state structure, leaving little attention for the administrative and bureaucratic characteristics of governance systems. We propose to expand the Lijphart’s model which overviews structural aspects of the executive and the state with seven additional features of the bureaucratic system. We argue that these features are critical for understanding the processes of policymaking and service delivery. Next, in order to better understand the functioning of the Netherlands and Belgium as consensus democracies, we provide a short analysis of the historical context and current characteristics of the political-administrative systems in both countries.


Frits van der Meer
Frits van der Meer, Professor Institute Public Administration, Leiden University.

Caspar van den Berg
Caspar van den Berg, Campus Fryslân, University of Groningen.

Charlotte van Dijck
Charlotte van Dijck, PhD Fellow Research Foundation Flanders (FWO), KU Leuven Public Governance Institute.

Gerrit Dijkstra
Gerrit Dijkstra, Senior Lecturer, Leiden University.

Trui Steen
Trui Steen, Professor, KU Leuven Public Governance Institute.
Literature review

Consensualism, Democratic Satisfaction, Political Trust and the Winner-Loser Gap

State of the Art of Two Decades of Research

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensualism, majoritarianism, political trust, satisfaction with democracy, Lijphart
Authors Tom van der Meer and Anna Kern
AbstractAuthor's information

    Lijphart (1999) argued that citizens tend to be more satisfied with democracy in consensual democracies than in majoritarian democracies and that the gap in democratic satisfaction between the winners and the losers of elections is smaller under consensualism. Twenty years on since then, this article takes stock of the literature on consensualism and political support. We find considerable ambiguity in the theoretical arguments and empirical evidence provided in this literature. Finally, we speculate on possible reasons for this ambiguity.


Tom van der Meer
Tom van der Meer, University of Amsterdam.

Anna Kern
Anna Kern, Ghent University.
Article

Access_open Do Characteristics of Consociational Democracies Still Apply to Belgian Parties?

Journal Politics of the Low Countries, Issue 1 2019
Keywords Belgium, political parties, party membership, political participation, political representation
Authors Emilie Van Haute and Bram Wauters
AbstractAuthor's information

    Belgium has long been described as a typical case of a consociational or consensus democracy. This article aims at identifying whether political parties in Belgium share the internal characteristics of parties in consensus democracies: passive mass memberships, the importance of purposive and material incentives for joining, and representation of a clear subculture in the social and attitudinal profiles of their members and via overlapping memberships with related organizations. We mobilize longitudinal party membership data and party member surveys conducted in three different time periods. We show that pillar parties still exercise their role of mobilization and representation of societal segments, but these segments tend to become smaller over time. New parties offer alternative options of mobilization and representation, although not always in line with the specific institutional arrangements of consociational democracy.


Emilie Van Haute
Emilie Van Haute, Cevipol, Université libre de Bruxelles.

Bram Wauters
Bram Wauters, Research Group GASPAR, Ghent University.
Article

Transformative Welfare Reform in Consensus Democracies

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, welfare state, social investment, transformative reform, Belgium and the Netherlands
Authors Anton Hemerijck and Kees van Kersbergen
AbstractAuthor's information

    This article takes up Lijphart’s claim that consensus democracy is a ‘kinder, gentler’ form of democracy than majoritarian democracy. We zoom in on contemporary welfare state change, particularly the shift towards social investment, and argue that the kinder, gentler hypothesis remains relevant. Consensus democracies stand out in regard to the extent to which their political institutions help to overcome the politically delicate intricacies of governing for the long term. We theorize the features that can help to solve the problem of temporal commitment in democracy through processual mechanisms and illustrate these with short case studies of the contrasting welfare state reform experiences in the Netherlands and Belgium.


Anton Hemerijck
Anton Hemerijck is Professor of Political Science and Sociology at the European University Institute (EUI) in Florence, Italy.

Kees van Kersbergen
Kees van Kersbergen is Professor of Comparative Politics at the Department of Political Science of Aarhus University, Denmark.
Article

Post-Legislative Scrutiny of the Law against Gender-Based Violence

The Successful Story of the Cabo Verde Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords oversight, post-legislative scrutiny, Cabo Verde, parliament
Authors Elisabete Azevedo-Harman and Ricardo Godinho Gomes
AbstractAuthor's information

    In 2011 Cabo Verde’s parliament approved the Law Against Gender-Based Violence (GBV). In 2014, 3 years later, the Women’s Caucus (WC) of this parliament agreed to trace the implementation of the law and its impact. This decision was taken without a clear perception of how to conduct post-legislative scrutiny (PLS) and without suspecting the eventual troubling findings. Post-legislative scrutiny has not previously been done in Cabo Verde, partly because of the inexperience of this democratic parliament, partly because PLS is a rather recent and still underdeveloped legislative activity anchored in oversight and legislation functions. In 2014 and 2015, Women’s Caucus conducted PLS of the GBV Law finding that the government had not enacted the necessary implementation rules to enforce this law, which hampered budget allocations and funding. According to the country’s legislative process this should have taken place within 10 months of the law’s approval. This study describes and discusses how the post-legislative scrutiny of the GBV Law was conducted and the lessons learned through this pioneering process in Cabo Verde’s parliament.


Elisabete Azevedo-Harman
Elisabete Azevedo-Harman is Professor on legislative and political institutions in Angolan and Mozambican universities, political advisor, international expert on parliamentary and institutional development. Currently is a senior consultant of the National Assembly of Angola.

Ricardo Godinho Gomes
Ricardo Godinho Gomes is a political scientist in the field of democratic governance since 2006 for UNDP, more specifically in electoral assistance, parliamentary strengthening and public finance management. He is a UNDP programme manager and he was the head of the management units of the project in support of electoral cycles in PALOP and Timor-Leste (2010-2013) and the Pro PALOP-TL SAI (2014-2017).
Article

Post-Legislative Scrutiny in a Non-Westminster Parliament

Opportunities, Challenges and Considerations

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, parliamentary oversight, legislative process, Verkhovna Rada of Ukraine, French Senate, Belgian federal parliament
Authors Jonathan Murphy and Svitlana Mishura
AbstractAuthor's information

    Post-legislative scrutiny (PLS) has generated growing interest as a means both for strengthening the legislative process and for permitting parliament to more effectively integrate its legislative and oversight functions. Engagement throughout the cycle of legislative development, adoption and implementation enables parliament to assure laws are properly implemented and to rectify weaknesses either in original legislative conceptualization or in executive implementation. Carried out properly, PLS should improve governance and increase its democratic accountability. Recent attention to PLS has however focused mainly on its role and use in Westminster-type parliaments. This article explores PLS from the perspective of non-Westminster parliaments. It seeks to understand why PLS in non-Westminster parliaments has received comparatively less scholarly and parliamentary development practitioner attention. The article uses a case study of Ukraine to explore the context and challenges for effective PLS, a non-Westminster emerging democracy. It concludes by proposing rebalancing discussion of PLS to take better account of diverse parliamentary models and suggests approaches to supporting PLS development in parliaments where it has not previously been consistently used


Jonathan Murphy
Jonathan Murphy is Docent, University of Jyvaskyla, Finland and parliamentary development consultant.

Svitlana Mishura
Svitlana Mishura is Deputy Head of the Main Legal Department of the Administration of the Parliament of Ukraine. The authors would like to thank UNDP Ukraine and the Verkhovna Rada of Ukraine for their support to the development of this article, and Anastasia Petrova for her invaluable research assistance in collecting data on PLS in the Verkhovna Rada.
Article

Post-Legislative Scrutiny as a Form of Executive Oversight

Tools and Practices in Europe

Journal European Journal of Law Reform, Issue 2 2019
Keywords scrutiny of law enforcement, ex-post impact assessment, parliamentary oversight of the executive, post-legislative scrutiny
Authors Elena Griglio
AbstractAuthor's information

    Parliaments’ engagement in post-legislative scrutiny can be considered either as an extension of the legislative function or within the framework of the oversight of the executive. This article makes use of the latter view to assess how parliaments in Europe approach post-legislative scrutiny and to which extent this function can be regarded as a form of executive oversight. Although rules and practices of parliaments in this realm are remarkably heterogeneous, the focus on some selected parliaments (Italy, France, Germany, Sweden, and the European Parliament) reveals three different conceptual categories. In the ‘basic’ approach (passive scrutinizers), parliaments limit their role solely to the assessment of the ex-post scrutiny performed by the government and external agencies. Differently, parliaments willing to engage in a more proactive approach might choose either to act on an informal basis, establishing ad hoc research/evaluation administrative units (informal scrutinizers) or to address post-legislative scrutiny in a formal and highly institutionalized manner (formal scrutinizers). As a matter of fact, the practise of parliaments often combines characters of different categories. While in all of these approaches post-legislative scrutiny shows potential for executive oversight, only the third can potentially lead to a kind of ‘hard’ oversight.


Elena Griglio
Dr Elena Griglio is a Senior Parliamentary Official, Italian Senate and Adjunct Professor, Luiss Guido Carli University.
Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.
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