In The Netherlands, the prohibition of judicial review of the constitution- ality of parliamentary legislation is laid down in Article 120 of the Constitution.5The courts have equally rejected the competence to review
1 Admittedly ‘the’ principle of separation of course does not exist; what defines the judi- cial position is a particular version of ‘the’ separation of powers doctrine. In addition,
‘the’ separation of powers argument is not conclusive for instance in defining whether or not courts have the power to review the validity of legislation: it can be used both in favour and against such review.
2 Again, ‘the’ democracy principle is not conclusive on the ‘mighty problem of judicial review’. Is it the will of the current majority which is to be upheld by the courts, or the Will of the People expressed at a constitutional moment, ‘We, the People’? What is meant here, again, is a particular version of the democracy principle.
3 O Due, ‘Danish Preliminary References’, in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol I, (The Hague, Kluwer Law International 2000) 363.
4 Comparative literature on constitutional review of primary legislation includes C Grewe and H Ruiz Fabri, Droits constitutionnels européens, (Paris, PUF, 1995), 66ff, with references at 99; L.Favoreu and J-A Jolowicz, Le contrôle jurisdictionnel des lois, (Paris, Economica/PUAM, 1986); M Cappelletti, Le pouvoir des juges, (Paris, Economica/PUAM, 1990).
5 Article 120 of the Constitution states that‘No court shall enter into the review of the constitu- tionality of statutes and treaties’; until 1983 the Constitution was even more radical stating in its Article 131 that ‘Statutes are inviolable’.
Statutes on their compatibility with the Statuut van het Koninkrijkand with general principles.6The Hoge Raademphasised the fact that the Makers of the Constitution had during the revision of the Constitution in 1983, once again7rejected the power of the courts to review the constitutionality of statutes: it is a task which is reserved for Parliament and especially the First Chamber.8 The most recent proposal for constitutional amendment was made in April 2002.9 This context makes Article 94 of the Constitution,10which provides for the power of the courts to review ‘con- ventionality’ all the more noteworthy: the drafters of the Constitution give the courts jurisdiction to review the conventionnalitéof statutes, but not their constitutionality, making the Constitution less enforceable than interna- tional agreements. The constitutional tradition of judicial deference to the primary legislature is probably the main reason why the Dutch courts did not feel inclined to make use of their review powers under Article 94 of the Constitution (then Articles 65 and/or 66) before Van Gend en Loos.
8.1.1.2. France
Since the Revolution, the French system has strongly repudiated constitu- tional review of Acts of Parliament by the courts. The loi, the expression of the sovereign will of the People, l’expression de la volonté générale, is not to be scrutinised by the courts. Judges are supposed to function as la bouche qui prononce les paroles de la loi, and must keep themselves far from the exercise of the legislative function.11The French dislike of judicial review is written
6 Hoge Raad, decision of 14 April 1989, Harmonisatiewet, NJ 1989/469.
7 The question as to whether some form of judicial constitutional review should be intro- duced is subject of an ongoing debate. Proposals for constitutional reform are introduced with regular intervals. The theme of constitutional review is discussed in MLP van Houten, Meer zicht op wetgeving, Rechterlijke toetsing van wetgeving aan de Grondwet en fun- damentele rechtsbeginselen, (Zwolle, 1997).
8 The Eerste Kameris the counterpart of the second chamber in many other countries; it has limited powers only; it cannot initiate or amend legislation, though it can reject it – on average only once a year; it meets only one day a week and is considered the constitu- tional conscience of the Netherlands Parliament. Dutch law students will often present the Eerste Kameras an alternative for the lack of judicial constitutional review. On the Dutch Eerste Kamerin a comparative perspective, see ETC Knippenberg, De Senaat.
Rechtsvergelijkend onderzoek naar het House of Lords, de Sénat, de Eerste Kamer en de Bundesrat, (De Haag, Sdu, 2002).
9 The Bill proposed to authorise decentralised judicial review of the compatibility of Acts of Parliament with certain specified fundamental rights contained in the Constitution;
see Voorstel van wet van het lid Halsema houdende verklaring dat er grond bestaat een voorstel in overweging te nemen tot verandering in de Grondwet, strekkende tot invo- ering van de bevoegdheid tot toetsing van wetten aan een aantal bepalingen van de Grondwet door de rechter’, Tweede Kamer, 2001–2, 28 331.
10 In 1953, then numbered Article 65; re-numbered (Article 66) and amended in 1956, and re-numbered in 1983.
11 There is a deep fear of what is referred to as a ‘gouvernement des juges’, after a book on judicial review by the US Supreme Court during a time when it interfered deeply in
down in revolutionary text which is still considered good law today: ‘the judicial tribunals shall not take part, either directly or indirectly, in the exercise of the legislative power, nor impede or suspend the execution of the enactments of the legislative body’.12The 1958 Constitution breaks with the tradition with the establishment of the Conseil constitutionnel.13Yet, even now constitutional review by the Conseil constitutionnelis rather limited,14 15when compared to for instance the Bundesverfassungsgerichtand the Corte costituzionale. Once in force, the constitutionality of statutes cannot be judicially reviewed, and loisremain inviolable when it comes to their constitutionality.
8.1.1.3. Belgium
The Belgian constitutional traditions are similar to the French. Ordinary courts are denied the competence to review the constitutionality of Acts of
political life, E Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis. Expérience américaine du contrôle judiciaire de la constitutionnalité des lois, 1921;
on the notion of ‘gouvernement des juges’, see MH Davis, ‘A Government of Judges: A Historical Re-view’, (1987) AJCL, 559; the French rejection of any judicial interference in the legislative power goes back to pre-revolutionary France when the courts, (‘par- lements’) opposed social change by refusing to register laws adopted by the King.
12 Statutes of 16 and 24 August 1790, translation taken from M Cappelletti, The Judicial Process in a Comparative Perspective (Oxford, OUP, 1989) at 194.
13 The context surrounding the introduction of the 1958 Constitution and the establishment of the Conseil constitutionnelis described in J Bell, French Constitutional Law, (Oxford, Clarendon Press, 1992); see also A Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective(Oxford, OUP, 1992); JH Reestman, Constitutionele toesting in Frankrijk. De Conseil constitutionnel en de grondwettigheid van wetten en verdragen, (Utrecht, Ars Aequi Libri, 1996) as well as French textbooks on constitutional law.
14 These limits were intentional, in line with the French aversion towards judicial review.
Consider, for instance, the words of Commissaire du gouvernementJanot at the time of the creation of the Conseil constitutionnel, when discussing a type of constitutional court along the lines of the Bundesverfassungsgerichtwhich can on a reference from ordinary courts review the constitutionality of a Statute in force: ‘[Such] a system would be tempting intellec- tually, but it seemed to us that constitutional review through an action in the courts would conflict too much with the traditions of French public life. To give the members of the Conseil constitu- tionnel the power to oppose the promulgation of unconstitutional texts appeared sufficient to us. To go further would risk leading us to a kind of government by judges (gouvernement des juges), would reduce the legislative role of Parliament, and would hamper governmental action in a harm- ful way’, cited in J Bell, French Constitutional Law (Oxford, Clarendon Press, 1992) at 27–28.
15 The Conseil constitutionnelcan only review the constitutionality of bills, before promul- gation. Once a loihas entered into force, it becomes inviolable, both before the Conseil con- stitutionnel, and before the ordinary courts. There is no cause of action available to individuals to bring an issue before the Conseil. Only political bodies can bring a bill before the Conseil constitutionnel. In addition, the Conseilmust respect short and strict time limits. The other restrictions as to the grounds of review which did exist at the time of the creation of the Conseil constitutionnelhave been transcended in the case law. The Conseilwas established in order to police the boundaries of parliamentary powers, to pre- vent Parliament from interfering with the ‘domaine du règlement’. But this is no longer the main business of the Conseil. Most of its review concerns the content of Bills, rather than the question of competences. The standards for review, what the French call the ‘bloc de constitutionnalité’have been extended to include fundamental rights.
Parliament, on grounds of separation of powers and democracy arguments.
An Act of Parliament16constitutes the expression of the sovereign will of the People, the courts which are not democratically elected, are not empow- ered to review their constitutionality. That is an issue for Parliament itself.
As in France, the traditional system has been modified. In 1983, an Arbitragehof or Cour d’arbitrage was established, to function as an inde- pendent ‘arbitrator’ supervising the division of powers between the fed- eration and the federated entities and the respect for the principles of equality, non-discrimination and the freedom of education as laid down in the Constitution. Over the years, the Cour d’arbitragehas matured into a veritable constitutional court. Cases can be brought directly within a specified time-limit, or indirectly, by reference from ordinary courts.
Direct actions can be instituted by the Council of Ministers and the gov- ernments of the federated entities, the Communities and the regions; by the presidents of all the legislative chambers at the request of two-thirds of their members; and by Belgian or foreign natural or legal persons, including both private law and public law corporations, provided that they have a justifiable interest. As a general rule, with certain exceptions, actions must be brought within six months of the publication of the chal- lenged law in the Moniteur belge/ Belgisch Staatsblad.The ordinary courts may not themselves review the constitutionality of statutes, and are under an obligation to refer a question of unconstitutionality to the Court of arbitration. Should the Cour d’arbitragefind a statute unconstitutional on a reference from another court, courts delivering judgment in proceedings with the same litigants (including courts of appeal) must comply with the ruling given by the Court of Arbitration on the preliminary point of law in question. Moreover, where the Court finds a violation, the law will remain part of the system of law, but a new six-month term commences in which a direct action for annulment of the law in question can be brought, but only by the Council of Ministers or the governments of the Communities and Regions. So, in contrast to the French system, the con- stitutionality of statutes in force may now be judicially reviewed.
8.1.1.4. Luxembourg
Luxembourg has the same tradition of judicial deference to parliamentary legislation. Until the establishment of the Cour constitutionnelle in 1997, the constitutionality of statutes remained the province of Parliament itself.17However, the Luxembourg situation is special, given the traditional
16 This applies both to Acts of the Federal Parliament and Decrees emanating from the Parliaments of the federated entities.
17 See the Loi de révision constitutionnelle du 12 juillet 1997 introduisant dans la Constitution l’article 95 ter prévoyant une Cour constitutionnelle.
openness towards international treaties, which were enforced even as against Acts of Parliament from the 1950’s. Luxembourg owes its very existence to international law, which is not regarded as a threat to the Luxembourg sovereignty: quite to the contrary, it is considered to consti- tute the source thereof.18So, while at the time of the formulation of the Simmenthalmandate the Luxembourg courts could not review the consti- tutionality of statutes, their conventionnalité could already be judicially reviewed, and the courts readily acted on this constitutional mandate.
8.1.1.5. Italy and Germany
As in the previous section on the relation between legal orders, the Italian and German context bear a lot of similarities. In both cases, the ordinary courts are precluded from giving a ruling on the constitutionality of Acts of Parliament. Both also possess a constitutional court at the apex of the constitutional system, which is considered to be the highest interpreter and guarantor of the Constitution: the Corte costituzionale and the Bundesverfassungsgerichtrespectively. Ordinary Italian and German courts must refer questions of unconstitutionality to these constitutional courts, which have a monopoly over constitutional review and strike down pri- mary legislation. Given the dualist tradition in both countries, the issue of the compatibility of statutes with higher law in the form of treaties does not arise.
8.1.2. ‘New’ Member States19 8.1.2.1. Ireland
In Ireland, constitutional review is entrusted to the High Court and Supreme Court in normal cases and controversies pending before the courts.20In addition, the President may under Article 26 refer a question to the Supreme Court whether a Bill, or any provision or provisions of it, which has been passed by both Houses of the Oireachtasand presented to the President of Ireland for signature, is repugnant to the Constitution.
Other courts do not have jurisdiction to review the constitutionality of Statutes, even though they are under an obligation to uphold the Constitution. Neither the Constitution nor the case law is clear on the effects of a finding of unconstitutionality by the High Court or the Supreme
18 See G Wivines, ‘Le droit européen et les Constitutions nationales’, FIDE 2002, (London).
19 Again, the analysis will be limited to those countries which acceeded during the ‘foun- dational period’, i.e.only the three that acceeded in 1973.
20 Article 34.3.2 of the Constitution.
Court.21The latter courts demonstrate judicial self-restraint in the exercise of the constitutional review of the validity of legislation, and will declare a statute unconstitutional only if this is unavoidable.22
8.1.2.2. The United Kingdom
In the United Kingdom the place of allcourts in relation to Parliament is inherent in the doctrine of parliamentary sovereignty. According to the orthodox view, Parliament can make and unmake any law, and no person or body is recognised as having the right to override or set aside the leg- islation of Parliament.23The doctrine is under constant debate, and there are more modern versions of it.24But the main thrust, with respect to the power of the courts, is that they are precluded from reviewing parlia- mentary legislation: ‘[T]he courts are subordinate to parliament. The task of law-making is the exclusive province of Parliament, and it would be undemocra- tic for the non-elected judiciary to act as law-makers. The judges’ constitutional task is faithfully and strictly to interpret the will of Parliament, expressed in detailed legislation, to be read in accordance with its so-called ‘plain meaning’
and to declare the common law when it is incomplete or obscure.’25 The long standing tradition of immunity of parliamentary legislation from judicial scrutiny has, outside the context of EU law, only very recently undergone some changes with the adoption of the Human Rights Act, but even now the courts cannot annul or declare void an Act of Parliament, or even set its aside: it must be interpreted in conformity with the Convention rights as incorporated by the Human Rights Act,26 and at the most it can be
21 See G Hogan and G Whyte, Kelly, The Irish Constitution, 3rd edn, (Dublin, Butterworths, 1997), 479 et seq.
22 Ibidem, at 449 et seq.
23 The classic reference is to AV Dicey, ECS Wade (ed), The Law of the Constitution, 10th edn, (London, Macmillan 1959); and, since it is a common law principle, to several judgments of the House of Lords: Matzimbamuto v Lardner[1969] 1 AC 645; Manuel v AG[1983] Ch 77;
Vauxhall Estates Ltd v Liverpool Corporation[1932] 1 KB 733l Ellen Street Estates Ltd v Minister of Health[1934] 1 KB 590; a comprehensive analysis of the traditional view is given in HRW Wade, ‘The Basis of Legal Sovereignty’, (1955) CLJ, 172; a recent study on the history of the principle of parliamentary sovereignty is J Goldsworthy, The Sovereignty of Parliament.
History and Philosophy, (Oxford, Clarendon Press, 1999). Goldsworthy does not include a discussion of the impact of either the EU and the 1972 EC Act or the Human Rights Act.
24 These more modern versions relate especially to the question as to whether Parliament can bind its successors, and whether it can prescribe manner and form of future legislation.
25 Lord Lester of Herne Hill, ‘Human Rights and the British Constitution’, in J Jowell and D Oliver (eds), The Changing Constitution (Oxford, OUP, 2000) 89, at 91.
26 The duty to interpret legislation in conformity with the Human Rights Act is however considered far-reaching, allowing the courts to give statutory provisions a meaning which was not in the minds of the legislator.’So the judges need be under no inhibitions, on the grounds of Parliamentary sovereignty, about departing from what might be thought to have been the intention of parliament in their search for a possible meaning of the words used’, Lord Hope of Craighead, ‘The Human Rights Act 1998. The task of the Judges’, in M Andenas and D Fairgrieve (eds), Judicial Review in Comparative Perspective. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol II, (The Hague, Kluwer Law International, 2000), 415, at 417; see also AL Young, ‘Judicial Sovereignty and the Human Rights Acts 1998’, (2002) 61 CLJ, 53.
declared incompatible, triggering a special procedure for statutory amendment. The declaration of incompatibility cannot of itself provide an effective remedy for the victim of the effects of the incompatibility. The devolution Acts equally affect parliamentary sovereignty by transferring legislative powers to the parliaments of Northern Ireland and Scotland.27 The devolution and Human Rights Acts affirm the ultimate sovereignty of the Westminster Parliament, in the sense that the latter may revoke them;
but Parliament has exercised its sovereign legislative powers to give much greater powers to the judiciary, placing practical limits on its sover- eign law-making powers.28 When the United Kingdom joined the European Communities in 1973, however, the old principle of parliamen- tary sovereignty was unaffected.
8.1.2.3. Denmark
All Danish courts have jurisdiction, in theory, to review the constitution- ality of Acts passed by Parliament. Yet, this power remains mostly theo- retical, and courts will go out of their way to avoid any finding of unconstitutionality: until 1999 no statute had ever been declared uncon- stitutional and courts are in general very hesitant in their exercise of judi- cial review.29The ECHR was not incorporated until 1992, and has only since then started to play a role in the court rooms.30