The blockchain technology has brought a new tool which can change the way we make legal contracts. This tool is called “smart contracts”. Smart contracts are self-executing contracts which decrease the human intervention and the need for intermediaries for the execution of a contract. This thesis discusses whether smart contracts can really replace the traditional way we conclude legal contracts by comparing them with classic legal contracts based on the Principles of European Contract Law. It introduces a technical background about the blockchain and smart contract technology and questions whether smart contracts can be formed, valid, and executed as legal contracts. The thesis presents the legal challenges of smart contracts and finally concludes that smart contracts can and will replace the traditional way of making legal contracts in the distant future.
In its jurisprudence the Court of Justice of the European Union (CJEU) has changed its approach towards the purely internal situation rule applicable in the context of the market freedoms. From the 1990s onwards the Court has showed a greater leniency in accepting that certain cases fall within the scope of Union law, as compared to in the years before. This has been done in various ways, depending on the specific fundamental freedom at stake in the case, but always resulted in a relaxing of the fulfilment of the test used for determining whether a case falls within the scope of a market freedom - the linking factor test. More specifically, the Court seems to be accepting that hypothetical future scenarios are sufficient to bring a case within the scope of EU law even though the underlying facts of the case do not satisfy the test, or even to rule in cases which clearly do not fulfil some of the conditions of the test. The overall change of approach towards the purely internal rule can also be seen in an issue of jurisdiction, and not scope, which is still however relevant. This is the fact that the Court has begun issuing preliminary reference rulings in purely internal cases whereby the question referred is in reality hypothetical. It will be claimed that the CJEU does so without requiring sufficient proof by the domestic court that an EU law interpretation is required.
Abstract The tension between the right to family reunification as laid down in European Directives and Member States’ concern to protect their sovereignty in regulating migration has resulted in growing attention to and concern about fraudulent family relationships (especially marriages of convenience). This contribution addresses the question of what forms of control are permissible from a European law perspective and whether national practices are in conformity with European law and fundamental rights. Looking at these national practices several problems are identified: definitions of ‘marriages of convenience’ extending beyond what European law allows; systematic checks of certain nationalities/ethnic groups, mixed couples and/or gender may amount to discrimination and the burden of proof seems to be shifting to couples. Comparing control practices for marriages of convenience with those of homosexual asylum seekers, it is argued that human dignity is at stake.
The Constitution of the Republic of Serbia from 2006. has been the subject of sharp criticism of many legal experts. The way it was written, adopted and approved in the referendum, for sure it can’t be a praiseworthy example of legality and, with some of its controversial solutions, it inevitably indicates the necessity to be altered. These problematic Constitutional provisions are the subject of this article. Starting from the very preamble of the Constitution, unnecessarily discriminating position between the autonomous provinces, politicizing and the non-coexistence of the Constitutional text could be clearly observed. The Constitutional attack on the freedom of parliamentary mandate has been causing constant and numerous criticism of domestic and foreign public but at no time it did not make most of the parties hesitate to use their unfairly acquired right. Decentralization always causes a live debate, proposing various models and modalities, but only few of them could be possibly finalized by a general consensus. Serbian firm commitment to become a member of the European Union, at one point calls for a constitutional revision which would transfer the execution of certain part of sovereign rights to that supra-national organization. We could only hope that the political elite will not use any future reform to violate guaranteed constitutional rights, as was the case with the reform of the judiciary. Amending the Constitution has been always a difficult and time consuming process, hence the sooner the amending starts, the more likely are the chances to have it completed in democratic and tolerant atmosphere for the benefit of all citizens of Serbia.
This article aims at presenting trends in the state-local budget-cooperation system in Denmark, following the local government reform in 2007 and the fiscal rules in the budget law from 2012. The article investigates some of the characteristics of the development from 1980 until 2016. Evidence gives support to the hypothesis that the possibility for the municipalities’ organization to negotiate increasing expenditures has been narrowed, however accompanied by more liberal grant financing. The local government reform seems to have opened a window of opportunity for an elaborated system of collective and especially individual central government sanctions to strengthen the macroeconomic management of service expenditures of local governments. The identified trends in the Danish state-local relations may indicate that the decentralized model of local governments in Denmark is increasingly under pressure. However, the Danish municipal sector is still growing with respect to economic significance.
Key points The year 2014 witnessed the advent of new and strengthened collective action clauses (CACs) in foreign law sovereign bonds. These new clauses hold the promise to significantly strengthen the orderliness and predictability of the contractual market-based framework for the sovereign debt-restructuring process. This article looks at how these new CACs came about. The new CACs were borne from a process undertaken by an informal ‘Sovereign Debt Roundtable’ grouping that was convened, chaired and strategically led by US Treasury staff over more than one-and-a-half years. The inclusiveness of the Roundtable, the deliberative process, which was followed and the leadership and backing of the official community were integral to bringing about the private sector and success. The Roundtable’s deliberations built heavily upon earlier Treasury work to advance CACs, in particular during the 2002–2004 period. But the new clauses go further than the bond-by-bond clauses that were the focus from 2002 to 2004, as they allow in certain defined conditions the votes of different bond issues to be aggregated into a single up or down vote on the issuers’ restructuring proposal. In this regard, the new clauses reflect the continuity in the US approach under the Bush and Obama Administrations to promoting an orderly and predictable sovereign debt-restructuring process based upon the contractual framework, in addition to US opposition to statutory approaches. But they also represent innovation under the Obama Administration in advancing and buttressing the US approach. … in order to strengthen the orderliness and predictability of the sovereign debt restructuring process, we welcome the international work on strengthened collective action and pari passu clauses. We call for their inclusion in international sovereign bonds and encourage the international community and private sector to actively promote their use. G20 Leaders’ Communique; Brisbane, Australia; 16 November 2014 We welcome Mexico’s leadership with its successful issuance of a bond with new and innovative collective actions clauses under New York law. These new clauses will strengthen the sovereign debt restructuring process, and we encourage other nations to follow suit. Secretary of the Treasury Jacob Lew, 19 November 2014 We look forward to upcoming discussions around the International Capital Market Association’s (ICMA) proposal on possible means to reinforce collective action clauses in sovereign bonds… G20 Finance Ministers; Cairns, Australia; 21 September 2014 … ICMA recently published revised collective action clauses for sovereign debt that permit more orderly workouts and lower the chance of spillovers. These clauses … now allow for aggregation across many different debt issues, avoiding the need to vote on each loan one by one. John B. Taylor, Wall Street Journal, 9 July 2015 The late autumn of 2014 witnessed the advent of new and strengthened collective action clauses (CACs) in foreign law sovereign bonds. These new clauses hold the promise to significantly strengthen the orderliness and predictability of the contractual market-based framework for the sovereign debt-restructuring process. They were born from a process that was convened, chaired and strategically led by Treasury staff over more than one to one-and-a-half years. 1 The group working on the new clauses included issuing country representatives, inter alia from Mexico, Uruguay, Brazil and Turkey; leading UK and US sovereign debt legal experts; an array of market participants and academics; other official actors, including from France, the UK and Germany; and the IMF. In particular, this informal ‘Sovereign Debt Roundtable’ grouping also included Mexico’s debt manager and representatives from the London-based International Capital Markets Association (ICMA), an association representing some 500 firms from the international financial community, among others. The inclusiveness of the Roundtable, the deliberative process, which was followed and the leadership and backing of the official community were integral to bringing along the private sector and success. The Roundtable’s deliberations built heavily upon earlier Treasury work to advance CACs, in particular during the 2002–2004 period. But the new clauses go further than the bond-by-bond clauses that were the focus from 2002 to 2004, as they allow, in certain defined conditions, the votes of different bond issuers to be aggregated into a single up or down vote on the issuers’ restructuring proposal. In this regard, the new clauses reflect the continuity in the US approach under the Bush and Obama Administrations to promoting an orderly and predictable sovereign debt-restructuring process based upon the contractual framework, in addition to US opposition to statutory approaches. But they also represent innovation under the Obama Administration in advancing and buttressing the US approach. The US Treasury, in a speech by the then Under Secretary John B Taylor, outlined its support for the decentralized, market-oriented contractual approach to sovereign debt restructuring in 2002. 2 Around that time, a G-10 working group, chaired by Randal K Quarles, then Assistant Secretary of the Treasury for International Affairs, and including leading sovereign debt lawyers, began work on developing CACs for inclusion in foreign law sovereign bonds. 3 In 2003, building on the ‘Quarles Report’, Mexico launched the first CACs pursuant to New York law. Mexico’s issuance solved the first mover problem, there was no observable pricing impact, and CACs overnight became the norm in the New York market. 4 Importantly, though, the CACs applied only to each individual bond. During this period, the IMF advocated a statutory approach to sovereign debt restructuring. The Fund in essence reasoned that in a domestic setting, all unsecured creditors were bound into the restructuring deal through the bankruptcy process. Since there was no analogous international mechanism to bind similarly placed creditors into the restructuring through a single vote, there was a gap in the global financial architecture that should be filled through the creation of a ‘Sovereign Debt Restructuring Mechanism’ (SDRM). 5 Treasury was sceptical that the SDRM could be made to work in practice. There were concerns about politicization of the mechanism. There were questions about the possible impact on official debt. There was no appetite for pursuing an international agreement that could result in a supranational body having the authority to supplant core US sovereign decision making or judicial authority. There was the basic judgement that there would be little Congressional support for any amendment to the IMF Articles needed to implement SDRM. In contrast, the advent of CACs offered the promise that the contractual framework could be used to better mimic domestic bankruptcy proceedings and bind creditors. In 2012, two important developments occurred, raising questions about the continued viability of the contractual framework to promote the orderliness and predictability of the sovereign debt-restructuring process and giving rise in some quarters to renewed calls for re-consideration of SDRM or statutory approaches more generally. These developments, left unaddressed, also had important implications for New York’s continued role as a major financial centre for the issuance of foreign law bonds. Long-standing debates about the meaning of the ‘ pari passu ’ clause in sovereign law bonds were underscored in judicial rulings. Many sovereign debt lawyers had long felt that the pari passu clause simply meant that the legal ranking of an instrument was equal (and not subordinate) to a borrower’s other debt instruments. Others, for over a decade through a novel interpretation of the clause, contended borrowers could be compelled to pay all of their obligations on a ratable basis. With US federal court rulings in New York supporting the latter interpretation, clearly the meaning of the ‘ pari passu ’ clause could no longer be considered settled. 6 Importantly, these legal challenges were not arising in the context of just one country; rather, there had been a substantial increase in creditor litigation over the past two decades impacting countries across the globe. 7 While bond-by-bond CACs had become the market practice in New York since 2003, the limits of this ‘per series’ approach became clear in the case of the Greek debt exchange. Of the 36 bond issuances governed by English law that included CACs and could partake in the debt exchange, only 17 were successfully restructured using CACs, accounting for 30 of the total value of Greek debt governed by foreign law. 8 In early 2013, against the background of these emerging questions about the ability of the contractual framework to continue delivering orderly and predictable outcomes, as well as renewed interest in statutory approaches, especially in the United Nations, Treasury staff convened a roundtable of governmental and private sector experts and interested parties to discuss potential changes to clauses in sovereign bond contracts. The effort was premised on the US retaining its long-standing reservations about statutory approaches, and instead examining what changes in the ‘ pari passu clause’ and in ‘bond aggregation’ could strengthen and impart renewed vigour to the contractual framework. Equally, the effort was premised on seeking pragmatic, targeted and concrete results, but not engaging in a meta-debate about broad strategic or conceptual approaches. At the outset, Treasury staff made clear that the USA did not support work on statutory approaches. For their part, the IMF representatives also made clear that the Fund had no intention of pursuing work on statutory approaches and it would be regardless infeasible to do so without the full support of the institution’s Executive Board, including major shareholders. At a kick-off meeting in April 2013, on the margins of the IMF/World Bank Spring Meetings, the Roundtable launched into a discussion of the evolution of the sovereign debt-restructuring process over the prior decade, recent ‘ pari passu ’ litigation and its implications and how ‘aggregation clauses’ could be used to help overcome some of the problems posed by bond-by-bond voting and increased creditor litigation. Private sector participants discussed how recent court ‘ pari passu ’ rulings could complicate the sovereign debt-restructuring process and how ‘ pari passu ’ language had taken on many disparate forms in contracts over the years. They were concerned about the consequences of the ‘ratable payments’ interpretation of the pari passu clause for the majority of creditors. With respect to aggregation features, there was a lengthy discussion of the Greek restructuring, and a view that the Greek foreign law bond restructuring was far less successful, because of the bond-by-bond collective action feature, than the Greek domestic law-governed bond restructuring. Some participants advocated developing ideas on aggregation across foreign law sovereign bonds so that there could be one vote to modify an entire series of bonds. However, it was also underscored that developing aggregation features could have important implications for inter-creditor equity considerations. Against this background, a number of key points were agreed at the meeting, in turn charting the path forward for the Roundtable: Modifications to contractual clauses should be developed to address the emerging issues that had complicated the sovereign debt-restructuring process. Clarity was needed on pari passu clauses to dispel confusion and provide legal certainty. The clause should be seen as an ‘equal ranking’ clause; the ‘ratable payments’ interpretation of the clause was not the intended meaning. Aggregation features in bonds, especially aimed at allowing one vote to modify a series of foreign law bonds, could represent a useful innovation to enhance the restructuring process, provided that strong safeguards were also incorporated to protect the rights of all creditors. At a second meeting in October 2013, again on the margins of the semi-annual IMF/World Bank meetings, the Roundtable reconvened to continue its discussions on pari passu clauses and aggregation. The group reviewed an options paper on the ‘ pari passu clause’. 9 In the end, the Roundtable reached several conclusions on the pari passu clause and narrowed down consideration to two of the options, both of which were seen as offering a plausible path forward: There was concern that the clause had resulted in significant litigation over the past decade, complicating the sovereign debt-restructuring process, and that the likelihood was for continued increases in creditor litigation in coming years. Several lawyers in the Roundtable in particular felt that given the confusion raised by the clause over the years and its uncertain meaning, the pari passu clause should be simply eliminated from bond contracts. However, others questioned whether market participants would readily accept elimination of the clause, and thus proposed retaining a rewritten version that disavowed the ratable payments interpretation of the clause. They pointed to market inertia as well as noted that retaining such a modified version of the clause would still protect against the risk of involuntary legal subordination. Participants agreed that the Roundtable needed to come to a consensus on pari passu to provide a basis for market acceptability for a first mover. The discussions on aggregation, in contrast, entered more of an exploratory realm. The Roundtable agreed that a key policy goal of constructing an aggregation framework was to reduce the scope for obtaining blocking positions, provide the sovereign with greater flexibility and at the same time protect against possible abuse or oppression of the minority by sovereigns. While there was wide acceptance of the concept of aggregation in principle, it was also recognized that to achieve these goals, there were numerous design details to be worked out with consequential legal ramifications and an enormous bearing on market acceptability. In wrapping up the second meeting, the Roundtable agreed to further pursue the one-limb option and its requisite features and come to a conclusion on the future of the pari passu clause. The IMF also expressed interest in pursuing further work on the contractual framework, using the Roundtable’s work as a foundation to inform its activities. An initial discussion focused on whether to use a ‘one limb’ aggregated voting structure, or a ‘two limb’ structure with an aggregated and a per series vote. Several European officials supported a ‘two limb’ structure as this approach had already been enshrined in the ESM treaty, developed and adopted within the euro-area. The rest of the Roundtable wished to explore whether a suitable ‘one limb’ framework could be developed, and felt an appropriate aggregation clause could further reduce incentives for creditor litigation. 10 One participant offered the insight that an important feature of a one-limb aggregation structure was that it would lessen the chances that a creditor—that might wish to vote against the proposal, but be willing to accept it should the requisite majority decide to do so—would ‘accidentally’ be kept out of the restructuring. The Roundtable began to delve into the kinds of protections that would be essential to protect against abuse of the minority. Most significantly, the Roundtable agreed that there should be a high voting threshold for one-limb aggregation, and that all participants in an aggregated vote should be treated the same. Participants also agreed that the scope of aggregated debt should be confined to foreign law sovereign bonds, and thus differ from the European CAC framework, which did not differentiate between foreign and domestic law bonds. In discussions in early 2014, including conference calls, and at a third meeting in April, the Roundtable reviewed a model aggregation clause 11 and bore down on achieving concrete results. In wrapping up this meeting, the Roundtable also welcomed ICMA’s proposal to develop model pari passu and aggregation language and conduct a public consultation. 12 To address the question of which pari passu option to pursue and given the view that eliminating the clause might not be seen as acceptable by all market participants, the Roundtable agreed to back model pari passu language that disavowed the ratable payments interpretation. The Roundtable further agreed that aggregation, allowing for a single cross-series vote with strong safeguards, along with a bond-by-bond restructuring option, would help promote the orderliness and predictability of the sovereign debt-restructuring process. With respect to safeguards, it was agreed that: ‘voting thresholds’ should be set at a level which an aggregated cross-series modification vote could only succeed with the support of a large super-majority (ultimately 75 per cent of the eligible outstanding principal); single-limb aggregation would be limited to ‘bonds governed by foreign law’ (outside of the euro-area, which retained its two-limb structure for foreign and domestic bonds); ‘uniform applicability’ would provide for an identical offer requirement for any cross-series vote; ‘robust disenfranchisement provisions’ would exclude bonds controlled by the issuer from the vote; and ‘enhanced transparency and information disclosure’ would be required such that the issuer would need to disclose its overall restructuring plan, including its proposed treatment of other groups of creditors and claims, as part of its offer. In subsequent months, ICMA’s model clauses became the new market standard. The IMF staff proposed to prepare a staff paper for the IMF Executive Board to endorse the key features of the model pari passu and aggregation language. 13 The third and last meeting of the Roundtable was by no means the end of the process. It was critical to develop a strong legal and market consensus behind the new clauses in order for a ‘first mover’ to move without facing market turbulence. Roundtable participants dedicated themselves to this task over the course of the remainder of the an initial and ICMA of proposed model clauses was provided to Roundtable participants for to market participants and their While the of the ICMA model clauses were the same for both the New York and were required to to the of each market. In the of information about the new clauses and their were with leading sovereign debt legal in both New York and Treasury staff also with market In particular, staff with representatives in a series of with of the New emerging market and and also reached out to several London-based Roundtable participants also with debt in potential emerging market sovereign bond issuing especially that had not in the working The IMF an role as The were by IMF staff in a series of and discussions with public debt the basis of a paper in large part by the of the the IMF Board also in the of 2014 the use of modified pari passu clauses in new international sovereign bonds so as to enhance legal and across The Board noted the broad support of for CACs with aggregation features, and in particular considered the limb’ clause with appropriate safeguards along the of forward in the model ICMA clauses as a significant to the sovereign debt-restructuring process. In addition to the IMF the of the market-based contractual framework also the strong of the official The of the G20 Finance and Bank meeting in Cairns, in as well as the G20 Leaders’ in in both the strengthened 16 Most significantly, countries began to sovereign bonds with the new clauses. In particular, Mexico in around the time of the the first public offering with the strengthened CACs under New York in bonds strong and in the in the same leadership as in 2003, the issuance with new CACs the first mover and no pricing impact Mexico’s issuance was by the of its Finance debt in the Around this time, many other countries from of the followed in was the first mover at the global leading the in the market. While the advent of the new CACs a major it not a and work to be to strengthen the contractual framework. The inclusion of new CACs in bonds will address the future of sovereign but it will not address the large outstanding noted by the that and it will 10 years for per cent to This process could be by Some market participants to be possible The of the new CACs so far been strong in the New York which a in which have more of an and been strong but not as but especially for the market. 17 Several issuers have it to thus over or raising in several than the more work and of a new global But in time, such countries will use new the new clauses. already this continue in some quarters about whether the of a restructuring should be through the required use of a structure, including one in which the to a and pay its This was not by the Roundtable, which was focused from the on in two pari passu and Some country representatives, especially at the United Nations, continue to for of a statutory the statutory approach little support in the IMF and and been by the USA and the key in which over of foreign law bond issuance of the new CACs the of the contractual framework and again work on statutory approaches to be needed or in financial policy The recent of CACs through the of the meaning of the pari passu clause and the advent of single-limb aggregation with strong creditor protections a of the of the international financial time and work needed for the new CACs to their full potential in the orderliness and predictability of the sovereign debt-restructuring process. in a of time, the strengthened CACs already a part of the international financial and have the of the contractual framework, the foundation for which was in the early US Treasury staff and a international in which all up their to of new
This issue marks a transition point in the life of this journal. Readers who peruse the inside cover of the journal (or our website) will notice that the editorial board has been (thoroughly) renovated. Self-questioning, self-criticism and even a penchant for self-subversion have been constitutive of the identity of the European Law Journal since its foundation. The new editorial board will contribute to keep this identity alive. I am extremely happy to report that the new board is close to complete gender balance (and hopefully will be rather soon in full gender balance). The new board is also more inclusive of the different legal, political and cultural traditions that make up the European legal mosaic. This will certainly lead to new ideas, new debates and new sections, in all cases reflecting an invariable commitment to thinking law in its economic, political, historical, social and cultural context. Never before was the reporting of the content of European law an act so pregnant of radical implications. Never before so much was at stake in Europe: socially, economically and politically. Not since the end of the Second World War was the very identity of European societies as open and cooperative, democratic and socially just societies so much challenged. If the proof of the cake is in the eating, the proof of the journal is in its contents. Both Gareth Davies and Marija Bartl break new ground on subsidiarity. Both authors focus on the structural constitution of power allocation in Europe. Separately, each piece challenges not only the existing literature, but also the practice (and discourse) of European institutions. Jointly, Davies and Bartl redefine the very terms in which the debate on subsidiarity should proceed from now onwards. Tanja Ehnert draws major theoretical and constitutional lessons from the study of what is at first sight the rather specialised if not esoteric subject of nanotechnologies in food (including nanofood). She acknowledges that European institutions produce lots of expertise, but she puts forward powerful reasons to doubt that this expertise amounts to the kind of knowledge which could justify the claim to legitimacy implicit in European practice. The point she raises goes far beyond the specific subject she studies. Nanofood may be physically tiny, but after you read the paper, you will be forced to agree that its legal implications are far from small. Fabien Terpan offers a systematic and theoretically grounded reconstruction of soft law. After the inflation (and recent devaluation) of the concept, it is high time we come to terms with what exactly soft law is and with what we mean when we characterise law as soft. Terpan puts us on a promising track. Marek Szydlo revisits one of the key affirmative action policies in European law: gender equality on company boards. He makes us rethink the legal framework and suggests some reasons why we should be careful when drawing conclusions on the matter. Finally, William Phelan invites us to revisit the very first European ‘troika’, namely the trio of founding cases of European constitutional law. Phelan's work is both a piece of legal history and a very contemporary plea for a different understanding of European law.
Although academic and practical interest in non-fungible tokens (NFTs) has continuously increased over the last few years, there is still a need to better understand their social acceptability. The aim of the study was to explore the double edge of NFT legitimacy for NFTs by unveiling the role of sustainability and by adopting technology legitimacy and the field of sustainability transition studies as a theoretical lens. Specifically, this research investigates the role of sustainability in securing and maintaining technology legitimacy within NFT projects. We interviewed 12 experts through exploratory qualitative research. The findings highlight three main ways in which sustainability participates in the legitimation of NFT projects. While sustainability can be inherent in the NFT project itself, this legitimation can also be derived from the perceived sustainability of the NFT technology or be part of innovative business models. Theoretical contributions and managerial implications are then discussed. JEL CODES: O33, O35, O50
Nico Krisch’s new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an “on the one hand [x], but on the other [y]” style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krisch’s conclusions are heavily dependent upon a theoretical construction—a supposed dichotomy between “constitutional” and “pluralist”—that is, in fact, a false one. Second, “constitutional pluralism” is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two types—the constitutional and the pluralist—which Krisch characterizes as “competing models” (p. 226) and “true alternative[s]” (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the “foundational” and “comprehensive” constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polity’s legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single “overarching legal framework” (p. 23) and “comprehensively determin[es] the structure, processes, and values” of the system (p. 53). In contrast to pluralism, constitutionalism entails “clear cut hierarchies” (p. 103), stable Grundnormen, settled “rules of recognition” (pp. 11, 72, 74), and “ultimate conflict norms” and “rules” (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to “depoliticization,” and the desire “to tame politics” through legal rules (p. 69), pluralism is about “politics” and “political deliberation” but not the “rule of law” or “rule-based processes,” (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. “A constitutionalist setting needs to define hierarchies between the polities,” Krisch claims, in order “to integrate them into a common whole,” a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the “rules for the amendment of the overall constitution” (p. 275). I reject Krisch’s constitutionalism–pluralism dichotomy on both theoretical and empirical grounds. To get to the notion of “constitutional pluralism” one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system “constitutional” is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereignty—the authority to enforce fundamental rights—is “decentralized,”8 not least, in that no “ultimate conflict rule” or “final authority” to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krisch’s concept of pluralism: by definition, under conditions of pluralism, there is no “single decision-maker” applying “overarching conflict rules,” who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes “constitutional pluralism” an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krisch’s law–politics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved “beyond constitutionalism,” rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal “architecture” of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, “constitutionalism” implies a focal point of “ultimate authority” (p. 103), whereas “pluralism” accepts “conflicting claims to ultimate authority” (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14–17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue “containment,” by working to “limit the impact” of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to “transfer” the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can “break” with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to “constitutionalize” adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Union’s (CJEU) move to “constitutionalize” the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant “containment” operations,12 and their “transfer” efforts often succeed. In Italy, the Italian Court’s bid for supremacy failed: a “war of judges” ended in a settlement that, in effect, codified pluralism. Under the so-called “doctrine of the living law,” the Supreme Court (Cassazione) has de facto the “last word” on statutory interpretation and application, accepting only the “persuasive authority” of the ICC’s jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important “break” with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian “living law” solution; and in the Czech Republic, the Supreme Court provoked a “war of judges” when it “openly revolted” against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: “constitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.” Indeed, for constitutional judges, a strategy of “dialogue and persuasion” has been more effective than have efforts to prevail in an “open conflict” about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rights—the national constitution, the EU treaties, and the ECHR—overlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEU’s ruling in Landtová to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the Landtová reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Court’s decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a “constitutional” or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalism–pluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the “constitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of “transfer” and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear “break” with establishes a strong that all German judges are to apply the Court’s jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Court’s case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Court’s case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEU’s which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on “constitutional” features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krisch’s judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and norms” (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of “constitutional pluralism” the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main
Before the Constitutional Court of Serbia, there is a pending case on reviewing constitutionality and legality of the Autonomous Province of Vojvodina's Statute. 30 MPs, one civic organization and one individual initiated the proceedings, back in 2009, right after the Statute came into force. This article, which relies on author's amicus curiae brief in the mentioned case, offers three claims. First, the author claims that Serbia is not a typical unitary state, as for example, France or Romania, since it has gained several important characteristics of a regional state. Thus, for the time being, according to a vertical division of authority, Serbia can be defined as a state that is neither unitary nor regional, but rather a state 'in between' these two forms. Second, the author argues against an idea of textual dogmatization of the Constitution employed by the initiator of the proceedings (MPs), and after a deep analysis, rejects most of the arguments aimed at invalidating the provisions of the Statute, finding them unpersuasive and unfounded. Third, starting from the citizens' sovereignty, on which the political autonomy of Vojvodina is based (Articles 12, 176 and 182 of the Serbian Constitution of 2006), the author urges safeguarding the political decentralization guaranteed by the Constitution, since it gives more power to citizens in public decision-making and strengthens the democratic principle on which the Republic of Serbia is based. It is also stressed that a potential invalidation of the statutory provisions concerning the protection of national minorities, would endanger this protection, since, in accordance with the principle of subsidiarity, the constitutional protection is the most effective if implemented by the act of the regional authority of the territory where the members of national minorities traditionally live in a great number.
The paper discusses the importance of the subsidiarity principle to the regulation of the global processes. It also analyzes the role of the subsidiary principle as a fundamental principle of the European Union legal framework in the perception of the identity of the civilizations as well as its influence on political-legal systems. Not only does the paper emphasize the importance of this principle to the European identity, but it also discloses the role of the idea of the subsidiarity, which was played in legal and social consciousness of the communities attributed to the Western and Eastern civilizations. The principle of subsidiarity is used here as a tool to disclose the identity of the civilisations and differences among them. Simultaneously, its positive role is highlighted in the global community’s solution of different kinds of conflicts (ideological, economic, religious or cultural) that arise among nations, countries or different civilisations. This article is aimed to demonstrante that reception of the principle of subsidiarity and it‘s institutionalization in the European Union and national legal frameworks are not accidental. The tools of legislative regulation based on this principle prevent global system from disregarding cultural differences. At the same time, it does not allow local identity to destroy the world unity. Thus, unified social systems can perfectly coexist with national, regional and local units, the latter ones maintaining their organizational structure and cultural traditions. Subsidiarity idea combining opposites makes sense as a principle of creating this diversity in unity, which ensures the integrity of autonomous structures making up the whole, preserving national, regional and cultural specificities of countries and people around the globe. The support of these processes provides the public with the opportunity to discover effective forms for the realization of self-organization and implementation of their needs and developing appropriate social structures and legal institutions regulating their activity. Through the examination of the concept of subsidiarity and aspects of its practical application in organizations, the article discusses the polarities of the different structure and management forms of the institutionalization of the principle of subsidiarity in the countries and its effect in the formation of the governance levels in the state, showing how balance of powers is achieved based on the subsidiarity principle, creating an effective mechanism of function distribution (determination of exclusive competencies) and their implementation (institutional interaction, their operational control). In structuring the institutional systems of the organization of the state, the subsidiarity concept is complemented with the elements of the management system decentralization, democratization, federalism and regional and local self-governments.
The literature of the last ten years contains numerous references to two opposite trends: on one hand, “the end of administrative law,” on the other, the “new administrative law.” According to the first body of literature, which is mainly of French and Belgian origins, administrative law has lost its peculiarities (thus giving rise to the increasing difficulty in defining its status and scope); it has become a hybrid, has been destabilized and destructured, and is now in ruins. This situation is—according to this narrative—the product of various, conflicting causes: globalization, constitutionalization, destatization, privatization, decentralization. As a result of the pressures stemming from these diverse trends, administrative law is slowly losing its raison d’être—its center: the state.1 On the contrary, according to the second point of view, held mainly by German observers, a new administrative law is developing, due to a process of change, modernization, and reform. This new, or postmodern, administrative law is more open than the old administrative law, and is focused on “steering” rather than on ordering. This new administrative law is—in this view—the product of the new role of the state as a promoter, as a facilitator, as a risk regulator, and as the helmsman of economy and society. It therefore requires a new, more interdisciplinary, approach.2 Should we share the view that administrative law has reached the final stage of its life, or, on the contrary, that it is undergoing a process of intense change and renewal? What prevails now: continuity and decline, or development and modernization? Before providing an answer to these questions, I shall address the more general issue of continuity and change in administrative law. For a long time, administrative law was conceived as the domain of stability and continuity. Otto Mayer, in the introduction to the third edition of his Deutsches Verwaltungsrecht, observed that it was a common opinion of his times that “Verfassungsrecht vergeht, Verwaltungsrecht besteht” (constitutional law passes, administrative law remains).3 This conclusion was strengthened by the dogmatic approach adopted by administrative law scholarship in many European countries, where the dogmatic reinterpretation of Roman law by the German scholar Friedrich von Savigny was taken for granted and imported into the study of administrative law. For instance, in Italy, the founding father of administrative law scholarship, Vittorio Emanuele Orlando, espoused the “systematic approach” developed by Savigny and by scholars of private law. Therefore, concepts and methods possessing a high degree of stability in the field of private law became familiar to administrative law scholarship. Administrative law was founded on timeless tenets or dogmas derived from private law. Continuity in paradigms of study paralleled the idea of continuity in administrative institutions. Over the last twenty years, both assumptions have become obsolete. Administrative institutions have undergone impressive changes. Consider the accumulation of these: globalization, privatization, citizens’ participation, new global fiscal responsibilities. The very idea that administrative law concepts could remain stable over time has been abandoned. The fast-developing phenomena in administrative law have rendered the field’s cultural paradigms inadequate. New concepts and ideas have penetrated the literature: new public management, governance, accountability, expert bodies, steering. But, as continuity and change go hand in hand, it is difficult to study this mosaic of contradictions using the old approaches. The purpose of this paper is to catalog and briefly review the major changes that have occurred in Europe over the last twenty years, and to mention the resulting changes produced in the methods used to study administrative law.4 Discontinuity in the realm of administrative institutions requires discontinuity in the approaches adopted for studying the new administrative law. The scholarship examining this new administrative law needs reorientation and a new framework, capable of explaining the changes that have taken place. According to Otto Mayer, “[t]he administration is the activity of the State for the accomplishment of its ends.”5 Therefore, administrative law originated as the product of the state, but has now become dependent on other powers of transnational, global, and local dimensions. Many complex phenomena are currently unfolding: the growth of ultra-national and intra-national powers; increasing “dédoublement fonctionnel” (functional splitting), in which national governments act both as sovereign powers and as “delegates” of ultra-national bodies; the development of certain basic principles of administrative law at global, national, and local levels (e.g., in Europe, the principle of “good administration”); open statehood (“offene Staatlichkeit”) and increased communication between national legal orders, thanks to which principles may circulate (e.g., the principle of proportionality, first developed in the German legal order, was then imported in the European Union, and from there into many national legal orders); development of principles that are shared by several legal orders, at the global, national, and local levels, which therefore become universal (e.g., the right to a hearing, the duty to give reasons, judicial review), and thus provide increased opportunities for popular participation, but also produce increasing conflicts; rights are not recognized only by national constitutions, but also by global rules and imposed by these on national legal orders; national governments are subject to a contradictory trend: on one hand, their sovereignty is diminished; on the other, they acquire new tasks (e.g., control of efforts against global terrorism or global warming) that they could not possibly have gained in previous times, but that they are now obliged to share with other states (for that reason, the relevant literature contains several remarks on the state’s declining sovereignty and on the need to “bring the State back in”). The most important of these developments is the growth of a global space and a global polity. These are not only arenas in which contending forces operate, but also sets of organizations claiming control not over territories and people, but over functions.6 These developments require administrative law scholarship to be denationalized. Thus far, nationalism has been the prevailing mode through which administrative law scholarship has been conducted. But, as common core principles have developed at the national, transnational, and global levels, administrative law scholarship must give up this traditional nation-based approach. Indeed, for example, to understand the European Union, it is necessary to draw inspiration from the imperial paradigm rather than the state one. Like the empires, the Union is a compound structure. Attempts to establish a common European area of research in the field of public law are already under way.7 Representative democracy and the traditional legitimacy paradigm (featuring governing bodies vs. governed) have been exhausted. In all countries, and globally, public powers and civil societies are in search of new sources of legitimacy, and new ways of holding power accountable have been tested. National and supranational legal orders are developing in two different directions. Vertical accountability is increasingly juxtaposed to horizontal accountability (inter-institutional accountability).8 National governments respond to other national governments and to supranational institutions, and independent regulatory agencies balance ministerial bodies. Power has shifted to “technocrat–guardians” who are shielded from political influence.9 Delegation of power through elections is now flanked by participation in the decision-making process: major urban planning, environmental, and regulatory decisions require public inquiries through which individuals can make their voices heard. Popular participation and deliberative democracy complement representative democracy. These constitutional developments also affect administrative law. At the global level, administrative networking and shared administration are made necessary by increased political cooperation in intergovernmental global institutions and in hybrid global regulatory bodies. At the national level, collaboration and horizontal accountability are products of the increased fragmentation of national executives into many different agencies. To enable participation, detailed procedural regulations are necessary; therefore, administrative regulation increasingly consists of regulation of procedures (freedom grows in the interstices of procedure). As a consequence of these developments, an entirely new area of study is opened up to the scrutiny of administrative law scholarship, which, in the past, developed essentially along vertical lines. This requires renewed attention to cooperation, codecision, and reciprocal accountability, as well as to procedures, disclosure, and access to information, notice and comment, hearings, and reasoned decisions. In particular, the proceduralization of administrative law makes a new approach necessary, because administrative decisions no longer take center stage and have been replaced by procedure. Administrative law was initially established as a “special” law, separate from private law. Globalization, overburdened governments, privatization, and new public management techniques have all de-emphasized and blurred the public–private divide. Private law invades the space of public law and erodes its specificity.10 In the global polity, hybrid and private bodies are as numerous as public bodies. National governments make increasing use of private law. Contracts between the state and private persons, once almost unknown (as they challenged the very idea of state sovereignty), are now a common feature of state activity. Consequently, the state becomes dependent upon collaboration with civil society. With the emergence of the enabling state, the focus of public activity has shifted toward measures aimed at financing benefits through the market. Therefore, a large part of social welfare has become a lucrative, privatized, commercial, and for-profit activity.11 Outsourcing and public–private partnerships increase efficiency and sectionalism, which in turn contribute to the fragmentation of the state. On the contrary, private institutions increasingly apply administrative law rules (two examples are the Internet Corporation for Assigned Names and Numbers (ICANN) by-laws, which contain a sort of administrative procedure act and the World Anti-Doping Agency (WADA) regulations12). As public bodies are not necessarily subject to administrative law, so too private bodies are not necessarily subject to private law. Topics such as state-owned enterprises, public–private partnerships, public incentives to private companies, and market-oriented regulation thus become crucial for the analysis of administrative law. These developments make it necessary to abandon the public law regime paradigm, to de-publicize the approach adopted by administrative law scholarship and to study the ambiguities and the richness of the interconnections between public and private law. Between the nineteenth and the twentieth centuries, Weberian-style administration was a “machine,” with linear development and linear decision-making processes. According to this mechanical form of regulation, the executive branch was ruled from above (politicians governed bureaucrats), agencies developed according to popular demand for services as interpreted by parliaments, decision-making processes ran directly from the initiator (usually a high-level politician) to the deciding officer (again a politician), through the machinery of the executive agencies. Over the past fifty years, the picture has become more complex. Administration, politics, and society now form a triangle; there is no longer a clear dividing line between administration and society; negotiation runs side by side with command and control; as soon as new services require new structures, these new structures establish links with their institutional clients and attract new clients (both internally and externally); decision-making processes are replaced or accompanied by consultation, mediation, Parliament-like procedures, or, simply, muddling through. “The old image of a hierarchical public administration single-handedly implementing well-defined policy goals set down in legislation must today compete with a vision of the administrative process as open-ended, collaborative, and networked.”13 Administrative law scholarship must adapt its paradigms and research techniques to this new reality. It must be prepared to study administrative law less as a mechanical structure than as a market, where many intersecting negotiations take place. “To capture the new reality, comparative administrative law should be framed no longer as the rules and judicial-redress mechanisms that guarantee the effective working of administration, but rather as an accountability network through which civil servants are embedded in their liberal-democratic social orders.”14 This approach requires paying more attention to the rules of change and to a different conception of administrative law, which is to be seen not as a static set of rules and mechanisms, but as a dynamic system, capable of interacting with its environment. The executive branch, which once served the elected politicians and the state-provider of a few basic services (e.g., defense, public order, tax collection), has now become society’s largest artifact. It has also become increasingly separated from politics, becoming, rather, ever more embedded in society. The state is no longer extraneous to society, as it is not extraneous to the economy. These developments are noticeable if the size of government apparatuses is measured: a century ago, public employment occupied between one to five percent of the labor force, a figure that has risen now to between 10 and 50 percent.15 The state has become the largest employer and the most important financial intermediary. Further, it is the main actor in all major social and economic events. The emergence of the administrative state has rendered regulation pervasive. Moreover, the administrative “machine” has been able, over time, to adjust to political and societal pressures, first by expanding, then by reducing, and now by re-expanding its own dimensions. The administrative structure of government has become embedded in politics, in society, and in the economy, reproducing the main features of a corporatist state, where different branches of the executive or agencies become “captured” by their constituent interests, but still “capture” a certain degree of sectorial legitimacy from them. Therefore, while constitutional law is still organized around a center (Parliament, the government, a supreme court), administrative law has lost its center and has become fragmented and multipolar. Therefore, administration and its law cannot be understood if the administrative culture of a country and its civic values are not studied. For example, the degree of industrialization and the experience of wars and the need to maintain large armies all have a significant impact on the management of government, both in terms of diffuse managerial cultures and popular attitudes of skepticism or deference vis-à-vis the state. The next task for administrative law scholarship shall be that of bringing society and politics back into the study of the administration, analyzing the many links between society and administrative agencies, in which politics often acts as an intermediary. Traditionally, administrative law was based on the bipolarity between the “administré” and the “autorité publique.” In the last thirty years, two developments have occurred. The “administré,” subject to administrative authorities, has become a citizen, fully entitled to rights vis-à-vis the government: for example, he has a right to be informed, to make his voice heard, to receive reasoned decisions, and to have administrative decisions reviewed by independent courts. The “rights revolution” has produced many major changes in the field of administrative law, as well. Broadened suffrage, organized societies, and the fragmentation of executives have replaced bipolarity with multipolarity. Today, the administrative landscape is dominated by multipolar a of public bodies and conflicting private For example, there are numerous state and agencies in the field of private that with and The state is penetrated by conflicting private interests, which, state agencies must address (e.g., and economic also an administrative and require administrative or political far, administrative law scholarship has focused on the only as an of public orders or benefits and on the between the State and New administrative law scholarship has a new It must a view of and governing administrative not only as regulations of administrative power but as of citizens’ rights vis-à-vis administrative on agencies, to the of private It must study the in which conflicting one and and in which agencies act as and is subject to the an administrative law the law not public in their are and such as and in which the executive is from legal and once are now increasingly as to the of law and to the principle of judicial therefore, a between the executive powers and social for institutions. Moreover, there are where agencies must address complex and in a or the principle of (e.g., in and cannot be by of the executive makes to For example, it and or which are These developments open up an entirely new set of for administrative law scholarship. administrative law scholarship has on the of judicial decisions, and institutional The new scholarship has a more difficult to at institutional the of and judicial decisions. It must with and of and in to study these In the past, in the European and wars the main of changes in administrative law. the of and of wars has to an This has an impact on as they are from major change, or subject to a change that more Administrative law is more dependent upon and previous therefore, institutional is the Administrative law therefore consists of and “the approaches have not Administrative law has been a process of to societal the but their has been in the Moreover, administrative institutions and are by law in state is a The that administrative development are ideas and economic constitutional social time and according to This requires of the of of their and of their of rules and institutions are regulations which changes. The study of these complex structures first an attention to and the in which they to the different to the and it requires an analysis of the between the different to establish they and which rules and institutions As become increasingly legal become more National legal orders are no longer the and of institutions, and between are open legal space national The has become a where it is to go and sets of principles from one legal to are not only legal but also and and policy are at the in administrative law have This not that national legal orders have become and a major role in institutions and from one These developments require two major changes in administrative law scholarship. On one hand, they require it is increasingly that the law of one country cannot be fully understood if it is in Administrative law scholarship cannot to one legal Moreover, at this requires a that the study of the law as in and of law in of legal legal and and legal On the other hand, these developments require and into the picture of legal and the and impact of common ideas and principles in numerous legal In other the developments require the For example, to study the between common law and legal orders, it is necessary to the state on one hand, and on the the of the of law, and and their peculiarities and institutions and as to the state and the of developed in to the German of and its the global and the many national of “new public the of administrative and of the principle of the of and in a common judicial review of administrative the of the different national and as a result of increased communication between legal As administrative law developed first in Europe, it is also important to study the common European of the national administrative scholarship developed as a to mainly and must now more than as it should also and In the past, it was a to individuals for a of legal administrative law scholarship to its own Today, the upon it have and require new techniques of and not one Indeed, it is to state that its own of is no but rather and political of the with the important that administrative law scholarship should not be by a and of certain basic that legal Administrative law must its in the field of social and and its links with it to study the role by the State in the economy, the economic approach to is there that the economic analysis of public law can to the scholars of administrative the executive branch of government is embedded in the realm of politics, and if administration is part of politics, can the study of administrative law political can political in terms of methods and to administrative law and institutional are the in the field of administrative law. Therefore, is an of analysis for administrative law In a and open in which legal orders and become “the national of legal is a legal scholarship with the to be not national, but cannot be by the and must the idea that there is only one form of legal of law not necessarily an that a and organized system, or a must be It therefore, to of on a European on a universal
Independent regulatory bodies are important economic institutes, which take on a part of classical state affairs, which generally need particular, i.e. specialized knowledge, which does not exist in state management. European countries have different experiences when it comes to bearers of public authorization, representing intermediaries between the state on one hand, and companies and citizens on the other. In those countries with a traditionally big state apparatus, there are few agencies and vice versa, where there is a large portion of state affairs decentralized, small governments, supported by a modest central state apparatus are established. In the countries of Central and Eastern Europe, along with the process of transition, there occurred the process of "agencification". Serbia is maybe the worst example, with large coalition governments, which have established almost 200 different independent institutions. The causes of independent public body boom in Serbia are to be sought in a too liberal understanding of laws regulating this area, which has created the possibility of political feudalism. Also it has created an inappropriate autonomy of institutions (inappropriate for Serbian conditions, especially when it comes to finance), with a clear debalance of quality of employees in those bodies and the system of their compensation compared to contribution given by their work. Recent political changes, "new waves" of global economic crisis and large crisis of state financing are making boom problem solving quicker, and also are putting under control the behavior of bearers of public authorization in Serbia. However, it seems that this process still lacks good and impartial methodology and argumented atmosphere for making political decisions.
The European Court of Human Rights (ECtHR) shows increasing sensitivity to issues of nondiscrimination and―as Carmelo Danisi rightly notes in his article1―the scope of the prohibition of discrimination contained in article 14 of the European Convention of Human Rights (ECHR) has definitely been extended. Not only is the number of cases decided on the grounds (or also on the grounds) of the principle of nondiscrimination growing, but―more significantly―the class of cases based on the aforementioned provision reveals that whenever a highly controversial, delicate, or questionable issue is brought before the Court, the principle of nondiscrimination is always reserved a major role in the judicial reasoning. Undoubtedly, the ECtHR is adopting a more proactive role in the fight against any kind of discrimination, and this new attitude is in part influenced by the EU institutions and other international bodies. The survey of the European jurisprudence provided by Danisi presents a self-confident Court applying severe standards even at the cost of narrowing the margin of appreciation that the ECHR accords to member states. The only notable exception is the case of same-sex marriages. On the basis of the account offered by Danisi’s article, I would like to inquire into the reasons for the expanding role of nondiscrimination in the ECtHR’s case law. I will argue that this expansion is intertwined with the liberal ideal of protecting everybody’s right to the freedom of choice on a neutral basis. Considered in this light, the case law of the ECtHR appears to be more problematic than in the picture portrayed by Danisi. Sometimes the Court’s attitude seems inconsistent and leads to unpredictable results. However, it is more important to notice that nondiscrimination judgments intrinsically lack the neutrality that is often ascribed to them. Many good reasons account for the prominence of nondiscrimination in contemporary European jurisprudence. One of these, and not a minor one, is related to the perception that prima facie nondiscrimination is a commonly shared, non-negotiable principle because it provides a neutral ground on which to settle the most hotly debated controversies of our postmodern society: gender issues, reproductive rights, bioethical problems, the notion and role of the family, law and religion, the protection of ethnic minorities in multicultural contexts, and so on. No matter what one’s personal opinion regarding these disputes may be, the solution should not result in the discrimination of any group. In a way, when a debate touches on the point of nondiscrimination, the tone changes from a judgmental to a neutral one. Whereas controversies about rights and their limitations require difficult balance among competing values and are deeply divisive, nondiscrimination is perceived as a common, undisputed goal. A good example showing the “neutralizing effect” of nondiscrimination is S.H. v. Austria,2 a recent case regarding medically assisted procreation. The case has its origin in an aspects of Austrian legislation which limits access to techniques of artificial procreation that involve the use of ova and sperm from donors. The reasons for these restrictions―as explained by the Austrian institutions and shared by other European states―were based on public values and interests competing with the individual desire to have a child, such as the protection of the biological identity of the children, the prevention of eugenic reproduction, the exploitation of women, and the commercialization of maternity. The European Court does not enter into a discussion about the legitimacy and the justification of the limitations imposed on individual rights by the national legislation. Instead, it takes a different approach: if the right to privacy encompasses “the right of a couple to conceive a child and to make use of medically assisted procreation for that end,” it must be guaranteed without discrimination, the Court says. Therefore, following the Court’s reasoning, all restrictions on medically assisted procreation should be banned because every regulation may have the effect of denying some couples the possibility of having a baby, ultimately amounting to discrimination. The issue that was brought before the Court was a veritable conundrum and did not have any easy solution. However, no matter how disputable any alternative option would be, in this case, it was clear that the arguments based on nondiscrimination worked as a discussion stopper, thanks to its aura of neutrality. As a matter of fact, according to liberal ideals, law is to be neutral in order for all personal choices to be allowed and respected. The liberal ideal wants each person to decide for oneself what one values and how one is going to live one’s life in the light of these values; one must be entitled to a set of “deliberative freedoms,” allowing one to live following one’s personal preferences. Nondiscrimination is a prominent tool for securing these deliberative freedoms3: when nondiscrimination is respected, everybody can freely accede to one of the options at stake, regardless of color, sex, race, or preferences. Liberal ideals affirm that people should not have to factor certain traits of their identity into their deliberations. Nondiscrimination is essential to the liberal project because it urges the removal of all hindrances to free choice. Although in the past liberty and equality were considered competing values, in the current postmodern liberal society freedom of choice and nondiscrimination reinforce one another: they are the twin cornerstones of contemporary legal order. Their intimate kinship is mirrored by the frequent use, in the cases brought before the ECtHR, of article 14 of the ECHR on nondiscrimination in conjunction with article 8 on the right to privacy―the very origin of the right to free choice. The interaction between nondiscrimination and freedom of choice has the ambition of squaring the circle by protecting diversity without creating inequality: differences in reality should not matter in the legal realm because nondiscrimination aims at correcting reality.4 Seen through the lens of nondiscrimination, all differences become indifferent before the law. In this perspective, nondiscrimination has a neutralizing effect; it serves the aspiration of liberal society to neutrality.5 I would like to put to the test whether or not the principle of nondiscrimination maintains its promise of neutrality in the practice of the ECtHR by looking at the examples examined by Danisi and other scholars. In the overview of the cases I will focus solely on the issue of neutrality: I am not interested here in discussing the merits of the decisions. Whether or not I agree with the results of the decisions taken into consideration is not relevant to the purpose of the present discussion. According to Danisi’s narrative, the ECtHR is increasingly developing the principle of nondiscrimination, with the relevant exception of same-sex marriages. At first sight, all recent evolution in European jurisprudence fits into Danisi’s analysis, but on closer examination the ECtHR’s case law appears to be more “unprincipled.” It is true that in numerous recent cases discrimination is given prominent attention; however, it seems occasionally to be overshadowed by other prevalent concerns, depending on the factual situation and on a case by case basis. For example, in Opuz v. Turkey,6 a case concerning domestic violence in Turkey, the discrimination issue is intentionally brought into the spotlight by the Court. The decision condemns Turkey for violating articles 2 and 3 of the ECHR because the national authorities failed to take adequate measures to prevent an aggressor from carrying out his threats against the physical integrity and the life of the victims. The Court could have stopped there, as it happens in many cases where the violation of a plurality of rights and of articles of the Convention is alleged by the plaintiffs. In the Opuz case, however, the Court went on to examine the issue of nondiscrimination and reiterated the condemnation of Turkey also on the basis of article 14. The result of the decision in this specific case was not affected by the Court’s further statement, because the violation of the right to life and personal integrity is of paramount gravity; but the insistence on the non discrimination issue gave the Court the opportunity to draw attention to the status of women in Turkey and to the many forms of discrimination to which they are subjected. To put it bluntly: the Court wanted to make a case against the discrimination of women in that society. Let us now consider the following case dealing with discrimination on the grounds of sexual orientation. Santos Couto v. Portugal7 is a decision concerning a man convicted for homosexual relations with adolescents. Since the Portuguese criminal code has two different provisions for heterosexual and homosexual relations with adolescents, the second being more severe than the first, the applicant argued that his conviction was discriminatory and based on his sexual orientation. Notwithstanding a relevant precedent,8 in which a request similar to that filed by the applicant was granted, the ECtHR issued a finding of nonviolation. Focusing on the concrete circumstances of the case, the Court showed that the man would have been convicted even on the narrower grounds of the provision envisaged for heterosexuals. Consequently, in this case, his sexual orientation was not considered a relevant feature to be taken into account. By contrast, in Kozak v. Poland,9 as Danisi says, the European Court attached great importance to the argument of sexual orientation. Despite the unclear nature and duration of the relationship between the two partners, in the Court’s opinion “the relevant element was not the question of the applicant’s residence in the flat or the emotional, economic or other quality of his relationship with [his partner] but the homosexual nature of that relationship.” Had the Court used the same “test of resistance” that was used in the previous case―i.e., had the Court inquired whether or not in that particular case the right of succession to the tenancy would have been denied even if the applicant had been in a heterosexual relationship―the result might have been different. At the same time, in the Santos Couto case, should the Court have stressed that the Portuguese criminal code had stricter rules applying to homosexual relations with minors, the decision might have been the opposite. Not only is the nondiscrimination clause susceptible to being applied inconsistently by judges, but, in most cases, the very structure of the discrimination test as such is responsible for the unpredictable outcomes of the controversies. Nondiscrimination is one of the most valuable principles of our legal civilization, one which has significantly contributed to advancing the legal treatment of vulnerable groups and to the redressing of wrongs which occurred in the past; and yet it is not, and cannot be, a neutral principle. As a matter of fact, judging nondiscrimination implies drawing a comparison between different persons and situations. Comparing people is not a mechanical activity but requires the highlighting of a specific relevant feature which has to be taken into consideration for the comparison. The trouble with determining nondiscrimination is that no two people are alike in every respect and, at the same time, all people are alike in some respect. Consequently, statements of nondiscrimination entail comparisons of two persons by reference to some criteria that determine the relevant aspect in which those persons are alike or different. The choice of the “relevant feature of comparison” governs the outcome of the judgment. Let us return to the case of Orsus v. Croatia,10 examined by Danisi, regarding Roma students who complained about being assigned to separate classes.11 Were they assigned to special classes because they lacked a sufficient command of Croatian, as the First Section decided in its judgment of July 17, 2008?12 Or were they victims of racial discrimination, as the Grand Chamber eventually decided? The choice of the comparator determined the results of the two decisions. Who are the “like” students to be compared with in this case? If the linguistic skills were the relevant feature to be taken into account, then the result would be a finding of nonviolation; if, instead, the question of race were to prevail in the analysis, then the Court would reach the opposite result. The hazy character of nondiscrimination judgments is particularly salient in cases concerning the status of the family, same-sex couples, and other types of relationship, which have frequently been brought to the attention of courts in recent years.13 Most of them involve homosexual couples claiming the same rights and privileges as those accorded to married couples. According to Schalk and Kopf v. Austria,14 European states are not obliged to extend marriage license to same-sex couples, since article 12 of the ECHR provides men and women with the right to marry and to found a family. Nevertheless, the Court says that the notion of “family life” under article 8 applies to same-sex and other de facto unions. Consequently, different forms of protection are considered consistent with the European Convention. In many European countries, but not in all of them, registered partnerships have gradually extended to same-sex couples a certain number of benefits and privileges that used to be limited to married couples. Differences between marriage and union partnership can be acceptable, says the Court, especially as far as parental rights are concerned. Moreover, at the opposite ends of the spectrum, some countries recognize same-sex marriage while others envisage neither marriage nor legal partnership for same-sex couples. Is this diversity in the domain of family life a matter of nondiscrimination, or does it have to do with the difference in values that each society attaches to marriage and family ties? The ambivalence of these controversies is made clear by an awkward request brought before the Court in the case of Burden v. United Kingdom.15 Two aged sisters, having lived together their whole life, claimed the same inheritance tax exemptions as married and civil partnership couples. They asserted to be in an analogous position to married couples or civil union partners, and affirmed that the different, unfavorable treatment applied to their situation was discriminatory. The ECtHR, of course, rejected their request. What is interesting for the purpose of our discussion is the Court’s reasoning. The Fourth Section16 justified tax exemption and its scope by evoking the peculiar value that societies attach to marriage and which, in many cases, they extend to civil partnerships: national legislation can legitimately limit fiscal benefits to the relationships most valued in that society. The Grand Chamber, on the other hand, focused on the analogy and differences between two siblings cohabiting for many years and married or union registered couples. The outcome was the same, but, in my view, the legal arguments in the reasoning of the Grand Chamber were weaker and ultimately concealed the real question under debate, namely the interests pursued by the legislature by means of the fiscal policy. It is not difficult to foresee that the Court will be called on again very soon to take sides with respect to different attitudes adopted by national legislatures towards family life, and the question to ask is whether nondiscrimination is the only appropriate grounds on which to settle these disputes. The trouble is that in these cases nondiscrimination is no more neutral than rights-oriented arguments, and it might end up concealing the value choices made. The principle of nondiscrimination proves to be a flexible and fluid benchmark whose shape derives, as we have seen in this quick overview, from the rights at stake and the class of the rights holders involved, the factual circumstances of the case, and the social and political background. In many cases discrimination assessments involve value choices to no lesser extent than any other decision concerning the scope, content, and limitations of rights. If this is true, some consequences should be taken into account by the Court. These include: (a) The burden of proof: a widespread bias about nondiscrimination was pointed out years ago by Isaiah Berlin: “the assumption is that uniformity, regularity, similarity, symmetry … need not be specially accounted for, whereas differences, unsystematic behavior, change in conduct, need explanation and as a rule, justification.”17 In legal terms, this bias translates into a general presumption in favor of equal treatment: whenever a difference in treatment is to be applied, the burden of proof shifts onto the advocates of the difference―in the cases before the ECtHR, usually onto the defendant government. This presumption, and the consequent shift in the burden of proof, must be questioned if we agree that the weight of the nondiscrimination argument needs to be modulated according to the rights and the rights holders involved in each particular case. (b) The margin of appreciation: as Danisi points out, the expansion of nondiscrimination issues has the effect of constraining the margin of appreciation of Member States to the point of rendering it meaningless. However, nondiscrimination does not necessarily imply uniformity of national legislation, as other experiences demonstrate. It can be plainly said in relation to the system of the European Convention that “the default value is autonomy of political and moral identity [of its members] which requires justification only if purposely abused.”18 This is true in all cases, and the margin of appreciation is not necessarily to be ruled out when nondiscrimination comes into play.
EU administrative law has some specific characters when compared with national administrative law. This is particularly so because of the weak democratic legitimacy of EU rules. EU administrative law however shares a number of developments with national legal orders, such as a general trend to strengthen the judicial review of individual measures, and this especially so when fundamental rights are at stake. When compared with some national legal orders, dialogue seems to be still in an early phase. This is a shame because the political circle linking the decision makers to the People through representative democracy is weak and benefits could had by supplementing it by more closely involving the civil society and the stakeholders. The little in terms of developments we have, however, is enough to confirm the role of law and courts in this different perspective as the tools «to police conditions of access to decision-making networks. A powerful incentive to dialogue for European institutions could however come – in sectors like competition policy – from a possible shift from a French administrative law presumption of legality pattern to a US adversarial adjudication model, the latter substantially imposing on EU institution a burden of proof where before was a duty to give reasons. Taken down from the high throne where traditional continental administrative law has placed it, it makes sense for the Commission to double its efforts to come at some sort of agreements with the undertaking concerned.
Abstract After more than seven centuries as a part of Sweden and one century as an autonomous grand duchy of Russia, Finland gained its independence in 1917. The long period of Swedish rule undoubtedly influenced the Finnish legal and social system. Conquered by Russia in 1808, Finland was ruled by the Czar of Russia under old Swedish constitutional laws. Two years after gaining independence from the weakened Russia, Finland enacted its first own Constitution Act. This Constitution Act of 1919 retained the leading principles of the 1906 Parliamentary Act. It was a compromised between republican and monarchist ideals. Following the two wars against the Soviet Union and the period of urbanization and industrialization, Finnish welfare state and administrative institutions underwent a transformation. These developmental processes were similar to that of Nordic countries however lagging slightly behind. Finland' societal development allowed for an improvement in social conditions and Finland's administrative development allowed for the gradual transfer of responsibility for the production of welfare state services from the state administration to the municipalities. This article focuses on Finland and the limits of its unitary decentralized model of governance. It also discusses several challenges faced by the Finnish subnational democracy and the local government. These challenges were partly due to the limitations of the unitary decentralized model, characterized by a large number of small municipalities, lack of an all-purpose organization and representative bodies at the regional level, and regional cleavages.
Some authors divide the approach of the autonomy into four categories: a group comparesthe autonomy with the right to act discretionary in some circumstances. The right is, in this case possessed by anindividual or by administrative organization. Others use the term as a synonym for independence. According to athird position autonomy is synonymous with decentralization, and a fourth opinion specifies that autonomousentities are those which have exclusive powers: legislative, administrative and judicial proceedings in specificareas. The latter is called political autonomy and it is the opposite of administrative autonomy, which is limitedto the power within the scope of the government. The hereby project seeks to answer to several questions suchas: What are the specific elements of administrative autonomy, and what are its benefits? What elements of theinstitutes declared autonomous allowed demonstrating their independence? What factors contribute to the brakedown of the existence of the concept administrative autonomy? What factors have slowed down the process ofself-governance and the decision within a certain area? What types of interest groups may affect thedevelopment of such a concept?
This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, foreign normative facts are often reasonably disputable, and when that is the case the parties must be afforded the opportunity to comment on whatever information the court intends to rely on while ascertaining the contents of such facts. Finally, the assistance of experts may be necessary in some cases, but full-fledged party-appointed expert testimony will rarely be a cost-effective option. Judges and parties should consider alternative options, such as the testimony of a court-appointed expert or written statements provided by party-appointed experts.
According to the facts proven, the claimant was in the supermarket ?Torre Lucas? in the city of Murcia on 28 August 1994. There he took a glass bottle containing white lemonade from one of the shelves in order to buy it, which exploded just as he was placing it in a shopping bag. The shards reached his face and caused, among others, injuries to the iris and cornea of the right eye as a result of which his eyesight was reduced. The bottle has been identified as belonging to the commercial brand ?La Casera?. It is a product which is produced by the defendant, while a different firm, ?Carbónica Murciana S.L.?, is in charge of bottling and commercial distribution. It has also been proven that the only cause of the injuries was the low quality of the product destined to be sold, since the bottle exploded because it was defective. The claimant claimed the amount of 36.520.000 pesetas from the three companies mentioned above. The Court of First Instance partially admitted this claim in a decision on 18 April 1996; the commercial firm ?La Casera S.A.? appealed against the aforementioned decision before the Appellate Court of Murcia. On 21 March 1997 this Court rejected the appeal. The defendant brought an appeal before the High Court, which was denied. In its ruling, the Court rejected the arguments brought by the defendant, amongst them the following assertion. The defendant alleged that the claimant had not proven that the product was defective, according to Article 5 of the Products Liability Act. The point is that the explosion took place without the product having being manipulated by the consumer in any way; this means that the explosion was caused by the product itself. According to Article 3 of the Act referred above, a product is defective when it does not meet the safety that a person could lawfully expect from it, taking all circumstances into account and, in particular, the presentation of the product, the reasonably foreseeable use and the time when it was put into circulation. At any rate, a product is defective when it does not meet the safety normally offered by all the other items of the same series. In the case at stake it has been sufficiently proven that the bottle which caused the injuries to the claimant markedly lacked the safety required. Therefore, since it is an unsafe product, it was obviously defective in itself as from the time when it was put into circulation. The concept of defect laid down by the Act, which follows the EU Directive 85/374 EEC, is a flexible and broad one. In addition, since there is no place for subjective elements, the safety has to be seen as a requirement of the product, because every consumer is entitled to be able to use the product without any risk for his or her physical or patrimonial integrity. The existence of the defect results from the concept established by the Act 22/1994 and has to be connected to safety that the product must offer. If this requirement is not met, the product has to be deemed defective, thereby reversing the burden of proof, since it is the manufacturer who has to bring evidence that the product is suitable or that there are other causes that could exonerate him or her from liability.
The aims of this article are to describe the fundamental connection between State government, counties and municipalities and to expose peculiarities of interaction of State government subjects and Local Self-government institutions. The survey method is grounded on the systemic research and analysis of the Lithuanian legal acts: Law on the Local Self-government, Law on the Governing of the County and Law on the Regional Development. The main conclusions of the article are following: a) the objects, functions and responsibility of Regional institutions and Counties are separated by legal acts, but in fact Regional institutions and Counties are indivisible unit; b) in reality municipalities become subordinate to the State government and restraint from Self-government institutions appreciable by limited liberty of decision making and finance resources, and intensive state inspection of procedures; c) there is not fully realized principle of decentralization. In the future State government system and Local Self-government reforms could take the way of self-governmental regions making and the power, functions and decision making competence of municipalities could be extended.
Autonomy and its autonomous law is an extremely significant phenomenon. The idea of autonomy contains the idea of the right to self-organization, which also encompasses the right to relatively independent i.e. autonomous normative activity. But if autonomy were independent, i.e. independent of state authority, then it would not be autonomous, but new state authority. That means that autonomy, despite its origin, is possible only as a correlative or as an appendage of state authority, which permits and defines it. For that reason autonomy, in comparison to state authority, is always relative and proportionate. The existence of the appropriate measure of autonomy and the autonomous forms adapted to it - no matter when and where - is a sign of the assessment and decision within the state that autonomy is necessary as a measure of proportionate and relative freedom within the given borders. Autonomy in the sense just described, therefore, is not only a matter of the will of a person, nor is it only a matter of the decision, assessment or relevant legal measure, it is also the result of the development of state communities in which decentralization, deconcentration and devolution - as synonyms for the said assessment and change, are accompanied by simultaneously integrative and disintegrative trends and processes represent a clear intimation of the need to satisfy in the mentioned sense only those reasons that are conducive to legal and not false autonomy.