Judicial review and HR

Question 1

What is judicial review?

Answer 1

1. A judge can examine a legal decision or norm and check its compatibility with a higher norm
2. He may check whether an administrative decision by a public authority complies with the authorizing general legislation
3. He may examine the validity of a statute by setting it against the national constitution – That is called constitutional review of legislation
4. It is a court’s power to detect conflicts in law and to attach consequences to resolve the conflict

Question 2

Why have judicial review?

Answer 2

1. Because the constitution is the most important norm
2. Because constitutional review ensures the supremacy of the constitution
3. Because judges should refuse to apply normal statutes if they violate the constitution
4. To protect minorities from majorities (by avoiding the majority to pursue its political agenda against the preferences of the elected institutions)
5. For checks and balances
6. Because judges are trustworthy as independent academic professionals

Question 3

Why not have judicial review?

Answer 3

1. This supremacy does not mean that judges should be able to frustrate the will of the law-maker
2. The law-maker should take account of the constitution when passing statutes in the first place
3. Why would one put more trust in unelected judges than in democratically elected governments? Judges are not elected, they are not trustworthy
4. Courts should apply the law, not criticise or second-guess it

Question 4

What is the difference between abstract and concrete review?

Answer 4

1. Abstract review is where review can be exercised outside the context of an actual application. You do not need a concrete case or conflict to exercise review
2. Concrete review is when you need a concrete case and conflict to review legislation. You cannot do it ‘just because’

Question 5

What is ex post and ex ante review?

Answer 5

1. Ex-post - Before it enters into force

2. Ex-ante - After it enters into force

Question 6

What is centralized and decentralized review?

Answer 6

1. Decentralized – Any court may check the constitutionality

2. Centralized – There is a special constitutional court which will exercise review

Question 7

What are the consequences of judicial review?

Answer 7

1. The court sets aside the statute:
   - Also valid for ‘invalidates’ or ‘disapplies’
   - The court will leave the statute as it is but will not apply it anymore
2. The court declares the statute void:
   - Also valid for ‘annuls’
   - The court strucks out the statute. It ceases to exist

Question 8

What is a monist system?

Answer 8

1. National statutes and provisions from treaties ratified by the state are treated as forming a part of one and the same national legal order
2. Individuals can invoke treaty provisions in the same manner they invoke national law
3. If a conflict arises between national law and a treaty provision, the latter prevails
4. Why?
   - Because it is pointless to have treaties if citizens cannot rely on them
   - Because it is pointless to have treaties if they do not override national legislation

Question 9

What is a dualist system?

Answer 9

1. National law and treaties are two different separate legal systems
2. The lawmaker must transpose the treaty provisions into national law
3. Why?
   - Because an international treaty is a treaty between the state and another state, not between the state and its citizens. They did not get their word to say in that
   - Because it would allow treaties to undermine the national constitution via imported law taking precedence

Question 10

What is the relationship between EU law and national law?

Answer 10

1. EU law has direct effect and supremacy in the MS
2. Individuals can invoke EU law before national courts
3. EU law overrides all conflicting national provisions irrespective of whether the MS is monist or dualist
4. National judges must invalidate national law which is incompatible with EU law
5. National judges can ask questions to the ECJ via preliminary rulings

Question 11

US - When do federal courts exercise jurisdiction?

Answer 11

1. When the case involves a federal question (the federal Constitution or federal legislation is at stake)
2. When the US federation is a party to the dispute
3. Cases of maritime law, disputes between States or where the applicant and the defendant are from different States (if it concerns a minimum money value)
4. The US Supreme Court has jurisdiction when:
   - The case involves diplomats, the case is brought by or against a State as first instance
   - As a court of appeal from lower federal courts
   - It can exercise a discretionary review of cases – It chooses whether or not to hear a case after the parties to the case have petitioned it, from both federal courts and State courts

Question 12

US - Constitutional review

Answer 12

1. Only concrete review
2. All federal judges may review the constitutionality of both state and federal legislation
3. Marbury v Madison:
   - Judicial review powers flow logically from the Constitution which is the highest law of the land and derives directly from the people
   - Judges have taken an oath to uphold the Constitution
4. A statute that violates the Constitution cannot be made in pursuance of it therefore statutes which are unconstitutional must be left aside:
   - Stare decisis, because one court set the statute aside, other courts should do the same
5. Congress can also choose to repeal the statute formally and replace it with a new one

Question 13

US - International treaties

Answer 13

1. The President, with the approval of the Senate
2. The Treaties made by the US federal authority are considered at the supreme law of the land:
   - They override State law
   - But they have the same status as federal law still, therefore you must apply the lex posterior rule

Question 14

GER - Relations between state and federal courts

Answer 14

1. State courts are also federal courts:
   - Different layers of courts at State level and supreme courts at the federal level
   - Divided into 5 categories (general, administrative, social security, labour and tax law)
   - For each category, there is a federal court on top which acts as a court of last instance
2. Appointments of judges:
   - State judges are elected according to that State’s procedure
   - Federal judges are selected by the federal minister together with a judicial selections committee composed of the competent State ministers and an equal number of Bundestag members
   - Federal Constitutional Court – 16 members, half is elected by the Bundestag, the other half by the Bundesrat

Question 15

GER - Constitutional review

Answer 15

1. All court may examine the constitutionality of a statute but not all can annul it:
   - It must freeze proceedings and refer a preliminary question to the Federal Constitutional Court
2. There is only concrete review by the Federal Constitutional Court
3. Constitutional complaint procedure:
   - In individual can claim an infringement of a right by a public authority
   - All other means must have been exhausted
   - The individual must demonstrate direct and concrete injury
4. Abstract review:
   - By the federal government
   - By a State government
   - ¼ Bundestag members
5. Consequences:
   - The statute is void and ceases to exist
   - The statute is unconstitutional but not void, in hope that the legislator will change it

Question 16

GER - International treaties

Answer 16

1. Dualist
2. International treaties must be transposed into national law
3. Treaties do not override national law but principle of international law do (as part of ius cogens)

Question 17

UK - Organisation of the judicial system

Answer 17

1. Separate court systems for England, Wales, Scotland and Northern Ireland
2. Focus on English courts:
   - Hierarchy of county courts, magistrate courts, Crown Court (for criminal cases) and the High Court (on top)
   - Followed by the Court of Appeal

Question 18

UK - Appointment of judges

Answer 18

1. By the King, upon advice of the Lord Chancellor (government member and head of judiciary)
2. In practice, the Lord Chancellor is bound to act based on the recommendations of the independent judicial appointments commission

Question 19

UK - Constitutional review

Answer 19

1. Not permitted! Judges are bound by the legislation, parliament has legislative supremacy
2. Instead, judges use interpretation

Question 20

UK - International treaties

Answer 20

1. Dualist, UK law has supremacy over domestic and foreign law unless it is transposed into national law
2. In case domestic law violates an international obligation:
   - The court (from the High Court upwards) can issue a ‘declaration of incompatibility) to draw Parliament’s attention
   - Before it must notify the government
   - Parliament may use the fast-track legislative procedure where the minister inserts amendments and then send it to the houses which can approve it by a resolution
   - If there is no urgency, the regular legislative procedure applies
   - The court must complete the proceedings

Question 21

FR - Constitutional Council

Answer 21

1. Nine appointed members:
   - 3 by the President
   - 3 by the president of the National Assembly
   - 3 by the president of the Senate
   - Non-renewable 9 year term, 3 are replaced every 3 years (so each President appoints a new member every 3 years)
   - Former Presidents can also join
2. To check the validity of elections, referenda and constitutionality
3. Can exercise ex ante review and abstract review
4. Can check constitutionality on request:
   - By the President or the Prime Minister
   - By the president of the Senate or of the National Assembly
   - By 60 members of the Senate or of the National Assembly
   - It must decide within 1 month or 8 days if urgent
5. Ex post concrete review:
   - On demand of the Council of State or the Cour de Cassation
   - 3 requirements – 1st, the constitutionality of the bill must be relevant to the proceedings, 2nd the statute may not have already been declared unconstitutional, 3rd it must be sufficiently serious
6. What happens after? Statute declared unconstitutional are repealed

Question 22

FR - Judicial system

Answer 22

1. Parallel hierarchy of ordinary courts:
   - For civil and criminal cases
   - For administrative cases
2. Above is the Court of Appeal
3. On top is the Cour de Cassation

Question 23

FR - Appointment of judges

Answer 23

1. By the President
2. Upon advice of the competent section of the high council of the judiciary
3. Can be vetoed by committees from both chamber jointly by 3/5 of total

Question 24

FR - International treaties

Answer 24

1. Monist
2. If a statute violated both the ECHR and a constitutionally protected right, the constitutionality question must be referred first

Question 25

NL - Judicial system

Answer 25

1. The Kingdom does not have courts of its own
2. In the Netherlands, there is a hierarchy of courts:
   - Divided between administrative and criminal/civil cases
   - 1st district courts, 2nd courts of appeal and Highest is the Supreme Court

Question 26

NL - Judges appoitment

Answer 26

By the King, for life but a statute regulates a maximum age

Question 27

NL - Constitutional review

Answer 27

1. There is not constitutional review
2. For neither the Constitution nor the Charter for the Kingdom
3. Review of the constitutionality of international treaties is also prohibited

Question 28

NL - International treaties

Answer 28

1. Monist

2. Treaty provisions override conflicting national law

Question 29

EU - What is the ECJ?

Answer 29

1. 28 judges:
   - Appointed with the consensus of the member states
2. The sole interpreter of EU law
3. Works separately from national court
4. To ensure uniformity in the application and interpretation of EU law

Question 30

EU - Relationship between ECJ and national courts

Answer 30

1. Different legal systems
2. The national courts must reach a decision which follows national procedural law as well as EU law, all national courts are also EU courts
3. In case of doubt, national courts can ask a preliminary ruling to the ECJ

Question 31

EU - Charter of FdR

Answer 31

1. A collection of HR provisions
2. Its meaning and purpose shall be the same as the ECHR
3. Has the same legal value as the TEU and TFEU

Question 32

What is the difference between the EU and the ECHR?

Answer 32

1. The EU works with the ECJ:
   - Luxembourg court of the EU
2. The ECHR is a body set up by the Council of Europe:
   - 47 judges elected by the Parliamentary assembly of the Council of Europe (composed of members of national parliaments) for 9 years
3. Issues:
   - Breaches of the ECHR can be caused by EU institutions, in which case the EU cannot be held accountable

Question 33

UK - Parliamentary oversight of EU matters

Answer 33

The Commons and the Lords use the ‘scrutiny reserve’: UK ministers cannot give their consent to European drafts until Parliament has considered the draft