Legislative Competence Research Articles

The EU as guarantor of environmental protection in Germany

In recent years it has become fashionable again among politicians and publicists across Europe to practice ‘Brussels bashing’ and make the EU responsible for many ills of globalisation and modern society. This applies in particular to the field of environmental law. The European Union has been active in the field of environmental protection since the 1970s, i.e. since a time when there was no Union yet but a European Economic Community (EEC), a European Coal and Steel Community and a European Atomic Energy Community (Euratom). The EEC Treaty of 1957 did not know the term ‘environmental protection’ and for the next decades did not contain any explicit legislative competence for this subject matter. The main instrument of EU environmental policy is the directive. In the European context it means a framework law, as proposed by the EU Commission and adopted by the Council and the European Parliament, which the Member States have to transpose within certain deadlines into their national law, and specify and implement by their authorities into practice. The directive is binding as regards the objective (the result to be achieved) but leaves the choice of form and methods to the national authorities. It is estimated that 80% of current environmental law in Germany (as well as probably in other Member States) is determined by the European Union. The author of this article presents his thoughts on how the EU shapes Member State environmental law and policy, highlighting inter alia “innovation from Brussels” such as EIA, access to environmental information and climate protection, as well as the systematic and risk-based approach as hallmark of EU legislation.

Mandating – a likely scrutiny instrument for regional parliaments in EU affairs?

ABSTRACTScrutinising governments lies at the heart of parliamentary activities in EU affairs. This applies to national as well as to regional parliaments, most of which possess a toolbox of scrutiny instruments, including the power to mandate, allowing for the strongest form of scrutiny vis-à-vis governments. The article investigates the existence of mandating tools in the 70 regional parliaments equipped with legislative competences in Austria, Belgium, Germany, Italy, Spain and the UK, whose role in EU affairs has been strengthened by stipulations in the Lisbon Treaty. It is argued that mandating tools are, first, not widely used; second, they are more commonly applied in cases where national parliaments act as ‘policy shapers’ – enabling policy transfer – and if meso-level factors involving territorial politics create further incentives. In sum, the regional parliaments in six member states are still trying to find a place in the maturing EU multi-level parliamentary system.

Communication Without Legislation? A Cross-National Field Experiment on Members of Parliament

Do legislators communicate with constituents about affairs that they cannot legislate? An influential literature underlines the communication of what legislators do in the legislature to their constituents. This article questions the hypothetical link between communication and legislation. I conduct a cross-national field experiment on members of national parliaments (MPs) to investigate how they behave when ordinary citizens require them to explain what they cannot legislate. Overall, the results show that MPs are evenly responsive to explanation requests within and outside their legislative competence. Likewise, their replies to inquiries on what they can and cannot legislate are equally quick and just as detailed. Further analysis reveals that electoral incentives motivate MPs to account for even those affairs that they cannot legislate. This suggests that, with regard to the content, legislators’ communicative accountability may be larger than previously supposed.

Towards an [Unlawful] Modernized EU VAT Rate Policy

In late 2015, the European Commission announced a monumental U-turn on Value Added Tax rates policy. After decades of advocating the benefits of harmonization of VAT rates across the EU Member States, and after many failed legislative attempts at achieving it, the Commission declared its intention to do the opposite, namely to disharmonize VAT rates across Europe. The announcement was followed by a VAT Action Plan, and a public consultation on the reform of VAT rates, which, under the guise of modernization and consistency with the destination principle, presented two options for reform, both of which would give Member States further freedom and flexibility in the application of reduced rates. Against this background, the aim of this article is not to restate the benefits of VAT rate harmonization, but to assess whether the EU has legislative competence to approve disharmonizing VAT legislation. The article concludes that Article 113 TFEU could not be used as a legal basis for a Directive aimed at disharmonizing VAT rates, and that any such Directive, would lack legal basis and, consequently, be unlawful under the EU constitutional principle of conferral of powers.

Welsh devolution and the problem of legislative competence

With political consensus reached across Wales and Westminster that the current conferred powers model of Welsh devolution should be replaced with a reserved powers model as exists in Scotland and Northern Ireland, this article looks back at the systems instituted under the Government of Wales Act (2006) and compares it with the proposals contained within the draft Wales Bill (2015) and Wales Bill (2016). This involves an in-depth comparison of the consequences for legislative clarity and robustness of the shift in 2011 from Part III of GoWA 2006, which instituted a system for the ad hoc transfer of powers to the National Assembly, to Part IV, which provides the Assembly with direct primary powers over specific policy areas, and the subsequent comparison of the existing system with the draft bill’s proposals. In doing so, two claims are advanced (i) that the system instituted in Part III of GoWA was actually preferable to that unlocked with the shift to Part IV; and (ii) that this existing system was nevertheless preferable to the proposed reserved powers model contained in the draft Wales Bill. Ultimately, what the Welsh case illustrates is how constitution building should not be done; and furthermore that there are inherent problems regarding legislative competence within conferred powers models of devolution, but that a reserved powers model is no panacea either.

At the Intersection of Scottish Agricultural History and Constitutional Law: Salvesen v. Riddell and the Legislative Competence of the Scottish Parliament

Interpretation of legislation implementing acutely political government policies presents challenges for courts in a variety of ways. Those challenges are heightened when the measure is one originating from the devolved legislatures of the UK nations where courts have the power to declare that such acts are ‘not law’ where they exceed the defined legislative competence of the devolved legislature, including Convention grounds. This article explores the decisions of both the Inner House of the Court of Session and the UK Supreme Court in Salvesen v. Riddell, the first civil case in which legislation has been held to be outwith the Scottish Parliament’s legislative competence. The case is noteworthy for differing routes to the same result and the range of tools for construction which were deployed, including contrasting views on the relevancy of parliamentary statements. In addition to consideration of the interpretative approaches, this article also considers the approach of the UK Supreme Court to the fashioning of remedies in a situation where the legislation struck down had effects on existing and long-vested rights.

Processo Legislativo para além do Parlamento em Estados Autoritários: uma análise comparada entre os Códigos Penais Italiano de 1930 e Brasileiro de 1940

http://dx.doi.org/10.5007/2177-7055.2016v37n74p153Neste trabalho será utilizada a experiência das reformas penais realizadas pelo fascismo e o “Estado Novo” para compreender a legitimação constitucional de afastar o parlamento e a colaboração de renomados penalistas para a confecção das codificações sem o controle da representação popular. Analisando documentos de época como os projetos de lei e a historiografia penal, concluiu-se que, na Itália, o parlamento abdicou da competência via delegação de poderes ao governo, e, no Brasil, o golpe de Estado outorgou nova constituição cuja competência foi destinada ao Poder Executivo. Além disso, ambos os regimes valeram-se da legitimação intelectual dos juristas.

Framing the EU’s policy towards the neighbourhood: the strategic approach of the Seventh European Parliament (2009–2014)

The Lisbon treaty afforded the European Parliament (EP) increased powers in foreign policy. These have included new legislative competences in the area of international agreements or the European Union’s (EU) relations with third party states. This article analyses the way the last mandate of the EP, which was the first to benefit from the changes introduced by the Lisbon treaty, framed EU foreign policy. More specifically, it explores the way in which the EP strategically framed the EU’s approach towards the neighbourhood countries. The focus on the neighbourhood is justified by the fact that it is the most salient area of the EU’s foreign policy. The article shows that the EP pushed for the EU to have a stronger presence in the neighbourhood. The EP also strategically aimed that it should have a more central role in shaping the EU’s approach towards the neighbourhood.

Tax Transparency in the European Union Regarding Country by Country Reporting (BEPS Action 13)

One goal of the fight against aggressive tax planning is to improve tax transparency of the globalized activities of Multinational Entities (MNE). The OECD Action Plan No. 13 does not only recommend a unilateral implementation of a Country-by-Country- Reporting (CbCR), but also an additional implementation package composed of a Multilateral Competent Authority Agreement (MCAA) and bilateral agreements. In line with the Organisation for Economic Co-operation and Development (OECD) tax policy the European Union (EU) has already amended again the Council Directive 2011/16/EU (hereinafter ‘DAC 1’) by the Council Directive 2016/881/EU of 25 May 2016 (so-called DAC 4) implementing the OECD-CbCR-standard also on the EU-level. However, this action will respect, in general, the international tax secrecy (see Article 16 paragraph 4 DAC 1) as well as the business secrets of Article 17 paragraph 4 DAC 1. Furthermore, the EU commission has issued a proposal for a Directive amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches, COM (2016) 198 of 12 April 2016 (so-called Report on Income Tax Information – RITI). In contrast to DAC 4, the RITI will make the CbCR data public. This article will ask for legal consistency, a mismatch of legislative competence and the protection of business interests during the CbCR process.

The effect of reformed legislative competences on Länder policy-making: determinants of fragmentation and uniformity

ABSTRACTThe Federalism Reform I (2006) transferred some additional legal competences to the German Länder to provide them with more autonomy. Our analysis is guided by the question as to how fragmentation and uniformity concerning the content of the new Länder laws can be explained. To this end, we develop a theoretical framework based on a short review of the literature on the field. Subsequently, the framework is tested empirically on the basis of four selected legislative competences. Our results show that differences in party positions and problem pressures result in the fragmentation of laws. This applies also to competition under budgetary constraints, whereas competition superimposes the first two factors. Uniformity was influenced by similar party positions, and particularly by networks of experts.

Modelle des Verwaltungsverbunds in der Finanzmarktaufsicht

The article analyses the development of the European financial architecture from 1993 to 2013, i.e. from the beginning of the internal market for financial services to the Single Supervisory Mechanism (SSM). It builds on the thesis that organizational decisions in the area of public administration are mainly driven by three factors: policy objectives, constitutional restraints, and available resources including staff and finances. In the European Union, the legislator initially pursued the idea of completing the internal market on the basis of the concepts of mutual recognition and minimum harmonization. The Member States implemented the applicable secondary law and supervised the financial institutes according to the home country model with minor forms of cross-border administrative cooperation. Yet, two different regimes existed for the supervision of the provision of services and the establishment of branches by a financial institution on the one hand, and for consolidated supervision of internationally operating groups on the other hand. The inefficiencies of this administrative model surfaced in the wake of the financial crisis from 2007 to 2009. As a consequence, the European legislator decided to reform the decentralized model of supervision and in 2010 introduced a new administrative layer of European supervisory authorities (ESAs). In addition, the supervisory objectives were complemented by a new instrument, macroprudential supervision, which aims at identifying and preventing systemic risks. From the point of view of EU constitutional law, the new system was a considerable step forward in the development of a genuine European administration. However, issues of legislative competence and of the principle of institutional balance were still not fully settled. Only two years later, the ongoing debt crisis in Europe led to a fundamentally new assessment of this supervisory system. With a view to severing the linkages between ailing banks and strained public budgets, the European Council decided to establish the SSM. Under the SSM regulation, the ECB is directly responsible for significant banks whereas the less significant banks are still supervised by the national competent authorities. This is, so far, the most radical reform in public administration in the Euro area in recent years. It reduces considerably the extent of the decentralized model, streamlines supervisory practices, and bypasses the constitutional constraints which apply to the ESAs.

‘Basic Income’ from Wages: Freedom of Contract versus Statutory Minimum Standards

What is the ‘European minimum wage standard’? How might such a standard be introduced? Can wages guarantee a ‘basic income’? These are only some questions arising when hearing the Commission's President Juncker calling for a minimum wage in all EU countries while addressing the European Parliament on 15 July 2014, or when assessing the introduction of statutory national minimum wages in Germany in 2015. After first differentiating between basic income, minimum income and minimum wages, this paper evaluates three ways of guaranteeing a ‘basic income’ from wages: individual agreement, statutory uniform national minimum wages and collectively agreed minimum standards. An analysis of the legislative competences for pay and the historical development as well as current economic data serve as starting points, bearing in mind that employees' interests have always been deemed to be better represented at collective level rather than at the level of the single employment contract. Subsequently, it is argued that for analysing the advantages of wage setting-mechanisms, the whole (legal) system has to be assessed. For better illustration of this argument, a closer look is taken at the Austrian system and its main features responsible for guaranteeing wages at or above the national median wage.

The Principle of Subsidiarity

The paper examines in depth the principle of subsidiarity in EU law. The aim of this contribution is to provide an updated legal analysis of the principle of subsidiarity, systematizing its substantive meaning, discussing its philosophical underpinnings and evaluating the institutional mechanisms currently in place to ensure its enforcement in the framework of EU law. As the chapter explains, subsidiarity represents the guiding principle on the exercise of legislative powers by the EU institutions in areas in which both the EU and the member states share legislative competences. As the chapter explains, given its constitutional function, the EU Treaties currently foresee both judicial and political safeguards to ensure that the EU respects the principle of subsidiarity when adopting legislation. Nevertheless, for different reasons, none of these safeguards appears entirely satisfactory: in fact, as the chapter claims, both of them raises challenges that may be worse than the disease they are expected to cure. While respect for the principle of subsidiarity is important for a proper constitutional balance of powers in the EU, and although both the EU courts and the national parliaments have a role to play in policing respect for subsidiarity, the chapter underlines how there are significant risks associated with the practical enforcement of the judicial and political safeguards of subsidiarity.

Regional Parliaments and the Early Warning System: An Assessment Six Years after the Entry into Force of the Lisbon Treaty

This paper analyses the role of regional parliaments with legislative competences in the Early Warning System (EWS) six years after the entry into force of the Lisbon Treaty. To this end, the question of the regional participation is looked at from a broad perspective including the (potential) participation of regional parliaments in the Political Dialogue with the European Commission, be it through their national counterparts or with the Commission directly. This question is particularly relevant as even national parliaments tend to be less often involved in the Political Dialogue with the Commission over the last years and as the EWS has only been activated twice since the 1 December 2009.This analysis finds, first of all, that not all regional parliaments have the guarantee that their opinion in matters of subsidiarity, or more generally on an EU topic, will be taken into account by their national parliaments. An empirical study of 17 out of 74 regional parliaments existing in the EU further shows that, globally, regional parliaments contribute fairly little to both the EWS and the Political Dialogue and they only marginally exchange with the Commission directly. Against this background, the present study makes some proposals for reform in closure, in particular to make the best use of the sometimes scarce regional parliamentary resources available.

Payment Law: Legislative Competence in Canada

This article addresses the legislative competence in Canada in relation to regulatory and transactional aspects of payment of law. Setting out the parameters of "payment law", the article examines the federal legislative powers in relation to bills and notes as well as baking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.

On a Successful Road to ‘More Federalism’ in Länder Politics? The Case of Smoking Bans after Germany's Federalism Reform

The Federalism Reform I of 2006 was aimed at reversing interlocked policy making and thereby transferred 16 legislative competences to the Länder to provide them with more autonomy. Yet, the impact of the reform depends primarily on the way the Länder actually make use of these new competences. This contribution examines ensuing Länder legislation using the case of the protection of non-smokers. With regard to the question of ‘uniformity vs diversity’, the analysis of laws shows that alongside great uniformity in principle there are considerable differences concerning the arrangements in detail. The analysis of the legislation processes shows that only part of the uniformity is caused by the intention of harmonisation. Instead, it was the convergent development of public opinion in the Länder that led the legislation in the same direction. To some extent therefore, while autonomous Land legislation took place concerning the processes, it resulted in uniformity.

Współczesna władza nad interpretacją prawa a problematyka suwerenności wewnętrznej

Internal sovereignty is primarily conceived in the context of legislative power. It concerns the competence to normalize the relations within the state. The important competence of the sovereign is not only the legislative competence, but the authority to interpret the law as well. According to the English philosopher, Thomas Hobbes, it is an indispensable complement of sovereign power within the state. Also today it is not possibly to present the problem of internal sovereignty without taking into account the problem of interpretation of the law. In the article it is presented multiplicity of actors interpreting the law in the modern democratic state, which leads to the conclusion that the internal sovereignty is exercised by two sovereigns: the political community and the law.

Decentralization and Its Impact on Economic Growth and Social Development in Friuli-Venezia Giulia and Puglia

Italy constitutes a good example of the Regional State. Since 2001, after the amendment of the Italian constitution, the regions have obtained more legislative and administrative power and considerable number of legislative competences in many policy areas and over the EU affairs. However, Italy it is considered as a country where the regional economic and social disparities are still the widest in the European Union. Therefore, this paper aims to give deeper insight into the role of regional authorities and impact of the degree of decentralization on the reduction of economic and social disparities between the Italian regions, for the period 2000-2006. The scope of the research is limited to two Italian regions: Friuli-Venezia Giulia (special statute region/regione autonome a statuto speciale) and Puglia (ordinary statute region/regione a statutio ordinario). In order to explain the regional gap between these regions, this paper aims at providing an answer to the following research question: Is decentralization an influential factor in the reduction of the regional economic and social disparities between Friuli-Venezia Giulia and Puglia? Moreover, the research question will be addressed by testing a research hypothesis: Decentralization is an influential factor in strengthening economic growth and social development of the regions. DOI: 10.5901/ajis.2016.v5n1p205

Ways of Harmonising Polish Competition Law with the Competition Law of the EU

This article discusses the harmonisation of laws within the EU focusing on the specific ways of achieving an approximation of the Polish legal system with European competition law. It identifies and gives an overview of three specific ways of harmonising national laws with EU antitrust provisions: (1) spontaneous (or bottom-up) harmonisation; (2) judicial harmonisation and; (3) legislative harmonisation by means of EU Directives. With respect to the last category, particular attention is drawn to the legislative competences of the EU, allowing it to harmonise antitrust issues either on the basis of Articles 103 and 114 TFUE, or perhaps even on the basis of Article 82 TFEU.

Monarch and court in mediaeval Serbia

The Serbian Mediaeval State was a monarchy where the ruler exercised supreme powers with legislative, military, diplomatic and judicial competences. The kings also claimed property right over the whole territory of the State (dominium eminens). However, diverse types of institutional representation completed the governmental structure. State Councils exercised a great influence. They were representative body comprising the most powerful lords, secular and ecclesiastical. The sources also mention the existence of various court dignitaries and local civil servants. The most important cout dignitaries comprised the kaznac (tax collector) and the tepcija (land official). In the administrative reform of1340, under King Dusan, new titles and offices were introduced, mostly as a result of the Byzantine influence. These new titles included the logothet (chancellor), the protovestijar (chamberlain,) the great celnik (comes palatinus) and dvorodržica (marshal of the court), while on the local level, a new office of kefalija (capitaneus) was created. A few Serbian and Byzantine narrative sources point also to the existence of a Privy Council that regrouped the highest nobility of the kingdom.