European Review of Public Law vol. 32, no. 1, 2020 (115)

European Review of Public Law vol. 32, no. 1, 2020 (115)

2020/ vol. 32, no. 1, (115)

Type

Print edition

80.00 €

ERPL

vol. 32, no. 1, spring/printemps 2020 (115)

In this issue of the ERPL are published the proceedings of the annual conference of the EGPL, which in 2019 celebrated its 30th Anniversary. The conference was organised from the 13th to the 15th of September 2019 at the EPLO premises in Legraina (Greece), on the theme “Public Law: 30 Years Later”, under the auspices of H.E. the President of the Hellenic Republic Mr. Prokopios Pavlopoulos.

The General Introduction refers more in particular to “The Achievements of National, European and International Law since 1989”. Under this heading, the first paper is focused on a comparison between some of the main ideas about public law which prevailed thirty years ago and what the author considers to be the present status of public law. The paper concludes that a “rights-oriented approach” of public law is crucial today for securing the best level of protection against abuses by any of the bodies executing public powers. The second paper under this heading maintaints that at the end of the 20th century the models remain, they are however reworked. Public law is invited to find again a certain unity. It must be understood as a whole, the diverse elements of which must benefit from their complementarity. Therefore, the question of coherence, rather than that of hierarchy, is crucial in this theoretical and practical debate.

The next heading is titled “The Interaction between National Constitutional Systems and European Law since 1989”. With reference to German administrative law, the first paper under this heading not only elaborates on the phenomenon of constitutinalisation, but also qualifies the widespread constitutionalisation thesis, which has been questioned by the Europeanisation and the alleged emanicipation of all European legal orders from the Constitution. Further parts of the paper discuss whether this means a deconstitutionalisation of administrative law and how these tendencies might be reconciled. The second paper under this heading examines the interaction between the ECHR and national constitutions: On the one hand, the ECHR system is influenced in particular by the constitutional principles and rules in force in States, the constitutional practice and especially the case-law of domestic courts and the constitutional ideas in Europe. On the other hand, the ECHR influences the organisation and functioning of the State and the conceptual apparatus of constitutional law.

Under the heading “Developments in European Administrative Law since 1989”, the first paper examines the debate about codification fueled by the adoption of new Administrative Procedure Acts by other Member States of the EU, as well as the proposal to codify the administrative procedures of the EU itself. It argues that both analogies and differences between national legal systems must be examined and explained, by combining history and comparison. The paper then shifts to examining and explaining the common and distinctive traits of existing APAs. The second paper under this heading refers to the two phenomena that characterised Swedish administrative law during the last decades, that is, the process of judicialisation and constitutionalisation, whereas Europeanisation has largely influenced both processes.

In the “Conclusions” the author refers to the central role that public law has traditionally played in shaping institutions, providing all the resources for the development of the State, although public law is slowly losing its “raison d’être” - its center, the State. In trying to answer the question of whether public law has reached the final stage of its life, the main trends of the field are evaluated, based on which one has to start reconceptualising the State, as the State has played, is playing and will play a central role in public law.

Further on in this ERPL issue, “Contributions” are also included. The first paper in this part of the ERPL issue examines the case of Greece, which experiencing three consecutive rescue programs (2008-2018) as a result of the financial crisis, is the laboratory in which the resilience of the national Constitution and the European constitutional theory were tested. The main finding of the study is that the national Constitution demonstrated resilience and adaptability. The second paper examines the position of the administration vis-à vis political power and maintains that the progressive constitutionalisation of administrative law has led to the setting up of administrative bodies that are increasinly separate from the government with the aim of guaranteeing the impartiality of the administration vis-à-vis the rights of citizens. The next paper refers to the legality principle as defined for the purpose of administrative law, more precisely to its normative function of limiting the use of public power and its redress function of correcting an improper use of public power. The fourth paper in this part of this ERPL issue presents the way in which Romania has positioned itself in relation to Union law and to the principles that govern its existence. Finally, the last paper under this heading analyses the appearance of the Administrative Code in Romania and its regulation of the general principles applicable to public administration, which aims to synchronise the Romanian administrative culture with the values and principles of the European Union.

The next part includes papers presented or prepared within the framework of Workshops that took place during the Conference.

In the context of the Workshop on the question of “Where are we with the Brexit?”, the first paper reflects the discussion and findings of the Workshop, which were focused on a limited number of substance matters, all of them, however, of utmost legal and institutional importance: direct democracy versus indirect democracy, the Article 50 modalities and procedures, and the complexities of a withdrawal from the EU. The second paper dealing with the question posed by this Workshop takes as a starting point the deep political crisis triggered in the UK by Brexit. It wants to show however that Brexit reveals new resources for modernising the parliamentary system in the United Kingdom.

In the context of the Workshop on “The Crisis of Democracy”, the first paper presents the methods used by organs with legislative and executive powers to change the Polish Constitutional Tribunal’s character, composition, manner of operating and the scope of its competences, in addition to its position within the system of State organs. Under the same heading, the next paper examines a fundamental problem faced by the EU, the UN or any other democratic body, that of a multi-dimensional inequality of its constituents, which may be the largest challenge to creating “an ever closer union” among “the peoples of Europe”.

Under the Workshop on the “Role of Ombudspersons in Interaction between National, International and Supranational Legal Systems”, the first paper, taking the legal order of the Slovak Republic as an example, confirms that independence is an important requirement for the proper functioning of ombudspersons. It maintains that the Slovak legal order shows room for improvement in this regard, although the de iure requirements for independence are safeguarded to an appreciable extent. The next paper in the context of this Workshop analyses the institution of the Ukrainian Parliament Commissioner for Human Rights, which is an independent constitutonal institution, authorised since 1997 to exercise parliamentary control over the osbervance of constitutional rights and freedoms of an individual and a citizen, to protect the rights of everyone within the territory of Ukraine and its jurisdiction. The Commissioner’s recent developments are conditioned by the Edinburgh Declaration, the UN Guiding Principles on Business and Human Rights and the Sustainable Development Goals.

Next, the EPLO Workshop on “The European Unity in front of its Constitutional Roots” has been an opportunity for a scientific project to take shape, whose outline is presented in the paper published under this heading.

Finally, under the Young Researchers Workshop the first paper investigates the relentless rise of the populist political and cultural phenomenon in a global perspective and, mainly, in the political context of European Union Member States and studies the phenomenon with a comparative and multidisciplinary approach. The second paper aims to evaluate the effectiveness of the remedies against the illegal use of works protected by copyright along with different paths, from the traditional legal actions taken before the judicial authority to alternative dispute resolution systems (ADR). The next paper aims at sheding light upon the advent of the sharing economy in the field of urban transportation in Europe, in order to address some proposals for a coherent legal design of such new initiatives. The last paper under this heading aims to study, in the light of the development of information and communication technologies, the current mechanisms for the protection of personal data, like the new GDPR, as well as the reconstruction of a system of protection of personal data in all EU Member States.

The last part of this ERPL issue is devoted to the 30th Anniversary of the European Group of Public Law. Are thus published in this part: first, the speech of Professor Bertrand Mathieu opening the workings of this year’s conference and presenting the development and achievements of the Group throughout the last 30 years as well as the speeches presented at the Official Celebration that took place at the Roman Agora on September 14, 2019, in the presence of H.E. the President of the Hellenic Republic Mr. Prokopios Pavlopoulos. The President of the Hellenic Republic’s speech as well as those of Professor Spyridon Flogaitis, Director of the EPLO, Professor Sabino Cassese, President of the European Scientific Council (EGPL) of the EPLO, Mr. Konstantinos Tsiaras, Minister of Justice, Transparency and Human Rights (representing the Greek Government), Mr. Georgios E. Patoulis, Regional Governor of Attica and Mr. Kostas Bakoyannis, Mayor of Athens are published in this ERPL issue.

Summary

Foreword

Part I

Tribute to Late Luciano Vandelli

J.-B. Auby, Tribute to Professor Luciano Vandelli [IN FRENCH]

Sir John Laws: Memoir

The Rt Hon Sir S. Sedley, Sir John Laws, A Personal Memoir [IN ENGLISH]

Part II

General Introduction: The Achievements of National, European and International Law
since 1989

M.P. Chiti, Achievements and Mutations in Public Law since 1989 [IN ENGLISH]

F. Delpérée, Public Law: Thirty Years After - The Achievements of National, European and International Law since 1989 [IN FRENCH]

The Interaction between National Constitutional Systems
and European Law since 1989