CONSTITUTIONS COMPARED: ORIGINS AND MAIN FEATURES

Chapter 2

1. Overview The current Constitutions of the United States, the Netherlands, France andGermany can be viewed as expressions of an effort to replace an old order with anew one. n the case of the US, the Constitution was to brin! about a closer unification in the late "#th century of thirteen newly independent colonies. n the case of Germany, the $asic %aw was adopted as a partial reestablishment in "&'& of republican democratic statehood. France(s present)day Constitution was meant as a far)reachin! institutional overhaul in the late "&*+s of battered state structures. The ,utch Constitution of "#"'-"#"* meant the restoration of a monarchy and, at the same time, the creation of a unitary and independent state after two decades of French domination. in the "&*+s, the Charter for the /in!dom was adopted so as to establish a 0uasi)federal rather than colonial relation between the Netherlands proper and its overseas territories. The constitution of the United /in!dom, meanwhile, is evolutionary in character. New features are added and powers shift within an extraordinarily stable institutional framewor1. The last truly revolutionary moment too1 place when, in "2##, 3arliament deposed one /in! and installed another, establishin! the lastin! principle that 3arliament is not subordinate to the crown. 4hen 3arliament and the /in! to!ether ma1e a statute, whereby the monarch !ives assent to 5cts of 3arliament, the resultin! law is the hi!hest norm in the U/. This principle of le!islative supremacy remains the cornerstone of the U/(s modern constitution. 1.1. The Notion of Sovereignty 4ho actually ma1es a constitution6 The 7ma1er( of a constitution is not necessarily its physical author, but rather the entity from whose authority the constitution is derived. This authority resides with the sovereign8 the ori!inal source of all public power from which all other power flows. 9ost constitutions derive their claim to authority from havin! been enacted by the people, a concept called popular soverei!nty. Constitutions Compared8 :ri!ins and 9ain Features Soverei!nty as such is the ultimate power to exercise authority over oneself. For states this contains an internal and an external dimension. ;xternal soverei!nty means the possibility for a state to exercise control over its population and territory without interference from outside. This concept had its brea1throu!h in the "2'# 3eace of 4estphalia that ended the Thirty <ears( 4ar in ;urope, and it is still a fundamental concept in public international law. t is the internal soverei!n, meanwhile, who is the ori!inal source of public authority within the state itself. Usually, one can identify who is the soverei!n on the basis of the preamble to the constitution, if it has one. f the preamble, the declaratory introduction to the constitution, starts with 7The people...( or 74e the 3eople...(, or variations of that phrase, then it is clear that the constitution claims to be derived from popular will. The model are the famous first words of the US Constitution8 74e the people of the United States, in order to form a more perfect union =>? do ordain and establish this Constitution for the United States of 5merica(. t should a!ain be noted that soverei!nty in this sense is a rather abstract notion. ;ven in those systems which claim that the people are the soverei!n, it was not the people who actually wrote the constitutional document. :ften the people did not even approve the document in a referendum. The German $asic %aw for example came into force after havin! been ratified by the parliaments of the States, and yet it firmly points to the will of the people as its source in the preamble, provides that only the German people can a!ain abolish it, and reiterates in its text that all public power emanates from the people. The French Constitution, by contrast, actually has been adopted by referendum in "&*#, in fact by an overwhelmin! ma@ority.

1.1.1.

Popu ar ver!u! Ro"a Soverei#$t"

The notion of popular soverei!nty, as endorsed by republican democracies, stands in mar1ed contrast with the claim to soverei!nty as expressed by monarchs. n absolutist systems, the ori!inal source of all public authority is, after all, the /in!. :ften the monarch(s soverei!nty is coupled with a reli!ious claim8 he is then soverei!n 7by the !race of God(, or he exercises 7divine ri!hts(. n such cases the monarch remains the soverei!n even if he chooses to !rant his people a constitution. ;specially in the course of the "&th century, when the ideals of the French Aevolution had spread across ;urope, many monarchs decided to appease their people by enactin! constitutions. 5 constitution was meant to limit and direct the use of power by public authority. yet these constitutions still derived their authority from the monarch himself, who could at any point chan!e or repeal them. Thedocuments thus became 1nown as the constitutions octoyes, or 7imposed constitutions(. Bistorical examples include the charter offered =in vain? to the French Third ;state by /in! %ouis CD in "E#&. the 3russian constitution unilaterally enacted by /in! Frederic1 4illiam D after havin! re@ected the constitution offered to him by the revolutionary National 5ssembly in "#'&. or the constitution enacted by Tsar Nicholas of Aussia in "&+2. Aevolutions that established republics would do away with royal soverei!nty. 5s re!ards survivin! monarchies, even as the personal powers of 1in!s and !rand)du1es have in reality faded and become purely ceremonial in many countries in modern times, these monarchs are still often referred to as 7the soverei!n(. 1.1.2. Popu ar ver!u! Natio$a Soverei#$t"

There is a further subtlety to the notion of soverei!nty as residin! with the people.5 distinction can be made between popular soverei!nty, or soverei!nty of thepeople, and national soverei!nty, or soverei!nty of the nation. National soverei!nty was prominently proclaimed by the French ,eclaration of the Ai!hts of 9an in "E#&. For practical purposes, national and popular soverei!nty are often used synonymously. The difference, however, is that the people are a concrete and real entity, namely the existin! population at any point in time, while the nation is a somewhat more abstract philosophical notion that does not coincide with the current population. n a system of popular soverei!nty, the soverei!n population is able to exercise its will thou!h, for example, a referendum to chan!e the constitution. f the nation is the soverei!n, then such possibility could be excluded, since the nation is an abstraction and is not able to act on its own. National soverei!nty can only be exercised by the nation(s representatives, in the manner laid down in the constitution. The representatives of the nation could be the people, but it does not necessarily have to be the people. To name a practical example, in $el!ium soverei!nty lies not with the people but with the nation. The nation is defined as comprisin! all $el!ians who have ever lived, who live, and who will live in the future. Thus, the current population is not the nation. 4ho exactly represents the nation is laid down in the Constitution, andaccordin! to the Constitution the nation is represented by parliament F the nation, not @ust the voters. :ne of the conse0uences of this doctrinal principle is that it is @ustified to exclude bindin! referendums. 5fter all, the $el!ian population is neitherthe soverei!n itself =the nation is? nor does it represent the nation =parliament does?. France considered a choice between popular and national soverei!nty whendraftin! the post)4ar constitutions of "&'2 and "&*#. The compromise was to claim that 7national soverei!nty belon!s to the people, who exercise it throu!h their representatives and by means of referendum.( The effect is that the principle of thes overei!nty of the nation is preserved, but that the livin! population is capable of exercisin! such soverei!n powers. This would @ustify how 3resident Charles de Gaulle and his successors called for referendums amendin! the Constitution without followin! the re!ular amendment procedure that would have involved parliament. Since the people exercise soverei!n powers one way or another, the procedural basis was less relevant.

1.1.%. Popu ar ver!u! State Soverei#$t" 5 potential conflict as re!ards popular soverei!nty claims in a federal system lies in the claim of the individual States to continued soverei!nty =in the meanin! of independence?. n the US, for example, the States !ave life to the new Union in the first place, and without them the Union would not exist. n that sense, the term soverei!nty sometimes reappears as a nominal remnant of the ori!inal autonomy Constitutionsand independence of the individual States. Thus, powers that are not dele!ated to the federal level are said to be 7soverei!n( powers of the individual States. n modern reality, Union)friendly case)law, and the practical consolidation of stable federal institutions supported by all)5merican national identity, as well as the Union(s victory over the secessionist Confederates in the Civil 4ar, have cemented the US order whereby the soverei!n people have set up a permanent federal system of !overnment for the entire country, definin! its powers in the Constitution. The German $asic %aw of "&'&, incidentally, is clearer on the soverei!nty point from the start. 4hile ratified by the parliaments of the individual States, whose existence preceded the modern federation by two years, and while enshrinin! federal principles, the $asic %aw is explicitly based on the soverei!nty of the German people. 1.1.%. Par ia&e$tar" Soverei#$t"

The United /in!dom is famous for allocatin! soverei!nty with 3arliament. 3arliament should be understood here as the /in!)in)3arliament, a construction whereby bills are adopted by 3arliament and then receive royal assent from the monarch. Soverei!nty of 3arliament therefore, perhaps more accurately, means le!islative supremacy. 5cts of 3arliament =statutes made by 3arliament with royal assent? are the hi!hest law of the land. Thus, there is no public authority, le!islative or executive or @udicial, national or re!ional or local, secular or ecclesiastical, that may invalidate 5cts of 3arliament. :nly the /in!)in)3arliament himself may undo his previous le!islation. The scholar 5lbert ,icey coined the term 7soverei!nty of 3arliament( in "##* to describe a foundin! principle of the U/ constitutional system. 73arliament( is shorthand for the Commons, %ords and the /in! actin! to!ether, because 3arliament is considered the politically dominant institution. Since the late "Eth century the monarch may not le!islate without parliamentary approval. statute overrides royal prero!ative and conventionally the monarch never refuses royal assent to bills. The /in! is notionally still called 7the soverei!n(, but he is effectively bound by the will of 3arliament. 4hat is important here is that in any event U/ constitutional law does not allocate soverei!nty with the people. :f course, the electorate can determine the composition of the Bouse of Commons and otherwise express its democratic will, but that is not the decisive point. 5s a matter of doctrine, soverei!nty in the sense of supremacy is held by 3arliament and the /in! actin! to!ether.

Parliamentary Sovereignty in the Age of Europeanization

The accession of the U/ to the ;uropean Communities in "&EG re0uired a number of compromises, rationaliHations and doctrinal @ustifications re!ardin! the status of ;uropean law in the U/. 5fter all, it is difficult to maintain parliamentary soverei!nty in the sense of le!islative supremacy whereas ;uropean law can override domestic law and @ud!es may set aside 5cts of 3arliament for violations of ;uropean law. 3arliament is still considered soverei!n because 3arliament a!reed to be bound by ;uropean law itself. The reasonin! is aw1ward and sits uncomfortably with other constitutional notions, such as the rule that later statutes prevail over earlier statutes. <et it serves as a pra!matic means to 1eep the fundamental principle of U/ constitutional law intact inspite of ;U membership. 1.1.'. The A(!e$)e o* Soverei#$t" The complications of determinin! what soverei!nty means, and where it resides, can in some cases actually be avoided alto!ether. The constitutional law of the Netherlands does not occupy itself with the 0uestion of soverei!nty. n order not to be drawn into sectarian conflicts between republicans =for whom soverei!nty lies with the people?, royalists =for whom soverei!nty lies with the monarch?, and clericals =for whom soverei!nty lies with God?, in their Constitution the ,utch have opted to simply leave the 0uestion open. Thus, the ,utch Constitution contains no preamble, where references to soverei!nty would usually be found. The issue could have been clarified durin! the !eneral constitutional overhaul of "&#G, when the entire text was moderniHed, but it deliberately was not. The rules !overnin! the relation between the monarch, the parliament and the !overnment are still almost entirely defined by custom, not by the constitutional text. n effect, the Netherlands pra!matically functions as a democratic constitutional monarchy with a parliamentary system which is !overned by the rule of law. 4ho is the ,utch soverei!n is a 0uestion that is unresolved, but it is not perceived as one that needs ur!ent resolvin!. 1.1.+. Soverei#$t" a$, Europea$ I$te#ratio$ To those states that have @oined the ;uropean Union, or ori!inally and more specifically the ;uropean Community, the Union(s most far)reachin! branch of political and socio)economic inte!ration, the constitution is no lon!er limited to strictly national terms. n order to see the full picture, one cannot i!nore the constitutional impact of a state(s ;U membership. ;uropean law is part of the member states( national law and deserves to be treated as such =see also Chapter 2?. European Community and European Union The most far)reachin! principles of ;uropean inte!ration ori!inate in the ;uropean ;conomic Community based on the "&*E Aome Treaty. The principles include the supremacy of ;uropean law over all conflictin! domestic law. The ;uropean ;conomic Community was renamed ;uropean Community in the "&#+s. The 9aastricht Treaty of "&&I added additional sectors or 7pillars( of ;uropean cooperation to the Community, where different rules applied, and called the entire construction ;uropean Union. Still, supremacy in the ori!inal sense continued to apply only to the sector covered by ;uropean Community law. The Treaty of %isbon see1s to unify the different sectors of cooperation and to call the entire or!aniHation with all its sectors exclusively ;uropean Union. n this boo1 we will neutrally spea1 of 7;uropean( law wherever possible. Until the entry into force of the Treaty of %isbon this usually means specifically ;uropean Community law, especially where principles such as supremacy are concerned. Several approaches are possible with respect to the ;uropean Union, or at least specifically the ;uropean Community. 5 very far)reachin! approach would be to ar!ue that the ;U is, or has become, a state, and the member states form part of a lar!er federation. n that case, federal =i.e.,

;uropean? law would override State =i.e.,national? law as a matter of course. 4hile intri!uin!, this approach !oes too far8 the ;U comprises states, but it is not a state itself. 5lternatively, one mi!ht ar!ue that the ;U is simply an international or!aniHation, based as it is on an international treaty, the "&*E Aome Treaty, and its subse0uent amendment treaties. 4hile such an approach would fit most easily with national constitutions, it would not be 0uite ade0uate as re!ards the effective pursuit of the or!aniHation(s ambitious ob@ectives. 5fter all, as the ;uropean Court of Justice ar!ued already in the early "&2+s, if the ;uropean Community left it entirely up to the member states to decide how to embed ;uropean law in the national le!al order, the uniform Community)wide application of ;uropean law could be frustrated. t would then depend on the member states whether or not to allow individuals to rely on ;uropean law in national courts, and whether or not to !ive ;uropean law precedence over national law. <et the Community, especially its internal mar1et but also other areas of inte!ration, cannot function in the envisa!ed manner if it were !overned by such a 7normal( treaty) law re!ime. 4e must assume, so the ;uropean Court of Justice held, that the member states wanted their Community to wor1, and thus a normal treaty approach would not suffice8 a new le!al order, one of its own 1ind, has been created instead. 4hat is special about it is that Community law, accordin! to the Court, is capable of !eneratin! direct effect in the member states, and supremacy over all conflictin! national provisions, irrespective of how member states otherwise treat international treaty commitments. Combined with the possibility for the Council, the representation of the member state !overnments at ;uropean level, to act by =0ualified? ma@ority, overridin! individual member states, the ;uropean Union possesses characteristics that stand out in the world. 3roblems inevitably arise within the member states. Bow can a country still be soverei!n if ;uropean law overrides it at every turn6 Bow can the national constitution still be the supreme law if the ;uropean Court of Justice insists that ;uropean law overrides all national law, includin! constitutions6 s the national lawma1er not already a ;uropean lawma1er, transposin! ;uropean law and actin! domestically sub@ect to ;uropean restraints6 s the national @ud!e not already a ;uropean @ud!e, applyin! ;uropean law on a day)to)day basis under the interpretative !uidance of the Court of Justice6 :n a different note, how can democracy be ensured when the national !overnment is hard to control while actin! in $russels, and if that !overnment can even be outvoted in the Council, whereas the le!al effects of ;uropean decisions are nevertheless so far)reachin!6 4hat remains uncontested is that the ;uropean Union only possesses those powers that the member states have conferred upon it, namely in a treaty that they have all voluntarily and unanimously ratified. Since in the ;uropean framewor1 such treaties have domestic constitutional implications, unli1e usual trade a!reements, it mi!ht be appropriate to include a specific 7;urope clause( in the national constitution. Germany and France have such a clause. the Netherlands does not. the U/ statute of accession to the =then? ;uropean ;conomic Community is an ordinary piece of le!islation on the face of it, but has extraordinary constitutional conse0uences.<et even if a ;urope clause is in place, it does not mean that the last word about supremacy is already spo1en. From a national perspective, even a ;uropefriendly constitution can still be a supreme constitution. The art is then to reconcile ;uropean claims to supremacy with national claims to soverei!nty. rrespective of the outcome, a study of ;uropean systems that does not ta1e full account of their ;U membership would be incomplete.

1.2. Parliamentary and Presidential Systems 4hen comparin! !overnment)parliament relations in different systems, a very fundamental distinction can be drawn between parliamentary systems and presidential systems. n order to fall into either cate!ory, it is not enou!h that a state has aparliament or a president. Thus, Germany has a Federal 3resident, but it is in fact a parliamentary system. the US does have a parliament, but is nevertheless presidential. The definin! feature is whether the head of the executive is elected with a mandate of his own, or whether he owes the continuation of his office to parliament and is therefore accountable to parliament in the sense of a confidence rule =see also Chapter *?. n the US, both parliament, i.e. Con!ress, and the head of the executive, i.e. the 3resident, each have their own mandate. The 3resident owes his authority to bein! elected, and he is therefore not accountable to Con!ress in the sense of a confidence rule. 4hether Con!ress has confidence in him or not, the 3resident stays in power. The same applies to other presidential systems such as 9exico, $raHil or the 3hilippines. n parliamentary systems, by contrast, the head of the executive is not directly elected, but stays in office because he en@oys the confidence or tolerance of the parliament. This applies to the 3rime) 9inister of the Netherlands, the 3rime) 9inister of the U/, and the Chancellor of Germany8 all three can be voted out of office via a parliamentary vote of no)confidence, albeit with different procedures. t should be noted that a vote of no)confidence, or motion of censure, is not the same thin! as impeachment in the US. mpeachment is a criminal trial for very heavy criminal offences, whereby the Senate acts as a court of law. n order to oust a prime)minister or chancellor in a parliamentary system, the parliament does not need to prove that he has committed a crime, let alone a serious crime. n fact, parliament does not need to !ive ny reasons for the censure at all. The principle of a parliamentary confidence rule applies to all other parliamentary systems in the world, for example Canada, Spain or srael.4hile the terminolo!ical labellin! may imply that presidential systems have a particularly stron! president, while parliamentary systems have a particularly stron! parliament, in reality the opposite tends to be the case. True, while ;uropean prime)ministers can theoretically be ousted more easily compared to the US 3resident, they in fact wield far !reater political power, at least domestically. That is because they are typically the heads of a loyal parliamentary ma@ority, often also chairmen of the main political party. Throu!h their ma@ority in parliament, primeConstitutions ministers can have desired le!islation adopted, so that their parliamentary powerbase for executive action is at the same time their lever for implementin! le!islative trate!ies. The US 3resident, meanwhile, may be formally safer in his office compared to a ;uropean prime) minister, but his clout to push throu!h le!islation or secure a bud!et of his li1in! is limited. ;lected independently from Con!ress, he does not need a loyal ma@ority in Con!ress in order to stay in office, but the ma@ority in Con!ress need not be loyal to the 3resident either. t is Con!ress that adopts statutes and decides on the bud!et. 3arliaments in presidential systems in fact tend to be more independent, and more assertive with re!ard to the executive, than parliaments where the executive is formed by the ma@ority within. 5 hybrid between parliamentarism and presidentialism is the so)called semipresidential system. France represents such a blend. The definin! feature is that France has both a directly elected 3resident who exercises many executive functions, and who is accountable only to the people, and a 3rime)9inister, who also holds executive power, and who is accountable to parliament =althou!h he is appointed by the 3resident?. France therefore features a two)headed executive, with a 3residen and a 3rime)9inister side by side. 4ithout the directly elected 3resident, or at least without the executive powers that he wields, France would be fully parliamentary li1e Germany. without the 3rime)9inister, and with executive power concentrated with the 3resident, it would be presidential li1e the US. 4ith both offices in place, it is half)half. 4hich half dominates in practice much depends

on the personality of the office)holders involved. 3residents may choose to adopt a fi!urehead role above politics and focus on forei!n policy only. or they may exercise a hands)on executive presidency on the domestic scene as well. The balance also depends on whether the 3resident can count on a friendly parliamentary ma@ority or not. f yes, he can become the most dominant fi!ure in the French political landscape. if not, he mi!ht have to accept sharin! much of his power with an assertive, parliament)bac1ed 3rime)9inister. Finland was considered a semipresidential system until I+++, when presidential powers were shifted to the primeminister and the cabinet. The Aussian Constitution of "&&G created a semipresidential setup as well. There are also other hybrids between presidentialism and parliamentarism, apart from the French) style system. n South 5frica, the 3resident, who is both head of state and head of !overnment, is elected by the lower chamber of parliament for a fixed term. :nce in office, however, he may not be censured by a simple noconfidence vote, but can only be removed from office by 0ualified ma@ority for serious misconduct. Thus, the system may be considered presidential, and only the way of presidential election resembles a parliamentary system. n the "&&+s, srael experimented with yet another hybrid model, in that it allowed the prime)minister to be directly elected in an otherwise parliamentary system. The reform was to stren!then the role of the prime)minister, but the experiment was considered a failure and was reverted. The problem was that voters 7split their tic1et(, votin! for a prime)minister of their choice but not for the correspondin! political party for parliament, preferrin! a coalition settin! instead. 5s a result, the prime)minister(s position was even wea1er than before as he had to build a multi)party coalition from a hyper)fra!mented parliament. 1.2. Separation of Powers and Che !s and "alan es 4e have come to use the terms 7le!islative( or 7executive( rather naturally. n fact, they are rooted in a !uidin! principle of 4estern constitutional le!al tradition that deserves a closer loo1, namely the principle of separation of powers. :ri!inally defined by 9ontes0uieu, a scholar of the ;nli!htenment, in his observations of the $ritish constitutional system, separation of powers has had a heavy impact on the drafters of the US Constitution and constitution)ma1in! worldwide. ;ssentially, separation of powers holds that public authority can be dissected into three different functions8 a le!islative power, which ma1es laws. an executive power, which enforces them. and a @udicial power, which interprets and applies them in cases of conflict. This describes a functional separation of powers. Coupled to this functional separation of powers is the institutional separation of powers, meanin! that these three functions should be allocated with different or!ans. The final component is the personal separation of powers, meanin! that these different or!ans should be actually staffed by different people. The de!ree to which separation of powers is implemented, the form that it is !iven, and the conse0uences that are attached to it, even the de!ree to which adherence to the principle is actually ac1nowled!ed, varies from one system to another. The system of the United States is one of the conceptually clearest in that respect. Federal le!islative power is exercised by Con!ress, executive power by the 3resident and his subordinates, @udicial power by the courts, all neatly addressed in 5rticles , and of the Constitution, respectively. n the US, separation of powers however does not mean that the three branches operate in total isolation from each other. Separation is complemented by a system of checks and balances between the branches. This is to ensure that no sin!le branch accumulates too much power for itself. For example, Con!ress is the lawma1er, but the 3resident can veto bills. The 3resident is the head of the executive and is not accountable to Con!ress li1e a prime)minister in a parliamentary democracy is8 he does not need the confidence of parliament to stay in office. Bowever, Con!ress can impeach the 3resident, and remove him from office, if he is found !uilty of havin! committed a heavy criminal act, and Con!ress can exercise day) to)day parliamentary oversi!ht.

5!ain, the implementation and doctrinal adherence to separation of powers varies. 4hat is a fundamental consensus amon! 4estern democracies is that in any event the @udiciary should be impartial and independent from, in particular, !overnment interference. For the rest, opinions differ. n the US, for example, separation of powers is ta1en to mean that the three branches should control one another and that @ud!es should chec1 whether the le!islature stays within the limits of power attributed to it by the Constitution. n France, meanwhile, sparation des pouvoirs means exactly the opposite, namely that @ud!es must be 1ept separate from lawma1in! and that they should apply the law and not 0uestion its constitutionality. n that li!ht, the I++# reform that allowed @ud!es to refer 0uestions re!ardin! the constitutionality of statutes to the Constitutional Council is 0uite remar1able. 5s re!ards le!islative)executive relations, in 4estern parliamentary democracies the line can easily blur. Bere it is somewhat more difficult to say that parliaConstitutions ment is the le!islature and the !overnment is the executive. 5fter all the !overnment plays a leadin! role in the le!islative process, draftin! and introducin! new bills with the help of its civil service. 3arliament is usually to debate, approve and thereby le!itimiHe le!islation, so that in practice it does not actually ma1e new laws itself =see for details Chapter '?. Some constitutional monarchies, where the /in!(s !overnment and the elected parliament operate side by side, use a different notion of 7le!islature( alto!ether. n the Netherlands and $el!ium, le!islative power is exercised by the !overnment and the parliament @ointly8 the /in!(s !overnment can propose new bills, and bills adopted by parliament need the /in!(s si!nature =plus the countersi!nature of ministers?. n the U/, it is also technically not 3arliament but the /in!)in)3arliament who ma1es statutes8 the monarch enacts laws with the consent of 3arliament. Statutes in monarchies typically start out with a preamble alon! the followin! lines, illustrated here with the ,utch enactment formula under the rei!n of Kueen $eatrix8 74e $eatrix, by the Grace of God Kueen of the Netherlands =...?, Thus it is that 4e, havin! heard the Council of State, and in consultation with the States)General, have approved and decreed, as 4e hereby approve and decree.( This formula is used even thou!h statutes must always first be approved by parliament and the monarch does conventionally not withhold his blessin!. 5lso as re!ards personal separation of powers, the lines can blur. n France and the Netherlands, a member of the cabinet cannot at the same time be a member of the parliament. n Germany he can be, and usually is. n the United /in!dom, he actually must be8 the monarch appoints cabinet members from the membership of the Bouse of Commons =and exceptionally from the Bouse of %ords?. n fact U/ doctrine rather embraces a fusion of powers, rather than separation of powers. This ironically exposes 9ontes0uieu(s observations of "#th century $ritain as misleadin!. Bow can there be separation of powers in a system where the !overnment actually sits within 3arliament6 :r where, historically, the upper chamber of 3arliament, the Bouse of %ords, is also the hi!hest court6 :r where the%ord Chancellor, also historically, has a seat in the !overnment, and presides over the Bouse of %ords, and also exercises @udicial power as supreme @ud!e and head of the @udiciary of ;n!land and 4ales all at once6 Functionally, however, these offices and bodies and their subdivisions still can be distin!uished. Furthermore, I+th century practice and constitutional reform have consolidated a more explicit separation. Thus, conventionally the law lords who acted as supreme @ud!es would not participate in the le!islative process. 5s part of a lar!er reform process that set in in "&&#, @udicial functions have been extracted from the Bouse of %ords to emphasiHe @udicial independence even more. The %ord Chancellor is already stripped of his presidency of the %ords and of his @udicial function. The accountability of the !overnment to 3arliament, the possibility for the !overnment to have the

3arliament dissolved, and the fact that U/ statutes in principle have to pass throu!h two chambers of 3arliament, rather than one, are further si!ns that also chec1s and balances do exist in the U/ system. 1.#. The $ole of %udges 5n independent @udiciary is usually seen as essential to the protection of the rule of law. Aule of law means that all public authority derives its power from le!al norms and is constrained by le!al norms in exercisin! these powers. The state, @ust li1e the individual citiHen, is placed under the law, not above the law. Jud!es are typically char!ed with upholdin! the law as a!ainst unlawful !overnment action. <et the relations between the @udiciary and the other branches of !overnment, notably the le!islature, can also !ive rise to debate. The most controversial institution in this context is constitutional review of legislation8 the power of @ud!es to chec1 whether laws which are made by the central parliament comply with the constitution. The most pertinent 0uestion that arises is why an unelected @ud!e should claim supremacy in correctly interpretin! what the constitution means, and thereby overrule what the democratic representation of the people has determined. 9any ar!uments exist that nevertheless support @udicial review. there are also many ar!uments a!ainst it =see for details Chapter 2?. For a 0uic1 comparative scan, it suffices to note that different constitutional systems have chosen different answers to the same 0uestions. n the US, all @ud!es have the power to review the constitutionality of le!islation. This is essentially @ustified by the supremacy of the Constitution over ordinary laws, so that the latter may not violate the former, and it is embedded in more fundamental notions of chec1s and balances. Germany, alon! with many other systems, allows @udicial review but limits this function to a special constitutional court. The U/ and the Netherlands are amon! the very few states that do not allow @ud!es to invalidate le!islation for alle!ed breaches of the constitution. These systems stress le!islative supremacy instead. n the U/, the principle of parliamentary soverei!nty would not tolerate if @ud!es were to i!nore or contradict the will of the lawma1er. ,utch doctrine insists that it is a responsibility of the lawma1er himself to obey the Constitution, sub@ect to democratic control. Nevertheless, the U/ has introduced a form of @udicial review for the area of human ri!hts protection under the Buman Ai!hts 5ct "&&# =althou!h it still does not allow @ud!es to actually invalidate statutes on such !rounds?. in the Netherlands, a constitutional amendment bill that would allow for constitutional review on human ri!hts !rounds has been introduced as well, and has been approved in first readin!. France has for a lon! time allowed only constitutional review of bills before they entered into force, and even then not by a !enuine court but by a special Constitutional Council. %aws in force were immune. Since I++# France also allows le!islation that is in force already to be submitted to constitutional review by that Constitutional Council. 1.&. State Stru ture' (nitarism and )ederalism n our comparative observations of different systems, as far as state structure is concerned, we can distin!uish between unitary states and federations. Dirtually all states in the world have territorial subdivisions, of course, such as re!ions, provinces, cantons, districts, counties or municipalities. The difference is that a federation is composed of territorial sub)units whose privile!es are enshrined in the Constitutions Compared8 :ri!ins and 9ain Features constitution itself. The sub)units in unitary states, by contrast, receive their power from the central authority =see for details Chapter G?. France, the U/ and the Netherlands are, for example, unitary states. The powers en@oyed by re!ions, departments or provinces are laid down in laws enacted in the national capital. Such powers can be ta1en bac1 in the same manner. The same holds true for other unitary states such as celand, 3ortu!al, Slova1ia, Tur1ey or Japan. The privile!es of US States and the States, or Lnder, in

Germany meanwhile flow immediately from the respective federal constitution. The most important such privile!es are the protection of the States( autonomous le!islative powers in the constitution. the participation of the States in federal decisionma1in!. and the involvement of the States in the procedure by which the federal constitution is amended. :ther federal systems include 5ustria, SwitHerland, ndia, 5ustralia and $raHil. The picture is not entirely blac1)and)white, however. Some unitary states have devolved so much power to their re!ions that they have become 0uasi)federations. $el!ium has become federal this way. Spain is ar!uably the unitary state with the most far)reachin! re!ional devolution of power in ;urope. 5lso in other respects, it is useful to see federalism and unitarism as points on a scale rather than as mutually exclusive cate!ories. Unitary states can be heavily centraliHed but also decentraliHed. federations can reserve much power to the component parts or rather stress national unity over re!ional prero!atives. 1.*. Summary n the li!ht of the above overview, the complexity of constitutional comparison becomes readily apparent. ,ependin! on the feature studied, different systems can be placed into different cate!ories. For example, of the five systems under more detailed consideration, three are republican =the US, Germany and France? and two are constitutional monarchies =the U/ and the Netherlands?. Three of the systems embrace the notion of popular soverei!nty in various forms =the US, Germany, France?, one stresses the soverei!nty of 3arliament in the sense of le!islative supremacy =the U/? and one avoids the 0uestion of soverei!nty alto!ether =the Netherlands?. :ne system of !overnment is presidential =the US?, one is semi)presidential =France? and three are parliamentary =Germany, the U/ and the Netherlands?. The state structure in two of the systems is federal =the US and Germany?, in three of them it is unitary =France, the U/ and the Netherlands?. Constitutional review of le!islation is present in threesystems =the US, Germany and France? and it is absent in two of them =the U/ and the Netherlands?. This complexity is of course exactly what ma1es the study of comparative constitutional law so rewardin!. 4ith this overview in mind, let us now discuss, for each system under consideration, the historical bac1!round of the current constitutional system and the main characteristics of the constitution, in particular the institutional setup, in somewhat !reater detail.
1.+. )urther $eading L$. 5c1erman, We the People !oundations =Cambrid!e8 Barvard University 3ress"&&"?. L$. 5c1erman, We the People "ransformations =Cambrid!e8 Barvard University3ress "&&#?. L%. $esselin1, ed., Constitutional Law of the #etherlands =Ni@me!en8 5rs 5e0uiI++'?. LS. $oyron, 7Constitutional %aw(, in J. $ell, S. $oyron M S. 4hitta1er =eds.?3rinciples of French %aw, Ind ed. =:xford8 :U3 I++#?. LTh. ,ienes M J. $arron, $arron and %ienes& Constitutional Law in a #utshell, 2th ed.=;a!an8 4est %aw School I++*?. L/. Baylbronner M 9. /au, 7Constitutional %aw(, in J. Ne1oll M 9. Aeimann=eds.?, 'ntroduction to (erman Law =5lphen8 /luwer %aw nternational I++*?. LJ. Jowell M ,. :liver =eds.?, "he Changing Constitution, 2th ed. =:xford8 :U3I++E?. LC. /ortmann M 3. $ovend(;ert, Constitutional %aw of the Netherlands F 5n ntroduction =5lphen8 /luwer %aw nternational I++E?. L,. 3ollard, N. 3arpworth M ,. Bu!hes, Constitutional and )dministrative Law, 't hed. =:xford8 :U3 I++E?. L%. 3ra11e M C. /ortmann =eds.?, Constitutional Law of *+ EU ,ember -tates =,eventer8 /luwer I++'?. L9. Troper, 7Constitutional %aw(, in G. $ermann M ;. 3icard =eds.?, 'ntroduction to !rench Law =5lphen8 /luwer %aw nternational I++#?. LC. Turpin M 5. Tom1ins, $ritish (overnment and the Constitution "e.t and ,aterials, 2th ed. =Cambrid!e8 CU3 I++E?.

2. The U$ite, State! The United States of 5merica is a federal republic and a presidential democracy. n "EE2, thirteen colonies alon! the 5tlantic coast of North 5merica declared their independence from the $ritish colonial empire. These thirteen States F New Bampshire, 9assachusetts, Ahode sland, Connecticut, New <or1, New Jersey, 3ennsylvania, ,elaware, 9aryland, Dir!inia, North Carolina, South Carolina and Geor!ia F in "E#" formed a confederation that was !overned by 75rticles of Confederation(. The 5rticles provided for a unicameral le!islature but no confederal executive and no confederal courts, and most powers remained with the individual States. 5s economic and military pressure on the confederation rose, a constitutional convention was assembled in "E#E to draft constitutional provisions for a more effective union. The document that was eventually drafted became the present US Constitution. t entered into force after its ratification by the ninth of the then thirteen constituent States and became effective for all States in "E#&. Constitutions 2.1. Civil ,ar and $e onstru tion n spite of the entry into force of the new Constitution, at first it remained unclear how stron! and active the federal !overnment should be, and how much autonomy or soverei!nty the individual States had retained within the overall Union. 5 stron! 5merican national identity did initially not exist, and attachment with one(s own State remained stron!. n the mid)"&th century, political tensions split the US alon! a north)south divide. The mostly rural Southern States insisted on 1eepin! the institution of slavery, and feared that the industrialiHin! and economically mi!hty North would impose a ban on them. 5s points of constitutional law, the South insisted on the ri!ht for individual States to leave the Union if they so wished, and prominent Southern politicians ar!ued that States could nullify federal law if it violated the Constitution. The eventual secession of eleven Southern States in "#2", which to!ether formed the Confederate States of 5merica, led to the 5merican Civil 4ar. The Union !overnment, with its power)base in the North, held unilateral secession to be unlawful. Union armies eventually defeated and occupied the Confederacy in "#2'. The unionist victory over the secessionists cemented 5merican statehood. t became clear that the US was indeed not merely a loose alliance of States but a nation, albeit a federal one, and that the Union en@oyed supremacy over State law under the terms of the federal Constitution. n fact, it was only after the Civil 4ar that the United States came to be referred to in the sin!ular =the United States is, rather than are?. n the Aeconstruction process which followed the Civil 4ar, military administration of the secessionist territories was phased out and one by one the Southern States were re)admitted to the Union. The emancipation of slaves was enshrined in the Constitution, althou!h a racist bac1lash in the South undid many of the Aeconstruction(s achievements from the late "&th century onwards. :nly in the "&*+s and "&2+s would federal case)law and civil ri!hts le!islation a!ain see1 to abolish discrimination, such as racial se!re!ation of schools, in the South. Constitutionally, this development once a!ain expanded the power of federal authority as a!ainst the States. Federal supremacy was famously asserted by force in "&*E, when 3resident ;isenhower sent in federal troops to escort blac1 students to school after 5r1ansas had refused to comply with a dese!re!ation order. The exact le!al delimitation of federal and State competences still occupies lawma1ers, @ud!es, scholars and political commentators. the robustness of federal authority throu!hout the US as such is however uncontested.

2.2. The (S Constitution The US Constitution was drafted by a constitutional convention which met at 3hiladelphia in "E#E. The convention comprised dele!ates from the individual States, and included Geor!e 4ashin!ton, $en@amin Fran1lin, James 9adison and 5lexander Bamilton as prominent fi!ures. The drafters are sometimes called the 7foundin! fathers( or the 7framers( of the Constitution. The US Constitution distributes power between federal institutions and the by now fifty individual States =see Chapter G?. 5 central and recurrin! theme in the US constitutional system is the separation of powers8 the distinction between le!islative, executive and @udicial functions and the assi!nment of each of these functions to different institutions. The 3resident is both head of state and head of the federal executive. he is elected by indirect popular vote, as he is chosen by an electoral colle!e whose members are in turn elected within the individual States =5rt. ="? and "Ith 5mendment US Constitution, see also Chapter *?. Federal le!islative power is exercised by a bicameral Con!ress, a parliament comprisin! the Bouse of Aepresentatives and the Senate =5rt. ="? US Constitution?. the Bouse is popularly elected in districts within the States =5rt. =I? and "'th 5mendment US Constitution, see also Chapter '? while the Senate, reflectin! the Union(s federal character, is composed of two Senators from each State =5rt. =G? and "E th 5mendment US Constitution, see also Chapters G and '?. Bi!hest federal @udicial authority is exercised by the US Supreme Court =5rt. US Constitution, see also Chapter 2?. Separation of powers does not mean isolation of powers, however. The three branches of !overnment F the le!islature, the executive and the @udiciary F interact with each other in a system of chec1s and balances. They thereby 1eep each other at bay via mutual institutionaliHed interference. The system is to ensure that no sin!le branch !rows too powerful. ;xamples of such chec1s and balances between the branches are manifold. Con!ress, the federal lawma1er, exercises the sole power to adopt federal statutes. yet the 3resident, the head of the federal executive, can counter)balance Con!ress throu!h his veto in the le!islative procedure. That veto, in turn, can be overridden by two)thirds ma@orities of members present in both chambers of Con!ress =5rt. =E? US Constitution, see also Chapter '?. The 3resident is commander)in)chief of the armed forces =5rt. =I? US Constitution?, but he needs Con!ress to approve a military bud!et =and, althou!h this is somewhat obsolete, to declare war in the first place under 5rt. =#? of the Constitution?. The 3resident has an independent electoral mandate and cannot be ousted by a simple no)confidence vote in Con!ress, but Con!ress can impeach and remove him from office if he is found !uilty of havin! committed heavy crimes =5rt. ='? US Constitution, see also Chapter *?. 5s head of the executive, the 3resident appoints his own ministers =7secretaries(? and heads of executive a!encies, but he needs the approval of the Senate for his nominees =5rt. =I? US Constitution?. The same holds true for the 3resident(s nominations for federal @ud!eships, which is how the 3resident and the Senate @ointly exercise influence over the staffin! of the federal @udiciary. The @udiciary, in turn, holds the power of constitutional review and can declare Con!ress(s le!islation as well as executive action unconstitutional =see for the constitutional basis of @udicial review Chapter 2?. ;ven within Con!ress, the idea of chec1s and balances is implemented, here also with a vertical dimension. The individual States of the US are represented at the federal level throu!h the Senate, which is, overall, co)e0ual to the Bouse of Aepresentatives at lawma1in!. $ills must pass both chambers =5rt. =E? US Constitution?. The Senate plays a prominent role in controllin! presidential nominations, as well as in tryin! impeachments. however it is the Bouse that has the sole power of le!islative initiative as far as tax bills are concerned =5rt. =E? US Constitution?, and it is the Bouse that has to start the impeachment procedure in the Constitutions Compared8 :ri!ins and 9ain

Features first place =5rt. =I? US Constitution?. The Dice)3resident of the US is the president of the Senate. he is replaced in that capacity, however, by the chief @ustice of the Supreme Court durin! impeachment procedures a!ainst his 3resident =5rt. =G? US Constitution?. The US Constitution proper is partly complemented and partly superseded by subse0uent amendments. Thus, the ori!inal text is not chan!ed, but amendments are annexed thereto and form an inte!ral part of the Constitution. For example, the Constitution proper still stipulates that Senators are elected by the parliaments of the States =5rt. =G? US Constitution?, but the "Eth 5mendment supersedes this by stipulatin! direct elections of Senators. The first ten of the constitutional amendments, which all entered into force in "E&", include a $ill of Ai!hts which is to limit the exercise of public power in the li!ht of individual freedoms. The US Constitution can be amended on the initiative of either two)thirds ma@orities of members present in both chambers of Con!ress, or based on the proposals drawn up by a convention that Con!ress convenes by application of two thirds of State parliaments =G' out of *+?. 4hether proposed by a convention or byCon!ress itself, proposed amendments have to be ratified within three)fourths of the States =G# out of *+?, either by the State parliaments or by State)level conventions, dependin! on the choice of procedure as made by Con!ress =5rt. D US Constitution?. The Constitution does not provide for any nation)wide referendums, neither for the purpose of constitutional amendment nor otherwise. mportant past amendments, apart from the $ill of Ai!hts, include the reformed presidential election system of "#+'. the introduction of direct elections for the US Senate in "&"G. and the two)term limit on the presidency in "&*". Ger&a$" The Federal Aepublic of Germany is a state in central ;urope. its present)day constitution dates bac1 to "&'&. For most of its history, the area rou!hly correspondin! to present)day Germany was not unified but a patchwor1 of separate principalities,city)states and other entities. The "&th century saw a se0uence of alliances between German states in different confi!urations. The desire for national unification, which was inspired by the French Aevolution, was hampered by the entrenched autocratic rule of the several princes as well as by the rivalry between 3russia and 5ustria for leadership in the re!ion. n the event, 3russia asserted dominance in the northern part of the lands in 0uestion and for!ed a German nation)state to the exclusion of 5ustria. #.1. National (nifi ation Throu!hout the 9iddle 5!es, the lands comprisin! present)day Germany were loosely held to!ether by the Boly Aoman ;mpire of the German Nation. The ;mpire(s central institutions were relatively wea1, and the influence of the ;mperor, who was elected by a body of prince)electors, mostly depended on how much power he personally held as the monarch of his own principality. The Thirty <ears( 4ar tore the ;mpire apart, and the "2'# 3eace of 4estphalia, which reco!niHed the soverei!nty of the individual principalities, rendered the ;mpire lar!ely meanin!less. The last ;mperors, who were all members of the Bouse ofBabsbur!, concentrated on stren!thenin! their 5ustrian power)base instead. The ;mpire collapsed when the lands were invaded by Napoleonic armies. it was formally dissolved in "#+2 when Francis abdicated as ;mperor of the Boly Aoman ;mpire and instead became ;mperor Francis of now)separate 5ustria. The powerful /in!dom of 3russia remained independent. 9ost other states of the former Boly Aoman ;mpire united under French pressure to form the Confederation of the Ahine. The Confederation, which became a French vassal, collapsed in "#"G as Napoleon suffered military defeat.

n "#"* the Con!ress of Dienna created the German Confederation to replace the former Boly Aoman ;mpire. The Confederation included most of present)day Germany and also comprised the western part of 3russia and the western part of Babsbur! 5ustria. The Confederation featured a central assembly called $undestag or Confederal ,iet, but this body comprised representatives of the several states rather than parliamentarians representin! the people as a whole. n "#'# a liberal revolutionary movement sou!ht to establish a unified German nation)state, and in "#'& a National 5ssembly which had !athered at Fran1furt offered Frederic1 4illiam D of 3russia the German imperial crown, to be held under a constitutional monarchy. The /in! refused to be proclaimed ;mperor by an act of the population, however, and the revolution was crushed. 5 lon!in! for both liberalism and national unity remained. The continued rivalry over dominance in the German lands finally led to the 5ustro)3russian 4ar of "#22. 3russia defeated 5ustria, left the German Confederation and to!ether with its smaller allies in the northern half of present)day Germany formed the North German Confederation. Under its Constitution of "#2E, this entity became a !enuine state, rather than a mere alliance of states. The successful war of 3russia and its allies a!ainst France in "#E+)"#E" built momentum for complete national unification. The southern states F $avaria, southern Besse, $aden and 4Orttember! F @oined the 3russian)dominated North to form the first modern German nation)state in history8 the German ;mpire, founded in "#E". 3russian premier :tto von $ismarc1 is credited as havin! masterminded this 3russian)led national unification, includin! the wars in the run)up thereto. the "#E" ;mpire is therefore sometimes called the $ismarc1 ;mpire. The German ;mpire was a federation between its constituent States. ;ffectively it was an expanded version of the North German Confederation8 the preexistin! constitutional desi!n was applied to the new ;mpire. The ;mpire was a hereditary monarchy tied in personal union to the dynasty of 3russia8 the 3russian /in! would automatically be German ;mperor. The imperial !overnment was headed by a chancellor who was accountable to the ;mperor. The /eichstag, or mperial ,iet, was a directly elected parliament which possessed, crucially, bud!etary powers. The !overnments of the constituent States were represented at national level in the $undesrat, or Federal Council, althou!h dominant 3russia wielded enou!h votes to veto any proposal. Followin! Germany(s defeat in 4orld 4ar and the fall of the imperial monarchy in "&"#, Germany adopted a republican form of !overnment. The Constitutions Compared8 :ri!ins and 9ain Features 4eimar Aepublic was established, named after the city where the new Constitution was drafted in "&"&. nstead of an ;mperor, the Aepublic had a directly elected 3resident as its head of state. The !overnment was headed by a chancellor and was this time accountable to the directly elected parliament. The representation of the constituent States at federal level was 1ept in place. Sufferin! from poor popular support for a republican form of !overnment and a multi)party system, the 4eimar Aepublic(s institutional desi!n proved too fra!ile to withstand political extremism at a time of economic crisis. 4hat was particularly problematic was the fra!mentation of the parliament into a plethora of small political parties. the instability of a succession of !overnments that were appointed by the 3resident and were voted out of office by parliament. and the far)reachin! emer!ency powers that the head of state used from the end of the "&I+s onward to fill the political void. The 4eimar Aepublic effectively ended with the appointment of 5dolf Bitler as chancellor and the resultin! ta1eover of the National Socialists in "&GG, with Germany becomin! a dictatorship that lasted until its defeat in 4orld 4ar in "&'*.

#.2. -ivision and $eunifi ation 5fter Germany(s surrender in "&'*, its remainin! territory, and, within that, its capital city of $erlin, was divided into four 5llied occupation Hones. 5!ainst the bac1drop of the increasin! anta!onism between the 4estern powers of the US, the U/ and France, on the one hand, and the Soviet Union, on the other hand, two German states emer!ed in "&'&. The German ,emocratic Aepublic =G,A? in the Soviet)controlled ;astern Hone, with the ;astern part of divided $erlin as its capital, became a Socialist state with its own constitution and !overnment bodies. The Federal Aepublic of Germany was founded in the three mer!ed 4estern Hones, with 4est $erlin as an exclave and with its seat of !overnment in $onn. The G,A became, after the re)constituted German States in the ;ast had been replaced by administrative districts, a unitary state. Formally, le!islative power was exercised by the unicameral 3eople(s Chamber, operatin! next to the G,A !overnment as well as a 3resident and later a Council of State, a collective presidential body whose chairman was effectively head of state. n practice, however, the G,A functioned as a Socialist one)party re!ime with the politburo of the Socialist Unity 3arty bein! the decisive decision)ma1in! body. Thus, only a sin!le Socialistcontrolled party list was admitted to parliamentary elections, and the !overnment ministries were expected to implement the decisions ta1en by the 3arty. 4hile the G,A in the ;ast saw itself as an independent soverei!n state, and increasin!ly so over time, the Federal Aepublic in the 4est made a point of bein! the true successor of the whole of Germany. n that view, the constitutional order of the Federal Aepublic applied to some parts of the overall German territory, namely the 4est, but it temporarily could not apply to some other parts of Germany, even thou!h it should. The G,A was not reco!niHed as a soverei!n state, althou!h bilateral relations existed in practice. To express the temporary character of the 4est German construction, its federal Constitution was not actually called 7constitution( or 0erfassung but a more artificial)soundin! (rundgeset1, or 7$asic %aw(. Two scenarios were envisa!ed to overcome the division of Germany. First, territories outside the area of application of the $asic %aw mi!ht accede to the Federal Aepublic one by one, under the old 5rticle IG of the $asic %aw. second, reunification mi!ht happen instantaneously, so that the united German people could, under 5rticle "'2, adopt a proper 0erfassung instead of the placeholder $asic %aw. n the event, after the fall of the $erlin 4all and the collapse of Socialism, the whole G,A in "&&+ acceded to the area of application of the $asic %aw under 5rticle IG. ,o!matically spea1in!, the instantaneous unification mi!ht have called for a fresh start with a new constitution for now)unified Germany. pra!matically, however, it was far more feasible to follow the accession scenario. The post)unification wor1load and forty years( worth of !ood experience with the $asic %aw in the 4est made a ma@or constitutional overhaul seem superfluous. 5rticle "'2 was amended to!ether with the 3reamble to reflect the fact that the German people was now united. 5rticle IG was scratched, because there were no lon!er any German territories outside $asic %aw application that mi!ht accede. the now vacant slot of 5rticle IG was used for a new provision concernin! the ;uropean Union. The $asic %aw, which be!an as a temporary charter for the 4estern part of a divided Germany, today is the constitution for the whole of Germany. 4hile retainin! the name 7$asic %aw(, it is in effect the present)day German Constitution.

#.#. The "asi .aw The main elements of the $asic %aw were drafted in "&'# by a conference of experts, who had been appointed by the premiers of the 4estern States, at Berrenchiemsee in southern Germany. The draft was revised and the final version adopted in "&'& by the so)called 3arliamentary Council, an assembly which consisted of dele!ates elected by the 4estern State parliaments. The text was approved by the military !overnors of the 4estern 5llied occupation forces and entered into force when the parliaments of two)thirds of the States where the $asic %aw would apply ratified the text. :nly $avaria re@ected the text, but it nevertheless accepted the $asic %aw(s bindin! character. Carlo Schmid is widely credited as one of the most influential 7foundin! fathers( of the $asic %aw. /onrad 5denauer presided over the 3arliamentary Council and went on to become the first Federal Chancellor under the $asic %aw. The institutional setup under the German $asic %aw of "&'& follows the lo!ic of a federal republic and a parliamentary democracy. The constituent States, suppressed under National Socialism and in the G,A, are !iven a representation at the federal level throu!h the $undesrat, or Federal Council. The $undesrat comprises members of the !overnments of the States, which wield a fixed number of votes rou!hly reflectin! their population siHe =5rt. *+ and *" $asic %aw, see also Chapters G and '?. There are sixteen States8 eleven 7old( States of former 4est Germany includin! $erlin, and the five 7new( States of the former G,A. The $undestag, or Federal ,iet, is the directly elected federal parliament =5rt. G# $asic %aw, see also Chapter '?. The federal !overnment, headed by the Federal Chancellor, is elected by, and is accountable to, the $undestag =5rts. 2G, 2E and 2# $asic %aw, see also Chapter *?. n many respects, the "&'& $asic %aw draws lessons from the failure of the 4eimar Aepublic, featurin! stabiliHed democratic institutions and measures to Constitutions Compared8 :ri!ins and 9ain Features prevent any future concentration of power and its abuse by anti)democratic radicals. The $asic %aw prominently starts out with a catalo!ue of human ri!hts. ts first provision stipulates that human di!nity is inviolable =5rt. " ="? $asic %aw?. The principle enshrined in this provision is entrenched in the $asic %aw forever, meanin! that it cannot be chan!ed. Nor can Germany(s character as a federal, democratic and social state be chan!ed via constitutional amendment =5rts. I+ and E& =G? $asic %aw?. To avoid a fra!mentation of the parliament, and 1eep small radical parties out, the $undesta! features a five)percent electoral hurdle for proportional representation =see for details Chapter '?. The stability of the !overnment is further enhanced by the introduction of a constructive vote of no) confidence. Under 4eimar, the parliament could oust a sittin! !overnment by ma@ority vote, possibly creatin! a power vacuum. under the present $asic %aw, the $undestag can only oust a Chancellor if it mana!es to =constructively? elect a new Chancellor at the same time =5rt. 2E $asic %aw, see also Chapter *?. The head of state is the Federal 3resident who is no lon!er elected by popular vote. instead, he is elected by an electoral colle!e comprisin! the $undestag members and dele!ates from the States =5rt. *' $asic %aw?. 4hile the 3resident retains some important powers, especially as re!ards the promul!ation of statutes and the dissolution of the $undestag, his functions are lar!ely ceremonial =see Chapter *?. Crucially, and in contrast to 4eimar, the head of state is stripped of his emer!ency powers and the power to call a referendum. The $undestag can only be dissolved, and early elections can only be called, in case the $undestag fails to elect a Chancellor by absolute ma@ority in the third round or if the sittin! Chancellor fails to obtain an explicit vote of confidence and as1s for early elections =5rts. 2G ='? and 2# $asic %aw?.

$undestag and $undesrat, the elected national parliament and the representation of the State !overnments, to!ether carry out federal le!islative tas1s. The powers of the federal lawma1er are defined in competence catalo!ues, delineatin! them from the autonomous le!islative powers of the individual States =5rts. EI, EG and E' $asic %aw?. 3ower of le!islative initiative lies with the !overnment, the $undestag members and the $undesrat =5rt. E2 $asic %aw?. To pass federal statutes, the $undestag and the $undesrat must a!ree, yet the former can overrule the latter(s veto =5rts. EE and E# $asic %aw? unless the $asic %aw provides otherwise =see Chapter '?. %e!islation, as well as other acts of public authority, are controlled for their compliance with the constitution by the @udicial branch, most importantly the Federal Constitutional Court =5rt. &I $asic %aw, see also Chapter 2?. =4est? Germany is a foundin! member of the ;uropean Community. transfer of soverei!n competences to the ;uropean Union is authoriHed explicitly =5rt. IG ="? $asic %aw? but re0uires the approval of both $undestag and $undesrat followin! the 0ualified procedure of constitutional amendment. The $asic %aw, in as far as it may be amended in the first place, can only be chan!ed by a statute passed by a two)thirds ma@ority of the members of the $undestag and a two)thirds ma@ority of total votes in the $undesrat =5rt. E& $asic %aw?. The only instance where the $asic %aw provides for a referendum as a matter of federal law is the procedure for redrawin! the borders between States =5rt. I& Chapter I GG $asic %aw?. The theoretical repeal of the $asic %aw and the adoption of a new constitution would re0uire popular approval as well =5rt. "'2 $asic %aw?. mportant past amendments to the $asic %aw include the re!ulation of a state of emer!ency in "&2#. the admission of individual constitutional complaints, even a!ainst le!islative acts, before the Federal Constitutional Court in "&2&. and the federalism reform of I++2 which sou!ht to disentan!le federal and State competences. 2. The U$ite, -i$#,o& The United /in!dom comprises four 7countries(8 ;n!land, Scotland and 4ales, which to!ether form Great $ritain, as well as Northern reland. Bistorically, ;n!land had con0uered 4ales already in the "Gth century and had tied it to itself le!ally in the "2th century. ;n!land and 4ales, on the one hand, and Scotland, on the other hand, united in "E+E, as both their 3arliaments passed 5cts of Union, to!ether formin! the /in!dom of Great $ritain with a sin!le $ritish 3arliament. n "#++, Great $ritain and reland united, a!ain via 5cts of Union, creatin! the United /in!dom of Great $ritain and reland. reland, with the exception of its predominantly 3rotestant north)eastern counties, was !ranted autonomy a!ain in "&II. 5s a result, the present)day state is appropriately called United /in!dom of Great $ritain and Northern reland. /.1. 0onar hy and Parliament 9uch of the constitutional history of ;n!land =and later $ritain? was mar1ed by a power stru!!le between the /in!, on the one hand, and 3arliament, on the other hand. 5lready the 5n!lo)Saxon /in!s of ;n!land, from the &th century onwards, would convene advisory assemblies. 5fter the Norman con0uest in "+22, the /in! would convene noble landowners as well as senior cler!y to form a /in!(s Council. n the newly introduced feudal system, the /in! depended on the lords of the fiefdoms in the country for tax revenue and law enforcement, and thus sou!ht consultation. The members of the convened assembly would increasin!ly use the opportunity of a dialo!ue with the /in! in order to present !rievances from the population of their home re!ion. Thus, the /in!(s Council developed into what became 1nown as 3arliament8 a chamber for debate and the airin! of criticism. The term 3arliament has been used from the "Gth century onwards. Throu!hout the period, the /in!s of ;n!land rei!ned as soverei!ns claimin! divine ri!hts for their self)rule. Nevertheless, 3arliament !radually asserted itself. 5lready in "I"*, the ;n!lish nobility forced /in! John to accept the 9a!na Carta, a document which provided for a number of civil liberties and which later became a symbol showin! that the monarch could be bound by law. n the

"I2+s, aristocrats led by Simon de 9ontford rebelled a!ainst /in! Benry and in "I2* convened a 3arliament which included not only nobility and cler!y but also representatives of counties, towns and borou!hs8 the so)called Commons. 5fter the rebellion was 0uelled, ;dward , Benry(s son, would continue to summon the Commons to 3arliament, alon! with nobility and cler!y, so as to consolidate popular support for Constitutions Compared8 :ri!ins and 9ain Features G' his rule. The 3arliament he convened in such composition in "I&* would become the so)called 9odel 3arliament, a blueprint for later 3arliaments. The "Eth century saw an outbrea1 of open conflict between 3arliament and the rulin! Bouse of Stuart. /in! Charles was criticiHed for rulin! arbitrarily. he dissolved 3arliament in "2I& and re)convened it only years later, in "2'+, when he needed additional tax revenue. Charles entered the Bouse of Commons and unsuccessfully tried to arrest his main critics in "2'I. 3arliament raised an army of its own and fou!ht the /in!(s army in the ;n!lish Civil 4ar. 3arliament(s professional 7New 9odel 5rmy( defeated the royalists. Charles was tried and executed in "2'&. The parliamentarians( military commander :liver Cromwell pur!ed 3arliament of his opponents and established a brief republican system. yet even then 3arliament proved an independent critic of the head of state. 5fter the restoration of the monarchy in "22+, relations between /in! and 3arliament continued to be tense. /in! Charles sou!ht to restore royal prero!atives and, in addition, was inclined towards Catholicism. James , his successor on the throne, openly supported Catholicism and started to prosecute 3rotestants. n "2##, 3arliament forced James to flee the country in an event commonly referred to as the Glorious Aevolution. n the $ill of Ai!hts, adopted in "2#&, 3arliament declared James deposed and invited James(s dau!hter 9ary and her 3rotestant husband, 4illiam of :ran!e, to ascend the throne as co)re!ents. $y replacin! one monarch with another, 3arliament had asserted supremacy over the crown. n the $ill of Ai!hts it also enshrined other principles, declarin! most notably that the /in! may not suspend or repeal laws, raise taxes, establish extraordinary tribunals or support a standin! army in peacetime without the consent of 3arliament, and that freedom of speech in 3arliament and the citiHens( ri!ht to submit petitions must be respected. n "E+", 3arliament adopted the 5ct of Settlement, re!ulatin! the rules of royal succession to ensure that future monarchs be neither Catholic themselves nor be married to a Catholic. This definitively ended the Stuart dynasty and Geor!e from the 3rotestant Bouse of Banover ascended the throne. n spite of the assertion of parliamentary powers, the monarchy was preserved. %e!islation is formally not made by 3arliament alone, but by the /in!)in)3arliament8 bills receive the approval of the Commons and, normally, the %ords, and enter into force with royal assent. n reality, however, the /in! is not free towithhold assent. a monarch has not refused to approve a bill since "E+E. 3arliamentary independence from the crown is also expressed in more ceremonial ways. The /in! addresses the Commons and the %ords in a @oint !atherin! to open a new session of 3arliament, but the address ta1es place in the Bouse of %ords because the /in! =since the episode of Charles tryin! to arrest his critics in the "Eth century? may not enter the Bouse of Commons. n a ritual repeated at each such openin!, when the /in!(s officer see1s entry to the Bouse of Commons in order to instruct the members to follow him to the %ords, the door is slammed in his face. :nly after the officer has 1noc1ed on the door thrice is he allowed in and do the members of the Commons proceed to the %ords, in a deliberately noisy manner. 5fter the /in! has addressed his 3arliament, the %ords and the Commons enter a debate. <et they do not immediately discuss the /in!(s speech =the speech is actually written by the 3rime)9inister?. instead they insist that they themselves choose what to discuss and when. The Commons first discuss the :utlawries $ill. the %ords discuss the Select Destries $ill. $oth bills are centuries old, their actual content is meanin!less, and neither is meant to ma1e any pro!ress. <et their consideration is an important symbolic act emphasiHin! the control of 3arliament over its own a!enda. :nly in second instance is the /in!(s speech discussed.

/.2. The (1 Constitution From a purely functional point of view, the constitutional system of the United /in!dom of today can be briefly summariHed in the followin! terms. The U/ is a constitutional monarchy8 the /in! is the head of state but his powers are limited by constitutional rules, especially the independent position of the 3arliament =see Chapter *?. 3arliament is composed of a directly elected Bouse of Commons and an unelected Bouse of %ords =see Chapter '?. The system of !overnment is parliamentary, as the cabinet is appointed by the /in! but must be supported or tolerated in office by 3arliament, specifically the Bouse of Commons. The state structure is unitary, althou!h some competences are passed down from the capital to re!ional authorities in a process called 7devolution( =see Chapter G?. 3ower of le!islative initiative lies with the !overnment and individual members of the Commons and %ords. $oth Commons and %ords have the power of amendment and re@ection with respect to bills, but the Commons can in most cases ultimately insist on the adoption of le!islation even a!ainst the will of the %ords =3arliament 5cts "&""-"&'&?. The court systems in the countries of the U/ exercise @udicial functions. 5cts of 3arliament en@oy supremacy and @ud!es may not set them aside except for violations of ;uropean Community law =see Chapter 2?. The U/ constitutional system stands out in several ways. First and foremost, its basic constitutional rules are not codified in a central constitutional document. nstead, rules that would in most other systems be found in a sin!le written constitution are in the U/ scattered across three main sources8 statutes, meanin! le!islation made by the /in!)in)3arliament. case)law, meanin! court decisions. and constitutional conventions, which are unwritten customs that are not @udicially enforceable but that are still universally observed as bein! authoritative. 5 number of specific statutes are usually cited as formin! part of the U/ constitution, because they en@oy si!nificance for the or!aniHation of the state. They include, amon! others, the 9a!na Carta of "I"* which limited the discretion of the /in!. the $ill of Ai!hts "2#& which cemented the Glorious Aevolution and which binds the /in! to the will of 3arliament. the 5ct of Settlement "E+" which re!ulates the order of royal succession. the Aeform 5cts between "#GI and "&I# which step by step democratiH ed the election system. the 3arliament 5cts of "&"" and "&'& which practically abolished the veto power of the Bouse of %ords. the ;uropean Communities 5ct "&EI by which the U/ @oined the ;uropean ;conomic Community, which in turn had constitutional conse0uences. the Scotland 5ct "&&# and the devolution statutes for 4ales and Northern reland, which decentraliHed power in the U/. the Buman Ai!hts 5ct "&&# which transposed the ;uropean Convention on Buman Ai!hts into U/ law. and the Constitutional Aeform 5ct I++* which, amon! other thin!s, set up a Supreme Court to replace the Bouse of %ords as the hi!hest Constitutions Compared8 :ri!ins and 9ain Features court of appeal. mportant conventions include the rule that the /in! !ives his royal assent to all bills that have passed 3arliament. that he convenes 3arliament once a year, and not when he deems fit. that he appoints as 3rime)9inister whoever happens to be the ma@ority leader in the Bouse of Commons. and that he does not dissolve the Commons unless the 3rime)9inister has as1ed him to, but that if the 3rime)9inister as1s, the /in! does not refuse. The entirety of the U/ constitutional system is underpinned by the notion of the soverei!nty of 3arliament. The term describes the supremacy of 5cts of 3arliament, which are adopted by 3arliament and /in! actin! to!ether, over all other sources of law. Statutory law prevails over all other authorities, includin! the !overnment, the monarch and his remainin! royal prero!atives, re!ional and local authorities, the Church of ;n!land, and especially the courts and their @ud!e) madelaw. The /in!)in)3arliament can pass any statute he desires within the scope of the physically possible. courts are not to 0uestion the validity of 5cts of 3arliament, but to apply them faithfully. 3arliamentary soverei!nty in the sense of le!islative supremacy has been formulated by the "&th century scholar 5lbert ,icey. n his view, which remains authoritative, 3arliament =as in /in!)in) 3arliament? cannot be bound by anyone. it cannot bind its successors, which means that later 3arliaments are not bound by earlier 3arliaments. and only 3arliament itself, no)one else, can repeal

and undo an 5ct of 3arliament. %e!islative supremacy over the @udiciary is actually upheld by the courts themselves, as in their case)law they !ive precedence to statute over their own precedent) based @ud!e)made law, namely common law and e0uity. t follows from the above that even thou!h constitutional reality has moved on, certain di!nified notions and traditions are nevertheless still upheld in the U/. This in particular concerns the ceremonial status of the monarchy. The /in! is not dethroned, but he exercises his notional royal prero!atives within the ti!ht mar!in set by constitutional law a nd custom. Thus, it is the /in! who is 1ept in place as head of state. $y conse0uence, it is the /in!(s 3arliament F even thou!h he has no power over its composition. t is the /in!(s statutes, as he !ives royal assent to bills F even thou!h he has no choice but to si!n everythin! 3arliament passes. t is the /in!(s courts F even thou!h the @udiciary is independent and otherwise bound by statute li1e he himself is. t is the /in!(s !overnment F even thou!h the !overnment is formed by the popularly elected ma@ority in the Bouse of Commons. t is the /in!(s 3rime)9inister F even thou!h the /in! has no choice but to appoint the Commons ma@ority leader. t is the /in!(s Speech by which the monarch opens parliamentary sessions and announces policy priorities F even thou!h the speech is in fact written by the 3rime) 9inister and the /in! merely reads it out aloud. 5nd it is even the /in!(s opposition8 the minority in the Commons criticiHes the political decisions of the ma@ority !overnment, but does not challen!e the authority of the /in! himself, which is why it is called Bis 9a@esty(s %oyal :pposition. Since there is no central constitutional document that mi!ht be hard to amend, a chan!e to the U/ constitution does not re0uire the completion of any special procedures. n as far as a constitutional rule is laid down in a normal statute, it can be chan!ed by a normal statute. For example, the rule that the Commons can pass statutes even a!ainst the will of the %ords is based on the 3arliament 5ct "&"". it has been adopted by 3arliament and it can also be chan!ed or revo1ed by 3arliament at any time. n as far as a constitutional rule is based on convention, the emer!ence of few customs in practice lead to constitutional chan!e. The rule that %ords will not even try to oppose bills that implement the !overnment party(s manifesto, and that are therefore close to the heart of the democratic ma@ority in the Commons, is nothin! but a convention. the %ords may theoretically decide to adopt a more hostile stance. ndeed, the custom is comin! under pressure as voter turnout and therefore the le!itimacy of the party manifesto decreases. n as far as a constitutional rule is laid down in case)law, a chan!e in case)law, for example on the interpretation of statutes by the courts, will have constitutional conse0uences. Since there is no special 0ualified procedure for constitutional amendment, the U/ constitution is called 7flexible(. it is seen as a dynamic process that 1eeps settlin! 0uestions re!ardin! the exercise of power. Constitutional law ac1nowled!es developments in practice. /.#. The (1 and Europe t was notably ;uropean developments that posed dilemmas within the framewor1 of constitutional le!al thin1in! in the U/. The first dilemma is how to !ive effect to human ri!hts, primarily the ones enshrined in the ;uropean Convention on Buman Ai!hts, in the U/ le!al order. The second is how to accommodate the supremacy of ;uropean Community law over national law. n both cases, !ivin! @ud!es the power to set aside le!islation in case of conflict with a hi!her norm would mean to undermine the soverei!nty of 3arliament, or le!islative supremacy. The solution under the Buman Ai!hts 5ct "&&#, which transposes the individual ri!hts from the ;uropean Convention on Buman Ai!hts into U/ law, is a compromise between @udicial review and le!islative supremacy. Jud!es may declare a human)ri!hts violation but must nevertheless apply the statute in 0uestion, and it is up to 3arliament whether or not to chan!e its statutory law. 5s re!ards the supremacy of ;uropean Community law over national law, @ud!es indeed may, and even must, set aside conflictin! national statutes. This uni0ue rule is @ustified as it was 3arliament itself that voluntarily decided to @oin the ;uropean ;conomic Community by virtue of the ;uropean Communities 5ct "&EI, and the doctrines of direct effect and supremacy had by then been lon! established as part of ;uropean law =see

Chapter 2?. f 3arliament is no lon!er satisfied with these ;uropean doctrines, it may, accordin! to U/ thin1in!, repeal the 5ct and unilaterally withdraw from the Community =in actual fact, not even under the Treaty of %isbon is a unilateral and non)ne!otiated withdrawal from the ;U permissible?. n the meantime, the ;uropean Communities 5ct "&EI and the Buman Ai!hts 5ct "&&# may be seen as yet another part of the U/ constitution. '. Fra$)e France is a country in 4estern ;urope. France became reco!niHable as a separate /in!dom when the lar!er Carolin!ian ;mpire was split up. Under the terms of the Treaty of Derdun of #'G, Charles the $ald inherited the 4estern part of the ;mpire, Constitutions Compared8 :ri!ins and 9ain Features which would become 1nown as the 4estern Fran1ish Aealm and, later, the /in!dom of France. 5bsolutist royal rule consolidated in early modern France. This absolutism, where the /in! would rule without constraint, which is referred to as the ancien rgime or 7old order(, ended with the French Aevolution of "E#&. The Aevolution was inspired by ideals of the ;nli!htenment, and led to a brea1throu!h for notions that are still important today, includin! national soverei!nty, constitutionalism rather than personal rule, the idea of the nation)state and the codification of law. Still, it must be noted that since the Aevolution France has experienced a bafflin! number of coups, revolutions, different systems of !overnment and a se0uence of different constitutions. The exact number of constitutions depends on the definition used, but post)"E#& France has in any event seen about a doHen different constitutional documents, ran!in! between liberal republican ones and imperial and dictatorial ones. &.1. A Se2uen e of Constitutions n the course of the "#th century, the absolutist monarchy proved unable to reform itself and to respond to popular demands for !reater freedoms, social @ustice and democratic participation. n "E#& the Third ;state, the representation of the citiHenry as opposed to the cler!y and nobility, proclaimed itself a sin!le National 5ssembly. France adopted a constitutional monarchy8 the /in! would rei!n to!ether with the National 5ssembly. n "E&" France(s first written constitution was adopted, which enshrined the constitutional monarchy and a unicameral parliament. This period however swiftly ended in "E&I, when the powers of /in! %ouis CD were suspended and a newly elected National Convention proclaimed a Aepublic, later to be 1nown as the First Aepublic. The /in! was decapitated the followin! year. The Aepublic was to be !overned by the Constitution of "E&G, but the document(s entry into force was suspended. The !overnment of the National Convention was overshadowed by the internal Terror re!ime a!ainst suspected opponents of the Aevolution as well as by the external wars a!ainst coalitions of restoration)minded ;uropean monarchies. The Terror ended in "E&' and power reverted to a more moderate National Convention. 4hat then followed was a 0uic1 succession of increasin!ly dictatorial constitutions named after the respective year in the French revolutionary calendar. The constitution of "E&*, or Constitution of <ear , established a ,irectory. The ,irectory was an executive committee of five next to a bicameral parliament. n "E&&, after a coup led by the youn! !eneral Napoleon $onaparte, a new constitution, the Constitution of <ear D , established a Consulate, which was an executive committee of three next to a tricameral parliament. n "#+I Napoleon emer!ed from the Consulate as First Consul for life, his powers laid down in the Constitution of <ear C. n "#+' Napoleon crowned himself ;mperor, thus endin! the First Aepublic and raisin! the First ;mpire under the Constitution of <ear C . 5fter France(s defeat in the Napoleonic 4ars, the ;uropean monarchies in "#"' restored the old $ourbon monarchy. This monarchy was succeeded in "#G+ by the so)called July 9onarchy, as /in! Charles C was overthrown and %ouis 3hilippe, from the :rleanist branch of the Bouse of $ourbon, ascended the throne to establish a liberal constitutional monarchy. %ouis 3hilippe abdicated after the revolution of "#'#, and the Second Aepublic was established. %ouis Napoleon $onaparte, Napoleon $onaparte(s nephew, was elected 3resident. he sta!ed a coup in "#*" to become 3resident for life and in "#*I

styled himself ;mperor Napoleon , endin! the Second Aepublic and establishin! the Second ;mpire. The Second ;mpire collapsed durin! the Franco)3russian 4ar in "#E+ and it was replaced by the socalled Third Aepublic. The Third Aepublic lasted effectively until the German invasion of France in "&'+, when an authoritarian and collaborationist re!ime with its seat in Dichy in central France was set up. 5s France was liberated by the 4estern 5llies, a provisional !overnment under the anti)Dichy !eneral Charles de Gaulle too1 over, and eventually handed over power to the !overnment of the Fourth Aepublic in "&'2. The Fourth Aepublic, a parliamentary democracy, in many ways represented a restoration of the pre)war order of the Third Aepublic. t also suffered from the same structural wea1nesses, in particular a feeble executive that had no !rip on parliament. The Fourth Aepublic became politically unstable as France went throu!h de)coloniHation8 the 5l!erian stru!!le for independence from France escalated, and parts of the French military threatened a coup unless Charles de Gaulle were returned to power to restore order. ,e Gaulle a!reed under the condition that he could draft an entirely new constitution. Thus, de Gaulle became the last prime)minister of the Fourth Aepublic. Bis Constitution was approved in a referendum in "&*# and he became the first 3resident of what was now called the Fifth Aepublic. &.2. The Constitution of the )ifth $epu3li The Constitution of the Fifth Aepublic has been tailored to the ambitions of Charles de Gaulle. 9ichel ,ebrP is widely credited as the main drafter of the Constitution(s text, and he also became 3resident de Gaulle(s first 3rime)9inister in "&*&. France under the Fifth Aepublic is a unitary state with limited decentraliHation =5rt. " and Title C French Constitution, see also Chapter G?. The parliament is bicameral and comprises the National 5ssembly, the directly elected lower chamber, and the Senate, an upper chamber elected by a body of electors =5rt. I' French Constitution, see also Chapter '?. 5s far as the executive is concerned, the Fifth Aepublic is a semi)presidential democracy. The 3resident is the head of state, but he also exercises leadin! executive functions. the 3resident appoints a 3rime)9inister as head of the !overnment in a stricter sense =Titles and French Constitution, see also Chapter *?. The presidential aspect of this two)headed executive lies in the fact that the powerful 3resident of the Aepublic is =since "&2I? directly elected =5rt. E French Constitution? and not accountable to parliament in the sense of a confidence rule. the parliamentary aspect of this semi)presidentialism lies in the fact that the 3rime)9inister is accountable to parliament and can be removed from office by a vote of censure in the National 5ssembly =5rts. I+, '& and *+ French Constitution?. 3resident and 3rime)9inister operate side by side. n contrast to its predecessors, the Fifth Aepublic enhances the power and stability of the !overnment as re!ards the parliament. 3arliament is 7rationaliHed(, Constitutions Compared8 :ri!ins and 9ain Features '+ its powers of le!islative initiative, amendment, deliberation and censure are restrained and made sub@ect to conditions. The !overnment can in effect ta1e char!e of the le!islative process =see Chapter '?. 3arliamentary le!islative competences are enumerated =5rt. G' French Constitution?, with resiidual le!islative power in matters not reserved for parliament belon!in! to the !overnment =5rt. GE French Constitution?. nitiative lies with the !overnment, and the members of the National 5ssembly and the Senate =5rt. G& French Constitution?. The !overnment also has the power to propose amendments, while the power of amendment and even re@ection of parliamentarians is or can be restricted. Statutes within the parliament(s competence must pass both chambers. the !overnment may in most cases as1 the National 5ssembly to override the Senate to resolve a deadloc1, however =5rt. '* French Constitution?. n the lar!e)scale reform of I++#, which was desi!ned to 7moderniHe( the French Constitution, the constraints on parliament have been loosened somewhat. For example, parliament can now actually set its own a!enda half the time =5rt. '# French Constitution?. before, !overnment initiatives had always to be debated by priority, and only durin! one meetin! per month could parliamentarians set the a!enda. Furthermore, the possibility for the !overnment to push bills throu!h parliament without explicit

parliamentary approval =the bill is then considered adopted unless the National 5ssembly brin!s down the !overnment? has been limited =5rt. '& French Constitution, see also Chapters ' and *?. Nevertheless, overall parliament remains rationaliHed. The constitutionality of bills adopted in parliament is monitored by a Constitutional Council via mandatory review and review upon re0uest from enumerated state officials =5rt. 2" French Constitution?. The 3resident can call referendums sidelinin! parliament alto!ether =5rt. "" French Constitution?, both to see1 the adoption of le!islation and to see1 approval for a constitutional reform.:ri!inally, statutes in force were immune from @udicial review of their constitutionality. 3opular soverei!nty and separation of powers was seen to be incompatible with @udicial review of statutes. Since the constitutional reform of I++#, however, the constitutionality of statutes may be reviewed by the Constitutional Council, upon reference from the Court of Cassation, the supreme court of !eneral @urisdiction, or the Council of State, the supreme administrative court =5rt.2")" French Constitution, see also Chapter 2?. nternational treaty provisions continue to override national le!islation =5rt. ** French Constitution?. France is a foundin! member of the ;uropean Community. Transfer of competences to the ;U is authoriHed specifically =5rt. ##)" French Constitution?, but treaties may not deviate from the French Constitution and thus may necessitate prior constitutional amendment =5rt. *' French Constitution?. The Constitution, accordin! to the explicitly prescribed procedure of 5rticle #&, is amended in two sta!es. First, both chambers must pass a proposal in identical terms by a simple vote. Then the proposal is submitted to a referendum. alternatively, if the proposal comes from the !overnment and the 3resident so orders, instead of a referendum it may be referred for discussion to a @oint session of both parliamentary chambers, which may pass the amendment by a three)fifths ma@ority of votes cast. France(s republican form of !overnment may not be chan!ed, however, nor can constitutional amendment be pursued while France(s territorial inte!rity is bein! @eopardiHed. n historical practice, however, it proved difficult to !et the two chambers of parliament to a!ree on proposed amendments. Thus, several constitutional amendments have been adopted by popular vote as the 3resident bypassed parliament and called for a referendum directly under 5rticle "" of the Constitution. Thou!h this mi!ht ar!uably violate the procedure as prescribed by the Constitution, the Constitutional Council accepts the results since a referendum is, in one way or another, an expression of national soverei!nty throu!h popular vote and as such is beyond contestation. mportant past amendments to the "&*# Constitution include the "&2I reform which introduced direct elections of the 3resident. the "&E' reform allowin! sixty parliamentarians of either chamber to submit a bill for constitutional review before it entered into force. the synchroniHation of the terms of office for the 3resident and the National 5ssembly in I+++. and the reform of I++# which, amon! other thin!s, imposed a two)term limit on the presidency, !ave sli!htly more powers to the parliament and allowed for constitutional review of statutes after their entry into force. +. The Nether a$,! 5 discussion of the constitutional system of the Netherlands re0uires a preliminary definition of what exactly is meant by 7the Netherlands(. n its popular use, the Netherlands is a state in 4estern ;urope, north of $el!ium, west of Germany, alon! the coast of the North Sea. ts present)day Constitution dates bac1 to "#"'-"#"*, when after the defeat of France in the Napoleonic 4ars an independent state in the lowlands was re)established. Strictly spea1in!, however, the /in!dom of the Netherlands of today is in fact a 0uasi)federal construct between these Netherlands proper, i.e. the country in ;urope, and two other constituent countries, namely the Netherlands 5ntilles and 5ruba, in the Caribbean. The /in!dom as an overarchin! federal entity was created by the Charter for the /in!dom of the Netherlands, the so)called -tatuut, an instrument adopted and ratified by the constituent countries in "&*'. t redefined the /in!dom as havin! three component parts, the Netherlands no lon!er bein! the colonial motherland but bein! notionally co)e0ual to its former dependencies. Thus, the constitution of the /in!dom of the Netherlands is the Charter for the

/in!dom. the ,utch Constitution of "#"*, called (rondwet, today is merely the constitution of the ;uropean part of the overall /in!dom, the Netherlands proper. *.1. -ut h 4ndependen e and the )ren h Period The first modern political entity that emer!ed in the territory rou!hly correspondin! to the present) day Netherlands was the United 3rovinces created by the Union of Utrecht in "*E&. Dia the Union, which was a treaty primarily on military cooperation, the seven northerly provinces of the lowlands F Friesland, Gronin!en, Bolland, Utrecht, :veri@ssel, Neeland and the northern parts of Guelders F formed a confederation in their rebellion a!ainst Spain and the Babsbur! monarchy. The United 3rovinces are also 1nown as the Aepublic of the Seven United Netherlands. The southern provinces, which remained under Spanish rule, became 1nown as the Constitutions Compared8 :ri!ins and 9ain Features Southern Netherlands or the Spanish Netherlands. That area rou!hly corresponds with present)day $el!ium. n "*#", the United 3rovinces declared themselves independent from Babsbur!. They were reco!niHed as such in the "2'# 3eace of 4estphalia, which ended not only the lar!er Thirty <ears( 4ar in ;urope but also the ;i!hty <ears( 4ar between the ,utch 3rovinces and Spain. The United 3rovinces functioned on confederal principles. ;ach province 1ept its own staten or 7states(, more or less representative assemblies, alon! with a states)appointed stadholder. Union competences were exercised by the States)General composed of dele!ates from the provincial states, who acted on mandates from their home provinces rather than in personal capacity. The stadholder of the powerful province of Bolland rose to Union)wide power in the "#th century as the Union(s fleet commander. ;ffectively the stadholdership of Bolland became a hereditary office for the descendants of 4illiam of :ran!e, the nobleman who had started the rebellion a!ainst Spanish rule in the first place. n spite of the relative wea1ness of their central institutions, the United 3rovinces became a ma@or ;uropean naval and merchant power and they obtained numerous colonial possessions. The confederation remained intact until the "E&* invasion by French revolutionary armies. France established a new French)modelled unitary entity called the $atavian Aepublic =the name refers to the Germanic tribe that historically inhabited the Ahine delta re!ion?. n "#+2, Napoleon transformed the $atavian Aepublic into the /in!dom of Bolland, a French vassal state under the rule of Napoleon(s brother %ouis. n "#"+, after %ouis had increasin!ly promoted the interests of his ,utch sub@ects rather than his brother(s, Napoleon annexed the /in!dom, incorporatin! its territory into France proper. 5fter France(s defeat, a monarchy was restored as 4illiam , who descended from the last stadholders of Bolland, accepted soverei!nty in "#"G and a new monarchical Constitution, the (rondwet, was adopted in "#"'. The house of :ran!e)Nassau became a royal dynasty. The States)General were established as a unicameral representative assembly and were elected by the 7states(, or assemblies, of the provinces. *.2. The 1ingdom of the (nited Netherlands The Con!ress of Dienna insisted on the creation of a stron! buffer state a!ainst post)Napoleonic France. Therefore the Southern Netherlands, rou!hly today(s $el!ium, were mer!ed into the new /in!dom of the Netherlands in "#"*. The /in!dom became 1nown as the 7United Netherlands(. The /in!dom(s Constitution was amended accordin!ly by referendum, albeit with limited suffra!e and with abstentions countin! as votes in favour. Upon the insistence of the $el!ian members of the committee that drafted the "#"* amendment, an upper house was added to the previously unicameral States)General. The upper house, called Eerste 2amer or First Chamber, would be appointed by the /in! and was to be a nobility chamber modelled after the $ritish Bouse of %ords. The "weede 2amer, or Second Chamber, would continue to be elected by the provincial

assemblies. The /in!dom of the Netherlands split a!ain when its southern half eventually seceded to form independent $el!ium in "#G+. The /in!dom(s Constitution was updated in "#G& to reflect the secession. the bicameral system was preserved, however. /eepin! its official name, the northern rump of the /in!dom of the Netherlands continued to operate under its ori!inal Constitution as amended. *.#. The -ut h Constitution Formally, the Constitution in force today is still the (rondwet for the /in!dom of the Netherlands of "#"*. n practice, however, the document is often referred to as the 7Constitution of "#'#( or as the 7Constitution of "&#G(. These two years saw constitutional amendments so far)reachin! that they effectively produced new constitutional texts. The "#'# amendment, to which /in! 4illiam a!reed in the face of ;uropewide revolutionary movements, mar1ed a decisive step towards a reduction of the personal powers of the monarch to the benefit of parliament. 5mon! other thin!s, political responsibility for !overnment policy was allocated with the ministers, rather than with the /in!. Gradually, and over a series of political incidents in the middle of the "&th century, this led to a disen!a!ement of the /in! from active politics. 9inisters became more independent vis)Q)vis the crown. Crucially, parliament was able to hold ministers to account for their policies, and it became a conventional rule that ministers must resi!n if they lost parliamentary confidence =see Chapter *?. Thus, the "#'# reform provided the foundation of a parliamentary system. The same reform introduced direct elections to the Second Chamber. the provincial assemblies went on to elect the First Chamber, so that the members of the First Chamber were no lon!er appointed. The statesman Johan Audolph Thorbec1e is considered the drafter of the "#'# reform, and thus the 7foundin! father( of the modern parliamentary democracy in the Netherlands. The "&#G amendment, meanwhile, was a !eneral overhaul, desi!ned above all to update and clarify the structure and lan!ua!e of the Constitution. <et a!ain, technically the document in force is still the =heavily amended? Constitution of "#"*. The Netherlands of today is a constitutional monarchy. The 3rime)9inister, who heads the cabinet, is appointed by the /in! =5rt. 'G ,utch Constitution? after a consultation procedure probin! li1ely supportive coalitions between the political parties in the lower chamber, the Second Chamber. The 3rime)9inister and the other cabinet members bear responsibility for !overnment action =5rt. 'I ,utch Constitution? and are each accountable to the parliament, specifically the Second Chamber. votes of no)confidence are not conditioned =see Chapter *?. The bicameral parliament is called States)General. next to the directly elected Second Chamber it comprises a senatorial house called First Chamber, which is =since "#'#? elected by the assemblies of the ,utch provinces =5rts. *+ to ** ,utch Constitution?. The state structure is decentraliHed but unitary =Chapter E of the ,utch Constitution, see also Chapter G?. National le!islative power is exercised by the !overnment and the States)General @ointly =5rt. #" ,utch Constitution?. %e!islative initiative and the power of amendment lie with the !overnment and the members of the Second Chamber =5rts. #I and #' ,utch Constitution?. $ills must pass both parliamentary chambers =5rts. #* and #E ,utch Constitution?. the First Chamber retains a power of Constitutions Compared8 :ri!ins and 9ain Features '' re@ection but not of initiative or amendment, althou!h in practice it ma1es approval to bills conditional upon their prior amendment =see Chapter '?. Judicial review of the constitutionality of statutes is prohibited, and there is no constitutional court =5rt. "I+ ,utch Constitution, see also Chapter 2?. Self)executin! provisions of international treaties, namely provisions that can be invo1ed before national courts as bein! capable of bindin! individuals, en@oy supremacy over ,utch statutes by virtue of the ,utch Constitution, however =5rts. &G and &' ,utch Constitution?. 5 constitutional amendment that would allow @udicial review on human)ri!hts !rounds has been approved in first readin! in I++#, but approval in second readin! re0uires elevated ma@orities in parliament and the issue remains controversial.

The Netherlands is a foundin! member of the ;uropean Community. transfer of competences to international or!aniHations in !eneral is authoriHed =5rt. &I ,utch Constitution?, yet the Constitution contains no ;urope)specific clause. The supremacy of ;uropean Community law over national law is accepted without any ma@or friction. The ratification of treaties deviatin! from the Constitution re0uires a two)thirds ma@ority of votes cast in both Chambers =5rt. &" =G? ,utch Constitution?.ordinary constitutional amendment re0uires two readin!s in both Chambers, with simple ma@orities in both Chambers in the first readin!, followed by new elections of the Second Chamber, and two)thirds ma@orities of votes cast in both Chambers in the second readin! =5rt. "GE ,utch Constitution?. 5part from the different ma@ority re0uirements, the difference between the first and the second readin! is that in the second readin! no amendments may be introduced any lon!er. Two $eadings The intervenin! elections between readin!s in the constitutional amendment procedure are to allow the voters to express their view on the planned amendment, without there bein! an actual referendum. n practice, however, elections do not ta1e place specifically with a view to le!itimiHe a draft constitutional amendment. nstead, the Second Chamber is dissolved when new elections would have been scheduled anyway, after which the second readin! may start. The Constitution does not provide for nation)wide referendums. 5 consultative, i.e. non)bindin! referendum has however been conducted in I++' for the first time. :n that occasion, voters re@ected the proposed ratification of the Treaty establishin! a Constitution for ;urope. mportant constitutional amendments of the past include the "#'# reform which limited the powers of the /in!. the introduction of proportional representation and universal =male? suffra!e instead of a district system for arliamentary elections in "&"E. and the !eneral overhaul of "&#G when, amon! ther thin!s, social ri!hts were added to the human)ri!hts catalo!ue and the term of he First Chamber was cut from six years to four so as to match the term of the Second Chamber. *./. The Charter for the 1ingdom The Charter =-tatuut3 for the /in!dom represents a de)coloniHation scheme devised in the "&*+s. Aather than separatin! from what was left of the ,utch colonialempire, the overseas territories of Surinam, in South 5merica, and Curacao, a !roup of island territories in the Caribbean Sea later renamed Netherlands 5ntilles, placed their relations with the Netherlands proper on an entirely new footin!. The three countries set up a 0uasi)federal /in!dom wherein both the motherland and the two colonies would become autonomous sub)units, which would only exercise certain powers @ointly. 5fter Surinam left the /in!dom to become fully independent,whereas the island of 5ruba !ained a separate status within the Netherlands 5ntilles, the number of constituent countries in the /in!dom of the Netherlands continues to be three8 the Netherlands =;urope?, the Netherlands 5ntilles, and 5ruba. n I++2, a reform plan was launched for the Netherlands 5ntilles to be dissolved, with the island of Curacao and the ,utch half of the island of Saint 9artin !ainin! 5ruba)li1e separate status =increasin! the number of constituent countries to four? while the other three 5ntillean islands were to be converted into 0uasi)municipalities of the ;uropean Netherlands. The first reform attempt failed,however, as the island council of Curacao demanded !reater autonomy and less supervision from The Ba!ue. The re@ection resulted in tensions between The Ba!ue and the Caribbean islands, but the reform process was set to continue. 5ll three current countries are entities in a system that ,utch doctrine describes as a sui generis system with federal characteristics. The countries have a common head of state, which is the ,utch /in! =5rt. " Charter for the /in!dom?. 5ll three countries furthermore en@oy home rule, each with its own !overnment, parliament, and constitution =5rts. '" and 'I Charter for the /in!dom?. n the case of the overseas countries, this meant far)reachin! autonomy from the former ,utch colonial power. in the case of the Netherlands proper, this meant that the ,utch Constitution of "#"* would simply continue to operate for the

/in!dom in ;urope, the country for which it was devised in the first place, sub@ect to the supremacy of the Charter for the new overarchin! /in!dom =5rt. * Charter for the /in!dom?. The Charter desi!nates some core powers to be exercised /in!dom)wide throu!h institutions common to the /in!dom(s three constituent countries, most notably forei!n affairs and defence, as well as matters concernin! citiHenship and naturaliHation, extradition and immi!ration =5rt. G Charter for the /in!dom?. ;ffectively, the pre)Charter Netherlands proper a!reed to transfer these core powers to the new 0uasi)federal /in!dom. The Charter stops short of creatin! entirely new /in!dom institutions for the exercise of /in!dom powers, however. Thus, there is no separate /in!dom parliament alon!side the ,utch, the 5ntillean and the 5ruban ones. nstead, the Charter builds upon the pre)existin! ,utch !overnment institutions in The Ba!ue. f a matter is a /in!dom competence, then executive decisions are ta1en, and le!islation is passed, by the ,utch !overnment and parliament in The Ba!ue with the participation of plenipotentiary ministers from the 5ntilles and 5ruba. n effect, when the ,utch council of ministers discusses matters that affect the /in!dom as a whole, the council(s membership is simply expanded to include the overseas envoys =5rt. E Constitutions Compared8 :ri!ins and 9ain Features '2 Charter for the /in!dom, see also Chapter *?. the meetin! is then re)labelled 7/in!dom Council of 9inisters(. Similarly, when le!islation is to be adopted in The Ba!ue that affects the /in!dom as a whole, and not @ust the Netherlands, then the overseas envoys are involved in the process and the le!islation is labelled ri4skwet, or /in!dom Statute, rather than simply wet =5rts. "* to "# Charter for the /in!dom, see also Chapter '?. :verall, the /in!dom is heavily ;urope)dominated. 5lthou!h in practice the /in!dom is ruled by consensus, formally the overseas envoys can delay but not stop the adoption of decisions for the /in!dom in The Ba!ue. n the /in!dom Council of 9inisters, the overseas envoys can ultimately be outvoted =5rt. "I =*? Charter for the /in!dom?. 5 proposal for an amendment to the Charter, however, re0uires an explicit 0ualified approval from the 5ntillean and 5ruban parliaments =either two)thirds ma@orities in first readin! or simple ma@orities in two readin!s? before the ;urope)based /in!dom lawma1er can chan!e the Charter by a /in!dom Statute =5rt. ** Charter for the /in!dom?. Chapter G

Chapter 3

FEDERALISM, UNITARISM AND DECENTRALIZATION 1. Overview

Federalism is a principle relating to the territorial distribution of power within a constitutional system. Federalism obtains where the component regions of a state have their privileges, especially their participation in federal decisions, enshrined in the national constitution. The opposite of a federation is the unitary state, where power can be devolved to regions but can also be taken back from them by a decision of the central authority without the involvement of the regions themselves. There is no general theory of federalism that would unambiguously define a system as being federal or otherwise. There are many shades of grey, as it were, between a centralized unitary state and a loose association of regions. However, when we observe systems that are considered federal, we can inductively identify certain common characteristics which do distinguish such federal systems from unitary states. Typically, a federal system displays the following characteristics. Division of Territory The territory of the state is divided into smaller component territorial sub units. Federalism is therefore a territorial concept. !ther forms of consociation, such as power sharing between ethnic or religious groups which have no specific regional attachment, are not considered to be a form of federalism. Regional Autonomy The sub units possess regulatory powers and separate institutions which are autonomous with respect to the central authority. "n a #pure$ federation, regions would therefore be able to set up their own constitutional system and regulate their own affairs without interference from the national capital. !ften, however, the federation as a whole prescribes certain minimum standards. For e%ample, both &ermany and the '( guarantee that each of their respective component (tates must maintain a republican form of government. Federal Supremacy Federal )national* law has supremacy over the law of the sub units. "f federal law does not override conflicting regional law in the areas where the federation is competent, then the regions would be completely autonomous. "n that case, there would not be sufficient cohesion to call the state federal, and the system would be rather called a confederation of otherwise independent states. +lternatively to federal supremacy, a very strict separation of mutually e%clusive competences may apply. "f any one power can be e%ercised by only one level at a time, federal supremacy is not necessary. This principle applies in the ,elgian system. -ost federations in the world however award supremacy to federal law. Regional Representation The sub units are represented at federal level. This is one of the most crucial criteria, in that federations provide for the participation of their regions in federal decision making. +s a result, the regions are not merely the passive recipients of federal law, and they are not isolated from the national level. "nstead, apart from having autonomy for their own affairs, they have a stake in the system as a whole as well. .egional representation in the national capital is typically ensured via an upper chamber of a bicameral parliament. The lower chamber would then represent the population of the federation as a whole.

Codification of Prerogatives

The autonomous powers of the sub units and their representation at federal level are enshrined in the national written constitution. .egions in unitary states may receive their powers from ordinary national legislation/ the insertion of these prin ciples in the constitution ensures that federalism is a fundamental and entrenched feature of the state. Participation in Constitutional Amendment The sub units are involved in the process when the constitution is changed. 0ithout such involvement, the regions would depend on the will of the central authority for the maintenance of their autonomy and prerogatives. "nvolvement in federal constitutional amendment usually takes the form of a two chamber approval at national level or of the ratification of amendments in the regions themselves. Constitutional Court +n independent arbiter resolves conflicts between the central authority and the subunits over the scope of their powers. (uch arbiter is usually the 1udiciary, more specifically a constitutional court or court of arbitration. +llowing the central authority to unilaterally interpret the scope of regional powers would make the system de facto unitary/ allowing the states individually to define their own powers would weaken national cohesion and might tear the federation apart. Degrees of Federalism and Devolution "t is difficult or even impossible to define, let alone find, an ideal type federation. Federations differ in the amount of power they reserve for their component regions. +ustria is considered to represent a #milder$ form of federalism compared to, for e%ample, &ermany. The +ustrian Bundesrat or upper chamber is composed of senators who are elected by the regional parliaments, they are not bound by instruc tions from their home regions, and they can normally only delay but not stop the adoption of federal laws. The &erman counterpart, which is also called Bundesrat, meanwhile represents the regional governments themselves, votes are taken uniformly region by region, and vetoes can be overruled only by higher than usual ma1orities or, in many cases, they cannot be overruled at all. +ustria therefore rather stresses national unity at the e%pense of regional powers, while &ermany features a stronger regional representation. +t the same time, the regional governments represented in the &erman Bundesrat wield varying numbers of votes, depending on their population size. "n the '( (enate, by contrast, all (tates, even small ones, are guaranteed two senatorial seats. Federalism is stricter when it emphasizes the notional e2uality of its component parts. -eanwhile, states that are unitary may display features which are actually characteristic of federations. The concept of devolution or decentralization of power, which is found in virtually all states, after all underlies the very concept of federalism. The common idea is that certain types of power should be e%ercised centrally and for the whole nation, whereas other types of power should be e%ercised in a decentralized manner. 3ecentralized decision making allows diverse regions, or municipalities, to take into account local needs and conditions. 3evolu tion of power from the centre to the regions in, for e%ample, the '4, "taly or (pain, has been significant. Federalism versus Unity? To conservative forces in unitary states, the notion that their state should become federal can evoke images that the central authority is weakening and the homeland is falling apart. !ften, however, the introduction of a federal structure or far reaching decentralization is a compromise that is designed to appease and co opt secessionist movements and in fact keep the state together as a whole. The adoption of federal or 2uasi federal models in (pain, ,elgium or post war "ra2 was e%actly to accommodate autonomy minded ethnic or cultural groups so as to ease tensions while preserving the country as a whole. Furthermore, several states feature a bicameral parliament even though they are not considered federal. The Czech (enate is elected in districts, rather than by proportional representation/ the French (enate represents the country$s territorial subdivisions and is chosen by elected national, regional and local

office holders from the departments/ the members of the 3utch First Chamber are elected by the parliaments of the provinces. !f course, the presence of upper chambers in these unitary states can be e%plained by historical factors. -ost notably, having another chamber to provide a counterweight against the lower chamber is often considered desirable by itself. 5evertheless, it might be argued that, without conceding that they are in fact federal, many unitary states subscribe to the same federalist ideas of decentralization and diffusion of power. Types of Federalism and Devolution 3epending on the aspect studied, federal systems can be classified under different headings. !ne fundamental distinction is that between integrative federalism, on the one hand, and devolutionary or centrifugal federalism, on the other hand. "n some cases, states that used to be independent decide to pool their powers to create a new federal system. 6%amples of such integrative federalism include (witzerland )whose core cantons united in the 73th century*, the 'nited (tates of +merica )unification in the 78th century* and &ermany )first unification as a nation state in the 79th century*. "n the opposite scenario, formerly unitary entities would re establish themselves as federations or devolve so much power to their regions that they become federal. 6%amples of newly constituted federations replacing unitary pre decessors include post colonial "ndia, post colonial -e%ico, post apartheid (outh +frica and revolutionary (oviet .ussia. + prime e%ample of devolutionary federal ism in a continuous and originally unitary state is ,elgium, which established powerful regions as well as communities along linguistic lines in the late :;th century. +nother e%ample is the re definition of the 4ingdom of the 5etherlands as comprising the 5etherlands proper and the Caribbean islands in a 2uasi federal construct. +nother aspect where different federal states have adopted different solutions concerns the symmetry of distribution of power among the regions. "n symmetrical federations, each component region is considered e2ual, in that the scope of regional power is the same for all component parts of the territory. "n systems of asymmetrical federalism, meanwhile, some regions have greater autonomy than others. +lso decentralization in unitary states can be symmetrical or asymmetrical. (pain features a system whereby Catalonia or the ,as2ue country have secured greater autonomy compared to the #autonomous communities$ in the (panish heartland. The territorial units of .ussia differ in their degree of autonomy between the status of .ussian provinces and so called autonomous republics. The devolution process in the 'nited 4ingdom first accorded (cotland far reaching autonomy, while 0ales was initially granted fewer powers. The French island of Corsica en1oys a slightly different status compared to other French regions. The 4ingdom of the 5etherlands is heavily asymmetrical in favour of the 4ingdom$s 6uropean part. The term #devolution$ typically points to a transfer of power, particularly legis lative power, to selected regions in an asymmetrical manner. #3ecentralization$ has connotations of symmetry and is typically limited to administrative or regulatory powers. The difference between legislative and administrative or regulatory power is that legislation may be passed on certain designated areas in principle freely, while administrative or regulatory power only means the power to implement specific pieces of national legislation. 6ven where the scope of power is the same for all regions, symmetrical federations may still differ in the way they award the individual regions national representation. "n &ermany, the number of votes per (tate in the Bundesrat depends on population size/ while small (tates are still over represented in that respect they are treated differently compared to (tates in the '( which all have the same number of senators. Federalism and the European Union Federalist terminology is at times employed in the conte%t of the 6uropean 'nion. "f we were to apply, 1ust for a minute, our earlier criteria of a federation to the 6', or more specifically the 6uropean Community, we would come to observe some striking similarities. The Community has been set up by states that wished to pool their powers and e%ercise them through common institutions. The Community has a large territory that is made up of smaller sub units, namely the member states. "t has permanent lawmaking institutions whereby one body represents the people of 6urope, namely the 6uropean <arliament, and one body that represents the govern ments of the sub units, namely the Council of -inisters. "t is through the Council that

the sub units are involved in 6uropean lawmaking, and 6uropean laws )directives and regulations* are applicable and enforced by the courts in the sub units. 6uropean law can en1oy supremacy over conflicting national law. The rules of the 6uropean game cannot be changed without also involving the sub units= in fact, in order to set up 6uropean institutions and determine and change the scope of their powers, all sub units have to agree to, and ratify, treaties. The competences of the 6uropean institutions are enshrined in these written treaties, and power not conferred upon the 6uropean level remains with the sub units. +ll sub units have the same status but some of them, for e%ample, have not adopted the common currency and therefore retain greater autonomy in that field. The 6uropean Court of >ustice, finally, controls whether the treaties are observed by all 6uropean institu tions and by the sub units. "f we were to stick to our earlier definition, we would conclude that the 6uropean Community functions along the lines of slightly asymmetrical integrative federalism. A European Super State? To some, the idea that the 6uropean 'nion functions like a federation is associated with a terrifying scenario whereby 6urope becomes a gigantic state above the nations, regulating everything centrally and draining its member states of their sovereignty and independence. However, we should note that especially in comparison with other federal systems, the 6' secures the position of the several member states to a very high degree. The member states are involved at every turn of the road. "n fact, the 6' is set up by the member states themselves because they either cannot, or do not want to, act alone. "t embodies the same idea that ever more countries actually accept for themselves in their own constitutions, namely that it is desirable to have both a central government and regional authorities, each regulating what may be regulated best at their respective level. Summary ,oth federalism and devolution or decentralization embrace the same underlying idea, namely that some powers should be e%ercised for the state as a whole while the e%ercise of some other powers should be left to smaller territorial entities. The difference between federations proper, on the one hand, and decentralized unitary states, on the other hand, lies in the source of power of the territorial sub units. "n federations, the autonomy and prerogatives of the sub units, notably their participa tion in federal decision making, derives from the common constitution. "n unitary states, the sub units such as provinces or regions receive their powers from the national capital, and these powers can in principle be withdrawn, even against the will of these regions themselves, in a move towards greater centralization. +s regards the systems under consideration, three are federal or 2uasi federal )the '(, &ermany and the 4ingdom of the 5etherlands* while three are unitary )the '4, France, and the country of the 5etherlands in 6urope*. !f the three federations, the '( is symmetrical, to the point that it does not even allow the national capital to be located in one particular (tate but, instead, assigns a separate capital territory. .epresentation in the (enate is e2ual for all (tates. &ermany is symmetrical as far as the scope of the (tates$ powers is concerned, but the weight of representation in the national upper chamber varies with population size. The 4ingdom of the 5etherlands is asymmetrical in that it is based on pre e%isting 3utch institutions in The Hague, and the country of the 5etherlands can overrule the Caribbean islands. The '( and &ermany are, historically, integrative federations, while the 4ingdom of the 5etherlands represents a devolutionary setup in a formerly colonial system. +ll three unitary states, meanwhile, feature a form of devolution or decentralization. France, which until the 798;s had been considered the arch type of a central ist state, today features regions as well as greater autonomy for its departments, the traditional territorial subdivisions. + separate devolution process has taken place with respect to the island of Corsica as well as overseas territories. The 5etherlands considers itself a decentralized unitary state, where the Constitution attributes legislative power to the national legislature and national legislation in turn assigns powers to provinces and, more importantly in 3utch perception, municipalities. The '4 has embarked on a devolution process to assign greater powers to

(cotland, 0ales and 5orthern "reland )whereas attempts to devolve powers to the different regions of 6ngland have met with scepticism*. +ll three unitary states considered here are bicameral, but for different historical reasons, and neither upper chamber represents the respective regions as such. Further Reading % -. ,urgess, Comparative Federalism: Theory and Practice )?ondon= .outledge :;;@*. % +. &amper, #+ &lobal Theory of Federalism= The 5ature and Challenges of a Federal (tate$, @ German Law Journal ):;;A*, pp. 7:9B 7378. % >. 4incaid C &. +. Tarr )eds.*, Constitutional Origins !tructure and Change in Federal Countries )-ontreal= -c&ill Dueen$s 'niversity <ress :;;A*. % 4. ?enaerts, #Federalism= 6ssential Concepts in 6volution E The Case of the 6uropean 'nion$, :7 Fordham "nternational Law Journal )799B 7998*, pp. BF@ B98. % ?. Thorlakson, #Comparing Federal "nstitutions= <ower and .epresentation in (i% Federations$, :@ #est $uropean Politics ):;;3*, pp. 7 ::. % .. 0atts, Comparing Federal !ystems, 3rd ed. )-ontreal= "nstitute of "ntergovern mental .elations :;;8*. 2. The United States

The 'nited (tates of +merica is a federal system, comprising a federal authority and originally thirteen, now fifty constituent (tates. 5ew (tates can be admitted to the '( federation by an +ct of Congress )+rt. "G )3* '( Constitution*. +ll of the current fifty (tates have their own constitution/ they are all republics and have a presiden tial system of government. They feature (tate parliaments, which all have, save for unicameral 5ebraska, two chambers/ the (tate e%ecutives are headed by a directly elected governor. Furthermore, each (tate has its own (tate court system. The 3istrict of Columbia, the federal capital district, is not a (tate/ instead, it is governed directly by federal authorities )+rt. " )8* '( Constitution*. -eanwhile, the federal character of the national level in the '( is reflected in all three branches of the federal government )the federal legislature, the federal e%ecutive and the federal 1udiciary* as well as in the separation of powers between the federal level and the (tates. US Federalism! The Senate +s regards the federal legislature, Congress operates as a bicameral federal parliament )+rt. " )7* '( Constitution*. !ne chamber, the House of .epresentatives, represents the people of the '(. "t is elected in nation wide general elections )+rt. " ):* and 7Fth +mendment '( Constitution*. The other chamber, the (enate, represents the several (tates, and each (tate, no matter its size, is represented by two (enators )+rt. " )3* '( Constitution*. 6ach (enator is elected within the (tate that he will represent= originally by that (tate$s parliament, since 7973 by that (tate$s people directly )7Bth +mendment to the '( Constitution*. This means that all (enators are accountable to the population of their respective (tate, while no (tate is penalized for having a smaller population )see for further details Chapter F*. "n the constitutional amendment process, no (tate may be deprived of e2ual representa tion in the (enate against its will )+rt. G '( Constitution*. The (enate has important prerogatives in the federal government structure. The (enate$s consent is always re2uired to pass federal legislation/ it cannot be overruled by the House of .epresentatives )+rt. " )B* '( Constitution/ see also Chapter F*. "t is the (enate, not the House of .epresentatives, that has to give its approval if the <resident concludes international treaties, and if the <resident nominates heads of federal agencies, government ministers )#secretaries$* and other e%ecutive officers, as well as federal 1udges )+rt. "" ):* '( Constitution*. Further more, it is the (enate that tries impeachments )+rt. " )3* '( Constitution*. This means that it is the (enate that decides, by a two thirds ma1ority of members present, whether or not the <resident, the Gice <resident or any other e%ecutive officer is guilty of treason, bribery or another high crime or misdemeanor and should be removed from office )+rt. "" )F* '( Constitution/ see also Chapter A*, or whether a federal 1udge has failed to e%ercise his 1udicial powers in

#good behaviour$ )+rt. """ )7* '( Constitution/ see also Chapter @* and should therefore be removed from office. Thus, the (enate, and through it the several (tates, have a crucial role in federal lawmaking and in maintaining checks and balances with respect to the federal e%ecutive and the federal 1udiciary. Federalism and the "ouse of Representatives 0hile the (enate is set up to represent the (tates, the federal character of the 'nited (tates is also reflected in the election mode of the House of .epresentatives, the other chamber of Congress. "n principle, the House represents the people of the 'nited (tates, rather than the several (tates/ for this purpose it is directly elected. The numbers of House members are however allocated per (tate based on census results, and each (tate must have at least one seat )+rt. " ):* and 7Fth +mendment '( Constitution*. The (tates themselves decide on the borders of the single member districts that correspond to the seats they are allocated )see also Chapter F*. Thus, even House elections reflect the federal principle= congressional districts never cut across (tate borders and even very small (tates are guaranteed one House member, in which case the entire (tate counts as one congressional district. #ertical Separation of Po$ers (eparation of powers is a crucial concept in the '( Constitution= three branches of government, keeping each other in check, are separated from each other by #barriers$. +part from this horizontal separation of powers, however, a vertical dimension e%ists that separates the federal level of government from the level of the (tates. "n the 'nited (tates, Congress as the federal legislature cannot simply pass statutes on whichever sub1ect it deems fit. The governing principle is that Congress only has those powers which are e%plicitly enumerated in the '( Constitution. "f a matter is not stated in the Constitution as being a federal competence, and as long as it is not prohibited to (tates by that Constitution either, it remains a competence that the (tates E or the people E can e%ercise by themselves )7;th +mendment to the '( Constitution*. The (tates and people thus have residuary legislative powers, meaning all powers that are not prohibited, or delegated to the federal level, by the Constitution. "n those cases where powers are delegated to the federal level, however, federal statutes that are enacted pursuant to the Constitution are, 1ust like the Constitution itself, 2ualified as the supreme law of the land, overriding (tate law and (tate constitutions )+rt. G" '( Constitution*. The supremacy clause ensures the effectiveness of federal law in those areas in which the Constitution grants powers to the federal level. The core legislative competences of the federal level are enumerated in the constitutional provisions on the powers of Congress, starting out with the formulation #The Congress shall have power toH$ )+rt. " )8* '( Constitution*. +dditional e%plicit competences are conferred upon Congress by other provisions and by subse2uent amendments )for e%ample the 7Fth +mendment to the '( Constitution*. The '( Constitution in turn also provides a number of limitations upon federal competences, e%plicitly prohibiting Congress to e%ercise legislative power in certain manners or for certain purposes. (uch limitations are contained in the original body of the Constitution )such as +rt. " )9* '( Constitution* as well as in the amendments )very prominently the 7st +mendment to the '( Constitution*. The enumeration of limited powers for Congress, and the retention of the rest of powers with the (tates or the people, unless prohibited, may appear very restric tive on the federal legislature. However, the open ended nature of some of the core power conferring provisions should be taken into account as well. Two clauses stand out in this conte%t= the #commerce clause$ and the #necessary and proper clause$ )both contained in +rt. " )8* '( Constitution*. The #commerce clause$ provides that Congress may #regulate commerce with foreign nations, and among the several states, and with the "ndian tribes$, while the #necessary and proper clause$ allows Congress to #make all laws which shall be necessary and proper for carrying into e%ecution the foregoing powers, and all other powers vested by this Constitution in the government of the 'nited (tates, or in any department or officer thereof$. ,oth clauses give rise to federal

regulatory and criminal law competences. Congress has been using both clauses to great success by interpreting very broadly what policy areas affect interstate #commerce$, and what is #necessary and proper$ in order to implement its enumerated powers. The '( (upreme Court, interpreting the Constitution, is in turn prepared to look generously, although not without limits, at the scope of federal powers. Concerning the necessary and proper clause, the (upreme Court, in the 7879 case of %cCulloch v. %aryland )7B '.(. 37@*, has ruled= ?et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not pro hibited, but consist with the letter and spirit of the constitution, are constitutional. The case arose from a dispute between the (tate of -aryland and the newly established '( federal bank, whereby -aryland challenged the constitutionality of the incorporation of a federal bank. The (upreme Court noted that, while the '( Constitution does not e%plicitly authorize the setting up of a federal bank, the crea tion of such a bank can be deemed necessary and proper in order for Congress to collect ta%es and support an army. That is, in turn, a power that the '( Constitution does confer upon Congress e%plicitly, so the incorporation of a federal bank is, by e%tension, authorized as well. + prominent e%ample of the e%tensive use of the commerce clause can be found in the upholding of federal civil rights legislation by which Congress ad dressed racial discrimination in the 79@;s. "n the 79@F case of &eart of 'tlanta %otel "nc( v. )nited !tates )3B9 '.(. :F7*, a motel challenged the constitutionality of the Civil .ights +ct of 79@F, which put a ban on discrimination of black people in public places, including hotels. The (upreme Court held that Congress could impose such a ban since racial discrimination might deter black people from travelling from (tate to (tate which would in turn affect interstate commerce. ?ocated strategically at an interstate highway near a (tate border, the motel in 2uestion had mostly out of (tate guests. 6ven if patrons are mostly from within the (tate, and therefore have not crossed any (tate borders, it is sufficient that a substantial portion of the food that a restaurant serves comes from other (tates, which again affects interstate commerce. Thus, !llie$s ,arbecue, a restaurant in +labama which had previously refused to serve black customers, could not rely on the unconstitutionality of the Civil .ights +ct either, as the (upreme Court held, also in 79@F, in *at+en,ach v. %cClung et al( )3B9 '.(. :9F*. Congress therefore could legislate under the commerce clause to combat racial discrimination. The Po$er of the Purse 6ven if Congress cannot bring regulatory activity under the commerce clause or the necessary and proper clause, it still retains its budgetary spending power )first clause of +rt. " )8* '( Constitution* as an important tool to achieve its aims. Thus, Congress need not impose directly enforceable federal regulations if it can encourage the (tates to enact e2uivalent regulations themselves. For e%ample, Congress secured a nation wide minimum drinking age of :7 years by giving financial incentives to the (tates to pass (tate laws and enforce the new )higher* minimum age. The incentive in this case is that, pursuant to the Federal Highway +id +ct ):3 '(C I 7A8*, (tates that do not have such a minimum age law lose part of their entitlement to federal road building subsidies for highways. "n the 798B case of !outh -a.ota v. -ole )F83 '.(. :;3* the (upreme Court found such a conditionality provision in a federal spending programme a #relatively mild encouragement$ to (tate action, which is lawful under the federal ta%ing and spending power. (tates still have the choice to adopt a lower minimum drinking age if they so desire, while Congress, as a federal lawmaker, stays within the limits of the powers that the '( Constitution confers upon it. "n spite of its broadness, there are also limits to the e%tensive interpretation and use of the commerce clause, which was brought home to Congress in the 799A case of )nited !tates v. Lope+ )A7F '.(. AF9*. +fter half a century of leniency, the '( (upreme Court stepped in to declare unconstitutional federal legislation for being outside the scope of the commerce clause. The 799; &un Free (chool Jones +ct had

imposed a ban on firearms in and around schools, and the defendant had carried a gun into his high school. The (upreme Court re1ected the government$s reasoning that the statute was 1ustified under the commerce clause because violent crime, and the distractions caused by guns in a schooling conte%t, would negatively affect the economy and interstate travel. (uch reasoning was too far fetched, in the Court$s view, and it was made clear that not everything that might be remotely commerce related gives rise to federal legislative competence. !therwise, Congress would at some point ac2uire virtually unlimited federal legislative powers, and federal authorities would gain general police competences that are so far reserved to the (tates. Federalism at Presidential Elections The federal character of the '( system is also reflected in the way the <resident, the head of the federal e%ecutive, is elected. "f the <resident and Gice <resident were elected by direct popular vote, it would mean that small (tates would have fewer votes because of their smaller population size. "nstead, the <resident and Gice <resident are elected by electors from the (tates )+rt. "" )7* and 7:th +mendment '( Constitution*, whereby differences in size between the (tates are mitigated. 6ach (tate is entitled to have as many electors as it has (enate seats, namely always two, plus the number of seats it has in the House of .epresentatives, which is at least one. Thus, even a very small (tate, as well as the capital district ):3rd +mendment to the '( Constitution*, will be entitled to at least three electors. (tates keep separate voting procedures for their electors while small (tates are over represented to balance out differences in size between the (tates. +s an additional federal safe guard, the presidential and vice presidential candidate on the same electoral ticket must be from different (tates, since electors are barred from voting for two candidates from the same (tate. Federalism and the E%ecutive and &udicial System +s regards the 1udiciary, the federal character of the '( is e%pressed very promi nently. There is a separate system of federal courts which have their own hierarchy/ ne%t to that, each (tate has its own court system )see also Chapter @*. This means that the '( has, in effect, fifty one 1udicial systems, corresponding to one nation wide federal 1urisdiction plus fifty (tate 1urisdictions. 6ach (tate decides for itself when and where to set up (tate courts, such as local court divisions, (tate courts of appeal and (tate supreme courts. "t is also the (tates which determine the procedure for the appointment or election of their (tate 1udges. 'nder federal 1urisdiction, the 'nited (tates (upreme Court is the highest federal court, and it is established directly by the '( Constitution/ lower federal courts are established by federal statute )+rt. """ )7* '( Constitution*. (tate and federal courts are not in principle in a hierarchical relation to one another/ instead, they operate in parallel to each other, each within its own 1urisdiction, even though 1urisdictions sometimes overlap. The system of a federal court hierarchy ne%t to fifty (tate court hierarchies resembles the organization of e%ecutive agencies. The (tates have their own agencies to carry out activities under (tate laws, while in order to e%ecute federal statutes the '( has established its very own network of federal agencies and branches across the country. ,oth systems are in marked contrast with, for e%ample, the &erman federal system, where (tates are entrusted to e%ecute federal legislation while (tate courts, with federal courts on top of the hierarchies, are entrusted to apply federal statutes in 1udicial proceedings.

!er"an#

The Federal .epublic of &ermany bears its federal character already in its name. The &erman territory is composed of si%teen (tates, called L/nder )singular= Land*. 6ach (tate has its own constitution, all featuring a republican and parliamentary system of government. +ll (tates have their own parliaments, which are mostly called (tate 3iet and which are all unicameral/ (tate governments are headed by (tate prime ministers who are accountable to their (tate parliament/ (tate courts are integrated, however, into a nation wide 1udiciary. The &erman ,asic ?aw contains several provisions to e%press and preserve &ermany$s federal character. +lready the first united &erman nation state, the &erman 6mpire founded in 78B7 and its immediate predecessor, the 5orth &erman Confederation, were federal in character, be it that <russia played a dominant role as the overwhelmingly largest (tate. 'nder the republican 0eimar Constitution of 7979, &ermany remained federal. The only period when modern day &ermany as a whole was a unitary state was during the 5azi dictatorship, where the federal (tates were suppressed and the territory was instead divided into administrative districts. +fter &ermany$s defeat in 0orld 0ar "", the restoration of a federal structure in the 0est, coupled with the splitting up of <russia into several smaller (tates, was seen as a safeguard against too great a concentration of power in the national capital. The new democratic )0est* &erman ,asic ?aw, adopted in 79F9, e%plicitly states that &ermany is a democratic and social federal state )+rt. :; )7* ,asic ?aw*. The &erman 3emocratic .epublic in the 6ast, by contrast, went on to become unitary/ the five eastern (tates re constituted themselves only after the fall of the ,erlin 0all. The )0est* &erman federal constitutional principles that now apply to the whole of &ermany, the division of &ermany into (tates, and the (tates$ participation in principle in federal lawmaking, are covered by the #forever clause$ and cannot be amended )+rt. B9 )3* ,asic ?aw*. 'erman Federalism! The (undesrat +s far as &erman legislative institutions are concerned, the prime e%pression of federalism, and the involvement of the (tates at the &erman federal level, is the institution of the Bundesrat, which translates as #Federal Council$ )see also Chapter F*. The Bundesrat is a co legislative chamber that operates ne%t to the directly elected parliament, the Bundestag or #Federal 3iet$. 6ach (tate has its own parliament and its own government. +ll si%teen (tates function according to a parliamentary system, which means that the (tate govern ments rely on the support or tolerance of a ma1ority in their (tate parliaments. The Bundesrat consists of members of these si%teen (tate governments E premiers and ministers E or their representatives )+rt. A7 )7* ,asic ?aw*. The (tate governments are represented in the Bundesrat on a permanent basis, speaking on behalf of their (tate. "f there is a change of government in a (tate, for e%ample because the govern ment lost its parliamentary ma1ority after elections, that (tate$s representation is taken over by the new government, which will from then on speak on behalf of that (tate. The Bundesrat itself keeps operating the entire time. (ince elections in the si%teen (tates do not take place all at once, but all follow their own rhythm, the com position of the Bundesrat is in constant flu%, changing every time a (tate happens to be taken over by a new government.
6ach (tate is allocated a fi%ed number of votes )+rt. A7 ):* ,asic ?aw*, roughly reflecting population sizes but mitigating differences between the (tates by over representing smaller (tates. + (tate can only send as many representatives as it has votes )+rt. A7 )3* ,asic ?aw*, but the number of representatives present will not influence the number of votes the (tate is allocated. Thus, contrary to the 'nited (tates (enate, where (enators are elected on a personal basis in their (tate for a fi%ed term, the &erman Bundesrat is a permanent chamber comprising (tate governments. The Bundesrat does not have a fi%ed term, nor can it be dissolved or re elected, be cause all si%teen (tate governments are simply present all the time, only represented by changing people.

"t is through the Bundesrat that the si%teen (tates have a say in the federal legislative procedure. The

presence of the Bundesrat ne%t to the Bundestag, the parlia ment proper, ensures that (tate governments are not only the passive recipients of federal law, but play an active role, balancing out the ma1oritarian democratic element in parliament with a federal element in the Bundesrat. However, whereas in the 'nited (tates the (enate and the House of .epresentatives are co e2ual as far as the adoption of statutes is concerned, the &erman ,asic ?aw in principle allows the directly elected parliament to overrule the Bundesrat, unless the ,asic ?aw provides otherwise )see Chapter F*. The federal element thus cedes to some e%tent to the democratic element of the &erman constitution. Federalism and the (undestag 0hile &erman federalism in the legislative institutions is primarily e%pressed through the Bundesrat, even the directly elected parliament, the Bundestag, displays a federal element in its composition. (et up to represent the &erman people as a whole )+rt. 38 )7* ,asic ?aw*, the Bundestag nevertheless features an electoral system that reflects the fact that &ermany is composed of si%teen (tates, and that political parties have subdivisions in the (tates as well. The traditional electoral system of the Bundestag is a mi%ed member system that combines proportional representation with a first past the post district system. This electoral system must be reformed by :;77 in accordance with a ruling from the Federal Constitutional Court, but until such time it remains in force and a federal element is likely to be retained )see Chapter F for further details*. Goters cast a vote for proportional representation for a political party of their choice, and a vote for a specific local candidate of their choice in their electoral district. The total number of Bundestag seats that a political party is entitled to is calculated on the basis of its share of the national vote for proportional representation/ these initially empty seats are then first occupied by candidates who have won an electoral district/ if the party has empty seats left after all district winners have had their turn, the rest of the seats is filled in by candidates from the party lists. <arty lists are lists of names ranking candidates by priority, so that the higher up a candidate is on the list, the higher his chances of getting into the Bundestag, if there are any empty seats left. The federal element in the entire procedure lies in the fact that these party lists are not national lists but (tate lists, meaning that the parties$ subdivisions in the (tates all have a list and a candidate ranking of their own. + party$s total seats are therefore divided proportionally among its (tate subdivisions. Thus, if twenty percent of a party$s votes came from one particular (tate, then that (tate$s party subdivision is entitled to fill twenty percent of seats that the #mother party$ has secured overall. "t fills these seats first with district winners from that (tate, and the remaining seats from its (tate list. The Constitutional Court has declared this election system unconstitutional in :;;8, because its mathematics allow for more votes to translate into fewer seats for a party/ however, as noted, it is unlikely that the federal component of the system will be altogether abolished in the re2uired reform. +fter all, the proportional distribu tion of a party$s Bundestag seats over its federal subdivisions serves to underline that &ermany is both democratic and federal, which is also reflected in the internal structure of political parties= they need to be both internally democratic )+rt. :7 )7* ,asic ?aw* and be organized along federal principles. This helps limit a concentra tion of power in national party head2uarters and promotes pluralism and regional diversity within political parties. The Competences of the Federal )a$ma*er The (tates$ prerogatives under the &erman ,asic ?aw are not limited to their participation in federal lawmaking via the Bundesrat. Federal statutes cannot be passed in all areas in the first place. +s far as the internal distribution of power between federation and (tates in &ermany is concerned, the federation legislates only in those areas where the ,asic ?aw so provides. "f a power is not enumerated in the ,asic ?aw as being sub1ect to federal legislation in one way or another, this power is retained by the (tates )+rt. B; )7* ,asic ?aw*. ?ike the '( Congress, the &erman federal lawmaker E Bundestag and Bundesrat E relies on a competence catalogue from which it derives power to legislate, while the (tates keep residuary legislative competence )see also Chapter F*.

The &erman ,asic ?aw in fact features two such federal competence catalogues. The first category of federal competences are the e%clusive federal competences, where only the federal lawmaker can legislate, unless a federal statute e%plicitly authorizes the (tates to legislate as well )+rts. B7 and B3 ,asic ?aw*. +reas of e%clusive federal competences include, for e%ample, foreign relations, citizenship, and air traffic. The second category are competences for concurrent legislation, where the (tates can legislate only when and in as far as the federal lawmaker has not legislated already )+rts. B: and BF ,asic ?aw*. This area includes the law on associations, labour law and waste management. (ince :;;@, (tates may adopt legislation that deviates from already e%isting federal law in areas of concurrent competences, such as hunting, regional planning and admission to higher education )+rt. B: )3* ,asic ?aw*. +ny areas that are neither e%clusive federal competences nor areas for concurrent legislation remain e%clusive (tate competences. The most notable cases where the si%teen (tates are e%clusively competent to regulate on their own, because these cases have been omitted in the two federal competence cata logues, concern cultural policy, primary and secondary education, and ordinary policing powers. "n practice, the (tates coordinate with each other their activities in areas where they are e%clusively competent, such as rules on &erman orthography the mutual recognition of high school diplomas or the design of police uniforms. (uch coordination takes place in regular inter ministerial conferences. "t should be noted that the degree to which the Bundesrat is involved in federal lawmaking does not depend on whether the federal statute concerns e%clusive federal or concurrent competence. +s soon as the federal level is involved, the Bundesrat is involved as well, for the Bundesrat is a federal co legislator. 0hether its veto with respect to the Bundestag is suspensive or absolute only depends on whether the applicable constitutional provision states that the Bundesrat0s consent is re2uired to pass a statute or not. Federalism and the Election of the Federal President The &erman head of state is the Federal <resident. The <resident is elected by an electoral college called Federal Convention )+rt. AF )7* ,asic ?aw, see also Chapter A*. The federal element of &ermany$s ,asic ?aw is reflected in presidential elections in the way the Federal Convention is composed. The Federal Convention is a single purpose gathering/ it convenes only in order to elect the Federal <resident. The Convention comprises all the members of the Bundestag, plus an e2ual number of delegates who are elected by the parliaments of the si%teen (tates )+rt. AF )3* ,asic ?aw*. The distribution of the (tates$ half of Convention seats among the individual (tates is calculated proportionally on the basis of the (tates$ share of the total &erman population/ the delegates from each (tate are then elected, again based on proportional representation, by that (tate$s parliament. The composition of the Convention reflects both the ma1oritarian democratic principle and the federal principle of the &erman constitution, by bringing together elected national parlia mentarians and delegates from the (tates in e2ual numbers. Federalism and the E%ecutive and &udicial System The involvement of (tate governments in federal lawmaking via the Bundesrat is 1ustified in a federal logic, not 1ust because it reflects the fundamental federal principles of the &erman constitutional order )+rts. :; )7* and B9 )3* ,asic ?aw*. (tates will have to accept that federal law has supremacy over (tate law )+rt. 37 ,asic ?aw* and the (tates are e%pected to e%ecute federal legislation once it is adopted )+rt. 83 ,asic ?aw*. The e%ecution of federal statutes by the (tates stands in marked contrast to the system in the 'nited (tates, where the federal e%ecutive has to set up agencies of its own if it wishes to implement federal legislation. 0hile the '( system thus places a strong emphasis on the separation between federal and (tate authority, &ermany puts an emphasis on the cooperation between the (tates and the federal level, both at the adoption and at the e%ecution stage.

"n line with these principles of cooperative federalism, the 1udicial system of &ermany is characterized by a division of court hierarchies into inferior courts, which are (tate courts, and a layer of supreme courts, which are federal courts )+rt. 9: ,asic ?aw*. The federal level has set up five main supreme federal courts, one for each main sub1ect area 1urisdiction, plus a number of specialized federal courts )see Chapter @*. +s a result, court hierarchies e%ist within each of the si%teen (tates, including local, district and appellate levels, with one federal court on top of each hierarchy. Contrary to the 'nited (tates, where federal courts and (tate courts operate in parallel hierarchies ne%t to each other, the &erman 1udicial system relies on (tate courts to apply both (tate and federal law, under the supervision of a layer of federal supreme courts. The (tates furthermore participate in the appointment of ordinary federal 1udges, in a process involving federal ministers and committees that consist of (tate ministers and members who are elected by the Bundestag )+rt. 9A ):* ,asic ?aw*/ the (tates are also involved in the appointment of Federal Constitutional Court 1udges via the Bundesrat, which elects half the 1udges on that Court )+rt. 9F )7* ,asic ?aw, see also Chapter @*. $. The United %in&d'"

#Federalism$ is a term that should be used with great caution in the 'nited 4ingdom. (ince much of '4 constitutional law revolves around the sovereignty of <arliament in ?ondon, and therefore the supremacy of statutes over all other sources of law, federalism is bound to provoke certain tensions. The '4 neither wishes to become federal itself, nor does it wish to become part of a larger 6uropean federation )although it already might be, see Chapter @*. 5evertheless, the practical benefits of power sharing with smaller territorial units and decentralization are increasingly endorsed within the '4. These notions find their most prominent e%pression in the process that is called #devolution$. 3evolution means a practice whereby <arliament adopts statutes in order to create sub national authorities, and whereby it hands them over powers that they can e%ercise for themselves. Thus, under the (cotland +ct 7998, <arliament created a separate parliament for (cotland, and the &overnment of 0ales +ct 7998 and the 5orthern "reland +ct 7998 set up a 0elsh national assembly and revived a legis lative assembly for 5orthern "reland, respectively. The &reater ?ondon area has also received powers going beyond those of an ordinary local authority, which makes it a beneficiary of devolution as well. The most far reaching devolution has initially been conducted with respect to (cotland in 7998. Through its own (cottish parliament, (cotland can in fact e%ercise all legislative powers for its own territory, unless these powers are reserved to 0estminster, or are otherwise forbidden, or until 0estminster reassumes its power to legislate for (cotland )(ections :8 and :9 (cotland +ct 7998*. <owers that 0est minster has e%plicitly reserved for itself are enumerated in a detailed list and include matters of foreign affairs, defence, currency, fiscal and economic policy )but not local ta%es for the funding of local e%penditure*, immigration, intellectual property law and many more )(chedule A (cotland +ct 7998*. 0hat remains as devolved powers are powers that are either not mentioned as being reserved or that are mentioned as being e%ceptions from a reserve. These include culture, education policy, tourism and health care. +part from its general overriding competence, 0estminster will only legislate for (cotland in a devolved matter if the (cottish parliament has accepted a #(ewel motion$ and has e%pressly invited 0estminster to pass a statute for (cotland. This customary rule is named after ?ord (ewel who proposed adhering to it.

Sovereignty of the Scottish Parliament?

0hen it devolved legislative powers to the (cottish parliament, 0estminster <arlia ment e%plicitly stipulated that (cottish legislation may not violate 6uropean Communi ty law or the rights contained in the 6uropean Convention on Human .ights )+rt. :9 ):* (cotland +ct 7998*. The latter 2ualification is noteworthy= +cts of <arliament of the '4 cannot be invalidated for an alleged violation of Convention rights/ (cottish law en1oys no such protection. +cts of the (cottish parliament do not en1oy legislative supremacy like '4 statutes do.

0hat sets '4 devolution apart from genuine federal systems is that federal entities derive their power from the constitution itself, whereas devolved entities receive theirs from the central government. 3evolution implies a conferral of powers in a top down manner. This conferral can be enhanced or reversed at will by the central authority. The (cotland +ct 7998, for e%ample, e%plicitly provides that devolution does not prevent 0estminster from passing statutes for (cotland anyway )+rt. :8 )B* (cotland +ct 7998*/ in fact, such a provision would not even be strictly necessary, because 0estminster can 1ust as well revoke the entire +ct altogether, either e%plic itly or by implied repeal. 0estminster$s discretion is also evident with respect to the other devolved authorities. Thus, the assembly of 0ales has at first only received e%ecutive powers, not legislative ones/ only the subse2uent &overnment of 0ales +ct :;;@ e%panded 0elsh devolution further. "n 5orthern "reland, a separate regional parliament had already been set up in 79:7, but it was suspended in 79B:, the region then being brought under direct rule from ?ondon/ the powers devolved to the restored 5orthern "rish parliament in 7998K7999 were again suspended in :;;:, when the peace process in the region stalled, and later granted again. 5either (cotland, nor 0ales, nor 5orthern "reland have a formal say in such devolution decisions, because neither country is represented at the central level as such. The +est )othian ,uestion "n the course of devolution, especially with regard to (cotland, 2uestions concerning regional representation in the national capital in parallel to devolution do arise. The dilemma is known as the #0est ?othian Duestion$, after the home county of the parliamentarian who first brought it up in the 79B;s. "t arises from the fact that the '4 House of Commons is still elected via constituencies, which include electoral districts that are located in (cotland. The #anomaly$ is that (cottish members of the Commons can help pass laws that apply to 6ngland, but, if the matter concerns devolved powers, not to their own home constituents in (cotland/ conversely, while (cottish parliamen tarians have a vote on statutes affecting 6ngland, parliamentarians from 6nglish dis tricts, if they accept devolution, cannot in turn pass statutes for (cotland. + far reaching proposal to address the 0est ?othian Duestion would be to create a separate 6nglish parliament and e%pand e%isting devolution, which would place 6ngland, (cotland, 0ales and 5orthern "reland on an e2ual footing E although any separate 6nglish parliament would dwarf the other regional assemblies by far. +n e%periment to devolve power to 6nglish regions, namely the 5orth 6ast of 6ngland, has been re1ected in a referendum held there in :;;F. !ther options include the e%clusion of (cottish parlia mentarians from votes that have no bearing on (cotland, or the cutting down of the number of (cottish districts which leads to fewer (cots in the Commons. +rguably, the 0est ?othian Duestion cannot be resolved at all under a paradigm of strict unitarism. +fter all, other systems do not have such trouble accepting that devolution and national parliamentary representation can operate side by side. (. Fran)e

The French .epublic can be characterized as a moderately decentralized unitary state )+rt. 7 French Constitution*. (uch characterization comprises two elements, namely that fundamental constitutional power is vested in central institutions, while the state also accepts that its administration should be delegated to smaller territorial sub units. The basic unitary nature of France, and its traditional centrali zation of power in the capital city of <aris, goes back to the post revolutionary and 5apoleonic regimes. France had been unitary already under the pre 7B89 absolutist monarchy, although the local nobility had been e%ercising power in the countryside. +fter the .evolution, in an effort of centralization of power, France created a strong national government in <aris. "t abolished the historical provinces and replaced them, in 7B9;, by administrative districts called -1partements. 3epartmental borders were deliberately drawn across historical regional borders/ departments were named after their prominent natural landmarks and were subse2uently numbered to emphasize the unity and homogeneity of the nation and the pure rationality of its subdivisions. Centralism was seen as a logical conse2uence of, and precondition to, the e2uality of all people, the rule of law and the e%ercise of national sovereignty. 3epartmental and local authorities were charged with implementing national policy within the limits set by national statutory law and the Constitution/ the central authority was represented locally through a prefect.

"t was in the later part of the :;th century, then, that France in turn embraced a more determined approach to decentralization of power. "n 798:, e%ecutive powers in the departments were transferred from the prefect to the departmental council president. !n the same occasion, regions, originally established in 79B:, were given the status of a formal layer of government above the departments, and the regional councils have been elected directly, rather than indirectly, since 798@. The Constitution provides the legal basis for decentralization, as well as decol onization in the case of overseas territories )+rts. B: to BA French Constitution*/ further details are laid down in statutory law. The furthest reaching autonomy as regards overseas dependencies has been granted to 5ew Caledonia in the <acific. The island of Corsica, off France$s -editerranean coast but part of metropolitan France proper, has also received special autonomous powers. "ts two departments were disconnected from a mainland region and formed their own region in 79BA/ this region was reformed into a #territorial collectivity$ in 7997, with a Corsican assembly for a regional council and with slightly greater powers compared to a region proper. + further reaching possibility of delegation of central legislative powers to Corsica by statute has been declared unconstitutional by the Constitu tional Council, however, considering that the Constitution does not permit any such delegation beyond what is e%pressly allowed )3ecision of 7B >anuary :;;:, :;;7 FAF 3C*. + constitutional reform in :;;3 introduced changes that allowed for further decentralization. -ost importantly, decentral authorities are allowed to deviate, on an e%perimental basis and under tight conditions, and based on a statute or regula tion within the limits set by organic statute, to deviate from national legislation )+rt. B: French Constitution*. These authorities however still remain under oversight from the national government. Thus, like in other decentralized but unitary states, the competences of the territorial sub units in France derive from statutes that are adopted in the national capital, without the sub units having a direct say in their adoption. ,ased as it is on voluntary devolution of power downwards, French decentralization can be e%pand ed, or taken back, at the discretion of the national lawmaker, within the limits set by the Constitution. +lthough the (enate is charged with the representation of France$s territorial subdivisions )+rt. :F French Constitution*, this does not mean that France is federal, since the state is indivisible )+rt. 7 French Constitution*. ?ike other senates in unitary states, the French (enate should above all be seen as a counter weight against the lower chamber in that it over represents the rural population )see also Chapter F*. *. The Nether+ands

The first appearance of an independent 3utch political entity occurred when, in 7AB9, seven provinces in the lowlands united in their armed rebellion against (panish rule to form the 'nited <rovinces. The 'nited <rovinces were a republic, but rather loosely confederal in nature/ they lasted until the invasion by revolu tionary France in 7B9A, and the subse2uent creation of the unitary, French modelled ,atavian .epublic. The land remained unitary as the 4ingdom of Holland, a 5apoleonic vassal state created in 78;@, and in the period following the territories$ incorporation into France proper in 787;. +fter 5apoleon$s defeat, the Congress of Gienna agreed on the creation of the 4ingdom of the )'nited* 5etherlands, an independent unitary state that covered roughly the modern 5etherlands and ,elgium. "t was that state that would, after the secession of ,elgium in 783;, become the modern day 6uropean 5etherlands. Thus, while originally a 7@th century confederal pro1ect, the 5etherlands emerged from the 5apoleonic wars as a unitary state.

Decentrali-ation in the .etherlands The 5etherlands is a unitary but at the same time a decentralized state. <rovinces and municipalities are set up by statute )+rt. 7:3 3utch Constitution*. 3utch doctrine actually considers the municipalities, rather than the provinces, to be the more important level of decentralized power. The 3utch territory is divided into twelve provinces, which are further sub divided into municipalities. 6ach province has a directly elected parliament, called #provincial states$/ the municipalities elect municipal councils )+rt. 7:A 3utch Constitution*. The provincial e%ecutive is headed by a 4ing$s Commissioner who is appointed by the central government/ in the municipalities, unusually for a 0estern democracy, the mayor is appointed by the central government as well )+rt. 737 3utch Constitution*. + constitutional amendment to a bolish the appointment of mayors, and to allow for elections instead, has been narrowly re1ected by the First Chamber in second reading in :;;A. The Constitution allows the provinces, as well as the municipalities, to regu late #their local affairs$ )+rt. 7:F ):* 3utch Constitution*, although that is a very fle%ible term. The details regarding the scope of provincial and municipal powers are defined by ordinary statute. <rovincial powers lie mostly in the area of zoning and infrastructure. ?ocal and regional power e%tends only to regulation, which does not mean legislation but only the implementation of legislation. ?egislative powers proper are reserved to the central lawmaker. Thus, local and regional regulation is always subordinate to national legislation. Crucially, the Constitution allows for the central government to e%ercise supervision over the provinces and municipalities, both under #preventive supervision$, meaning approval of local or regional deci sions before their adoption, and #repressive supervision$, meaning the annulment of decisions already adopted )+rt. 73: 3utch Constitution*. 5e%t to territorial decentralization, the 5etherlands also features functional decentralization of power, the most prominent functionally decentralized entities being the water boards which manage surface waters )+rt. 733 3utch Constitution*. +gain, the shape and power of decentralized entities are fi%ed by ordinary national statute. "t is true that the 3utch senatorial First Chamber is elected by the members of the 3utch provincial assemblies, which might at first glance resemble a system of federal bicameralism. However, the First Chamber does not turn the 5etherlands into a federation. (enators do not represent a specific province, as the votes from provincial parliamentarians are counted on a nation wide basis under proportional representation )see also Chapter F*. The election by provincial parliamentarians, introduced in 78F8, is simply the more democratic alternative to the previous system, whereby the members of the First Chamber were appointed by the 4ing for life. ,oth Chambers of the 3utch parliament retain a mandate to represent the entire 3utch people )+rt. A; 3utch Constitution*. The /verarching 0ingdom "n 79AF, the 5etherlands, which during the #golden age$ as the 'nited <rovinces had ac2uired a significant trade driven colonial empire, implemented a far reaching de colonization measure. The last remaining overseas possessions that wished to keep their ties with 6urope, (urinam and Curacao )later renamed 5etherlands +ntilles*, entered into a 2uasi federal order with their former colonial motherland. Together, the 5etherlands and the two overseas countries set up an overarching 4ingdom of the 5etherlands governed by the Charter for the 4ingdom. 6ssentially, the term #4ingdom$ was redefined= originally the 4ingdom was the 5etherlands, and the colonies were akin to mere #appendages$/ now the 4ingdom is an overarching legal construction comprising the 5etherlands and the overseas territories alike. 'nited by the 3utch 4ing as hereditary head of state, the 4ingdom e%ercises a number of core competences, including defence, foreign affairs and citizenship, for its constituent countries 1ointly )+rt. 3

Charter for the 4ingdom*/ for the rest, the constituent countries are autonomous, possessing their own governments, parlia ments and constitutions )+rts. F7 and F: Charter for the 4ingdom*. The federal 4ingdom is 6urope centered rather than symmetrical, however. "nstead of main taining a separate government and parliament, the 4ingdom$s e%ecutive and legis lative powers are in fact e%ercised by the 3utch institutions in The Hague, albeit in special configurations and with 2ualified procedures involving representatives from the overseas countries. These representatives, called ministers plenipotentiary, participate in 3utch cabinet meetings )+rt. B Charter for the 4ingdom, see also Chapter A* and in lawmaking )+rts. 7F to 78 Charter for the 4ingdom, see also Chapter F* whenever overall 4ingdom interests are concerned. The 'utonomy of the Overseas Countries Compared with France$s and ,ritain$s dependencies in the Caribbean region, the 5etherlands +ntilles and +ruba en1oy far reaching autonomy from their motherland/ even decisions that are taken in 6urope are based on consultation and consensus. "n order to e%plain this arrangement, it is helpful to note that the Charter for the 4ingdom had originally been intended to keep the far larger colony of "ndonesia within the realm. +ccordingly, the concessions from the motherland to the colonies were e%ten sive. "n the event, "ndonesia declared itself fully independent from the 4ingdom anyway/ the tiny colonies in the Caribbean, however, were more than happy to accept their new status under the Charter. + reform process has been started in the early :;;;s to dissolve the 5etherlands +ntilles, which include territories which are not only une2ual in size and economic sustainability but which are also far apart. Curacao and 3utch (aint -artin would gain a separate status comparable to the status of +ruba/ ,onaire, (aint 6ustatius and (aba would be converted into public entities that would make them de facto municipalities of the 5etherlands in 6urope. .eferendums had already been held on the individual islands, and a process of negotiations about the terms of the reform, including finances, was set in motion. 6ventually the reform failed in :;;@, however, as the island council of Curacao re1ected the plan, arguing that the plan reserved too far reaching powers of interference for The Hague, especially regarding finances and the 1ustice system. 5egotiations resumed.

,ARLIAMENTS AND LA-MA%IN! 1. Overview

+ system of representative democracy is based on the idea that citizens do not take decisions on their public affairs themselves. "nstead, persons or institutions take these decisions on the citizens$ behalf. <arliament, a central assembly elected by the people, plays a crucial role in ensuring that the rulers are still the representatives of the ruled. "n that conte%t, parliament e%ercises two core tasks under constitutional law= legislation )taking decisions that bind the citizens on the citizens$ behalf, including the budget* and control )scrutinizing, again on behalf of the citizens, other government institutions*. 'nderlying both functions, since parliaments are elected multi member forums with shifting ma1orities and minorities, is a representative and communicative function in society. Thus, even groups that are opposed to a piece of legislation are duly heard in a process of public deliberation. -inority input is in fact crucial for holding the ma1ority, and ma1ority supported institutions, to account. 6lections at regular intervals are to ensure that the parliament keeps reflecting popular preferences, that minorities have a chance to become ma1orities, and that the members of parliament remain accountable to the citizens they represent. +lthough it might be convenient to treat #parliament$ and #legislature$ as synonyms, the notion that parliament makes laws should be understood rather critically. First, often parliament does not in fact initiate and draft laws by itself. "n parliamentary democracies, legislation is usually prepared and introduced by the government, which has at its disposal the ministerial civil service with its technical e%pertise. 5evertheless, since this legislation then still re2uires the approval of a parliamentary ma1ority, parliament does provide democratic legitimacy for new laws through its consent. (econd, often parliament is not the only lawmaker. "n a federal system legislative powers may be assigned to the regions )although in that case there will be regional parliaments to carry out legislative tasks*. 'sually the government is allowed to enact detailed regulations, or ordinances, in order to implement laws. "n constitutional monarchies, the lawmaker is often defined as the monarch and his government acting together with parliament/ that is the case in the 5etherlands and ,elgium, and in fact in the 'nited 4ingdom where technically the lawmaker is the 4ing in <arliament as the monarch gives assent to bills passed by <arliament. "n member states of the 6uropean 'nion, binding 6uropean legislation, most notably directives and regulations, can override domestic legislation. (ince the national parliaments$ approval is not re2uired for their adoption, parliamentarians who wish to stay involved in the 6uropean legislative process will need to rely on other means to e%tract timely information, provide input and hold the decisionmakers to account. The -other of all <arliaments The term #parliament$ derives from the French parler )to talk* and describes an assembly where policies are debated. The term originates in 73th century 6ngland when the 4ing would summon landowning nobility, senior clerics as well as representatives of the citizenry to discuss and approve new ta%es. The '4 <arliament at 0estminster, though it is not the oldest in the world, has been a prototype for parliaments around the world in many respects. + parliamentary system where the ma1ority forms the government is in fact called the #0estminster model$. Furthermore, 0estminster <arliament is a prototype for a bicameral system, comprising a #lower$ chamber which is directly elected and an #upper$ chamber which is either unelected, elected indirectly, or at least elected differently from the lower chamber. "n spite of all these practical 2ualifications, legislation passed by the central parliament en1oys a crucial role in constitutional systems. -any constitutions stipulate that a certain area may only be regulated by statute. (uch a #legislative reserve$ typically applies to human rights, meaning that a limitation on such rights is permissible only if it is adopted by the legislature. This notably e%cludes limitation by a simple government order. The 3utch Constitution, for e%ample, distinguishes between limitations on fundamental rights by statute and pursuant to statute, the former meaning that the limitation must be laid down in legislation while the latter allows for legislation to delegate regulatory authority for such limitation. + legislative reserve ensures that certain sensitive matters are regulated in the highestranking norm under the constitution, namely statute, and that they are discussed in an open forum involving parliamentary minorities. To draw a stark contrast, the &erman 5azi <arty secured the passage of an 6nabling +ct in 7933 which allowed the government to

henceforth adopt legislation on its own, without parliamentary approval, even if it deviated from the Constitution. This move consolidated the legal basis for the 5azi dictatorship. The modern ,asic ?aw, among other safeguards against any future dictatorship, prescribes that constitutional amendments must be passed e%plicitly, not by way of a carte blanche. !nce adopted, statutes, or acts of parliament adopted by the democratic legislature, typically en1oy stronger immunity from 1udicial review compared to delegated legislation or government decrees. &erman 1udges, for e%ample, can check the constitutionality of government ordinances and set them aside on their own if they violate the ,asic ?aw/ statutes, however, must be referred to the Constitutional Court. The same principle applies to all 4elsenian systems where a special constitutional tribunal is set up to review legislation )see also Chapter @*. again its character as a forum should be stressed. "t is convenient to 1u%tapose the parliament as against the government as a matter of constitutional law. The logic of a parliamentary system, there the government relies on parliamentary confidence or tolerance to stay in office, hinges on the possibility for parliament to, in return, hold the government to account and to sanction it. (till, in reality we should note that parliaments consist of individual parliamentarians who are typically organized in political party groups. "f a party group provides the government, or is in a coalition with other party groups to provide a government, then these #government$ parliamentarians must reconcile a critical attitude with a task to keep their own ministers in office. +fter all, their party has been elected with a view to form and support a stable government. <arliamentary dynamics instead thrive on minority input= political parties that are in opposition to the incumbent government are the ones who in reality contest and 2uestion the government most incisively. "n presidential systems, incidentally, parliamentarians tend to be more independent from the government since their respective tenures are not as directly intertwined. <arliament$s refusal to support the government will not automatically lead to a fall of the government/ and a crisis in the e%ecutive administration will not automatically lead to new general elections. The '( Congress has a reputation of being more independent and less bound by party discipline compared to 6uropean parliaments, where the ma1ority is at the same time the power base for the e%ecutive.

,art# Dis)i.+ine -any systems recognize a certain tension between the independent mandate of an elected
member of parliament, on the one hand, and the coherence of political parties, on the other hand. 6specially in parliamentary systems, where the cabinet relies on parliamentary support to stay in office, party discipline forces parliamentarians to vote according to their party line. <arty discipline may be 1ustified by the legitimate e%pectations of voters that the party they support will act in a predictable manner/ on important votes, such as on ethical 2uestions, parties would often e%plicitly waive party discipline and allow each member of parliament to make up his own mind.

1.1. ,rin)i.+es '/ E+e)ti'ns

"f the members of parliament are to represent the citizens, then a method must be devised how to actually translate voter preferences into the composition of parliament. Let while it is tempting to focus immediately on the technical details of different election systems, we should first consider some fundamental principles underpinning the election process in a representative democracy. Having a parliament does not automatically mean having free and fair elections. +uthoritarian oneparty states may well sport a parliamentary assembly, but there seats are contested in sham elections which do not leave voters an actual choice. "n dictatorial regimes, the incumbent may resort to violence, intimidation of the opposition and voterigging in order to stay in power. 6lection systems are therefore only meaningful if certain fundamental principles are observed, which are often indeed summed up in the demand that elections be free and fair.

The &erman ,asic ?aw provides an oft 2uoted catalogue of five election principles, namely that parliamentary elections must be general, direct, free, e2ual and secret. The principle of general elections means that the entire voting population must be entitled to participate in the vote. (ince the 79th century and into the first half of the :;th century, 0estern democracies have one by one e%panded the franchise so as to give women an e2ual right to vote= 5ew Jealand in 7893, Finland in 79;@, the '( in 79:;, and many more countries during the inter war period and immediately after 0orld 0ar "". "n 6urope, +ppenzell "nnerrhoden was the last (wiss canton to enfranchise women in 799;. (imilarly, universal suffrage has been introduced to replace systems whereby only wealthy or ta% paying citizens could vote. "n the 5etherlands, wealth or ta%ation was a condition for enfranchisement until 797B/ the '4 abolished all property re2uirements and thus introduced universal suffrage in 79:8. + restriction on the right to vote still common today is the imposition of a minimum voting age/ what may be potentially more controversial than that is the disenfranchisement of individuals, notably convicted criminals, which many countries prescribe or allow as well. 3irectness means that votes must be cast for contestants immediately, rather than for electors who would then go on to cast the actual vote )as had been the case in 79th century <russia*. Freedom allows each voter to make up his own mind without interference. "n &ermany this also means that a voter may decide not to vote at all, whereas in ,elgium citizens are actually legally obliged to participate in the vote as a civic duty )although there they can tick an #abstention$ bo% or cast an invalid vote*. 62uality of the vote is often e%pressed in the #one person one vote$ principle. This means that each vote carries the same weight. "n the past, some systems for e%ample distinguished between voters based on their wealth. The parliament of <russia in the 79th century was divided into three e2ual sections, each section being elected by citizens falling in a corresponding ta% bracket. This meant that wealthy citizens were over represented because they constituted far less than a third of the population. "n the '4, graduates of certain universities could cast two votes rather than one up until 79F8= one for their geographical constituency and one for their university constituency. (ecrecy, finally, prescribes that a person$s voting behaviour must not be made public, that votes are cast in closed booths rather than by hand raising, and that no one may be forced to reveal for whom he voted. "n that sense, secrecy of the vote is important to safeguard the freedom of the vote.

1.2. E+e)ti'n S#ste"s

The 2uestion how to actually devise an ideal election system has occupied many political philosophers and mathematicians in the course of history. + broad variety of electoral systems e%ists throughout the world. -ost election systems fall into one of two broad families of systems= ma1oritarian systems and proportional representation. "n a ma1oritarian system, a contested seat is awarded to the candidate who wins a defined ma1ority of votes in a certain constituency, or district/ under proportional representation, the number of parliamentary seats that a political party wins relates to its share of the vote. The simplest form of a ma1oritarian system is the first past the post system as applied to single member constituencies. "n such system, the territory of a state is divided into electoral districts, or constituencies, which elect one parliamentarian each. "n each district, the candidate who obtains a plurality, or relative ma1ority, of votes cast wins the respective seat. "t is then not necessary for the winning candidate to reach any minimum percentage of the vote/ what is decisive is that he has obtained one vote more than the second strongest candidate. The '4 House of Commons and the '( House of .epresentatives are elected via such a first past thepost system in single member constituencies. + more sophisticated form of a ma1oritarian single member constituency system is a system whereby a candidate must receive an absolute ma1ority of votes, instead of merely a relative ma1ority. +n absolute ma1ority means more than half of the total votes, and therefore more than the votes for all other candidates combined. (uch an absolute ma1ority singlemember constituency system is used for elections of the 5ational +ssembly of France. "f no candidate receives an absolute ma1ority, a second round, or runoff, is held whereby the strongest candidates from the first round may run and whereby relative

ma1ority suffices to win. "n a system of proportional representation, several or all seats in parliament are contested at once. 0hile a number of mathematical models e%ist how to assign seats to competing political parties, the fundamental principle remains that, for e%ample, twenty percent of the votes should roughly translate into twenty percent of contested seats. The 5etherlands uses proportional representation for the elections of both its chambers/ the system is also applied, among many other countries, in 3enmark, "srael and Turkey. ,roadly speaking, single member constituency systems ensure a direct and personal link between a parliamentarian and his voters, but it can lead to a distortion of overall popular preferences. +fter all, much depends on the size and shape of the districts/ a party that narrowly wins small districts, and loses by a huge margin in large districts, can eventually have a smaller number of votes nation wide but still win a ma1ority of seats in parliament. Furthermore, since voters are aware that only the winning candidate will receive a seat and the other candidates will receive none, an effect called #winner takes all$, they will be wary to #waste$ their votes on small party candidates and instead only support promising candidates. This typically leads to the emergence of a two party landscape, with candidates of either one or the other large party winning districts. This might ensure stable governments, as cabinets are formed by alternating absolute ma1orities/ however, the system under represents smaller parties and their supporters. "n systems of proportional representation, meanwhile, the distribution of seats reflects overall public opinion more faithfully, and fewer votes are #wasted$. 0hen the system relies on party lists for the allocation of seats to candidates, however, the personal element in popular representation suffers somewhat. +fter all, a purely list based system allows political parties to rank their candidates in advance of the ballot, giving voters only a say about their party of choice but not about their preferred individual candidates. (ome proportional representation systems therefore introduce additional personal elements. The 5etherlands allows voters to vote for specific candidates further down the party list, and to break the party ranking. (ingle transferable vote systems, as used for e%ample in "reland, re allocate votes from candidates who have safely won a seat, and from those who have been eliminated, to the respective candidates of second choice until all seats are distributed. This system ensures proportional representation based on a choice of persons )within multi member districts* and with fewer #wasted$ votes. -i%ed member systems, such as the &erman one, but also the Hungarian and (outh +frican one, include combinations of proportional representation and single member constituency systems, so as to benefit from the advantages of both systems. <roportional representation tends to lead to a multi party parliament where also smaller parties are represented according to their share of the vote, and where no single party commands an absolute ma1ority of its own. To keep parliament from fragmenting e%cessively, many systems operate a form of electoral threshold, a hurdle that parties have to clear in order to win seats. This helps keep small parties out. The hurdle can be rather high )ten percent of the vote in Turkey*, medium )five percent in &ermany*, low )two percent in "srael* or very low )one full seat, or roughly ;.@M of the vote, in the 3utch (econd Chamber*. Let even with a hurdle in place, coalition building is typically necessary to form a cabinet in a parliamentary system. Thus, two or more parties have to agree to form a ma1ority backed cabinet, which means compromises and possibly a dilution of voter preferences. "n singlemember constituency systems, meanwhile, especially if there is no run off and the first vote immediately counts, voters tend to back one of two candidates most likely to succeed. "n such systems, voting for a small party candidate, who is not likely to receive a plurality in the district, let alone be part of an overall ma1ority in parliament, usually means wasting one$s vote while depriving a similarly acceptable big party candidate of valuable votes. +s noted earlier, single member district systems with no run off therefore tend to lead to a two party landscape. The French Fifth .epublic deliberately replaced proportional representation with singlemember constituency voting so as to consolidate the party landscape in the 5ational +ssembly and to stabilize the cabinet.

1. . 0i)a"era+is"

3iscussions about direct elections and democratic representation through parliament usually focus on unicameral parliaments or the lower chambers of bicameral parliaments. -any parliaments in the world are indeed bicameral, meaning that they are not a single assembly but comprise two assemblies, or chambers, ne%t to each other. The #lower$ chamber is then usually directly and democratically elected, and is the more important one politically and the more powerful one constitutionally. The upper chamber is then typically the additional chamber that complements the lower chamber. The reasons why a parliament has such an additional upper chamber differ from one system to another. ,icameralism originates in 6ngland, where since the 7Fth century the Commons )representing the citizenry* would sit separately from the ?ords (piritual and Temporal )clergy and nobility*. The feudalistic distinction between commons and ?ords is also the basis for speaking of #lower$ and #upper$ chamber. +gain, in most bicameral systems, including the '4, the #lower$ chamber is in fact dominant. The historical reason for bicameralism in the '4 is to stress the separation of the different estates. +s the relevance of nobility diminishes, the future of the House of ?ords is a sub1ect of debate, however. <ossible options range between turning the ?ords into a fully elected chamber and its complete abolition. "n federal systems, the upper chamber is typically used to represent the constituent parts of the state as such, ne%t to the lower chamber which is elected in nation wide elections. The senates of the '( and +ustralia, or the ,undesrat of &ermany and +ustria, respectively, specifically ensure that representatives from the regional subdivisions, or senators elected within these subdivisions, can participate in federal lawmaking. (everal other systems which are neither feudalistic nor federal have adopted or retained bicameralism for more comple% historical reasons, often for its own sake. + two chamber system is often perceived as a means to ensure that decisions are not taken too hastily, and that a counterweight to the ma1ority of the day e%ists. The very term #senate$ may 1ustify such an approach. The .oman (enatus, from the ?atin word sene% )old*, was originally a council of elders. -any modern day senates are noted for their claim to higher dignity and a calmer working style. They often sit for a longer term, have fewer members and indeed a higher minimum age for membership. The senatorial First Chamber of the 5etherlands sees itself as a chambre de rNfle%ion or #chamber of second thoughts$ as opposed to the hectic lower chamber. !ther countries which have kept or re introduced a two chamber system in spite of being unitary states include <oland, the Czech .epublic, "reland and France. The French (enate has been set up intentionally as a counterweight to the 5ational +ssembly, with a bias towards the countryside population, and following e%amples set by earlier periods of bicameralism in French history. 'nicameral parliaments are often found in relatively small and ethnically homogenous unitary states, such as the 5ordic states in 6urope )3enmark and (weden abolished their upper chamber in the 79A;s and 79B;s, respectively*, <ortugal, &reece, and many states in Central +merica.

1.$. The Le&is+ative ,r')ess

?awmaking is a crucial task for a parliament and its chambers, but the details of how this task can be e%ercised differ between systems. The powers that are particularly relevant to a parliament or chamber are= the right of anitiative )the right to propose legislation*/ the right of amendment )the right to propose changes to draft legislation*/ nd the right of veto )the right to stop, completely or sub1ect to an override, the adoption of legislation*. The power of initiative may seem relatively trivial, yet without a proposal there can be no statute. Furthermore, the one who proposes statutes is also the one who decides what is discussed and when: initiative therefore means agenda setting. Geto power, by contrast, may seem a strong tool/ however the total re1ection of a <arliaments and ?awmaking proposal is a heavy handed measure if actually only slight changes to the propoOal are desired. Thus, veto power without a power to propose amendments means being confronted with take it or leave it choices. <arliament Gotms How does a parliament take a decisionP (ince a parliament is a multi member assembly, it needs to be determined how many out of how many members must approve a proposal so that it may be considered to have received overall parliamentary approval.

The Qsual procedure is simple ma1ority vote. Thus, if a parliament has 7;; members, and BA members actually participate in the vote, then a bill, for e%ample, is passed if more members vote #yes$ than vote #no$. +bstentions counR as neither for nor agaanst. The bill is adopted if it receives, for e%ample, 3@ votes in favour, with 3F against and five abstentions. The minimum number of members that have to be present at the vote for it to be valid is called 2uorum. + tougher re2uirement than simple ma1ority, or plurality, is absolute ma1ority. That is the ma1ority of the members of the parliament rather than a ma1ority of votes cast. "n a parliament of 7;; members, A7 must actually support a motion or a bill if an absolute ma1ority is re2uired. 6ven tougher than absolute ma1orities are 2ualified super ma1orities, for instance three fifths or two thirds of members or votes cast. The graver and more important the decision, the higher the threshold tends to be. Thus, constitutional amendments under rigid constitutions re2uire bigger ma1orities than ordinary statutes do. (ystems here both chambers of a parliament are co e2ual, especially where a bill re2uires the approval of both chambers)to become law, ire called perfect bicameralism. This means that the upper chamber has an absolute veto as against the lower chamber because it can withhold its approval and stop a bill/ that is the case in the '(. "n most bicameral systems, however, the u%per chamber$s powers of initiative, amendment or veto are restricted. 'sually, a veto from the upper chamber can be overruled by the lower cham1er, so that the bill may become law even against the will of the upper chamber. "n cases of disagreement between the two chambers, a bill may either continue, in principle, to go back and forth until there is an agreement )like in the '4 or France* or the process may end after a certain number of readings )'(, &ermany, the 5etherlands*. "n some systems, a conciliation committee may be established to seek a compromise )&ermany, France, '(*. + veto that cannot be overruled is called an absolute veto/ a veto that merely delays the adoption of a law is called a suspensive veto. The re2uirements for a lower chamber to ninally overrule)the upper chamber differ between systems. "n +ustria, the lower chamber may in most cases simply reapprove the bill in 2uestion for a second time to insist on its adoption. "n the '4, most bills may be referred for royal assent after a waiRing period if the ?ords refuse to agree/ in France, the government may break an impasse by letting the 5ational +ssembly cast the final vote. "n &ermany, the ,undestag re2uires a higher ma1ority to overrule the ,undesrat depending gn the ma1ority by which the ,undesrat his re1ected the bill in the first place, but the ,asic ?aw may also provide that the consent of the ,undesrat is needed so that it cannot be overruled. The 5etherlands allows the senatorial First Chamber to approve or re1ect bills in an absolute manner, but not to propose amendments )although in practice the Chamber does suggest amendments as a precondition for approval*/ the &erman ,undesrat may not propose amendments itself either, but can call for the establishment of a conciliation committee which in turn may propose amendments.

1.(. The !'vern"ent and the 1ead '/ State

+s noted at the outset, it would be deceiving to speak of parliament as the sole lawmaker. 6specially in a parliamentary system, the government takes an active role in the legislative process. First, almost all bills are drafted and tabled by the government/ second, the re1ection of an important government bill in parliament may lead to a cabinet crisis, since it means that the government cannot count on a loyal parliamentary ma1ority. For e%ample in the '4 it is considered embarrassing if a government bill is only adopted because the opposition votes in favour while the government$s own rank and file votes against. Finally, the head of state may participate in the legislative process, in that he signs the bills into law but in some systems might also refuse to sign them. +s regards the introduction of bills, the presidential '( system does not grant the <resident the right of initiative. 5evertheless, he may communicate to Congress his wishes, for e%ample in the form of a re2uest for a budget, or may otherwise let his allies in Congress introduce bills for him. The French <resident can, depending on his personality and the political constellation, steer the government$s legislative agenda as he presides over the council of ministers, so that the prime minister may in turn introduce bills in parliament. 'sually, parliamentary systems simply accord the government the right of initiative. The passage of a bill may at times be e%plicitly made a matter of parliamentary confidence in the government. This is a means to discipline the government parties and to #blackmail$ parliament into approving a bill, for otherwise a cabinet crisis would be triggered, possibly followed by early elections. "n France, if the government makes a bill a

matter of confidence, it will even be deemed approved automatically unless the 5ational +ssembly brings the government down )although the use of this option has been restricted in :;;8*. +s regards the veto powers of heads of state, the situation also differs per country. "n constitutional monarchies, lawmaking is historically an interplay between parliament and the 4ing. "n practice, the crowned heads in modern constitutional monarchies either may not or will not refuse to sign bills into law, however. "n the '4 it is sometimes said that the 4ing will even have to give royal assent to his own death sentence/ a re1ection is not inconceivable, but would certainly trigger a constitutional crisis. "n ,elgium, 4ing ,audouin " in 799; ob1ected to an abortion law on ethical grounds/ he agreed to be declared incapacitated for a few hours so that the bill could enter into force without him having to sign it. "n France, the <resident can refer a bill for constitutional review and ask for one more parliamentary debate but will ultimately have to promulgate it. The &erman <resident does not possess any e%plicit veto power, but conventionally reviews the constitutionality of bills and may, in fact must, refuse to sign bills deemed evidently unconstitutional. The '( <resident does possess an e%plicit veto power, not 1ust on grounds of unconstitutionality but on any grounds/ his veto may however normally be overruled by super ma1orities in Congress.

1.*. S2""ar#
The five systems under consideration illustrate the diversity of constitutional arrangements regarding parliaments. +ll five systems are bicameral, but for different reasons= federal representation )'( and &ermany*, feudalist heritage )'4* and a historical tradition of having an upper chamber as a counterweight to the ma1ority of the day )France and the 5etherlands*. Four systems use single member constituencies to elect their lower chamber, but the details differ= first past the post )'4 Commons and '( House of .epresentatives*, first past the post in a mi%ed member system sub1ect to proportional representation )&erman ,undestag* or a runoff between the strongest candidates from the first round )French 5ational +ssembly*. <roportional representation is used e%clusively in the 5etherlands, and in combination with single member constituencies in &ermany. The upper chambers have power of initiative in four systems )'4 ?ords, French (enate, &erman ,undesrat, '( (enate e%cept for ta% bills* and an amendment power of their own in three systems )'4 ?ords, French (enate and '( (enate*. The upper chamber$s approval is re2uired for all bills in two systems )'( and the 5etherlands*, while in the other systems the lower chamber can in some or most cases overrule the upper chamber. The head of state has a veto in the legislative process in the '(, he has no veto in France, he may only re1ect unconstitutional bills in &ermany, and he will conventionally not refuse to sign bills in the '4 and the 5etherlands.
2(3( Further 4eading 4(L( Borthwic. 5%ethods of Composition of !econd Cham,ers0 3 The Journal of Legislative !tudies 678829 issue 2 pp( 2:;7<( Ph( Laundy Parliaments in the %odern #orld 6-artmouth: 'shgate 2:=:9( '( Li>phart $lectoral !ystems and Party !ystems: ' !tudy of Twenty;!even -emocracies 2:?@;2::8 6OAford: O)P 2::?9( '( Li>phart Patterns of -emocracy: Government Forms and Performance in Thirty;!iA Countries 6Bew &aven: Cale )niversity Press 2:::9( B( %anin The Principles of 4epresentative Government 6Cam,ridge: C)P 2::39( Ph( Borton 5Playing ,y the 4ules: The Constraining &and of Parliamentary Procedure0 3 The Journal of Legislative !tudies 678829 issue D pp( 2D;DD( Ph( Borton 6ed(9 Parliaments and Citi+ens in #estern $urope 6LondonEPortland: Fran. Cass 78879( !( Patterson F '( %ughan 6eds(9 !enates: Bicameralism in the Contemporary #orld 6Colum,us: Ohio !tate )niversity Press 2:::9( -( !hell 5The &istory of Bicameralism0 3 The Journal of Legislative !tudies 678829 issue 2 pp( @;23(

2. The United States

The '( Constitution stipulates that federal legislative power is vested in Congress, a bicameral parliament comprising the House of .epresentatives and the (enate )+rt. " )7* '( Constitution*. The House is to represent the people of the '(/ (enators represent the individual (tates at federal level. House membership roughly but not e%actly proportionately reflects population sizes within the (tates, while the number of (enators is the same

for each (tate, namely two. ,oth chambers reside in the Capitol building in 0ashington, 3C. :.7. The House of .epresentatives The House of .epresentatives is a directly elected assembly. "t is elected for a term of two years. (eats in the House are apportioned to the individual (tates based on their population statistics. !nce every ten years, a census is conducted to determine population numbers, and distribution is based on proportionality/ each (tate is entitled to at least one representative, however )+rt. " ):* and 7Fth +mendment '( Constitution*. The precise number of seats per (tate is regularly determined in apportionment bills, yet the total number of House seats is fi%ed by statute at F3A. (tates were in principle free to determine themselves how to have #their$ House members elected )+rt. " )F* '( Constitution*/ however, federal legislation has already prohibited (tate wide elections for the entire House delegation and instead prescribes a system of single member constituencies ): '(C I :c*. For the purposes of House elections, therefore, the territory of a (tate with more than one House seat is parcelled into congressional districts, with each district electing one member to the House. "n (tates that are entitled to one seat only, the whole (tate territory coincides with its congressional district territory. The (tate with the largest population as of :;;;, California, features A3 districts. &errymandering hile the number of congressional districts for a (tate is fi%ed under apportionment rules, the borders of the districts are set by the (tates themselves. Control of the (tate parliaments is therefore important for a political party$s chances of success in federal House elections. 0hen in charge of drawing district borders, a party may resort to a practice called gerrymandering= borders are then drawn tactically to put the opponent at a disadvantage. This is done by #packing$ opposition friendly population into hugedistricts )so that they win only one seat each* while #cracking$ the remaining opposition friendly population into several districts that are each dominated by incumbentfriendly ma1orities. 6ventually, rather than being rectangle shaped, districts may resemble snakes criss crossing the (tate in order to #catch$ relevant populations E snakes or, indeed, salamanders, like the congressional district devised by 78th and 79th century politician 6lbridge &erry to whom the term gerrymandering refers. Thanks to tactical districting in the (tates, most incumbents in the House are relatively secure in their seats, and few districts are genuinely contested in close races. The '( (upreme Court ruled that malapportionment )e%cessive differences in population sizes between dis<arliaments and ?awmaking 8; tricts* as well as gerrymandering on racial grounds )such as to disenfranchise black minorities* is unconstitutional. <artisan gerrymandering to put political opponents at a disadvantage is not unconstitutional, however. "n order to win a district, a candidate must obtain a plurality of votes. "n other words, he must obtain at least one vote more than the second strongest candidate did. The (tates determine the procedure for resolving ties between two or more strongest contenders/ mostly a lot is drawn.

2.2. The Senate

'nlike the House of .epresentatives, which represents the people of the '( via a district system, the (enate represents the individual (tates at federal level. "t consists of two (enators from each (tate no matter its size, and thus of a total of 7;; (enators. !riginally, (enators were appointed by the parliaments of their (tates )+rt. " )3* '( Constitution*. This provision was superseded by the 7Bth +mendment of 7973, however, stipulating that (enators are to be elected by the populations of their (tates. (enate elections are, like those of the House, based on a single member constituency principle. 6ach (tate is one constituency. 6ach (tate decides for itself how to elect its two (enators/ most use a first past the post system, however. Thus, to be elected (enator for his (tate, a candidate must secure a plurality of votes cast in that (tate. (ome (tates, such as Te%as, &eorgia or +rkansas, prescribe a run off between the two strongest candidates if no candidate has achieved an absolute ma1ority in the first round.

The term of office of each individual (enator is si% years. + first past the post or run off system for the (enate is sustainable even though there are two (enators per (tate, because the (enate is not re elected all at once. "nstead, one third of the (enate is re elected once every two years. This means that political change is translated into the composition of the (enate gradually, rather than abruptly. "t also ensures that at no point both (enate seats of the same (tate are contested at the same time. +fter one (enator is elected )with a ma1ority in his (tate*, the second (enator will be elected or re elected either two or four years later )again with a ma1ority in that (tate*, but not si% years later since that is when the first (enator may run for another term. Two <arty (ystem (ince both the '( (enate and the House are elected in ma1oritarian systems with singlemember constituencies )in the (enate each (tate is one constituency, for House elections a (tate may have more than one district*, voters tend to back only promising big party candidates in order not to #waste$ their votes on unsuccessful ones. + two party landscape emerges, independents or small party politicians in office are rare. The (enate is presided over by the Gice <resident of the '(. The Gice <resident has no vote, but his vote does decide in case a (enate vote is tied )+rt. " )3* '( Constitution*. The (enate usually votes by simple ma1ority, but for controversial bills the effective threshold is @;. That is the number of votes re2uired to break a filibuster )a practice whereby (enators would talk endlessly in order to delay the vote* and to actually call for a vote. The filibuster rule is eccentric in a comparative perspective, but it is cherished as an important minority right.

2. . Federa+ Law"a3in&
(enate and House together form a bicameral legislature. Federal legislation may be passed only in those areas where the Constitution assigns federal legislative competences )7;th +mendment to the '( Constitution, see also Chapter 3*. ,ills, that is legislative proposals, may be initiated by members of both the (enate and the House, but the House en1oys sole power of initiative for ta% bills )+rt. " )B* '( Constitution*. "n line with the principle of separation of powers, the <resident as the head of the e%ecutive may not introduce bills )although he can encourage fellow party members in Congress to introduce them for him*. +ll bills must receive the approval of both chambers, no chamber can overrule the other. This #bicameralism clause$ in the '( Constitution effectively gives both the House and the (enate an absolute veto in the legislative process. Furthermore, both chambers have the power of amendment. 0ithin the two chambers, bills are referred for detailed consideration in a committee and are then sub1ected to further debate, amendment, and a final vote on the floor. "f adopted, the bill is referred to the other chamber. "f a bill is amended with respect to the previous version as adopted by the other chamber, it is referred to a 1oint committee of both chambers, called #conference committee$. The committee can propose further amendments to reach a compromise, to be again voted on in both chambers separately.

2.$. The ,resident

!nce a bill has passed Congress, it is presented, under the #presentment clause$, to the <resident of the '( )+rt. " )B* '( Constitution*. +s head of state, it is the <resident$s task to sign bills into law/ in line with the principle of checks and balances, however, the <resident can also veto bills passed by Congress. "n that case he refers the bill back to Congress, together with his ob1ections. The Congress, in turn, can override the <resident$s veto and insist on the bill$s adoption. For that, the chamber where the bill has originated in the first place has to vote again, only this time by a two thirds ma1ority of members present/ if the bill passes, the chamber sends the bill to the other chamber, which also must approve it with at least a twothirds ma1ority of members present. "f no chamber or only one of them musters the re2uired two thirds ma1ority, the adoption of the bill has failed. "t should be noted that the <resident can only veto a bill as a whole, not individual parts of it. "n case the <resident neither signs the bill nor vetoes it, he e%ercises a #pocket veto$ )by keeping his hands in his pockets*. The bill then becomes a law anyway <arliaments and ?awmaking after ten days e%cluding (undays. + pocket veto can however also effectively stop the bill, namely if Congress has ad1ourned within ten working days after its

adoption. +fter all, a veto strictly means making known to Congress what the <resident$s ob1ections are. However no ob1ections could possibly be transmitted for reconsideration if Congress is no longer in session. Therefore, if the <resident does not sign the bill and has, because of the ad1ournment of Congress, no chance to send it back either, the bill does not become a law and the adoption has failed. "t would then have to be re introduced anew. Congress can avoid fatal pocket vetoes by not deferring controversial votes until the very end of a session.

,')3et 4et'
.emaining inactive and neither signing nor ob1ecting to a bill passed by Congress can for the '( <resident be a political tool. ,y letting the bill enter into force after ten working days by default, he can make symbolically known that he does not support the bill, or at least parts of it, but does not find it worth re1ecting altogether. However, if an ad1ournment of Congress is scheduled within ten working days, the <resident escapes the possibility of being overruled. He then has effectively an absolute veto which he normally would not have. The e%ecution of federal statutes that have entered into force becomes a task of the e%ecutive branch and the federal e%ecutive agencies )see Chapters 3 and A*. "ts application in 1udicial disputes is a task for the courts )see Chapter @*.

. !er"an#
&ermany features a bicameral system for the adoption of federal legislation. !n the one hand, legislation must pass the ,undestag, the directly elected chamber and parliament in the strict sense. !n the other hand, the ,undesrat, the representation of (tate governments at federal level, e%ercises a co legislative function.

.1. The 02ndesta&

The ,undestag, or Federal 3iet, is &ermany$s parliament proper. "ts name was chosen to replace the imperial sounding name .eichstag, which had been in use under the 0eimar .epublic. +lready the 79th century &erman Confederation featured a ,undestag, yet that body was not elected in nation wide elections but was rather a representation of the several &erman principalities. The modern ,undestag first resided in ,onn, 0est &ermany, and since the reunification and the move of the capital in the 799;s resides in the renovated .eichstag building in ,erlin. .epresenting the &erman people, the ,undestag is elected for a term of four years )+rt. 39 )7* ,asic ?aw*. "t has a statutory size of A98 members. For decades, &ermany was famous for its comple% mi%ed member system= half of the ,undestag$s statutory seats would be filled via proportional representation, the other half would be occupied by members from single member constituencies. <roportional representation would decide over the initial number of seats per party, and the distribution of party seats among the federal subdivisions of each party/ constituency winners would take their seats first, the rest of seats would be filled from party lists )II 7 B Federal 6lections +ct*. The year :;;8 brought two important changes to this system, however. First, a reform to the Federal 6lections +ct entered into force affecting the mathematical model by which seats are proportionally distributed between political parties and between federal subdivisions within the parties. This change however did not alter the basic principles of the election system. (econd, and more important, the Federal Constitutional Court ruled a core aspect of the decades old election system unconstitutional. That was because the system allowed for a mathematical anomaly whereby voters could vote in support of a political party but could inadvertently cause it to have fewer seats, and vice versa. The legislature has been given time until :;77 to introduce a new system that does comply with the Court$s ruling and, thereby, with the ,asic ?aw. 'ntil such time, the #old$ system remains in place= previous election results are still valid, and the :;;9 elections fall under the old system as well. The following paragraphs shall first describe the #old$ system and then discuss the reasons why it has been declared unconstitutional.

.2. The 5O+d6 S#ste" A))'rdin& to the election system as it stood before :;;8, and as it will stand until it is reformed in line with the Court$s ruling, voters may cast two votes each. Gia their #first vote$, on the left

hand side of the ballot paper, voters can choose a particular local candidate to represent their district. &ermany is divided into :99 singlemember constituencies for that purpose. "n order to win a district, a candidate must obtain a plurality of votes in a first past the post system. This means that a candidate must get more votes than the second strongest candidate. The returning officer, the official in charge of the ballot, draws a lot in case of a tie. Gia their #second vote$, on the right hand side of the ballot paper, then, voters may choose a political party under the principle of proportional representation. For that purpose, the parties$ federal subdivisions in the (tates draw up party lists, ranking candidates by priority= the higher up on the list a candidate is, the higher his chances of getting a seat in the ,undestag. + voter in the city of 3resden in the (tate of (a%ony can thus choose between several candidates running for his 3resden district, and between several political parties which have drawn up (a%on party lists.

.2.1. Seat Distri72ti'n

,undestag seats are initially allocated to political parties proportionally to their share of the #second votes$= twenty percent of the votes roughly means twenty percent of ,undestag seats. 3epending on how many votes for the party came from which tate, the party$s seats are then proportionally shared out between the party$s federal subdivisions. Thus, if twenty percent of a party$s total votes came from (a%ony, then the party$s (a%on subdivision gets roughly twenty percent of the party$s overall seats. The seats of each subdivision are occupied first by party candidates who have won a district in that (tate/ if the party subdivision has empty <arliaments and ?awmaking seats left, it fills them with candidates from its (tate party list, which ranks the party$s #reserves$. "f within one (tate a party wins more districts than there are seats that the (tate subdivision within the party is entitled to under proportional representation, e%tra ,undestag seats, or #overhang mandates$, are created to make room for all district winners. ,ecause of the e%tra seats, the size of the ,undestag varies from one election to another. "n practice, about half the ,undestag members are indeed district winners, while the other half comes from party lists, and usually between one and two dozen seats are #overhang mandates$.

.2.2. The Thresh'+d

"n order to be entitled to proportional representation, a party must receive at least AM of the national vote for proportional representation, or, alternatively, win three districts. 0ith anything short of that, a party will either not be represented in the ,undestag at all, or only with its one or two districts winners. The AM hurdle is intended to keep small and potentially radical parties out/ the Federal Constitutional Court has ruled that while the measure as such is anti democratic, as it deprives a share of voters of parliamentary representation, it serves the legitimate long term goal of stabilizing democracy overall. +gainst the backdrop of the illfated 0eimar .epublic with its fragmented parliament and no hurdle, the minimum threshold is seen as a means to secure, rather than undermine, the democratic system.

C+earin& the Thresh'+d

<arties that are small and have geographically dispersed supporters are in &ermany particularly dependent on clearing the AM hurdle for proportional representation. They light encourage voters of their likely big coalition partner to #borrow$ them their #second votes$ in order to get into parliament. They know that they will not win any districts anyway= voters tend not to #waste$ their #first votes$ on small party candidatesin a first past the post system. ,ig party voters meanwhile also know that without a coalition partner, their party will not be able to form a government, since proportional representation, via #second votes$, rarely produces any absolute

ma1orities. The smallparty tactic of borrowed votes seeks to picture #second votes$ as being less important so that they can be given away E yet of course it is the #second vote$, for a party list, that determines overall party strength under proportional representation. (mall parties are in fact eating into their big brothers$ vote. -eanwhile, parties that are too small 5ationwide to clear the to clear the AM hurdle but that are regionally concentrated have an interest in obtaining three districts. That, after all, entitles them to proportional representation nonetheless. 0ith FM of #second votes$ and two districts, a party will only get two ,undestag seats, reserved for the two district winners/ with FM and three districts, however, the party will get not 1ust those three seats, but roughly FM of the total, which can be about two dozen seats.

.2. . Un)'nstit2ti'na+it#
,ecause the established ,undestag election system shares out party seats among federal subdivisions while allowing for the creation of overhang mandates, a phenomenon called the #negative vote value$ can arise. This means that voters can vote for a party but unwittingly deprive it of seats, or that voters could help their party to win e%tra seats by not voting for it. This, in the view of the Federal Constitutional Court, violates the principles of directness and e2uality of the vote )+rt. 38 )7* ,asic ?aw*. +ssume that, based on nation wide proportional representation, a political party has obtained 7:,AB@,8;9 #second votes$ nation wide, translating into 7A: seats. 3,@9;,7AF of these votes came from (a%ony/ 7,:A@,;89 came from ,randenburg. FA seats will be reserved for (a%on party candidates, and 7A to candidates from ,randenburg. "f this political party won 7@ districts in ,randenburg, an overhang mandate would be created to accommodate all ,randenburg district winners, meaning that the ,randenburg delegation would grow from 7A seats to 7@, the party would grow from 7A: to 7A3 seats, and the ,undestag would grow from A98 to A99 seats. Let if now more people in ,randenburg had voted for that party via their #second votes$, compared to the (a%on electorate, then the ,randenburg subdivision might have been entitled to 7@ seats to begin with, rather than 7A seats. +nd with 7@ seats, and still the same 7@ district winners in ,randenburg, there is no longer a need for the creation of an overhang mandate. The number of seats for ,randenburg does not change/ yet since the 7@th #regular$ seat for ,randenburg would have been added at the e%pense of another subdivision, say (a%ony, the party$s (a%on subdivision would have lost a seat. <erversely, then, this means that the party$s supporters in ,randenburg have deprived their political party of a possible e%tra seat by voting for their party. Conversely, the party$s opponents in ,randenburg Could inflict damage by voting for it. 0hile in principle no one knows the outcome beforehand, the system can E and has been E manipulated if there are by elections in a district after overall election results have already been published. 3uring byelections in 3resden in :;;A, additional #second votes$ for the Christian 3emocrats would not have added any e%tra seats for them. They already had obtained three overhang mandates, so one seat would only have been converted from an overhang mandate to a regular mandate. However, the additional #second votes$ in (a%ony would have meant that the Christian 3emocrats in 5orth .hine 0estphalia would have had to surrender a seat to (a%ony. Thus, additional votes in 3resden would have cost the Christian 3emocrats a seat overall. Calculations from past elections also show how a few thousand e%tra votes in certain (tates had cost parties seats, and vice versa. "n its 1udgment of 3 >uly :;;8 ): ,vC K;B K : ,vC BK;B*, the Federal Constitutional Court allowed the lawmaker until 3; >une :;77 for the adoption of a system that complies with the ,asic ?aw. 3eclaring the system void immediately would have left the country without an election system/ demanding a reform already for the following elections scheduled for :;;9 would have left the political parties too little time to consider all possible far reaching effects of even minor changes to the calculation model, and to inform voters. The Court mentioned <arliaments and ?awmaking several possible starting points for a reform, such as to 2uestion the permissibility of overhang mandates, the permissibility of nation wide combinations of party lists or the offsetting of district seats and the proportional vote. <revious election results, and the ,undestag elections taking place before the system has been reformed, still remain valid.

. . The 02ndesrat
5e%t to the directly elected ,undestag, the ,undesrat operates as a co legislative chamber. "ts historical origins lie in the co legislative chamber of the 79th century orth &erman Confederation. The institution representing (tate governments has been retained in the 78B7 6mpire and during the 0eimar .epublic, and has been reestablished in 79F9. (ince reunification and the move of the capital from ,onn to ,erlin, the ,undesrat resides in ,erlin, in the former building of the <russian upper chamber. The ,undesrat is composed of premiers and ministers of the governments of the si%teen (tates )+rt. A7 )7* ,asic ?aw*. "t is the permanent representation of the (tates at federal level. The ,undesrat has no fi%ed membership, as it is not individual people who sit there but the (tates. +ccordingly, there is no single election date, no term of office, and no possibility to dissolve the ,undesrat. "f the (tate of .hineland <alatinate holds elections as a result of which party + loses its ma1ority in the (tate parliament to party ,, then party , will take over that (tate$s government and henceforth represent the (tate in the ,undesrat. The government will have changed, but the (tate remains. "n a proper parliament, the important 2uestion would be how many seats a party has. "n the ,undesrat, the important 2uestion is how many votes a (tate has. 6ach (tate is entitled to a minimum of three votes/ (tates with over two million inhabitants have four/ (tates with more than si% million inhabitants have five/ (tates with more than seven million inhabitants have si% votes )+rt. A7 ):* ,asic ?aw*. 0hile population size does matter, this system pays tribute to the e2uality of (tates in the overall federation, because it mitigates differences in population sizes by over representing smaller (tates. +gain, it is (tates not people that count. 0ho e%actly speaks for the (tate is irrelevant as long as he is government authorized to speak for his (tate/ how many people sit in the delegation is irrelevant, since a larger delegation will not get the (tate any e%tra votes. + (tate must have at least one representative present to cast the (tate$s votes, so a plenary session with all (tates represented comprises at least si%teen members/ the ma%imum total membership of the ,undesrat in terms of persons is @9, because each (tate can only send as many representatives as it has votes )+rt. A7 )3* ,asic ?aw* and @9 is the sum of all the (tates$ votes added together. The ,undesrat acts by defined shares of its total votes, yet at least by absolute ma1ority )+rt. A: )3* ,asic ?aw*. +n absolute ma1ority is more than half of total votes, meaning 3A out of @9. + two thirds ma1ority of the votes in the ,undesrat, as it is needed for instance to approve a constitutional amendment, means that several (tates have to vote in favour of the proposal so that between them they muster F@ out of @9 votes. 6ach (tate has to vote en bloc, which means that it either casts all the votes that it has in favour of a proposal, or all against, or it abstains. + splitting of votes is not permitted. Gotes that are not cast clearly and uniformly, for e%ample if no coherent (tate opinion e%ists because the (tate government is composed of coalition parties which are in open disagreement with each other, are invalid. This the Federal Constitutional Court affirmed in its :;;: decision )78 3ecember :;;:, : ,vF 7K;:* regarding the validity of a controversial ,undesrat voting where the members of the delegation from ,randenburg had shouted conflicting statements and the president of the ,undesrat, having asked the (tate premier to clarify the (tate$s opinion, in the end counted the vote as a #yes$. The Court held= #The ,undesrat president who conducts the vote is in principle entitled, in case of an unclear situation in the course of the voting, to bring about a clarification with appropriate means and to encourage a valid voting by a (tate. The right to an in2uiry however lapses if a uniform (tate opinion evidently does not e%ist and if in the light of the overall circumstances it is not to be e%pected that such uniform opinion might emerge during the voting$. Thus, (tates either vote uniformly, or they do not vote at all. The voting takes place in the open= delegates either raise their hand, or the leading (tate delegates are called up one by one in alphabetical order of (tate names to

say out aloud #yes$, #no$ or #abstention$. Then, depending on the (tate that the delegates represent, three, four, five or si% votes are placed in the #yes$, #no$ or #abstention$ camp.

.$. Federa+ Law"a3in&

Federal statutes can be adopted in as far as the ,asic ?aw attributes legislative power to the federal level. .esidual legislative competence, that is all powers not e%plicitly stipulated as being federal, lies with the individual (tates )+rt. B; )7* ,asic ?aw*. -atters for federal competence are enumerated in two different competence catalogues, one for each type of federal competence. First, federal competence can be e%clusive, so that only the federal lawmaker can legislate/ the (tates may not legislate there unless a federal statute e%plicitly allows them to )+rts. B7 and B3 ,asic ?aw*. (econd, federal competence can be concurrent with (tate competence/ here the (tates can legislate only when and in as far as the federal lawmaker has not legislated already )+rts. B: and BF ,asic ?aw*. Framework legislation, which used to be a third type of federal competence, has been abolished in :;;@/ the same reform allowed the (tates to deviate from earlier federal legislation in certain matters of concurrent power )+rt. B: ,asic ?aw*. (ub1ect matters that are covered by neither e%clusively federal nor concurrent legislation fall under e%clusive (tate competence )see Chapter 3 for e%amples*. (ince &ermany is a member state of the 6uropean 'nion, federal and (tate legislative competences can be e%ercised only in as far as 6uropean law has not already limited, pre empted, conditioned, or superseded &erman law )see Chapter @*.

.$.1. The Le&is+ative ,r')ess

?egislative initiative for federal statutes, no matter what type of federal competence, lies with the members of the ,undestag, with the ,undesrat, and with the federal government )+rt. B@ )7* ,asic ?aw*. ,undestag rules of procedure specify the minimum number of ,undestag members needed to launch a legislative proposal= it must be tabled by a political party group or by AM of members )I B@ ,undestag .ules of <rocedure*. ?egislative proposals from the ,undesrat must be adopted by the chamber as a whole, acting by absolute ma1ority of its votes. "n practice, most bills by far are drafted and introduced by the government. "t is the ,undestag where bills have to be introduced, and it is the ,undestag that actually votes on proposals first. <roposals stemming from the ,undesrat are for that purpose forwarded via the government to the ,undestag )+rt. B@ )3* ,asic ?aw*.
The government$s proposals must first be submitted to the ,undesrat, for a preliminary consideration, before being submitted to the ,undestag )+rt. B@ ):* ,asic ?aw*. The ,undestag normally considers bills in three readings )II BA 8@ ,undestag .ules of <rocedure*. "n the first reading, the bill$s main features are discussed and the bill is referred to a ,undestag committee for further consideration/ in the second reading, committee reports and proposals for amendments are debated and voted on/ in the third reading, final amendments and, ultimately, the bill as a whole is voted on. The right to table amendments during the ,undestag process lies with the members of the ,undestag. To pass in the final reading, a bill re2uires a simple ,undestag ma1ority )+rt. F: ):* ,asic ?aw*.

.$.2. The 02ndesrat

!nce the ,undestag has passed a bill, it is forwarded to the ,undesrat )+rt. BB )7* ,asic ?aw*. The influence of the ,undesrat now depends on whether the ordinary legislative procedure applies, or whether the ,undesrat$s consent is re2uired. The ,asic ?aw may provide that the ,undesrat$s consent is needed in order to pass a federal statute, which is the case whenever an +rticle in the ,asic ?aw e%plicitly states that #this statute re2uires the consent of the ,undesrat$, or includes a variation of this formulation. !therwise, the ordinary procedure applies. "f the ordinary procedure applies, then the ,undesrat, acting by absolute ma1ority of its total votes, can approve the bill, re1ect it, or appeal to a conciliation committee in order to seek a compromise with the ,undestag. 0hile the ,undesrat itself has no power of amendment, the conciliation committee can suggest amendments to the bill. The ,undestag votes again on the proposed compromise )+rt. BB ):* ,asic ?aw*, which is then, if approved by simple ,undestag ma1ority, again referred to the ,undesrat.

"f the ,undesrat )eventually* approves the bill as passed by the ,undestag, or does not ob1ect to it within two weeks of receipt or does not appeal to the conciliation committee in the first place, the bill is considered adopted )+rt. B8 ,asic ?aw*. "f the ,undesrat re1ects the bill with an absolute ma1ority of votes, it is sent back to the ,undestag/ the ,undestag can then vote again and, this time with an absolute ma1ority of its members, reaffirm the bill, in which case the ,undesrat gets overruled and the bill passes anyway. "f the ,undesrat has re1ected the bill with a two thirds ma1ority of its total votes or more, the ,undestag re2uires a two thirds ma1ority of votes cast, representing at least an absolute ma1ority of its members, in order to overrule that re1ection )+rt. BB )F* ,asic ?aw*. Thus, if the ,undesrat does not muster an ob1ecting ma1ority, the bill is passed/ if it does, and the ,undestag does not muster the re2uired ma1ority for a counter vote, the bill fails. "f the ,undesrat$s consent is re2uired, the bill passes only if the ,undesrat approves it with at least an absolute ma1ority of total votes, or two thirds where the ,asic ?aw so provides. +n important e%ample of bills that re2uire ,undesrat consent are constitutional amendment bills, which need the consent of both ,undestag and ,undesrat acting by a two thirds ma1ority of members or votes, respectively )+rt. B9 ):* ,asic ?aw*. (tatutes on ta%es the revenue from which is wholly or partly intended for the budgets of the (tates or municipalities )+rt. 7;A )3* ,asic ?aw* also re2uire bicameral approval. 'ntil :;;@, the adoption of statutes the e%ecution of which is delegated to the (tates and whereby the federal level adopts administrative guidelines also re2uired ,undesrat approval )+rts. 8F and 8A ,asic ?aw*/ as a result, more than half of bills re2uired ,undesrat consent which meant, if the opposition controlled the ,undesrat, the country could be paralyzed. The >oint 3ecision -aking Trap +s citizens become dissatisfied with an incumbent government, they often vote for the opposition at their ne%t (tate elections. Thereby they help the opposition, forming ever more (tate governments, to gradually take over the ,undesrat. 0henever this happens, ,undestag and ,undesrat, government and opposition, are locked in the so called #1oint decision making trap$ of two chambers with opposite ma1orities. The result is that the government can be held hostage by the opposition and &ermany is effectively governed via the conciliation committee that works out compromises between the two. The general trend in constitutional reform is therefore to grant the (tates more autonomous powers of their own, and in return loosen their grip on federal lawmaking by making fewer bills sub1ect to absolute ,undesrat vetoes. (till, it should be noted that federalism and bicameralism are e%actly intended to slow processes down, and to avert a concentration of power and the adoption of e%tremist or erratic policies. + constitutional amendment of :;;@, dubbed #federalism reform$, sought to disentangle federal and (tate competences. + number of sub1ect areas were transferred to either e%clusive federal or e%clusive (tate 1urisdiction. "n return for greater autonomy and the right to deviate from federal law in certain areas, the (tates agreed to bring back the number of absolute veto provisions. -ost notably, +rticle 8A was stripped of the ,undesrat consent re2uirement for statutes that allowed the Federation to adopt administrative guidelines, although the provision now allows the (tates to deviate from such federal guidelines )unless the statute provides that they may not deviate, in which case the statute does re2uire ,undesrat consent*.

Mind the De/a2+t

"n the ordinary legislative procedure in &ermany, where ,undesrat consent is not needed to pass a bill, a (tate$s abstention counts as a non ob1ection, and therefore as approval by default/ if ,undesrat consent is re2uired, however, abstentions count as non support and therefore as votes against the bill. "n :;;8 a frustrated federal minister of the interior suggested to change the ,asic ?aw so as to calculate ma1orities of votes actually cast. He argued that (tates which abstain because there are internal disputes within their government coalition should not be allowed to paralyze the system. The suggestion was widely criticized as anti federal.

To seek a compromise in case of disagreement over a bill that re2uires its approval, the ,undesrat again can appeal to the conciliation committee, which in turn can propose amendments to be voted on by the ,undestag. Let ultimately, without ,undesrat approval, the bill is not passed. "f no #,undesrat consent$ formula appears in the relevant constitutional provision, the normal procedure applies and the ,undesrat can be overruled in accordance with +rticle BB )F* of the ,asic ?aw. 3.F.3. The <resident ,ills that have passed the legislative process involving ,undestag and ,undesrat are submitted to the Federal <resident. The <resident as head of state signs bills into law after they have been countersigned by government members )+rt. 8: )7* ,asic ?aw*. The <resident retains a task of constitutional review, however, meaning that he may, and in fact must, refuse to sign legislation that he deems violate the ,asic ?aw, or that has been adopted in an unconstitutional manner. ,ills adopted in a process that suffered from procedural defects may not be signed by the <resident since +rticle 8: )7* only speaks of statutes #completed in accordance with the provisions of this ,asic ?aw$. +s regards substantive defects, the ,asic ?aw does not e%plicitly provide for any presidential veto. "t e%ists, however, as a matter of constitutional convention derived from +rticles 7 )3* and :; )3* of the ,asic ?aw which commit state authority to respect for human rights and the constitutional order. Thus, the <resident may not carry out acts that violate the ,asic ?aw, nor sign and approve acts that do. The presidential constitutional review power is not entirely uncontroversial, though, especially as regards alleged substantive defects. +s a matter of principle, and in contrast to the 0eimar .epublic, the ,asic ?aw does not stipulate a strong presidency. "n practice, a <resident$s refusal to sign unconstitutional legislation remains an e%ceptional measure, if the violation of the ,asic ?aw is obvious and if it would create far reaching and possibly irreversible effects. + presidential veto for purely political reasons does not e%ist )see also Chapter A*.

$. The United %in&d'"

The <arliament of the '4 is bicameral. "t consists of the House of ?ords, which is an unelected upper chamber, and the House of Commons, which is the directly elected lower chamber. <arliament evolved from the medieval 4ing$s Council, a feudalist advisory assembly convened by the monarch/ the two chambers have been meeting separately since the 7Fth century. ,oth chambers reside in 0estminster <alace in ?ondon, and the <arliament is therefore known as 0estminster <arliament.

$.1. The C'""'ns

The House of Commons, comprising #commoners$ as opposed to the nobility and clergymen in the ?ords, represents the people of the '4. The commons have first been summoned to <arliament in the late 73th century, and were included in the -odel <arliament called by 6dward " in 7:9A )see also Chapter :*. !riginally the Commons comprised representatives of the various counties, towns and boroughs. The franchise was gradually e%panded since the 783;s, so that a larger share of the population was actually represented. The .epresentation of the <eople +ct of 783: reduced the minimum property status a person had to hold in order to gain the right to vote, and it distributed voting districts more fairly/ women were granted the right to vote in 7978/ property re2uirements for the franchise were abolished, and the same minimum voting age for women and men was introduced, in 79:8. The House of Commons is elected for a ma%imum period of five years/ to e%tend its term, the Commons must pass a statute that receives the approval of the ?ords )<arliament +ct 7977*. The <rime -inister may also decide to hold elections earlier than scheduled/ in that case he formally re2uests the 4ing to dissolve the Commons and to call early elections. ,y constitutional convention, the 4ing always complies with the <rime

-inister$s re2uest )see also Chapter A*. For the purposes of elections of the Commons, the '4 territory is divided into single member constituencies. The number of districts, as well as district borders, are fi%ed by statute. +s of :;;A, the commons had @F@ members, each representing one constituency. "n order to win a constituency, a candidate must gain a plurality of votes there. The returning officer, the official in charge of the ballot, draws a lot in case of a tie between two or more strongest contenders. Constituency (ystems such as France stress that the entire parliament represents the population as a whole, not that individual members represent individual voters. The '4 tradition is different= members are closely associated with the constituency they are from. "n fact, members of the House of Commons address each other during debates as members from the district they represent.

$.2. The L'rds

The House of ?ords is not an elected assembly. "ts membership comprises two categories= ?ords (piritual and ?ords Temporal. The ?ords (piritual are the two archbishops, three specific bishops and a further twenty one senior bishops of the Church of 6ngland ),ishoprics +ct 78FB*. +nglican bishops are appointed by the 4ing on the advice of the <rime -inister. ?ords Temporal are the non clerical peers. There are two types of non clerics in the ?ords= life peers and hereditary peers. The <arliaments and ?awmaking difference is that hereditary peers inherit their seat in the ?ords and pass it on to the ne%t generation, while life peers are appointed in their own lifetime and do not pass on their seat. Hereditary peers were historically the most important and, at about B;; members towards the end of the :;th century, also the most numerous category of peers. The House of ?ords +ct 7999 abolished hereditary peerages, however, allowing only 9: sitting hereditary peers to keep their seat until the ne%t stage of House of ?ords reform. +ll peerages are awarded by the 4ing upon the advice of the <rime -inister/ peers may choose not to actually participate in the work of the House. The Award '/ ,eera&es (ince it is effectively the <rime -inister, rather than the monarch, who decides on who receives a life peerage, there is a danger that peerages may be awarded in return for favours, such as donations for the government party. This is one of the arguments to reconsider the composition or appointment process of the ?ords. The House of ?ords is, historically, also the highest court in the '4 )see Chapter @*.To underline the distinctness of legislative and 1udicial work, 1udicial functions were e%ercised by ?aw ?ords, or #?ords of +ppeal in !rdinary$. >udges could be awarded life peerages so that they could 1oin the House as ?aw ?ords. Convention dictated that ?aw ?ords would not participate in the consideration of legislative proposals. To separate 1udicial and legislative functions even more strictly, however, the '4 set up a proper (upreme Court. The House of ?ords loses its 1udicial task. The first (upreme Court of the '4 is staffed by the ?aw ?ords e%tracted from the House of ?ords )Constitutional .eform +ct :;;A*.

Re/'r" '/ the 1'2se '/ L'rds

+ reform process is ongoing to adapt the '4 ?ords, in essence a traditional nobility chamber, to more modern constitutional standards. +lready in 7977 the ?ords were deprived of their general absolute veto in the legislative process, but reform of the ?ords continues into the :7st century. +s of 7999, the number of hereditary peerages was severely cut. +s of :;;A, the 1udicial function of the ?ords was abolished. The ?ord Chancellor is no longer the speaker of the House of ?ords )historically, the ?ord Chancellor was a government minister, and the speaker of the House of ?ords, and the chief ?aw ?ord E a merger of e%ecutive, legislative and 1udicial tasks in a single office*. 3ebate about the role of the ?ords continues= 2uestions are raised as to how peers should be selected/ whether they should simply be democratically elected/ or whether they might come to represent the '4 regions in one form or another. 'ltimately, the cuestion is whether the ?ords might be abolished altogether. Let the ?ords are deeply entrenched in '4 history and society. Their role as an additional check on the government has come to be cherished, so that abolition looks highly unlikely.

$. . The Le&is+ative ,r')ess

?egislative power in the '4 is e%ercised by 0estminster <arliament, passing statutes that receive the 4ing$s royal assent. Technically, therefore, the '4 legislature is referred to as the 4ing in <arliament, the monarch acting with the advice and consent of the ?ords (piritual and Temporal and Commons. "n practice, the monarch does not refuse assent, and <arliament is effectively the lawmaker. -ore specifically, since in almost all cases the Commons can refer a bill for royal assent even without the ?ords$ approval )<arliament +cts 7977K79F9*, the House of Commons is the crucial legislative chamber. The legislative powers of <arliament are, in accordance with the notion of parliamentary sovereignty or legislative supremacy, in principle unlimited. <arliament can make any law, and only <arliament can repeal its own laws. The remnant of the 4ing$s autonomous discretionary power is called the royal prerogative. .oyal prerogative covers those areas which have not yet been regulated by statute. "n practice, the 4ing e%ercises royal prerogatives with the advice of his cabinet, which effectively means that the government decides. "mportant areas of royal prerogative, and thus government power outside statutory law, are the internal organization of the civil service, the decision to declare war and make peace, the decision to dissolve the Commons and call early elections, and the appointment of ministers and peers. !nce a statute is adopted in such area, it displaces royal prerogative. +s the '4 is a member state of the 6uropean 'nion, national legislative competences can be e%ercised only in as far as 6uropean law has not already limited, pre empted, conditioned, or superseded '4 law )see Chapter @*. <roposals for '4 statutes of general application are called public bills. <ublic bills can be introduced both in the Commons and in the ?ords/ conventionally, however, bills regarding finances are introduced in the Commons. +s regards the House of Commons, bills may be initiated by the government or by individual members of the Commons. The former proposals are then called government bills, the latter private member$s bills. ,ills proceed through three readings. "n the first reading, the House of Commons is merely given notice of the bill$s being filed. "n the second reading, the bill$s main features are debated, yet no amendment on the substance or vote takes place. The bill is then referred to committees for detailed scrutiny and amendment. Committee reports are considered by the whole House, proposed amendments being approved or re1ected if there are any. "n the third reading, then, the bill is finally voted on. ,ills adopted in the Commons are referred to the House of ?ords, where they pass a largely similar process of readings. ,ills originating in the ?ords are approved by the ?ords first and are then sent to the Commons.

<arliament had originally been unicameral, as Commons and ?ords sat together. 6ven after they began to sit separately in the 7Fth century, the consent of both Houses was necessary to pass an +ct of <arliament. "t is in principle still the case today. "f one chamber proposes amendments to the other chamber$s bill, the bill can be referred back and forth until a compromise is reached. "f both the Commons and the ?ords approve the bill, the bill is referred to the 4ing for royal assent.

$. .1. R'#a+ Assent

+cts of <arliament re2uire royal assent to become law. ,y convention, the 4ing does not refuse to give royal assent. The last monarch to refuse to give royal assent to a bill passed by <arliament was Dueen +nne, in 7B;8. + future re1ection of a bill by a monarch is not inconceivable, perhaps in an emergency situation, but will not take place under normal circumstances. +fter all, it should be remembered that the deposition of a 4ing, or an abolition of the monarchy altogether as a reaction to an un1ustified royal veto, is not inconceivable either.

$. .2. The L'rds

0hile in principle both chambers must pass a bill before it is submitted to the monarch for assent, ultimately the government in the Commons may decide to override the ?ords. To do so, they may invoke the <arliament +cts 7977 and 79F9. 'nder the <arliament +cts, a bill that has originated in the House of Commons can be referred for royal assent even without the approval of the ?ords, if the Commons adopt it in two consecutive parliamentary sessions with at least one year having passed between the second reading in the first place and final adoption. #-oney bills$, which according to the assessment of the speaker of the Commons deal only with finances and ta%ation, can be referred for royal assent if the ?ords have not approved them within one month. ,ills that have originated in the ?ords in the first place cannot be adopted without the ?ords$ approval, however/ the same applies to #life prolonging$ bills that would e%tend the ma%imum period between general elections beyond the current five years. For the rest, the veto power of the ?ords is suspensive, as it may delay legislation but not stop it from entering into force. The <arliament +cts originate in the early :;th century, when the government pushed for a restriction of the absolute veto power of the ?ords. +fter the conservative dominated ?ords had re1ected a proposed ta% reform, the government under the ?iberal <rime -inister Herbert Henry +s2uith tabled a constitutional reform allowing the Commons to overrule the ?ords. The +ct by which this might be achieved however re2uired the approval of the ?ords in the first place. The government asked 4ing 6dward G"" to create so many new government friendly peers that the political balance in the ?ords would tilt in the government$s favour. The 4ing agreed to support the government if it obtained the people$s approval for the plan in general elections. The government indeed stayed in power after the following elections. 6dward$s successor, 4ing &eorge G, complied and threatened to create hundreds of new ?iberal peers. To avoid this, the ?ords approved the <arliament +ct. 977.

,a)3in& the 1'2se '/ L'rds

The threat to create massive numbers of government friendly peers had already been used in the 783;s to secure the .eform +ct, which sought to democratize the election system to some e%tent. The <arliament +ct 7977 was secured in largely the same way.

The 7977 +ct had however far reaching conse2uences, in that from that moment onwards the ?ords could theoretically be ignored altogether. "t is therefore no longer necessary to threaten to create additional peerages. The +ct allowed for most bills to be referred for royal assent without the ?ords$ approval after three parliamentary sessions over two years. +fter 0orld 0ar "", the ?abour government of Clement +ttlee called for a further reduction of the power of the ?ords. Thus, the <arliament +ct 79F9 was tabled to allow for royal assent without the ?ords$ approval already after one year, rather than two years. The 79F9 +ct was actually passed without the approval of the ?ords, as the government did not need their approval any longer. "nvoking the 7977 +ct, the government simply referred it for royal assent after two years. (ince then, the ?ords$ suspensive veto lasts one year. To avoid being overridden under the <arliament +cts, by convention the House of ?ords does not ob1ect to money bills. Furthermore, under a custom called (alisbury Convention, the House of ?ords does not obstruct the passing of bills that implement the electoral manifesto of the government, and which are therefore democratically legitimized in a strong manner. For the rest, the ?ords feel free to table amendments or re1ect bills, even if they risk being overruled.

(. Fran)e
The French parliament is bicameral, comprising the 5ational +ssembly and the (enate. The former is elected directly in single member districts with run offs/ the latter is elected indirectly, via a body of electors who themselves hold elected offices. + (enate e%isted in many of France$s constitutions, first set up under the 3irectory of 7B9A and retained in various forms and under various names by later constitutions. The (econd .epublic of 78F8, by contrast, was unicameral. The (enate under the Fifth .epublic represents the territorial subdivisions of France and, historically, French citizens living abroad )+rt. :F French Constitution*/ since the constitutional reform of :;;8, French e%patriates are represented in both the (enate and the 5ational +ssembly.

(.1. The Nati'na+ Asse"7+#

The 5ational +ssembly is the lower chamber of the French parliament. "t resides in the <alais ,ourbon in <aris. The chamber has its historic origins in the 7B89 .evolution, when the Third 6state convened by 4ing ?ouis SG" declared itself a single and unicameral 5ational +ssembly. The 5ational +ssembly is elected directly )+rt. :F French Constitution* for a term of five years )+rt. ?! 7:7 6lectoral Code*. The +ssembly comprises ABB seats )the ma%imum number has been inserted in +rticle :F in :;;8*. The electoral system applied is single member constituencies with a run off. For that purpose, each 3Npartement and overseas e2uivalent of this territorial unit is divided into electoral districts, and each district is represented by one parliamentarian. The electoral system is laid down in statutory law )+rt. ? 7@: 6lectoral Code*. "n order to win a district in the first round, a candidate must obtain an absolute ma1ority of votes cast, representing a 2uarter of registered voters in the district. "f no candidate gains an absolute ma1ority in the first round, then all candidates who have received votes corresponding to at least 7:.AM of the number of registered voters in the first round move on to a second round. "n the second round, a plurality suffices in order to win. +ssume, for e%ample, that in a district turnout was B;M of registered voters. !f the votes actually cast, candidate + obtained F;M, candidate , 3;M, candidate C :;M and candidate 3 7;M. + second round will have to be held, since no candidate managed to win an absolute ma1ority of votes cast. "n the second round only candidates +, , and C will be running, having secured shares corresponding to :8M, :7M, and 7FM of registered voters, respectively, and therefore more than 7:.AM each. (ince 3 has obtained a share e2ual to less than 7:.AM of the number of registered voters in the first round, he does not move on to the second round. "f in the second round candidate + again wins F;M of votes cast while , and C win 3;M each, candidate + will have secured a plurality and is elected.

.un !ff Goting + single member district system normally punishes small parties as voters are reluctant to #waste$ their votes on small party candidates and to eat into the vote of promising big party ones. The run off, however, allows voters to choose more freely and less tactically, knowing that in all likelihood there will be a second vote anyway. 6ven if their favourite candidate does not 2ualify for a second round, voters have another opportunity to opt for their second choice. The run off also allows parties to strategically withdraw their candidates in selected districts and to endorse an ally of a similar political colour. "n the end, since smaller parties have a chance to unfold their potential, and even though two big party alliances tend to emerge, the French 5ational +ssembly is not a two party parliament but has a multi party landscape. "f only one candidate obtains the minimum share to proceed to the second round, but no absolute ma1ority, he and the second strongest candidate advance to the second round/ if the minimum share is not obtained by any candidate at all, the two strongest candidates advance. "f votes are tied in the second round, the older candidate is elected )+rt. ? 7:@ 6lectoral Code*.

,r'.'rti'na+ Re.resentati'n
"n the 798;s, the (ocialist government introduced proportional representation as a fairer way of electing the 5ational +ssembly. "ronically, the system immediately allowed a small far right party to enter parliament. The conservatives, who had narrowly won these first proportional representation elections, favoured a return to single member constituencies as well. The reform was therefore 2uickly reverted, so that now the single member constituency system applies again.

(.2. The Senate

The French (enate is an indirectly elected upper chamber. "t resides in the <alais de ?u%embourg in <aris. 'ntil :;;F, (enators were elected for nine year terms with one third of the (enate being re elected once every three years. +s from :;;F, a reform process based on a statute of 3; >uly :;;3 )(tatute no. :;;3 @9@* is effective, which is to conclude with the senatorial elections of :;77. 0ith each new round of elections, the (enators$ term of office is to be gradually reduced from nine years to si%, with half of the (enate being re elected once every three years/ the number of (enators is to gradually increase to 3F8/ the minimum age to be elected has already been lowered from 3A to 3; years. (ince :;;8, +rticle :8 of the French Constitution e%plicitly caps the number of (enators at 3F8. The (enate is elected by a body of roughly 7A;,;;; electors. These electors do not meet all at once, however, but cast their votes at the level of France$s territorial sub units, more in particular within those sub units whose (enators are facing reelection. The (enate is after all to represent French territorial subdivisions )+rt. :F French Constitution*. -ost (enators by far are elected within the 3Npartements, the administrative districts, of metropolitan France )continental France and Corsica* as well as the overseas departments. +s of :;77, this category will eventually comprise 33@ out of 3F8 (enators. !ther overseas dependencies keep electing between one and two (enators each. Twelve seats are, and will continue to be, reserved to represent French e%patriates. +s far as metropolitan France, overseas departments and other overseas dependencies are concerned, separate electoral college votes take place at the level of the departments. 0ithin each department, the electoral college comprises= the members of the 5ational +ssembly whose constituency lies in that department/ the members of the elected council of the department/ and the members of the council of the .Ngion, the higher regional unit, who are elected within that department/ the other 9AM of the electoral college are made up of delegates from elected municipal councils within that department. The number of delegates per municipal council is related, but not proportional, to the municipalities$ population size. Councils of municipalities with 9,;;; inhabitants or

less delegate between one and fifteen of their members to the electoral college, depending on the size of the municipal council/ in the case of municipalities with between 9,;;; and 3;,;;; inhabitants, all council members are electors/ in the case of municipalities larger than 3;,;;; inhabitants, the delegation consists of all council members plus one additional delegate per 7,;;; inhabitants in e%cess of 3;,;;; )+rts. ? :8F and ? :8A 6lectoral Code*. The number of (enators to be elected within each department and overseas dependency is fi%ed by statute, roughly reflecting its population size. The election method depends on the number of (enators. "n departments electing three (enators or less, an absolute ma1ority vote with a plurality run off is held for each post to be filled during partial re elections of the (enate/ proportional representation is applied in departments electing four (enators or more. <arliaments and ?awmaking The (enate$s ,ias !verall, the composition of the electoral body of the French (enate is heavily biased towards small town municipalities. 3elegates of municipal councils make up the overwhelmingly largest single category of electors, and therein small rural councils are grossly overrepresented with respect to big city councils when taking into account population size. This helps ensure that while 5ational +ssembly ma1orities may shift, the (enate remains dominated by conservatives. The twelve (enators who are elected to represent French citizens living abroad are elected via proportional representation by the 7A; elected members of a special council/ these council members are in turn elected by French e%patriates in French consulates outside France.

(. . The Le&is+ative ,r')ess

(tatutes may be passed by the French parliament in as far as they concern sub1ectareas that are e%plicitly listed as being matters for statute )+rt. 3F French Constitution*. These parliamentary statutes are then called ?ois. (ub1ect areas not listed as falling under parliamentary competence remain sub1ect to regulation or .Tglement by the government )+rt. 3B French Constitution*. (ince France is a member state of the 6uropean 'nion, French legislative competences can be e%ercised only in as far as 6uropean law has not already limited, pre empted, conditioned, or superseded French law )see Chapter @*. ?egislative initiative for statutes within national competence lies with the <rime -inister, the 5ational +ssembly and the (enate )+rt. 39 French Constitution*. &overnment bills are first presented to the Council of (tate, an advisory body, for an opinion/ the constitutional reform of :;;8 allows for private member$s bills to be referred to the Council of (tate as well. !nce introduced, a bill must in principle pass both chambers in order to be adopted )+rt. FA French Constitution*. The <rime -inister may choose in which chamber to introduce his bills first/ however, bills dealing primarily with France$s territorial subdivisions must first go to the (enate while finance and social security financing bills first go to the 5ational +ssembly. &overnment and government endorsed bills are set on the parliamentary agenda with priority, yet since the :;;8 reform that rule only applies to two out of four weeks )+rt. F8 French Constitution*. The power of amendment lies with the government and, in principle, with the members of the two chambers of parliament )+rt. FF French Constitution*. However, parliamentarians are barred from tabling amendments or proposing bills of their own if such bills or amendments would raise public e%penditure or decrease revenue )+rt. F; French Constitution*. Furthermore, the government may declare parliamentarians$ bills and amendments inadmissible if they concern non statutory areas or areas of legislation already delegated to the government/ the Constitutional Council rules in case of disagreement )+rt. F7 French Constitution*. &overnment bills are first discussed in their original version )+rt. F: French Constitution*. +ll bills are referred for detailed scrutiny to a parliamentary committee, which can propose amendments )+rt. F3 French Constitution*/ the government can ob1ect to parliamentarians$ amendment proposals if these proposals have not first been referred to a committee )+rt. FF French Constitution*.

The government can rule out parliamentary amendments altogether by insisting on a single vote or vote blo2uN= the respective parliamentary chamber must then vote on the entire bill as a whole, or a selected part of the bill, and only with those amendments that the government has accepted or introduced itself )+rt. FF French Constitution*. !therwise, each chamber votes on proposed amendments and draft provisions one by one, and finally on the bill as a whole. 5e%t to invoking the take it or leave it option of the single vote, when a bill is before the 5ational +ssembly, the <rime -inister may also make the passing of a bill a matter of the 5ational +ssembly$s parliamentary confidence in his government. "n that case, the bill is considered adopted unless the 5ational +ssembly brings down the whole government by a motion of censure )+rt. F9 French Constitution,see also Chapter A*. (ince :;;8, this procedure is limited to financial and social security bills and, apart from that, to one bill per session. &enerally, the :;;8 reform lifts some of the traditional restrictions on parliament. 6%tended waiting periods )+rt. F: French Constitution* ensure that bill cannot be pushed through too hastily/ autonomous agenda setting is e%panded )+rt. F8 French Constitution*/ the approval by default procedure in the 5ational +ssembly under +rticle F9 has been restricted. "n addition, parliament is allowed to initiate a referendum )+rt. 77 French Constitution* and to veto certain important presidential nominations )+rt. 73 French Constitution, see also Chapter A*. &enerally,however, at least as far as constitutional rules are concerned, the French parliament remains rationalized, i.e. restricted, compared with the parliaments of many other 0estern democracies. <arliamentary agenda setting is still not completely autonomous, amendment powers remain restricted, the budget can still be enacted without parliamentary approval and the procedure for approval by default still e%ists.

(. .1. The Senate

"n case the 5ational +ssembly and the (enate are in a disagreement with each other over a bill, and do not adopt it in identical terms, the bill is referred back and forth in a procedure called navette or #shuttle$ until a compromise is found or the bill is abandoned. The <rime -inister may, however, also convene a 1oint committee of seven members of each chamber/ this he can do after two unsuccessful readings in both chambers, or, if the government has declared the matter urgent, already after one reading. .eading here means the entire process of one consideration of a bill in one chamber. (ince :;;8, the presidents of the two chambers may 1ointly oppose the application of this accelerated procedure. "f convened, the 1oint committee$s task is to draft a compromise, but it cannot propose any amendments against the government$s will. "f the conciliation process fails, the government may after one more inconclusive reading in both chambers ask the 5ational +ssembly to decide in last instance, thus overriding the (enate )+rt. FA French Constitution*. (hould the 5ational +ssembly fail to adopt a finance bill, for e%ample the budget, within forty days, the government may e%pedite the process by referring the bill to the (enate, which must rule within fifteen days, and by then convening a 1oint committee. "f after seventy days there is still no agreement, the government may enact the bill by way of government ordinance )+rt. FB French Constitution*. The same applies to social security financing bills, only here the government may refer bills to the (enate already after twenty days and enact them itself after fifty days )+rt. F8 French Constitution*.

(. .2. Or&ani) Stat2tes

(ome statutes are 2ualified by the Constitution as #organic statutes$ or ?ois organi2ues )+rt. F@ French Constitution*. These are statutes regulating important institutional matters, for e%ample the electoral system for the two chambers of parliament. The process of parliamentary consideration of organic statutes is in principle the same as for ordinary statutes. The first difference, though, is that a cooling off period of si% weeks in the first chamber seized or four weeks in the second chamber seized must lapse before plenary debates and voting on the bill may start/ if the government starts the accelerated procedure, the period in the first chamber seized is fifteen days. (econd, when the two chambers are in disagreement with each other about an organic statute, and the usual 1oint committee procedure has failed, the 5ational +ssembly re2uires an absolute ma1ority of members to override the (enate in final instance. Third, organic statutes that relate to the (enate re2uire the consent of the (enate itself, and thus the 5ational +ssembly cannot make the final decision in these cases. Fourth, organic statutes must always be cleared by the Constitutional Council as being compatible with the Constitution before they may enter into force.

(. . . The ,resident
,ills adopted by parliament in one way or another are referred to the <resident for promulgation. The <resident must sign all bills within fifteen days/ he may re2uest only one reconsideration of the bill in parliament )+rt. 7; French Constitution*, but he has no veto. +s long as they are not promulgated, bills regarding ordinary statutes may be referred to the Constitutional Council for a review of their constitutionality/ bills for organic statutes, along with draft parliamentary rules of procedure, must always be checked by the Constitutional Council before they may be promulgated )+rt. @7 French Constitution*.

,residentia+ Disa..r'va+
"n :;;@, <resident >ac2ues Chirac was confronted with an unpopular bill on labour market reform which had provoked mass protests on the streets. +fter he had e%hausted his means to delay promulgation, and the Constitutional Council found the bill as such constitutional, he was forced to sign it. He added that he did not want the law to be applied in practice, though. This was considered a helpless and disgraceful appeal.

(. .$. The C'nstit2ti'na+ C'2n)i+

The Constitutional Council is a body that plays an important role in the French legislative process. The Council is composed of nine appointed members )+rt. A@ French Constitution*. Three of these members, including the chairman, are appointed by the <resident of the .epublic, three are appointed by the president of the 5ational +ssembly, and three by the (enate president. The members serve nonrenewable terms of nine years each/ three of the members are replaced once every three years, meaning that once every three years the <resident and the two speakers get to appoint one new member each. The :;;8 reform allows parliamentary comitNs from both chambers to be involved in presidential nominations, and stipulates that the nomination is deemed vetoed if three fifths of the added total votes cast by both committees are against the nomination )+rts. 73 and A@ French Constitution*. "n addition to the appointed members, former <residents may 1oin the Council as life members. 0hen the number of Council members is even and votes are tied, the vote of the Council chairman decides.

Traditionally, the main tasks of the Constitutional Council are to check the validity of elections and referendums, and to control the constitutionality of bills adopted by parliament before they enter into force. The setting up of the Council may be seen against the backdrop of the rationalization of parliament in the Fifth .epublic= parliament is no longer the 1udge of its own elections, and its bills are sub1ected to further scrutiny as regards their compliance with the Constitution. (ince :;;8, the Constitutional Council is also charged with the review of the constitutionality of statutes already in force )see for details Chapter @*. This is a novelty in French constitutional law/ the idea behind the establishment of the Council in the first place was indeed the e% ante review of bills before they became law. !riginally, constitutional review of bills before promulgation mainly concerned the 2uestion whether or not parliament had stayed within its competences to legislate in the first place. "t was thus a check on parliament via a review of the formal constitutionality of bills. "n 79B7, however, the Council e%panded the scope of its review powers so as to include fundamental freedoms. 0hile the French Constitution itself contains no human rights catalogue against which to check bills, the Constitution$s preamble does contain a reference to human rights as enshrined in the 3eclaration of the .ights of -an and the Citizen of 7B89 and the preamble to the constitution of the Fourth .epublic of 79F@. Controlling the constitutionality of a bill that would have restricted the right to form associations, the Council held that, via the preamble, the revolutionary bill of rights and the preamble of the predecessor constitution formed an integral part of the current Constitution. +s a result, bills must not only comply with formal rules on first place was indeed the e% ante review of bills before they became law. !riginally, constitutional review of bills before promulgation mainly concerned the 2uestion whether or not parliament had stayed within its competences to legislate in the first place. "t was thus a check on parliament via a review of the formal constitutionality of bills. "n 79B7, however, the Council e%panded the scope of its review powers so as to include fundamental freedoms. 0hile the French Constitution itself contains no human rights catalogue against which to check bills, the Constitution$s preamble does contain a reference to human rights as enshrined in the 3eclaration of the .ights of -an and the Citizen of 7B89 and the preamble to the constitution of the Fourth .epublic of 79F@. Controlling the constitutionality of a bill that would have restricted the right to form associations, the Council held that, via the preamble, the revolutionary bill of rights and the preamble of the predecessor constitution formed an integral part of the current Constitution. +s a result, bills must not only comply with formal rules on competence allocation but also with substantive human rights standards. The disputed part of the bill in 2uestion was declared unconstitutional for a violation of the freedom of association )3ecision B7 FF 3C of 7@ >uly 79B7*. "n :;;8, the review of fundamental rights as guaranteed by the Constitution was e%plicitly inserted into +rticle @7 7, which deals with the review of legislation in force. The reference formally codifies the review grounds which are applied in practice. The Constitutional Council engages in constitutional review of bills in two cases, namely via compulsory and optional review. 3raft organic statutes and draft rules of procedure of the two chambers of parliament must always be checked for their constitutionality before they can become effective. +ll other draft statutes can be checked upon re2uest. (uch a re2uest can be made by the <resident, the <rime -inister, the president of the 5ational +ssembly, the president of the (enate, a group of si%ty members of the 5ational +ssembly and a group of si%ty members of the (enate )+rt. @7 French Constitution*. The <resident may not promulgate statutes pending constitutional review/ the Council must decide within one month or, if the government declares the matter urgent, within eight days. "f the Constitutional Council holds that the bill complies with the Constitution, the <resident promulgates t and the statute enters into force. "f the Council finds a violation of the Constitution in the bill e%amined, however, the bill, or the unconstitutional parts of it, may not enter into force )+rt. @: French Constitution*. The other actors in the lawmaking process are then confronted with the choice of either changing the bill so as to make it constitutional, or abandoning the bill, or trying to amend the Constitution itself. The Council may also declare bills constitutional provided they are interpreted in a certain way/ typically this interpretation is respected.

The Constitutional Council and the !pposition !riginally, the only functionaries who could refer bills to the French Constitutional Council were the <resident, the <rime -inister, and the presidents of the two Chambers of parliament. The possibility for si%ty members of either chamber to refer bills was created via a constitutional amendment in 79BF. Thus, parliamentary minorities since then have at their disposal a tool to have bills checked that may have been adopted by the ruling ma1ority against their will. However, since the Constitutional Council can only start e% ante review of bills between the moment of their adoption in parliament and their promulgation by the <resident, the opposition may have to be 2uick on their feet= the <resident is not obliged to wait for any references to the Council. Thus, if the <resident signs the bill before a reference is made, the statute enters into force, and the opportunity for e% ante constitutional review is gone. (ince e% post review is allowed pursuant to the :;;8 reform, the urgency might diminish somewhat. Traditionally it was problematic to consider the Constitutional Council a constitutional court. +lthough many members of the Council are law professors in practice, they do not necessarily have to be lawyers/ although Council procedures resemble adversarial proceedings for and against a bill, such as opposition versus government, strictly speaking there is no defendant, and the review is completely abstract. "ndividuals cannot bring cases for constitutional review before the Council, and until :;;8 the Council did not hear any 1udicial disputes between private parties, neither via preliminary references nor on appeal. (ince :;;8, or at least starting with the entry into force of the organic statute pursuant to +rticle @7 7, the Council has ac2uired rather more court like characteristics, in that it now may hear preliminary references from the two supreme courts on whether a statute in force is constitutional )see Chapter @*. The Council can now be placed with greater confidence in the larger family of 6uropean constitutional courts.

*. The Nether+ands
The (tates &eneral are the bicameral parliament of the 5etherlands. "t comprises the directly elected (econd Chamber, or lower house of parliament, and an indirectly elected First Chamber. ,oth Chambers reside in the ,innenhof, a castle like comple% of medieval and early modern buildings, with modern e%tensions, in The Hague. ,icameralism has been introduced in 787A, when the ,elgian members of the constitution drafting committee insisted on the creation of a nobility chamber or the 'nited 5etherlands/ after ,elgium seceded from the 4ingdom, the (tates &eneral remained bicameral.

*.1. The Se)'nd Cha"7er

The (econd Chamber consists of 7A; members, who are directly elected for a term of four years in a system of proportional representation )+rts. A7 ):*, A:, A3 and AF 3utch Constitution*. Twenty percent of votes will roughly correspond to twenty percent of seats. + threshold of 7K7A;th of total votes cast is applied, since a party must gain at least one full seat in order to be represented )+rt. <B ):* 6lections +ct*/ voters vote for party lists but may cast preference votes for individual candidates on the list of their choice. To translate votes into seats, the 5etherlands uses the d$Hondt method of largest averages. First, an electoral divisor is established, namely the total number of votes cast nation wide divided by the total number of available seats in parliament. The divisor represents the number of votes needed to obtain one seat. "t is then established how many times the divisor fits into each party$s number of votes. +fter seats are distributed based on whole numbers, some seats will usually remain unassigned. These rest seats go to the parties that have the highest average number of votes per seat if they had one seat more than they actually have so far. For e%ample, assume that party + has won 3,F8B,:;9 votes, party , :,;89,FB@ and party C 7,;3F,7:@, out of the total 9,A:3,B@; votes cast nation wide. The electoral divisor is 9,A:3,B@; K 7A; U @3,F97.B33. This leads to the following initial distribution of seats=

<arty += 3,F8B,:;9 K @3,F97.B33 U AF.9:3... <arty ,= :,;89,FB@ K @3,F97.B33 U 3:.9;9... <arty C= 7,;3F,7:@ K @3,F97.B33 U 7@.:8B... ,ased on whole numbers, party + has won AF seats, party , 3:, and party C 7@ out of 7A; seats in the (econd Chamber. +ssume rest seats are left unassigned, because numbers did not divide decimal free. !ne seat is added, for calculation purposes, to the seats that the parties have already obtained, and the sum is divided by the party$s total number of votes. For the parties in the e%ample, this means= <arliaments and ?awmaking <arty += 3,F8B,:;9 K )AF V 7* U @3,F;3.8 <arty ,= :,;89,FB@ K )3: V 7* U @3,37B.FA <arty C= 7,;3F,7:@ K )7@ V 7* U @;,83;.9F "f we only look at the three parties in the e%ample, then the first rest seat goes to party +, because it has the highest average number of votes per seat after one seat has been added to its seats so far/ the second rest seat goes to party , with the second highest average, etc. The process is repeated until all 7A; seats are distributed. !nly parties that have a number of votes that is at least e2ual to the electoral divisor may participate in the race for rest seats. Thus, if party 3 has won @:,;;; votes nation wide, then it will not get a full seat based on whole numbers )because @:,;;; is lower than @3,F97*, and it will not be entitled to rest seats via highest averages either. The electoral threshold is thus the electoral divisor, or one full seat, corresponding to 7K7A;th or about ;.@M of the national vote. <arties rank their candidates on lists in advance of the vote. "f a party wins 3A seats, then its top 3A list candidates will in principle move in to occupy them. To a certain e%tent, voters have a say over party ranking at elections, however. "nstead if voting for number one on the list, which is typically the party leader, they may cast a #preference vote$ for a lower ranking list candidate of the party of their choice. For overall seat distribution, the vote still counts as a vote for the party, no matter which candidate is preferred. ?ist candidates can be elected via preference votes if they obtain :AM of the electoral divisor, as long as their party is represented in the (econd Chamber in the first place )+rt. <7A ):* 6lections +ct*. "n the above scenario, if a list candidate obtains at least 7A,8B: votes )a 2uarter of the divisor*, he can get a seat via preference votes even though his party had ranked him too low to get into parliament via the list order/ higher ranking candidates with fewer preference votes move one place down on that list. reference Gotes <reference votes as used in 3utch (econd Chamber elections may help reveal the relative popularity of a party$s politicians. ?ow ranking but popular list candidates can gain attention and clout this way. "t may even be that the party$s number two on the list that the party$s number two on the list gets more preference votes than the leader on place one for whom most people vote by default. The practical impact of preference votes is limited, however. Gery few candidates have ever received a seat via preference votes that they would not have received anyway via their list ranking. "ntroducing a stronger personal element to parliamentary elections remains an item of 3utch long term constitutional reform debate. + &erman style mi%ed member system that is still based on proportional representation is at times considered= voters could cast one vote for a party list and another vote for a local district candidate. However, since the traditional &erman system includes the possibility of overhang mandates, it could no longer be guaranteed that the number of (econd Chamber seats would stay at 7A;. That number is fi%ed in the Constitution, though, so an amendment might be necessary. (ince the &erman election system has been found unconstitutional in :;;8, its appeal may fade anyway.

*.2. The First Cha"7er

The First Chamber of the (tates &eneral is a senatorial assembly. "t consists of BA members elected for a term of four years )+rts. A7 )3* and A: 3utch Constitution*. The members of the First Chamber are elected all at once by all the members of the parliaments of the twelve 3utch provinces via a system of weighed proportional epresentation )+rts. A3 and AA 3utch Constitution*. The provincial parliamentarians meet within their own

province. 6ach provincial parliamentarian has one vote, which is then multiplied by a factor that is to reflect his province$s population size. The factor is established by dividing the province$s population number by a hundred times the number of parliamentarians in that province )+rt. ': 6lections +ct*. +ssume that 3; of the A7 members of the parliament of province S vote for party +, and that province S has BF;,7:F inhabitants. The province$s population factor is BF;,7:F K )A7 % 7;;* U 7FA.7:, so the 3; votes count as 3; % 7FA U F,3A; votes for party + from province S. The proportional distribution of First Chamber seats among political parties follows the same principle that is applied to (econd Chamber elections. Thus, the total number of )weighed* votes is divided by the number of First Chamber seats/ each party$s number of votes is divided by the resulting divisor to distribute seats based on whole numbers/ rest seats are awarded to parties that have the highest average number of votes per seat if they had one seat more than they actually have/ that last procedure is repeated until all BA seats are distributed/ members can be elected via preference votes if they have obtained A;M rather than :AM of the electoral divisor.

The ,2r.'se '/ the First Cha"7er

(ince the 5etherlands neither needs a #House of ?ords$ nor federal representation, the rationale of keeping a senatorial chamber is contested. &enerally, bicameralism is accepted as desirable for its own sake. The First Chamber may take more time to reflect on the 2uality or constitutionality of bills. "t also invests more energy into the scrutiny of 6uropean legislative proposals, which are important but often attract little interest in the (econd Chamber because the national parliament will not vote on them itself and the proposals seem far removed from voters$ concerns.

*. . The Le&is+ative ,r')ess

The lawmaker in the 5etherlands is defined as the government and the (tates &eneral acting together )+rt. 87 3utch Constitution*. The government is the 4ing and his ministers/ the (tates &eneral are the (econd Chamber and the First Chamber. The 3utch lawmaker passes statutes for the 5etherlands proper and, in a 2ualified procedure, for the overall 4ingdom )including the countries in the Caribbean*. (ince the 5etherlands is a member state of the 6uropean 'nion, 3utch legislative competences can be e%ercised only in as far as 6uropean law has not already limited, pre empted, conditioned, or superseded 3utch law )see Chapter @*.

*. .1. Stat2tes /'r the Nether+ands in E2r'.e

?egislative initiative for statutes )wetten* lies with the government )#by or on behalf of the 4ing$* as well as the individual members of the (econd Chamber )+rt. 8: 3utch Constitution*. ,ills are referred to the Council of (tate, an advisory body, for an opinion )+rt. B3 )7* 3utch Constitution*. The bill can then be amended, re1ected, or adopted by the (econd Chamber/ the government also retains a power of amendment )+rt. 8F 3utch Constitution*. ,ills are considered in committees and are finally debated and voted upon on the floor. !nce the (econd Chamber has passed a bill, it is referred to the First Chamber )+rt. 8A 3utch Constitution*. ,ills must be passed by the (tates &eneral, meaning both Chambers )+rt. 8B 3utch Constitution*. The Constitution does not provide for any rules on what happens in case of a conflict between the two/ thus, since bills re2uire bicameral approval, the First Chamber has the power of absolute veto. The First Chamber does not have the power of initiative or amendment, however. To compensate for its lack of amendment power, a practice emerged whereby the First Chamber would indicate that it e%pects the bill to be changed before it will approve it. The government, which is typically the initiator of bills, may then introduce a novelle, a supplementary amendment, in the (econd Chamber while the bill is actually already before the First Chamber.

"f the (econd Chamber passes the supplement, the First Chamber may adopt the bill including that supplement. Thus, while the First Chamber can formally only approve or re1ect bills, it can e%ercise a #hidden$ right of amendment in practice. The novelle has been criticized as being technically unconstitutional, but it e%ists as a matter of convention and therefore as a matter of constitutional practice.

*. .2. The %in&

,ills adopted by the two Chambers must be signed by the 4ing and countersigned by cabinet members in order to enter into force. Conventionally, the 4ing does not withhold his signature. "f he were to re1ect a bill personally, the cabinet would bear responsibility for such action and would face the political conse2uences in the (econd Chamber. The monarch e%ercises restraint in matters of day to day politics. "t is possible that the cabinet itself re1ects a bill, and without cabinet countersignature the 4ing cannot approve the bill even if he wanted to )+rt. FB 3utch Constitution*. Let again, the cabinet would face the repercussions and might have to resign for ignoring the will of parliament. "n practice, government refusal to sign bills in one way or another does not take place since most bills originate in the government in the first place. "t might be a threat with respect to bills launched by parliamentarians, but if a ma1ority in the (econd Chamber were to endorse a bill deemed fundamentally unacceptable by the cabinet, then the cabinet would probably have interpreted this as a vote of no confidence and would have resigned long before it even came to signatures.

*. . . Stat2tes /'r the Overa++ %in&d'"

The lawmaker of the overarching 4ingdom of the 5etherlands )the 5etherlands proper, the 5etherlands +ntilles and +ruba* is, simply, the )6uropean* 3utch lawmaker, e%cept that he acts by 2ualified procedure. -atters that fall under the competences of the 4ingdom but that are 1ust to apply in the 5etherlands in 6urope are regulated by ordinary 3utch statutes/ matters that fall under the competences of the 4ingdom and that are to apply beyond the 5etherlands in 6urope are regulated by ri1kswetten or 4ingdom (tatutes )+rt. 7F Charter for the 4ingdom*. <roposals for 4ingdom (tatutes can be introduced in the (econd Chamber by the 4ing )meaning the government* and by members of the (econd Chamber/ the plenipotentiary ministers, who represent the overseas countries in The Hague, may suggest to the (econd Chamber to propose a bill )+rt. 7A Charter for the 4ingdom*. The plenipotentiary ministers may participate in (econd Chamber deliberations and have the power of amendment )+rt. 78 Charter for the 4ingdom*. "f a plenipotentiary minister ob1ects to a bill, the (econd Chamber can vote on it anyway. The bill is then adopted if it receives a three fifths ma1ority of votes cast/ if the bill receives a simple ma1ority but less than three fifths, the legislative process is suspended and the matter is referred for further consultation in the 4ingdom Council of -inisters )+rt. 78 Charter for the 4ingdom*. The 4ingdom Council of -inisters is, in fact, the 3utch council of ministers, but in an e%panded composition= it includes the overseas plenipotentiary ministers ne%t to the 3utch <rime -inister and his ministers. +fter e%haustion of conciliation procedures with no compromise reached, the 4ingdom Council of -inisters decides by ma1ority )+rt. 7: )A* Charter for the 4ingdom*. The same applies if plenipotentiary ministers declare that their country does not wish to be bound by envisaged measures. (ince the 4ingdom Council of -inisters is dominated by 6uropean ministers, the overseas ministers can be effectively outvoted. The 3utch e%ecutive and lawmaker therefore remain largely in charge of the overall 4ingdom. The overseas representatives participate in the process, and in practice rule by consensus is desired, rather than adversarial vote counting/ still, constitutional law does not allow the overseas representatives to veto 4ingdom measures.

Cha.ter ( !O4ERNMENTS, T1EIR ,ARLIAMENTS AND T1EIR 1EADS OF STATE 1. Overview

0hat is the difference between head of state and head of governmentP "n 0estern parliamentary democracies, the head of government E the prime minister or chancellor E usually holds the more powerful e%ecutive office while the head of state E the king or president E is often considered to be the country$s ceremonial figurehead. ,ut how e%actly are the two offices dividedP 0here does this distinction come fromP 3oes it always have to be thereP +nd what is then the relation between head of state, head of government, and the parliamentP

1.1.

1eads '/ State and !'vern"ent

To illustrate the origins of the distinction between head of state and head of overnment, it is useful to consider modern day 6uropean constitutional monarchies. "t is in their constitutional traditions that the historical origins of modern constitutional arrangements are visible most clearly. For traditions like the monarch$s speech from the throne to the assembled members of parliament are ceremonial only today E they once were a part of real life politics. They are also relevant for republican systems, because the distinction between head of state and head of government in republics often follows the original monarchical blueprint. Historically, the 4ing or other crowned monarch of a 6uropean country would be the head of his state and the chief of his government himself. "n governing, he would be assisted by his cabinet, comprising ministers for different sub1ect matters like finances or war. -inisters are thus called because they minister, or serve and assist, the monarch/ a cabinet is, originally, a small room where the monarch could hold private meetings with his advisors. &radually, a system emerged whereby one of the ministers would assume a guiding and coordinating role with respect to the other ministers. He would thus become the monarch$s #first$ minister= the premier ministre, or prime minister. 3epending on the personality of the office holders involved, prime ministers could rise to political prominence and direct much of policy even in an otherwise autocratic monarchy. Famous e%amples include Cardinal .ichelieu, chief minister to the French 4ing ?ouis S"""/ Count ,ismarck, &overnments, their <arliaments and

their Heads of (tate 7chancellor and prime minister to a succession of <russian 4ings and &erman 6mperors in the second half of the 79th century/ and <yotr (tolypin, prime minister to the last .ussian Tsar 5icholas "". -eanwhile parliaments, the representation of the citizenry, asserted their rights as against the monarch and his ministers. !ne after another, in continental 6urope especially in the course of the 79th century, parliaments would insist that no ministers be appointed who were not supported by a parliamentary ma1ority. Conse2uently, the monarch should dismiss any minister who lost the trust of parliament. This meant that while the prime minister and the other ministers were still appointed and dismissed by the monarch, their political fate was now effectively tied to the will of parliament. For the 4ingdom of the 5etherlands, that moment of truth came in 78@B, when the cabinet stepped down under pressure from parliament and the 4ing, rather than dissolving parliament, accepted the cabinet$s resignation. "n the 4ingdom of 3enmark, that moment came in 79;7, when the 4ing agreed to appoint a leftist cabinet in line with the composition of parliament. "n ,ritain, the cradle of this 0estminster model of parliamentary government, <arliament had asserted its independence from the crown and the supremacy of statute over royal prerogative already in the 7Bth century. "t has been a constitutional convention since that period that the 4ing would only appoint and keep in office ministers who en1oyed parliamentary support. The introduction of the parliamentary confidence rule )meaning that the cabinet must be at least tolerated in office by a parliamentary ma1ority*, and therefore the emergence of a parliamentary system, made the office of the prime minister much more independent from the crown than it had been. "n effect, the monarch would no longer be the acting head of government= the prime minister had taken over the role of guiding policies, with democratic support from parliament, and of being responsible for these policies. The monarch was #reduced$ to the function of head of state, and was only notional head of government at best. The core e%ternal function of a head of state is formal international representation of the state. "nternational treaties are concluded either by the head of state or on his behalf. The Treaty on 6uropean 'nion of 799:, for e%ample, starts out by recting that it has been agreed by the monarchs and presidents of the contracting states= His -a1esty the 4ing of the ,elgians, Her -a1esty the Dueen of 3enmark, the <resident of the Federal .epublic of &ermany, etc. !f course, the signatures at the nd are those of prime ministers and foreign ministers, acting for the government, but on behalf of the head of state. "nternally, heads of state usually serve an integrative function in society as #figureheads$ who remain above day to day politics and add a measure of dignity to the state order. !ften they are perceived to embody continuity and national unity. .epublics would normally not abolish the division between head of state and head of government. "nstead, the office of prime minister would be kept in place as head of government, while the monarch would be replaced by a republican head of state, typically a president, carrying out largely the same function as a monarch would. The French (econd .epublic, for e%ample, created a presidency to replace the monarch in 78F8/ so did the Third .epublic after 78B; when 5apoleon """ had lost his power. The &erman 0eimar .epublic in 7979 and the First +ustrian .epublic of 79:; also established the office of a <resident to replace the office of the 6mperor. "taly created a <resident to replace the role of the 4ing in 79FB. 5ewly independent states establishing a democratic republican order from the outset also often create both a presidency and a prime minister$s office, like "srael in 79F8, "ndia in 79A; or (lovenia in 7997. "n all these cases, the president would be head of state while the prime minister would be head of government. ?ike in constitutional monarchies, the head of state would formally appoint and dismiss ministers, even though he has a limited choice at best in whom to appoint and merely gives his ceremonial blessing to choices made by others. "t should be noted that not all systems actually separate the offices of head of state and head of government. "n presidential systems, such as the 'nited (tates and most ?atin +merican countries, the <resident is elected to be both head of state and head of government. (ome systems do not attribute the function of head of state to a single person, but to a collective body= from 79BF onwards, the Lugoslavian presidency was e%ercised by a council chaired at first by >osip ,roz Tito and, after Tito$s death in 798;, by different chairmen holding one year terms. (witzerland does not have a head of state at all= the e%ternal functions normally attributed to a head

of state are e%ercised by the government collectively. The (tates that together constitute modern day &ermany do not have the e2uivalent of heads of state either, only prime ministers. 'ntil 7978, however, &erman (tates did have heads of state, too, such as the 4ing of ,avaria or the 4ing of (a%ony. There are also systems, mostly non 0estern ones, where a distinction between head of state and head of government cannot easily be applied at all because the distribution of functions is either based on different premises or is made obsolete in practice. "n the (oviet 'nion, for e%ample, the head of government would technically be the chairman of the council of ministers. However, since the (talinist period real e%ecutive power lay in the hands of the secretary general of the central committee of the communist party. The secretary general would be usually called the (oviet #premier$ in the 0est, whether he actually was chief minister or not. The figurehead functions of a head of state were e%ercised by the chairman of the presidium of the (upreme (oviet, a legislative assembly/ however, all party secretary generals since ?eonid ,rezhnev held terms as chairmen of the (upreme (oviet presidium as well. "n the present day "slamic .epublic of "ran, head of state functions and e%ecutive functions are carried out by both the <resident, who is directly elected, and the (upreme ?eader, the highest cleric who ranks above the <resident. The office of prime minister also e%isted, ne%t to the <resident and the (upreme ?eader, until it was abolished in 7989.

1.2.

The Ran3 '/ the ,ri"e8Minister

,ecause of the office$s historical background, the constitutional position of the prime minister in a parliamentary monarchy is usually more subtle than it is in a republic. First, even though in 0estern democracies prime ministers en1oy a high concentration of power, in the 'nited 4ingdom and in the 5etherlands they are E as a matter of constitutional doctrine E still considered to be the first among e2uals. +fter all, a prime minister is what he is= the #first$ in a group of officials who are all &overnments, their <arliaments and their Heads of (tate ministers to the crown. '4 statutory law barely acknowledges that the office of prime minister even e%ists, the post is almost completely conventional )although it de facto e%ists since the early 78th century*/ the 3utch Constitution e%plicitly mentions the prime minister, a political reality since the middle of the 79th century, only since 7983. (econd, again as a matter of doctrine, prime ministers in a monarchy are not technically head of government but the head of the cabinet. "t is the monarch who continues to be the head of government, if only in a purely formal sense. (weden is e%ceptional in according the 4ing not even notional government chairmanship. "t is fair enough to collectively refer to prime ministers as #heads of government$ in everyday speech, because this is what they effectively are. They steer government business because the monarch is not involved in day to day politics, and they do establish the course for the other ministers to follow. The 6uropean Council, for e%ample, a supreme body of the 6uropean 'nion, brings together heads of state and government of the 6' member states. The 3utch prime minister is the one attending as head of government of the 5etherlands, even though technically he is not head of government/ nor is he, technically, in any clearly superior position with respect to the other ministers. "ndeed, the prime minister$s membership in the 6uropean Council is one of the factors that contribute to the concentration of power in his hands in reality. 6ven if #head of government$ is a convenient label for a prime minister, the monarch in a parliamentary monarchy is still constitutionally entitled to speak of #-y &overnment$. This is what the monarchs of the '4 and of the 5etherlands do when ceremonially addressing their parliament to outline government policy. "n republics, the president is not usually considered part of the government itself. Having received the support of parliament, the prime minister is head of government in both real and academic terms. He then only receives his appointment from he head of state, but the latter$s involvement in government policy does typically not e%tend any further than that. The &erman <resident under the ,asic ?aw of 79F9 is, for instance, sometimes referred to as a sort of notary, who only ceremonially hands out appointment certificates. +lso the prime minister$s

steering function within the cabinet is usually more clearly e%pressed if he is actively and individually elected by parliament to be head of government.

1. .

,ar+ia"entar# Investit2re

The historical background of a republican or monarchical constitution has a concrete impact on the process of cabinet formation. 6ven where the head of state formally appoints the cabinet members, some systems feature a process of parliamentary investiture while others do not. "nvestiture is the act by which public power is conferred on a person= one is invested with an office. The difference here lies in whether a new prime minister, before his formal appointment, is first approved by parliament or not. "n republican systems embracing the concept of popular sovereignty, the cabinet formation process tends to be construed from the point of view of parliament, the locus of popular representation. "n &ermany, for e%ample, the se2uence of events leading up to the establishment of a new government is 2uite clear= first, parliament elects a Chancellor, and only then does the <resident appoint him as such. The same holds true in constitutional monarchies that were established by, or that are derived from, popular will. >apan, even though it is indeed a constitutional monarchy, does feature parliamentary investiture, compelling the 6mperor to appoint any prime minister elected by parliament. +lso in the 4ingdom of (pain, although the 4ing presents a candidate for the prime minister$s office first, election by parliament precedes the actual royal appointment. "n the 'nited 4ingdom, the 5etherlands, ?u%embourg or 3enmark, however, the process is construed from the point of view of the monarch. Thus, the monarch would appoint a new prime minister, and he keeps him in office as long as parliament has not e%pressly re1ected the appointee. The choice of prime minister then effectively depends on the composition of parliament, and, if necessary, on the outcome of prior political negotiations to form a workable coalition. Thus, a monarch will not appoint a prime minister if it is certain that the appointee will immediately be confronted with a vote of no confidence from parliament. (till, constitutional thinking in these systems affects the procedural order. "n the 5etherlands, for e%ample, a newly appointed prime minister gives a speech before parliament, but he does not ask for a vote of confidence= his cabinet survives if it is not brought down. + similar logic applies in the '4, where a prime minister must first of all survive the parliamentary debate on the speech from the throne, which he had written and for which he is responsible before <arliament. Furthermore, a 3utch cabinet minister, once in office, has a certain amount of freedom to interpret unfriendly parliamentary motions as either a rebuke for a specific policy failure E which means he may stay in office E or as a total and irreparable loss of confidence E in which case he tenders his resignation with the monarch.

The 1ead '/ State d2rin& Ca7inet F'r"ati'n

6ven in systems where the head of state is a largely ceremonial figure, his influence may be considerable in the process that leads to the formation of a new cabinet. This is especially the case where parliament comprises many political parties and several coalitions are possible theoretically. "n "srael and ,elgium, for e%ample, it may matter greatly whom the head of state charges with putting together a coalition first. 5eedless to say, the above distinction regarding parliamentary investiture only applies to parliamentary systems of government. "n presidential systems, parliamentary investiture in the #6uropean$ sense is not part of the regular government formation process because regularly the head of government has a mandate from the electorate itself. (till, one should consider whether the 'nited (tates, a presidential system, may not resemble 6uropean republics somewhat. First, in the '(, the two chambers of Congress go on to choose a <resident and Gice <resident if no single candidate has obtained the necessary ma1ority of electoral college votes. (econd, the <resident$s nominees for cabinet posts and federal 1udgeships re2uire the consent of the (enate. This is not 2uite the same as parliamentary investiture= the former procedure is a default, not the rule, and the latter procedure has more to &overnments, their <arliaments and their Heads of (tate do with checks and balances than with any supremacy of parliament. 5evertheless, these features of '( constitutional law should be enough to conclude

that the 'nited (tates is not a pure e%ample of a presidential system. "n a purely presidential system, cabinet formation would be independent from Congress altogether.

1.$. Ministeria+ A))'2nta7i+it#

The key difference between a parliamentary and a presidential system of government is whether or not the government is accountable to parliament. +ccountability should be understood in a strict sense here= can parliament dismiss the government if it is dissatisfied with its performance or notP "f it can, then the system under consideration is a parliamentary one. +ccountability in the strict sense used here thus entails not only the duty for the government to e%plain and 1ustify its policies, but also the possibility of a sanction in the form of a removal from office if parliament finds the 1ustification wanting. There is some ambiguity concerning the terms #accountability$ and #responsibility$, and not all languages draw the same distinctions. "n ,ritish parlance, the key word is #ministerial responsibility$, which is also the e2uivalent of the term used in 3utch scholarship. Historically, ministerial responsibility was a constitutional breakthrough in monarchical systems, shifting responsibility for policy decisions to the ministers and away from the 4ing. "n the 5etherlands, the concept was introduced in 78F8, when the 4ing was separated from the cabinet through the formula #The 4ing is inviolable, the ministers are responsible$. ,efore the change, the 4ing took ultimate responsibility for government policy himself, which meant, since the 4ing was the unassailable monarch, no one could actually be blamed for failures in a political sense. 5ow the ministers can be. +ccountability, meanwhile, revolves around the actual process of rendering account and the conse2uences attached thereto. +t first, ministers were accountable to the monarch/ at a later stage, it became established that ministers are accountable to parliament for everything for which they are responsible, and thus could be held accountable. This simplies that ministers must inform parliament, 1ustify conduct, and remain sub1ect to dismissal by parliament. The crucial instrument that a parliament wields in this conte%t is the right to ask 2uestions and to censure ministers.

The Li"its '/ Res.'nsi7i+it#

"t is not always easy to hold ministers accountable for things they had no control over, for e%ample the conduct of an individual civil servant whom the minister has never even met. "n that case, ministers might claim that they are not personally to blame. (uch arguments are usually dismissed= ministers are ultimately responsible for the unctioning of their civil service, including its staff. "n that sense, ministerial responsibility may be said to be something of a fiction E a legal construction that does not depend on personal blameworthiness. The construction is more problematic in the case of independet agencies that are meant to be removed from political meddling and therefore from ministerial control. The 2uestion is whether and how the lack of responsibility on the part of the minister can be compensated through other accountability mechanisms. The option for parliament to dismiss a sitting cabinet may be laid down in a constitution or it may be conventional. "n constitutional monarchies, it is often conventional= the prime minister understands that he must tender his resignation if he has been defeated in a parliamentary confidence vote. "n republics, the dismissal procedure by which a government may be ousted is typically made more e%plicit E i.e., it is laid down in the constitution. The right of dismissal may then also be procedurally conditioned. 0ell known conditions are cooling off periods before parliament may vote on a no confidence motion/ elevated ma1orities for such a voteto succeed/ and the &erman style constructive vote of no confidence procedure, whereby parliament may oust a prime minister only by electing a new one to take his place. "t should be noted that not all monarchies have purely conventional noconfidence vote procedures= in ,elgium, votes of no confidence must be constructive, too, and the person elected to replace an incumbent prime minister will then be appointed by the 4ing.

The Ter"in'+'&# '/ ,ar+ia"entar# !'vern"ent

+ cabinet in a parliamentary system is considered politically stable if it commands an absolute ma1ority of seats in parliament or, usually, its lower chamber. This means that the opposition cannot bring the cabinet down because the cabinet already controls more than half the votes. "f a political party has such a ma1ority on its own, then it can govern alone. "f it does not, it usually enters into a coalition with other parties so as to 1ointly gain an absolute ma1ority/ the partners in the coalition will then receive ministerial posts, the largest party typically provides the prime minister. "f the prime minister$s party, or coalition, does not command an absolute ma1ority, or loses it after one of its coalition partners withdraws from the government, then the cabinet is or becomes a minority government. "t may not necessarily fall or ask for new elections if it can continue to govern pragmatically and seek allies on a day to day basis. "f the cabinet falls, then until the ne%t elections take place or until the ne%t government is sworn in, the incumbent stays in office as a caretaker cabinet. "t will usually only manage daily business and refrain from taking far reaching decisions. + coalition comprising the two overwhelminglylargest parties, such as the main left of centre and the main right of centre party, is called grand coalition. + coalition including all parties represented in parliament is referred to as a government of national unity, and is often assembled in transition periods following civil war and other crises. Conditions on no confidence votes mean a restriction on parliamentary prerogatives. However, they are seen as a measure to ensure the stability of the government. "n the French Fourth .epublic, the current Fifth .epublic$s immediate predecessor from 79F@ to 79A8, cabinets had an average lifespan of half a year/ after 793;, the &erman 0eimar .epublic saw three different cabinets in as many years before the 5azi takeover. The perceived problem in both systems was that noconfidencevotes were not conditioned, and that a ma1ority in parliament sufficed to bring a government down. (uch possibilities are limited in both the French Fifth .epublic and in the present Federal .epublic of &ermany. ,y contrast, post war "taly has for decades been a prominent e%ample of what may happen if parliament &overnments, their <arliaments and their remains fragmented among many small political parties and may bring down a government relatively easily= between 79F@ and :;;@, "talian prime ministers tatistically stayed in office for 1ust under one and a half years. !f course, procedure is not all that matters. The 5etherlands has proportional representation with a very low electoral threshold, which means also small parties can obtain parliamentary seats, and no confidence votes are not conditioned either. 5evertheless, 3utch cabinets tend to be relatively stable, meaning that they usually )but not always* survive until the ne%t regularly scheduled parliamentary elections. "f parliament is unicameral, ministerial accountability is owed to the plenary. "f parliament is bicameral, accountability is usually owed to the directly elected lower chamber. + cabinet may resign after having been defeated in the upper chamber, but that is typically a political choice rather than a constitutional re2uirement. "taly is e%ceptional in that it provides that the cabinet, although it is based on party groups in the lower chamber, is accountable to both the lower chamber and the senate and may be brought down by a censure motion from either chamber. -inisterial accountability itself may be either individual or collective. Collective ministerial accountability means that the cabinet as a whole is accountable to parliament, it the sense that it can be brought down only as a unit. "f individual ministerial accountability is in place as well, then parliament may also oust individual ministers. "t should be noted that individual accountability complements the collective one. Thus, even where ministers are individually accountable, they cannot hide behind their individualism to escape responsibility for government policy as a whole. +ccording to constitutional convention in the 'nited 4ingdom and the 5etherlands, a minister is assumed to support government policy if he stays in office/ if he claims that he personally disapproved of a certain decision, then he should have resigned. There is a correlation between the e%istence of individual ministerial accountability and whether a cabinet comes into office by parliamentary investiture or not. "n the 'nited 4ingdom, the 5etherlands and 3enmark, the monarch appoints cabinet members as notional e2uals, e%pecting that parliament will not re1ect any one of them. "n &ermany or in (pain E which although it is a constitutional monarchy does feature parliamentary investiture E the focal point for parliament is the prime minister. +s the prime minister is elected by parliament individually to lead the government, his position stands out. !nly the prime minister may be ousted again in

these systems while individual ministers cannot. "n France, by contrast, the prime minister is appointed without parliamentary investiture being prescribed, but ministerial responsibility is collective= after a successful vote of noconfidence, the government falls as a whole.

F'r)ed Resi&nati'n
The fact that a constitution does not provide for individual ministers to be ousted does not mean that ministers stay on for the entire tenure of the government. 6ven where the focus is put on the responsibility of the government as a whole, or on the responsibility of the government leader, individual ministers may still become politically untenable. <arliamentarians may then demand of the minister that he resign voluntarily, or may call upon the prime minister to ditch him. + no confidence vote against the entire government over one single minister is in reality a #nuclear option$, but an option nonetheless. <rime ministers regularly reshuffle their cabinets to defuse political pressure, transferring, demoting or firing ministers who have become a political liability. "n presidential systems, ministerial accountability to parliament in the strict sense is E by definition E not present. The possibility for the '( Congress to remove the <resident in an impeachment procedure is not comparable to a parliamentary noconfidence vote. "mpeachment is a 2uasi criminal procedure for an enumerated number of grave offences. "n a parliamentary system, a vote of no confidence against a prime minister does not have to be based on a criminal charge/ in fact, parliament does not need to 1ustify at all why e%actly it has lost confidence in the incumbent premier. "n presidential systems, accountability may only e%ist in a broader sense, in that the government may be compelled to answer 2uestions and 1ustify its conduct, without, however, being sub1ect to a confidence rule with respect to parliament.

1.$.

Nati'na+ ,ar+ia"ents and the E2r'.ean Uni'n

"n presidential systems, congressional oversight over the e%ecutive is an important part of the overall system of checks and balances between the different branches of government. "n parliamentary systems, parliamentary oversight over the government is in fact crucial, because the government is democratically legitimized through parliament, not through direct elections. The simplified construction in a parliamentary system is that the citizens have delegated power to parliament, which in turn delegates power to the government. The construction is called chain of delegation. + chain of accountability must run in the opposite direction= the government must be accountable to parliament while parliament is accountable to the citizens. +lready in a purely domestic setting, the chain of accountability can be stretched very far and become largely fictitious in practice. That is because regulation in a comple% society takes place in a comple% and diffuse manner including both public and private actors and specialist working groups across several layers of government. "n that case it is hard to identify who is to be held responsible for a certain decision, and blame can be easily shifted. + problem of its own arises in the conte%t of the 6uropean 'nion. Through its seat in the 6' Council of -inisters, national governments are able to participate in 6uropean lawmaking. These laws )above all directives and regulations* become binding upon the member states and their citizens/ national parliaments must implement 6uropean law into national law where applicable. The Council as such is however not directly elected, nor is it accountable as such to any single parliamentary body. !nly the individual ministers, if their home member state has a parliamentary or at least semi parliamentary system )which all 6' member states e%cept Cyprus do have*, are individually accountable to their national parliament. However it is difficult for a national parliament to hold ministers to account for their 6' action. (ome parliamentarians wish to engage in oversight over, or even &overnments, their <arliaments and their Heads of (tate participation in 6' decision making, but most do not because it re2uires time they do not have while voters tend to be interested in matters closer to home. 6uropefriendly parliamentarians often do not wish to disturb the smooth functioning of the 6' with any domestic interventions. 6ven if the political will is there to e%ercise tighter control, 6' decision making is often opa2ue as civil servants prepare the actual decisions in

more or less informal consultations. (ome national parliaments, notably the 5ordic ones, insist on briefing a minister before he travels to ,russels for a Council meeting and on giving him instructions on how to negotiate and vote. However usually by the time a proposal actually reaches the Council, most deals have already been struck/ and if the Council votes by ma1ority, which it can do in most cases, a minister may be outvoted even if he sticks to his instructions. The phenomenon that, in the course of 6uropean integration, national parliaments lose lawmaking power while the 6uropean 'nion itself does not have, and possibly cannot have, a democratic character that we are used to at national level, is called #democratic deficit$. <arliament oriented proposals to remedy this deficit set in at different angles. (ome argue that the democratic deficit must be remedied by strengthening the 6uropean <arliament, which is in fact the only directly elected 6' institution. +lready now, the approval of the 6uropean <arliament is re2uired for most 6uropean laws, but voter interest remains low. !thers insist that national parliaments should be strengthened in holding their governments to account and in checking 6' legislation before it is adopted. Furthermore, national parliamentarians might be encouraged to debate 6uropean issues more passionately and to cooperate more closely with each other. The Treaty of ?isbon includes provisions by which 6uropean legislative proposals must be sent to national parliaments so as to keep them informed, and which allow national parliaments to raise ob1ections against such proposals. (ome parliaments already do scrutinize proposals as a matter of routine. 'ltimately, it is up to each parliament itself what to do with the power it has.

1.(.

The I""2nit# '/ the 1ead '/ State

0hile we discuss the modes by which prime ministers and their cabinets can be held to account and brought down in a parliamentary system, we should be aware that these modes do not concern the head of state. The monarch, or the president in a republic, does not depend on continued parliamentary confidence to stay in office E only his ministers do. +bsolute monarchs would convene and dissolve a parliament, not sub1ect themselves to 1udgment from parliament, and this principle is retained in constitutional monarchies and republican systems. The parliamentary minority in the 'nited 4ingdom, for e%ample, is known as #His -a1esty$s ?oyal !pposition$, meaning that it opposes the incumbent cabinet but not the monarch. Heads of state do, of course, perform certain official actions/ however, 0estern democracies typically make the acts of the head of state sub1ect to countersignature. Thus, a royal decree or presidential decision takes effect only if it has also been signed by the prime minister or other ministers. The purpose and effect of countersignature is twofold. !n the one hand, the head of state is stripped of his discretion if he cannot act on his own. The introduction of the countersignature re2uirement in the 5etherlands in 78F; marked a dramatic step from autocratic monarchy towards liberal parliamentarism= the 4ing was no longer the monarch in a personal sense, but a constitutional office comprising the monarch and his ministers acting together. (econd, the cabinet, if it signs and thus consents, takes over responsibility for acts of the head of state. This allows parliament to allocate blame with the cabinet, which may be forced to resign, rather than the head of state who is politically immune. Thus, while the discretion of the head of state is restricted, his dignity and unassailable status as the country$s figurehead is enhanced because responsibility for actual policies remains with the ministers. This mechanism is upheld even if it sometimes results in bizarre situations= the act by which the 3utch monarch appoints a new prime minister is a royal decree, which must also be signed by the new prime minister himself in order to be valid. The head of state is separated from parliament and parliamentary politics also in other, more symbolic ways. The monarch in the 'nited 4ingdom, for e%ample, may not enter the House of Commons and instead addresses the two houses of <arliament 1ointly, in the House of ?ords, to ceremonially open a new parliamentary session. +fterwards, even though the monarch has 1ust outlined his government$s policy priorities )the speech is written by the <rime -inister and only read out by the monarch* the two houses first go on to debate a completely unrelated bill before discussing the speech. This is meant to underline that <arliament chooses itself what to

discuss and when. "n France, until :;;8 the <resident could address the parliament only in written statements which were read out aloud and which could not be followed by a debate. (ince :;;8, the <resident may address the parliament himself, but only in 1oint session, and a debate may follow but only once he has left and no vote may take place after the debate. These rules underline, among other things, the unassailable role of the head of state as standing above politics. "t is the cabinet, not the president or monarch, which has to engage in the political process and be sub1ect to removal on political grounds. "ncidentally, it should be noted that in some systems, such as "srael and Turkey, the head of state is elected by parliament. This however does not make these systems presidential, nor does it make the head of state sub1ect to sustained parliamentary confidence. For there the president is not elected to lead the government )that task is fulfilled by the <rime -inister*/ and once in office, the president may only be removed again in impeachment type procedures for serious crimes or misconduct. Thus, the head of state remains above politics, and only in his coming to office does he need initial parliamentary approval. To ensure that heads of state are not completely irremovable, notably in cases where they commit crimes, different systems do indeed feature special impeachment procedures. 3efinitive removal from office is also relevant if the head of state is incapacitated in one way or another. "n &ermany, an action for removal from office against the <resident may be brought before the Federal Constitutional Court by super ma1orities in the ,undestag or ,undesrat/ in France, parliament would sit as a high court to try the <resident/ in the 'nited (tates, the House of .epresentatives may impeach the <resident which leads to a trial before the (enate. "n neither case is the removal procedure comparable to a no confidence vote, like it may be raised &overnments, their <arliaments and their Heads of (tate against a prime minister, because it is meant as a form of criminal prosecution rather than a sign of ordinary disapproval.

1.*.

Diss'+2ti'n '/ ,ar+ia"ent

"n order to keep representing the will of the people, a parliament is elected for a set term at the e%piry of which new elections are held. -ost 0estern style parliaments are elected for terms of four or five years )the term of the '( House of .epresentatives is, at two years, unusually short*. There may however, depending on the system, be circumstances where early elections are called for. "n 6uropean monarchies, parliament is convened and dissolved by the monarch. 5otionally at least, it is his parliament= an advisory assembly to the crown. +lso in republics, if anyone is entitled to dissolve parliament, then it is the head of state E the functional successor of the monarch. !n the one hand, dissolution of, or refusal to convene parliament may be an anti democratic measure taken in order to suppress opposition and restrict popular participation. "n 7Bth century 6ngland, for e%ample, 4ing Charles " refused to convene <arliament for over a decade in an ultimately failed attempt to maintain selfrule. Tsarist .ussia saw its first ever parliament summoned only in 79;@. (imilarly, when dictatorial regimes come to power, a permanent dissolution of parliament is often among their first moves. This is what occurred in +ustria in 7933, when 6ngelbert 3ollfuss had parliament dissolved and prevented its reconvention/ or in &reece when, in 79@B, a military 1unta, upon assuming power, suspended the constitution!n the other hand, within a functioning democracy with stable institutions, a dissolution of parliament may be a measure to break a political deadlock. "n that case, dissolution of parliament simply means fresh elections. (uch a situation may occur if, for e%ample, after elections political parties cannot agree to form a workable government coalition, or if a sitting government loses its parliamentary ma1ority because one of the coalition partners leaves and 1oins the opposition. The )acting* prime minister would in that case re2uest the head of state to dissolve parliament and to call new elections. The degree to which the head of state then has actual discretion to re1ect or comply with the re2uest differs from one system to another. "t should be noted that even in systems where the head of state has no discretion at all, like in the 'nited 4ingdom, it is technically not the prime minister who dissolves parliament E even if newspaper headlines suggest otherwise. (ome systems, especially republics, which tend to be sensitive to the fact that parliament represents the people and should therefore not be dissolved arbitrarily, restrict the possibilities to dissolve parliament. &ermany is a

case in point= the <resident may dissolve parliament only after the Chancellor has lost a vote of confidence, but not if parliament has already elected a new Chancellor in the meantime. The &erman ,undestag cannot dissolve itself either, for otherwise the government, through its loyal parliamentary ma1ority, could nevertheless have elections take place at will. "n France, the <resident may dissolve the 5ational +ssembly, and at discretion E meaning alone and without countersignature from ministers E but not more than once a year. !ther systems, notably constitutional monarchies, place no such limitations on the head of state, or on the government, for that matter. The best e%ample is the 'nited 4ingdom, where dissolution of <arliament is a royal prerogative that is in effect e%ercised by the <rime -inister at discretion. Therefore, it is the <rime -inister$s choice at which point new elections should be held, as long as he does not e%ceed the statutory ma%imum length of <arliament of five years. +lso in the 5etherlands, parliament is dissolved by royal decree, which means that the government decides and that constraints on the fre2uency of dissolutions of parliament are political rather than legal in nature. Convention however does restrain the government in that the parliament may be dissolved only once over the same conflict. "n the 5etherlands, fresh elections typically follow the fall of a cabinet, which allows the electorate to decide on who must take the blame for the preceding crisis and who should form the ne%t cabinet. (trictly speaking, however, in a parliamentary system a fall of a cabinet does not necessarily re2uire early elections, at least as long as a new cabinet can count on the support of the members of the same parliament. "n presidential systems, a dissolution of parliament by the head of state is not possible, because parliament is not constitutionally subordinate to the president. The reverse also holds tru= parliament cannot oust the president in a no confidence vote, because the president does not rely on parliamentary support to stay in office. (ince both have independent mandates of their own, both remain in place for their respective term.

1.9.

S2""ar#

-any details of government parliament relations in a given system depend on whether the system is parliamentary or presidential, and on whether a parliamentary system is situated in a monarchy or a republic. The '( is presidential and combines the functions of head of state and government in the <resident. France is semi presidential, meaning that the head of state is elected with an independent mandate of his own but also shares e%ecutive functions with a prime minister. The other systems under consideration are parliamentary democracies, which feature a clearer distinction between a largely ceremonial head of state and a politically active head of government. !f these parliamentary systems, two are constitutional monarchies )the '4 and the 5etherlands* where the 4ing appoints prime ministers and ministers in the light of the composition of the lower chamber of parliament. &ermany is a republic where parliamentary investiture precedes the appointment of a new head of government by the <resident. "n all three parliamentary systems, as well as in France, parliament or the lower chamber thereof may oust an incumbent cabinet, but procedural re2uirements differ. "n the 5etherlands and the '4, votes of no confidence may be e%pressed without procedural constraints and against any minister. "n &ermany and France, votes of no confidence may be directed only against the head of government and thus the cabinet as a whole, and the procedure is stricter so as to discourage rash dismissal/ in &ermany, furthermore, votes of noconfidence against the Chancellor must be constructive, meaning that a successor must be elected for the motion to be valid. The heads of state in all five systems are not sub1ect to no confidence motions from parliament, but the presidents in the &overnments, their <arliaments and their Heads of (tate three republics studied )the '(, France and &ermany* may be removed from office in special impeachment procedures. +n early dissolution of parliament or the lower chamber thereof by the <resident is not possible in the '(/ it is possible but only under certain conditions in &ermany and France/ it is a matter of political considerationsin the '4 and the 5etherlands as the government effectively has discretion when to call new elections.
7.9. Further .eading -. ,ovens, The Duest for .esponsibility= +ccountability and Citizenship in Comple% !rganisations )Cambridge= C'< 7998*.

C. Harlow, +ccountability in the 6uropean 'nion )!%ford= !'< :;;:*. <h. 4iiver, The 5ational <arliaments in the 6uropean 'nion E + Critical Giew on 6' Constitution ,uilding )The HagueK?ondonK5ew Lork= 4luwer ?aw "nternational :;;@*. <h. 4iiver, #6uropean Treaty .eform and the 5ational <arliaments= Towards a 5ew +ssessment of <arliament Friendly Treaty <rovisions$, in >. 0outers, ?. Gerhey C <h. 4iiver )eds.*, 6uropean Constitutionalism ,eyond ?isbon )+ntwerpK !%ford= "ntersentia, :;;9*. <h. 5orton )ed.*, <arliaments and &overnments in 0estern 6urope )?ondonK <ortland= Frank Cass 7998*. 4. (trWm, 0. -Xller C T. ,ergman )eds.*, 3elegation and +ccountability in <arliamentary 3emocracies )!%ford= !'< :;;3*. ?. Gerhey, H. ,roeksteeg C ". Gan den 3riessche )eds.*, <olitical +ccountability in 6urope= 0hich 0ay ForwardP )&roningen= 6uropa ?aw <ublishing :;;8*.

2.

The United States

The office of head of state and head of government in the 'nited (tates is merged into the single office of the '( <resident, who is assisted by a Gice <resident. The <resident e%ercises highest federal e%ecutive power and represents the '( internationally. The first '( <resident was &eorge 0ashington, a general of the +merican war of independence against ,ritain, who was elected in 7B89. !riginally the Congress, rather than the <resident, was seen as the crucial and dominant institution/ that perception however changed over time. Certainly when seen from abroad, the '( <resident has considerable might/ on the domestic scene things tend to be different, however, as Congress still holds important prerogatives, most notably the power to actually make laws and to allocate money in the national budget.

2.1.

The ,resident and 4i)e8,resident

The '( <resident is elected by an electoral college for a term of four years )+rt. "" )7* and 7:th +mendment '( Constitution*. The term is renewable once )::nd +mendment to the '( Constitution*. 6lectors are elected (tate by (tate. 6ach (tate may have as many electors as it has (enators in the '( (enate )always two* and congressmen in the '( House of .epresentatives )at least one, but mostly more depending on population size, see also Chapter F*. The capital district of 0ashington, 3.C., is not a (tate but may nevertheless have as many electors as it would be entitled to if it were a (tate, yet not more than the least populous (tate has, which is ultimately three ):3rd +mendment to the '( Constitution*. Thus, there are in total 7;; V F3A V 3 U A38 electors. The electors meet and vote in their own (tate/ the results of their voting are then transmitted to the '( capital. This way the electors vote by absolute ma1ority of members for the <resident and by absolute ma1ority of members for the Gice <resident.

The Ori&ina+ S#ste"

!riginally, the presidential candidate with the second highest number of votes was elected Gice <resident. This proved problematic, as the new <resident might have to work together with his political opponent. + system of separate voting for both posts was 2uickly proposed and entered into force as the 7:th +mendment in 78;F, superseding the te%t of +rticle "" of the Constitution. 5ow electors can cast both votes for the presidential and vice presidential candidate from the same ticket, respectively. "f after the counting of all incoming electoral votes no candidate has received an absolute ma1ority for the office he is running for, then the House of .epresentatives votes for the <resident from among the three strongest contenders for that post/ the (enate votes for the Gice <resident from among the two strongest contenders for that post. The House members, e%ceptionally for that purpose, then vote as delegations from the (tates they are from, each delegation having one vote/ both House and (enate act, in their respective votes, by absolute ma1ority with elevated 2uorums of two thirds of (enators and two thirds of (tate delegations in the House, respectively. This parliamentary election as a back up procedure to the electoral college might be considered a trace of a parliamentary system in the otherwise presidential '(.

(tates are free to determine the nomination procedure for electors )primaries, party conventions, or fi%ed party lists*, 1ust like they determine the manner in which presidential candidates secure a nomination from their own political party. (tates are also free to determine the actual election mode for the election of #their$ electors/ almost all of them employ a first past the post system, however. This means that a ticket, which is a presidential candidate and his vice presidential running mate together, wins all the electoral votes in the (tate if it receives a relative ma1ority of votes cast for the corresponding electors in that (tate. Thus, if presidential candidate + together with his running mate for Gice <resident wins FAM of popular support in a (tate, whereas candidate , and his running mate win F;M, then that (tate$s body of electors will be composed entirely of electors who have pledged to support candidate + and his running mate. !nly -aine and 5ebraska have two of their electors elected (tate wide and the rest per congressional district. &overnments, their <arliaments and their Heads of (tate <opular Gote versus 6lectoral Gotes 0hat counts in '( presidential elections is the number of electors supporting a candidate. (ince electors are elected in the (tates, and the predominant method of electing electors in the (tates is the winner takes all system, candidates are interested in securing relative ma1orities in as many (tates as possible so as to gain an absolute ma1ority of electoral votes. -ore precisely, they are interested in winning large (tates that are worth many electoral votes because large (tates have many House seats which translates into many electoral votes. 6ven more precisely, candidates have an interest in investing their campaign resources into large #swing (tates$, (tates which are not only worth many votes, but which are furthermore not dominated by one of the two large political parties, and where the ma1ority can thus tilt either way. Campaigning in hostile (tates makes little sense if a relative ma1ority there is unattainable and not many electoral votes are forfeited anyway/ campaigning in friendly (tates makes little practical sense either, since the size of a ma1ority in a (tate is irrelevant as long as it is a relative ma1ority. The number of electoral votes per (tate is not directly proportional to population size= .hode "sland, with about one million inhabitants, is worth four votes/ yet -ichigan, which is ten times bigger, does not have forty votes but merely seventeen. +s a result, it can be that a candidate wins more votes from voters nationwide compared to his opponent, but that he nevertheless wins fewer electoral votes. "n that case he has won the popular vote but lost the presidential race. 6ven if a candidate wins both the electoral and the popular vote, margins can differ. ,arack !bama won the :;;8 elections by a landslide in terms of electoral votes, but the victory was narrower in terms of the popular vote. The <resident heads the federal e%ecutive branch, including not only the central administration but also federal e%ecutive agencies. He appoints a cabinet of ministers )#secretaries$*, for which he however needs the advice and consent of the (enate/ the same holds true for his nomination of (upreme Court 1ustices and, where applicable, other federal 1udges )+rt. "" ):* '( Constitution*. Thus, the (enate holds hearings and must approve the <resident$s nominees. The <resident may dismiss ministers on his own. The <resident is commander in chief of the armed forces )+rt. "" ):* '( Constitution*. His powers further include a veto in the legislative process, sub1ect to an override by two thirds ma1orities in both chambers of Congress )+rt. " )B* '( Constitution, see also Chapter F*. The Gice <resident supports the <resident in the carrying out of his duties/ he is also the first to succeed him in case of a vacancy ):;th and :Ath +mendment to the '( Constitution*. The Gice <resident is furthermore automatically the president of the (enate, wielding a tie breaking vote )+rt. " )3* '( Constitution*.

2.2.

The ,resident and C'n&ress

<resident and Gice <resident are not accountable to Congress in the sense of a confidence rule, since they have an electoral mandate of their own. The e%ecutive does not rely on the confidence of Congress to stay in office. + change of ma1orities in the (enate or the House of .epresentatives in mid term, while having political conse2uences, will have no bearing on the continuation of the presidential term as such. The same applies to inferior e%ecutive officers. "n 798@, the (upreme Court stressed this principle in the case ,owsher v. (ynar )FB8 '.(. B7F*, where it assessed the constitutionality of a newly created post of #comptroller general$. The

comptroller general was charged with ensuring that budget deficits stay within the limits set by Congress/ he could, according to the empowering statute, be dismissed by a 1oint resolution of the two chambers of Congress for broad reasons including #inefficiency$. The '( (upreme Court held= #,y placing the responsibility for e%ecution of Ybudget control legislationZ in the hands of an officer who is sub1ect to removal only by itself, Congress in effect has retained control over the e%ecution of the YlegislationZ and has intruded into the e%ecutive function. The Constitution does not permit such intrusion$. The comptroller general was an officer charged with an e%ecutive task. Congress has no e%ecutive power and can therefore not delegate such power to one of its agents. <roperly e%ecutive agents cannot be removed by a mere resolution, however. They are accountable to the <resident, who in turn is elected, via an electoral college, by the people. !nce in office, the <resident, Gice <resident, ministers and other e%ecutive officers may be removed from office only in an impeachment procedure )+rt. "" )F* '( Constitution*. "mpeachment is a 2uasi criminal procedure for treason, bribery, or other high crime or misdemeanour. The House of .epresentatives can start an impeachment procedure )+rt. " ):* '( Constitution*, approving #articles of impeachment containing charges/ the (enate then tries the impeachment, as in conducting a court trial )+rt. " )3* '( Constitution*. "f the <resident is being tried, the (enate presidency shifts from the '( Gice <resident to the chief 1ustice of the (upreme Court, in order to avoid loyalty conflicts. "n any impeachment procedure a #guilty$ verdict re2uires a two thirds ma1ority of (enators present. 0hereas in the '( the e%ecutive does not rely on parliamentary confidence, Congress can nevertheless e%ercise parliamentary oversight. This it can do via scrutiny of policies and public hearings, backed up by the congressional legislative power including the power of the purse E the power to allocate and withdraw funding for government departments or specific policies. "ran Contra The "ran Contra affair in the 798;s e%emplified the supervisory role of Congress over e%ecutive action via the congressional legislative and budgetary power. Congress had stipulated that no weapons may be sold to "ran/ it had also stipulated that 5icaragua$s Contra guerrilla may not be supported. (ubse2uently, .onald .eagan$s e%ecutive administration, hoping to solve a hostage crisis by appeasing "ran, nevertheless went on to sell weapons to "ran/ it then used the proceeds of that sale to finance the Contras. + political scandal ensued that resulted in resignations )though not .eagan$s*.

. !er"an#
&ermany features a <resident as head of state, and a Federal Chancellor as head of the government. The <resident is elected by an electoral college/ the Chancellor is elected by the ,undestag and remains accountable to it. "n 79F9, Theodor Heuss was elected to become the first <resident under the ,asic ?aw. 4onrad +denauer, who had presided over the <arliamentary Council which had adopted the ,asic ?aw in the first place, was elected Chancellor.

.1. The Federa+ ,resident

The &erman head of state is the Federal <resident. He is elected for a once renewable term of five years by the Federal Convention, a single purpose electoral college )+rt. AF ,asic ?aw*. The Federal Convention comprises all members of the ,undestag plus an e2ual number of delegates who are elected via proportional representation by the parliaments of the si%teen (tates. The number of delegates per (tate parliament is calculated based on the (tates$ share of the total &erman population, and the parliaments themselves also elect their delegates by proportional representation. + candidate re2uires the votes of an absolute ma1ority of Convention members/ if no candidate obtains such ma1ority, a second ballot is held/ if the second ballot was inconclusive as well because again no one mustered an absolute ma1ority, a third and final ballot is held wherein the candidate who obtains a relative ma1ority wins )+rt. AF )@* ,asic ?aw*.

The <resident carries out largely ceremonial functions/ internationally, the <resident has a representative function under diplomatic protocol, including the conclusion of international treaties )+rt. A9 )7* ,asic ?aw*. !verall, the ,asic ?aw does not provide for a strong presidency and thereby stands in marked and deliberate contrast to the 0eimar Constitution. The indirect elections contribute to the weakening of the office, as a <resident cannot claim strong popular support in order to make discretionary choices. !n the domestic scene, the <resident formally appoints and dismisses the Federal Chancellor, and he nominates a candidate to be elected by the ,undestag in the first place )+rt. @3 ,asic ?aw*/ he appoints and dismisses federal ministers )+rt. @F ,asic ?aw* and other functionaries )+rt. @; )7* ,asic ?aw*/ he has the right to grant pardons )+rt. @; ):* ,asic ?aw*/ he promulgates federal legislation )+rt. 8: )7* ,asic ?aw* and can dissolve the ,undestag to call early elections )+rts. @3 )F* and @8 )7* ,asic ?aw*. However, the e%ercise of these powers is severely conditioned in reality. 0hen nominating a candidate for Chancellor, the <resident takes account of relative party strengths in the ,undestag and conventionally nominates the candidate of the largest party controlling, usually in a coalition with another party, an absolute ma1ority of ,undestag seats. He must appoint any person elected Chancellor by absolute ma1ority. The <resident has no political discretion in appointing ministers and other functionaries or in international affairs either/ almost all of his decisions re2uire the countersignature of government members to be valid in the first place )+rt. A8 )7* ,asic ?aw*. Two presidential powers stand out, however. First, while the <resident promulgates bills adopted in the federal legislative process, and while he may not veto legislation for political reasons, he may and in fact must refuse to sign legislation that in his view violates the ,asic ?aw )see Chapter F*. (econd, the <resident plays more than a merely ceremonial role when it comes to the dissolution of the ,undestag. He may dissolve the ,undestag only in two situations, namely if in the third round the ,undestag has still not elected a Chancellor by absolute ma1ority )+rt. @3 )F* ,asic ?aw* or if the Chancellor re2uests early elections after having lost a confidence vote in the ,undestag )+rt. @8 )7* ,asic ?aw*/ however, in both situations the <resident does have a choice. +fter the third inconclusive round of Chancellor elections in the ,undestag the <resident may call early ,undestag elections, but he may also appoint the candidate who has obtained a relative ma1ority of votes. ?ikewise,if the Chancellor re2uests early ,undestag elections after a failed confidence vote the <resident may comply, but he may e2ually refuse, keeping the ,undestag and the Chancellor in place. For a dissolution of the ,undestag in the first scenario, and for his decision to keep the Chancellor in office, the <resident does not need a countersignature )+rt. A8 ,asic ?aw*. !verall, however, the <resident bears in mind the non partisan dignity of his office, the indirect character of his election in the first place, and the supremacy of the ,asic ?aw as interpreted by the Constitutional Court. !nce in place, the <resident can be removed from office, yet only for having intentionally violated the ,asic ?aw or another federal statute, in a procedure before the Federal Constitutional Court )+rt. @7 ,asic ?aw*. (uch an impeachment procedure can be initiated by the ,undestag or the ,undesrat, but only with 2ualified ma1orities even to table the initiative )one 2uarter of ,undestag members respectively ,undesrat votes* and to actually start the procedure )two thirds of ,undestag members respectively ,undesrat votes*.

.2. The Chan)e++'r and his !'vern"ent

The &erman federal government is headed by the Federal Chancellor. The term #chancellor$ )4anzler in &erman* had been applied to national level prime ministers already under the Constitution of the 5orth &erman Confederation of 78@B. This was partly to stress that the Confederation respected the position of the primeministers of the individual member (tates, who were called -inisterpr[sident. The term #chancellor$ entered into usage and was retained during the 6mpire of 78B7 and under the 0eimar .epublic. Historically, the chancellor was a senior e%ecutive post in the Holy .oman 6mpire. "n modern day &ermany, most (tate

premiers are still called -inisterpr[sident, which is also a generic term to describe prime ministers of foreign countries. The Federal Chancellor is elected by the ,undestag upon a proposal by the Federal <resident )+rt. @3 ,asic ?aw*. The <resident$s nominee re2uires the support of an absolute ma1ority of ,undestag members, and he is afterwards appointed Chancellor by the Federal <resident. "f the nominee does not receive an absolute ma1ority, another voting round is held, whereby the ,undestag can elect a Chancellor itself, without any nomination of a candidate by the <resident/ the winner is &overnments, their <arliaments and their Heads of (tate 7:8 again the candidate who receives the votes of an absolute ma1ority of ,undestag members. "f no candidate musters an absolute ma1ority at that stage, a third voting round is held, and the candidate receiving a relative ma1ority wins. "f that candidate also in fact wins an absolute ma1ority in the ,undestag, the Federal <resident appoints him Chancellor/ if he has a relative but not an absolute ma1ority, the <resident can decide whether to appoint the relative ma1ority winner or to call for new ,undestag elections. "t is permissible for the Chancellor or any other minister to remain a ,undestag member/ in practice, most cabinet members are also parliamentarians.

,ar+ia"entar# Investit2re
The 79F9 ,asic ?aw provides that the Chancellor is elected by the ,undestag/ if an absolute ma1ority is secured, the <resident may not refuse to appoint the person thus elected. This stands in contrast to the 0eimar Constitution, where the <resident could choose and appoint a Chancellor himself. The reversal of the procedural order )first election, then appointment* reflects the general trimming of presidential powers under the ,asic ?aw. The federal government itself, also called cabinet, comprises the Federal Chancellor and the federal ministers )+rt. @: ,asic ?aw*. !nce a Chancellor is appointed, the <resident appoints and dismisses federal ministers upon the Chancellor$s proposal )+rt. @F )7* ,asic ?aw*. -inisters are responsible for their policy area/ the Chancellor retains the power of giving overall policy guidelines )+rt. @A ,asic ?aw*. The function of commander in chief of the armed forces is e%ercised by the minister of defence in peacetime )+rt. @Aa ,asic ?aw*, but it shifts to the Chancellor if the country is in a state of defence against foreign aggression )+rt. 77Ab ,asic ?aw*. The federal government forms the highest authority of the &erman federal e%ecutive. +s the head of the &erman government, the Federal Chancellor is a member of the 6uropean Council, a supreme organ of the 6uropean 'nion/ ministers participate in the 'nion$s Council of -inisters depending on the sub1ect matter to be discussed.

. . Ministeria+ A))'2nta7i+it#
The Chancellor and his federal government are accountable to the ,undestag, meaning that they have to 1ustify their actions before it and may face a sanction. The Chancellor owes his office to being elected by the ,undestag in the first place, and the ,undestag can censure the government if it has lost confidence in the Chancellor )+rts. @B and @8 &erman ,asic ?aw*. The ,undestag may primarily e%tract information on government conduct via its right to summon ministers under +rticle F3 )7* of the ,asic ?aw. To avoid instability, the power of the ,undestag to censure the government is conditioned. The federal government can be brought down only by applying a constructive vote of no confidence against the Chancellor. The ,undestag can oust a sitting Chancellor only by electing a new one with the votes of an absolute ma1ority of ,undestag members )+rt. @B ,asic ?aw*. That is the same ma1ority a Chancellor would need to be regularly elected in the first place. + cooling off period of fortyeight hours must lapse between the introduction of the initiative and the vote itself.

The <resident must appoint the new Chancellor thus elected. 0ith the termination of the old Chancellor$s term, the term of office of the other ministers ends as well )+rt. @9 ):* ,asic ?aw*, and therefore the entire government falls with the Chancellor. 5o confidence votes against individual ministers, constructive or otherwise, are not possible.

Sta7i+i:ed !'vern"ent
The limitation of the ,undestag$s censure powers to constructive no confidence votes means a stabilization of the government in office. First, while it may be easy to be against an incumbent Chancellor, it is harder for the opposition to agree on a better alternative/ until a united and hostile absolute ma1ority has formed, the Chancellor and his government can stay in power. (econd, censure motions against individual ministers are not possible, whereas censure of the Chancellor would be a #nuclear option$. Third, even when a Chancellor is ousted, a new one can immediately take over with a proven workable parliamentary ma1ority/ power vacuums, as seen during the 0eimar .epublic, are avoided. ,ased on this basic relationship of accountability, the ,undestag is capable of e%ercising parliamentary oversight over the government$s actions. This applies to domestic and ordinary foreign policies/ it also applies to the government$s conduct of 6uropean 'nion policies. The government is obliged to keep the ,undestag, but also the ,undesrat, informed about 6uropean developments in general and draft 6uropean legislation in particular )+rt. :3 ,asic ?aw*. ,undestag and ,undesrat involvement in the 6uropean legislative process is relevant since 6uropean law is binding upon &ermany and can take precedence over &erman law, without the two chambers being the formal lawmaker )see also Chapter @*. The government #takes into account$ ,undestag opinion on 6uropean legislative proposals. "nvolvement of the ,undesrat is relevant also for another reason= the government is not accountable to the ,undesrat, yet still it is to be avoided that (tates$ powers and &ermany$s federal character are 2uietly hollowed out by 6uropean integration. "n the most farreaching scenario, therefore, if a 6uropean measure affects primarily the (tates$ e%clusive legislative competences in the field of schooling, culture or broadcasting, &ermany$s representation in the 6' is taken over by a representative who is appointed by the ,undesrat )+rt. :3 )@* ,asic ?aw*. That representative closely coordinates his actions with the federal government in order to ensure a coherent representation of &ermany in 6urope. "n :;;9 the Federal Constitutional Court has furthermore ruled that certain decisions under the Treaty of ?isbon to e%pand 6' powers without there being a formal Treaty amendment must also be approved by the &erman legislature before the government may agree to them in ,russels. &overnments, their <arliaments and their Heads of (tate

.$. C'n/iden)e ;2esti'n

The reversal of the constructive vote of no confidence, whereby the initiative lies with the Chancellor rather than the ,undestag, is the #confidence 2uestion$. The Chancellor may, whenever he chooses, ask the ,undestag to affirm its confidence in him )+rt. @8 ,asic ?aw*. "f the confidence motion succeeds, receiving the support of an absolute ma1ority of ,undestag members, the Chancellor can remain in office/ if the motion fails, because less than an absolute ,undestag ma1ority supports it, the Chancellor may either decide to stay in office or ask the <resident to dissolve the ,undestag and call for early elections. The <resident can then decide to do this within twenty one days, unless the ,undestag has already elected a new Chancellor in the meantime. The #confidence 2uestion$ that the Chancellor can ask the ,undestag is, in principle, intended as a means for the Chancellor to clear an impasse. "f his ,undestag ma1ority is apparently no longer loyal to him, but would not elect another Chancellor in his stead either, the Chancellor can clarify the situation by calling for an e%plicit vote. The Chancellor may also tie the confidence 2uestion to the passing of a specific bill or policy proposal= the

ma1ority then should either support the Chancellor and his pro1ect or risk early elections, with the possible conse2uence that government parties end up in the opposition. This is a political means to discipline the Chancellor$s own rank and file. The Chancellor may also seek to lose a confidence vote on purpose, asking his ma1ority not to support the motion. (ince the ,undestag cannot dissolve itself, and the <resident can in this situation dissolve it only after a lost confidence vote, this is the Chancellor$s only means to have early elections take place. 5ew elections are to gain fresh legitimacy, resolve policy deadlocks, or to boost the government$s ma1ority in the ,undestag. "t is the <resident$s task to decide whether the Chancellor$s assessment that he can no longer govern is 1ustified, in which case he may go on and dissolve the ,undestag, or whether the Chancellor is plainly abusing the procedure for political gains, in which case he may and must refuse to call early elections. The Federal Constitutional Court has ruled twice on the legality of early elections= Helmut 4ohl, who had won a constructive vote of no confidence in 798:, immediately sought a consolidation of his ma1ority through early elections/ &erhard (chr\der sought to break out of political paralysis, after his party lost important regional elections, in the same way in :;;A. ,oth Chancellors lost their confidence vote on purpose, and the <resident dissolved parliament in both cases. The Federal Constitutional Court accorded the Chancellor discretion to assess the political situation and to choose the means of resolving political crises/ confidence 2uestions with a view to allow for early elections are not per se unlawful. Thus, in its 1udgment of :A +ugust :;;A ): ,v6 FK;A and : ,v6 BK;A*, the Court held= #The confidence 2uestion aimed at a dissolution of the ,undestag is only constitutional if it complies not only with the formal re2uirements but also with the purpose of +rticle @8 ,asic ?aw. The ,asic ?aw, through +rticles @3, @B and @8, seeks a government capable of action. )...* The Federal Constitutional Court reviews the application of +rticle @8 ,asic ?aw in accordance with its purpose only in a restricted manner as prescribed by the Constitution$. 6%ercising 1udicial restraint, and noting that it comes last in a process involving the Chancellor, the ,undestag and the <resident, each having the means to stop the entire process, the Federal Constitutional Court therefore upheld the legality of the manoeuvre in both cases.

$.The United %in&d'"

The '4 is a monarchy, albeit a constitutional or parliamentary one. The head of state is the 4ing, a hereditary office/ the government is headed by a <rime -inister who is formally appointed by the 4ing but is in practice the leader of the ma1ority party in the House of Commons. (ave for a brief republican period under !liver Cromwell and his son as well as another interregnum after the e%pulsion of >ames "", both during the 7Bth century, the monarchical system of 6ngland, ,ritain and the 'nited 4ingdom has been uninterrupted for over eleven hundred years. The current 0indsor dynasty descends from &eorge ", who became the first 4ing from the <rotestant House of Hanover in 7B7F. 78th century statesman .obert 0alpole is generally considered to be the first ,ritish <rime -inister, as he e%erted leadership over the other ministers in a setting of parliamentary government.

2.1.

The %in&

The head of state of the 'nited 4ingdom is the 4ing, which is a hereditary monarchical office. "nto the 9th century, different kingdoms competed for hegemony in 6ngland/ 0esse% defeated the other kingdoms and established a line of +nglo (a%on 4ings of 6ngland. 0illiam the Con2ueror became the first +nglo 5orman 4ing of 6ngland in 7;@@/ in 7B7F, the throne passed from the (tuart dynasty to the &erman House of Hanover as it became law that the monarch must be a <rotestant. The 0indsor dynasty is a continuation of the House of Hanover= it was renamed after 0indsor castle during 0orld 0ar " so as to emphasize its patriotic link with the '4. The throne passes to the oldest legitimate child

upon the death or abdication of a 4ing, yet sons have priority over daughters. The 4ing must still always be a <rotestant and become the head of the +nglican Church )+ct of (ettlement 7B;7*. ,eing, becoming or marrying a Catholic permanently e%cludes potential successors from the order of succession. The 4ing$s powers are all but ceremonial in practice )see also Chapter :*. 5otionally, the 4ing reigns over the country himself, with the advice of his <rivy Council, an advisory body/ he makes legislation, giving his royal assent to statutes adopted by <arliament/ and he ad1udicates with the help of his royal courts. "n reality, the 4ing is stripped of discretionary power and is constrained by the supremacy of <arliament and the discretion of the <rime -inister. The 4ing and the <rivy Council do not reign, instead government policy is conducted by the <rime -inister and his cabinet of ministers/ the 1udiciary is independent/ by constitutional convention, the 4ing gives royal assent to any and all bills that have passed <arliament, without any choice to refuse/ under the ,ill of .ights 7@89 the 4ing effectively cannot legislate without <arliament, and the courts accept the supremacy of statute over royal prerogative. +s regards other decisions, such as the dissolution of the House of Commons, the appointment of new peers to the ?ords, or the appointment of 1udges or +nglican bishops, the 4ing conventionally acts with the #advice$ of the <rime -inister. "n reality this means that the 4ing merely approves decisions that are in fact taken by the <rime -inister. Historically, the 4ing was in a much stronger position compared with today, but already throughout the -iddle +ges and the early modern period he relied on consultation with <arliament to govern effectively. Conflicts between the (tuarts and <arliament in the 7Bth century resulted first in a civil war, then in the abolition of the monarchy and, shortly after its restoration, in the assertion of parliamentary supremacy over the crown. The Hanover monarchs, who were installed by virtue of the +ct of (ettlement 7B;7, were much more restrained from the outset. 79th and :;th century monarchs from that dynasty effectively ceded their political prerogatives to their democratically legitimized <rime -inisters and retained a symbolic role as embodying the unity and continuity of the state.

2.2.

The ,ri"e8Minister and his Ca7inet

The <rime -inister is effectively the head of the government in the '4 )technically, it is the 4ing$s government*. The office of the <rime -inister is almost entirely conventional. "t emerged in practice in the 78th century as one of the 4ing$s ministers would become the leading, or #first$ minister. 6ven today, statute only incidentally even mentions the <rime -inister, such as when it regulates the salaries of different government officials. "n reality, the <rime -inister is the most prominent and dominant figure in '4 politics. The government is in principle formed by the political party that commands an absolute ma1ority in the House of Commons. Coalitions or minority governments in a #hung$ <arliament, where no single party has an absolute ma1ority, are an e%ception in the light of the electoral system that applies to the Commons )see Chapter F*. The 4ing appoints the <rime -inister, but by convention he always appoints the leader of the ma1ority party in the Commons. The last royal appointee to be re1ected in the Commons was the 3uke of 0ellington, who had to be 2uickly dismissed again by 4ing 0illiam "G in the 783;s. "f no party commands an absolute ma1ority in the Commons, the 4ing may appoint the previous <rime -inister or the person most likely to form a stable government. !nce installed, the <rime -inister goes on to select fellow parliamentarians to become ministers and form the inner cabinet. The 4ing formally appoints cabinet ministers with the <rime -inister$s advice, again without a choice but to agree with the <rime -inister$s nominations. Cabinet ministers must conventionally be members of <arliament, preferably of the House of Commons. -inisters recruited from outside <arliament may be granted a peerage so as to become a member of the ?ords.

Cabinet ministers are responsible for a specific sector of government policy, and they are also #secretaries of state$ if they head a government department. Further 1unior ministerial posts are awarded below the level of secretaries of state. -embers of the ma1ority party in the Commons who are left without a ministerial or 1unior ministerial post remain as #backbenchers$, sitting in the back of the government$s ranks.

The ,ar+ia"ent, the !'vern"ent, the Ca7inet and its Shad'w

The ma1ority party in the '4 House of Commons is the government in a broad sense, seated to the right of the speaker. The main e%ecutive body is the cabinet, comprising the <rime -inister and his cabinet ministers. &overnment parliamentarians holding cabinet posts are seated on the front bench/ behind them are the #backbenchers$ with no ministerial posts. !n the opposite side of the aisle, parliamentarians of the opposition are seated. (ome senior opposition members specialize in sub1ect matters mirroring government departments/ opposite to the cabinet there will thus be an informal #shadow$ cabinet, comprising #shadow$ ministers, making clear that the parliamentary opposition is ready to take over the government at any time. The cabinet forms the highest e%ecutive authority in the '4. +s it is formed from within <arliament and remains accountable to the plenary, it is sometimes described as an e%ecutive committee of the House of Commons. The <rime -inister, while notionally a first among e2ual ministers, is the effective leader of the cabinet. +s the head of the cabinet, the <rime -inister is furthermore a member of the 6uropean Council, a supreme organ of the 6uropean 'nion/ cabinet ministers participate in the 'nion$s Council of -inisters depending on the sub1ect matter to be discussed. F.3. -inisterial +ccountability The '4 cabinet is accountable to the House of Commons. ,y convention, the <rime -inister resigns if the House of Commons passes a vote of no confidence against him/ the same applies to individual cabinet ministers, who can be ousted by a Commons vote as well. There are no special procedural re2uirements for such censure votes. "n reality, ministers resign voluntarily or are reshuffled after having become a liability.

,art# Rev'+t
Cabinets do not usually fall after a no confidence vote triggered by the opposition, but rather by internal power shifts within the government party. -argaret Thatcher lost office in 799; after losing the backing of her own party. Transition of power from one <rime -inister to another within the same party does not necessarily re2uire fresh elections, as long as the ma1ority accepts the successor. ,ased on this basic relationship of accountability, the House of Commons is capable of e%ercising parliamentary oversight over the government$s actions. The ?ords, although they cannot bring down the cabinet, possess sufficient political leverage to put the government under scrutiny as well. This applies to domestic and ordinary foreign government policies/ it also applies to the cabinet$s conduct of 6uropean 'nion policies. <arliamentary involvement in the 6uropean legislative process is relevant since 6uropean law is binding upon the '4 and can take precedence over '4 law, without 0estminster <arliament being the formal lawmaker )see also Chapter @*. The main tool by which <arliament e%ercises some influence over the '4 government at 6uropean lawmaking is the #scrutiny reserve$. ,ased on parliamentary resolutions, and applicable to both Commons and ?ords, '4 ministers are in principle barred from giving their consent to 6uropean drafts until <arliament has completed its consideration of that draft. 6lective 3ictatorshipP The person who is the leader of the ma1ority party in the House of Commons will be appointed <rime -inister. +s <rime -inister, he will wield a considerable amount of power. +dvising the 4ing, he can compose and

reshuffle his cabinet, decide over royal appointments including peerages, and have the Commons dissolved. Gia internal party discipline, he can also lead the Commons ma1ority. 0hoever controls the ma1ority party controls the House of Commons/ whoever controls the Commons controls <arliament/ whoever controls <arliament can make statutes which the monarch will sign/ and whoever is in control of statute making is omnipotent in accordance with parliamentary sovereignty. +t times, the <rime -inister is therefore referred to as an elected dictator. 0e should, however, not underestimate the political constraints on a <rime -inister= self assured cabinet ministers/ rebellious backbenchers and competing #wings$ within his own party/ the party base/ the opposition in the Commons and the House of ?ords, which can e%pose government failures/ the media/ and e%ternal forces, not least 6uropean law. 0henever the <rime -inister deems fit, he may have the House of Commons dissolved. He then re2uests the 4ing to dissolve the Commons and call for new elections/ the 4ing, by convention, always complies. There is no minimum time the Commons must have operated before early elections are called/ the statutory ma%imum term, however, is five years. The Commons can e%tend the ma%imum term by statute, but such a statute must receive the approval of the ?ords as well )(ection B <arliament +ct 7977*, whereas in most other cases the ?ords can be overridden. (. Fran)e

The e%ecutive branch under the French Constitution of the Fifth .epublic is two headed. The head of the government in a narrow sense is the <rime -inister )+rt. :7 French Constitution*, who is accountable to the French parliament. The <resident, in turn, is not only head of state, but also wields important e%ecutive powers of his own. 6lected directly by the people, the <resident is not accountable to the French parliament in the sense of a confidence rule. 0ithout a <rime -inister, and with the directly elected <resident heading the government alone, France would be a fully presidential republic similar to the '(/ without its powerful and directly elected <resident, and with 1ust the <rime -inister heading the government, France would be a fully parliamentary system comparable to &ermany. (ince it has both, a <resident who is directly elected and not accountable to parliament in the sense of a confidence rule and a <rime -inister who is not directly elected and who is accountable to parliament, both sharing e%ecutive powers, France is referred to as a semi presidential system= half presidential, half parliamentary. Charles de &aulle was the first <resident of the Fifth .epublic, first elected through an electoral college in 79A8 and in popular elections in 79@A. The first prime minister of the Fifth .epublic was -ichel 3ebrN, who also played a ma1or role in drafting the current Constitution. The President The <resident of the French .epublic is elected directly via a run off system. "n order to get elected in the first round, a candidate must obtain an absolute ma1ority of votes cast/ if no candidate obtains an absolute ma1ority, the two candidates with the most votes proceed to a second round. "n the second round, plurality suffices in order to get elected )+rt. B French Constitution*. !riginally, the <resident was elected via an electoral college. <resident de &aulle called and won a referendum to introduce direct election in 79@:. The direct elections boosted the legitimacy and weight of the office, and marked the decisive step from a parliamentary to a semi presidential system in France. The <resident is elected for a term of five years. The original term was seven years, yet a constitu tional amendment in :;;; shortened the term/ it now matches the term of the 5ational +ssembly. (ince the reform of :;;8, a <resident may only serve two consecutive terms )+rt. @ French Constitution*. !nce in office, the <resident may be removed from office when found incapacitated by the Constitutional

Council )+rt. B French Constitution*. Furthermore, the <resident may be removed in an impeachment type procedure for a #breach of his duties manifestly incompatible with the e%ercise of his mandate$ )+rt. @8 French Constitution*. The removal is decided on by a 1oint session of the two chambers of parliament sitting as the High Court. + removal re2uires the votes of a two thirds ma1ority of the members of the High Court. +s head of state the <resident represents France abroad and fulfils diplomatic functions )+rt. 7F French Constitution*, he concludes international treaties )+rt. A: French Constitution* although the significant ones re2uire parliamentary ratifica tion/ he appoints functionaries )+rt. 73 French Constitution* and grants individual pardons )+rt. 7B French Constitution*. His e%ecutive powers include the right to appoint a <rime -inister as head of the government )+rt. 8 French Constitution*/ the <resident presides over the council of ministers, which is the #inner$ govern ment, when it meets )+rt. 9 French Constitution*/ he is commander in chief of the armed forces )+rt. 7A French Constitution* and he wields far reaching emergency powers )+rt. 7@ French Constitution*. +s regards legislation, while it is the <rime -inister who introduces bills on behalf of the e%ecutive, the <resident is involved via the council of ministers and can also have influence over such initiatives depending on the political constella tion. "n the legislative process, although he has no veto power, the <resident may insist on one reconsideration of bills passed by parliament )+rt. 7; French Constitution*, and he can refer adopted bills for constitutional review by the Constitutional Council )+rt. @7 French Constitution*. 'pon governmental or 1oint parliamentary proposal he may also refer listed categories of government bills for referendum )+rt. 77 French Constitution*/ the :;;8 reform also authorizes referendums upon the initiative of a parliamentary minority. The <resident may dissolve the 5ational +ssembly, though not more than once a year )+rt. 7: French Constitution*. The Prime 1inister and his 'overnment The <rime -inister, the other head of the French e%ecutive ne%t to the <resident, is the head of the government proper. The <rime -inister is appointed by the <resident )+rt. 8 French Constitution*, and he and his government are accountable to the parliament, in particular the 5ational +ssembly )+rts. :;, F9 and A; French Constitution*. The <resident removes the <rime -inister from office if the <rime -inister tenders the government$s resignation )+rt. 8 French Constitution*/ this he may do voluntarily of his own motion, or after having been defeated in the 5ational +ssembly )+rt. F9 French Constitution*. Coha2itation The French <rime -inister, although appointed by the <resident, re2uires the confi dence of the 5ational +ssembly. "t may be that the <resident is forced to appoint a <rime -inister who is of a political colour other than his own= since the <resident and the 5ational +ssembly are elected in separate elections, the party political affiliation of the parliamentary ma1ority and that of the head of state do not have to coincide. 0hen <resident and <rime -inister are thus of different political colours, a cohabitation situation arises= the two have to cooperate sharing their powers and to overcome their differences. They live together without being married, as it were, which is what cohabitation in fact means. Cohabitations are likely if parliamentary elections are held in mid term of the <resident$s tenure, with voters e%pressing their dissatisfaction with the incumbent e%ecutive by voting the opposition into office. Cohabitation tends to strengthen the position of the <rime -inister with respect to the <resident, since the latter cannot e%ert internal party pressure upon the former. (ince :;;;, the likelihood of cohabitations is lowered as by way of constitutional amendment the <resident$s term of office is shortened to five years, down from the previous seven years, to match the five year term of the 5ational +ssembly. The <resident can keep the two terms syn chronized by dissolving the +ssembly immediately after presidential elections. Goters are supposedly not likely to #split the ticket$ if both elections take place at around the same time, so any <resident can count on a friendly ma1ority in the 5ational +ssembly, which gives him leeway in appointing a <rime -inister of his liking. The government, headed by the <rime -inister, is in charge of national policy making )+rt. :; French

Constitution*. (ince in France e%ecutive and foreign policy powers are shared between <rime -inister and <resident, both of them together participate in the 6uropean Council, a supreme organ of the 6uropean 'nion/ government ministers participate in the 'nion$s Council of -inisters depending on the sub1ect matter to be discussed. 1inisterial Accounta2ility The French government is accountable to the 5ational +ssembly, though the <resident is not. The government members are appointed by the <resident/ they do not re2uire an e%plicit vote of confidence from the 5ational +ssembly in order to assume office. The <rime -inister may present a policy programme or make a general policy statement and make this a matter of parliamentary confidence )+rt. F9 French Constitution*, but he does not have to. "f he does ask for such a vote of confidence and the 5ational +ssembly re1ects his programme or statement, he must tender the government$s resignation.

!therwise the government can be brought down by a motion of censure in which the 5ational +ssembly e%presses its lack of confidence in the government )+rt. F9 French Constitution*. "n line with the rationalization of parliament, censure votes are procedurally constrained. To introduce a censure motion it must be signed by at least one tenth of the members of the 5ational +ssembly. Then, a cooling off period of F8 hours must pass between the initiative and the vote. The motion itself is only passed if an absolute ma1ority of members supports it. !nly votes in favour are counted towards the absolute ma1ority, which means that abstentions count as votes against the motion and for the government. <arliamentarians are restricted in the number of motions they may sign. The <rime -inister and his government resign if successfully censured. The <resident may then appoint a new <rime -inister or dissolve the 5ational +ssembly. &overnment members may not at the same time be members of parliament )+rt. :3 French Constitution*. The seat of a parliamentarian who receives a ministe rial appointment is taken over by his alternate= his running mate who got elected on the same ticket to fill his seat in case of a vacancy. Historically, the incompatibility was to discourage parliamentarians from bringing down sitting cabinets in the hope of becoming ministers themselves. (ince :;;8, the French Constitution however stresses that the replacement is temporary, so that former ministers may return to parliament and reassume their seat )+rt. :A French Constitution*. ,ased on the basic relationship of accountability, the 5ational +ssembly is capable of e%ercising parliamentary oversight over the actions of the <rime -inister and the government. The practical possibilities are constrained in the light of the e%ecutive$s dominance and the rules applying to the functioning of the parliament. The principle nevertheless applies to domestic and ordinary foreign government policies/ it also applies to the government$s conduct of 6uropean 'nion policies. <arliamentary involvement in the 6uropean legislative process is relevant since 6uropean law is binding upon France and can take precedence over French law, without the parliament being the formal lawmaker )see also Chapter @*. The two chambers of parliament are therefore to be kept informed about 6uropean develop ments and may pass resolutions on drafts )+rt. 88 F French Constitution*/ the government furthermore agrees in principle not to approve 6uropean drafts while parliament is still considering them. To e%pedite the approval of the 5ational +ssembly to statutes, the <rime -inister may make the passing of bills a matter of parliamentary confidence/ the bill is then considered adopted unless the 5ational +ssembly introduces a censure motion within :F hours and successfully censures the government )+rt. F9 French Constitution*. (ince the constitutional reform of :;;8, this procedure may only be applied to finance

bills and social security financing bills, and otherwise to one bill per parliamentary session. (lac*mailing Parliament 'nder +rticle F9 of the French Constitution, the <rime -inister may make a bill a matter of confidence in his government as a whole/ in &ermany, under +rticle @8 of the ,asic ?aw, the Chancellor can ask for parliamentary confidence in connection with the passing of a bill as well. The difference is that in &ermany the bill is deemed re1ected, and confidence is deemed denied, unless the Bundestag supports the bill/ in France, however, the bill is deemed approved, and confidence is deemed confirmed, unless the 5ational +ssembly brings down the government. The French default is therefore in favour of the government. The French Constitution stresses the homogeneity of the government as a collective body. <owers are assigned to the <rime -inister or to the government as a whole, not to individual ministers. The government can also be censured only as a unit.

*.

The Nether+ands

The head of state of the 5etherlands )the country in 6urope* is the 4ing, who is also he head of state of the overarching 4ingdom of the 5etherlands )the 5etherlands plus the overseas countries in the Caribbean*. The 3utch head of the cabinet is the <rime -inister/ the overseas countries in the 4ingdom have prime ministers of their own. +s part of post 5apoleonic restoration, 0illiam " of !range 5assau became first #(overeign <rince$ and then the first 4ing of the 5etherlands in 787A. The office of <rime -inister became politically prominent after the constitutional reform of 78F8, which allocated responsibility for government action with the ministers rather than with the monarch. The statesman >ohan .udolph Thorbecke, the main drafter of the reform, became <rime -inister in 78F9. The 0ing The 3utch monarchy is hereditary. The royal dynasty of !range 5assau descends from 4ing 0illiam ", <rince of !range )+rt. :F 3utch Constitution*. +fter the fall of the 5apoleonic 6mpire, the .epublic as it had lasted until 7B9A was not restored. "nstead, in 7873, 0illiam, who was the son of 0illiam G, a stadholder of Holland in the 'nited <rovinces before the French invasion, accepted sovereignty. The Constitution of 787F referred to him as the #(overeign <rince$, which was changed in 787A to #4ing$. The 3utch 4ing is also the head of state of the overarching 4ingdom of the 5etherlands as descending from Dueen >uliana, the monarch at the time of the creation of the overarching 4ingdom )+rt. 7 Charter for the 4ingdom of the 5etherlands*. The rules of royal succession are laid down in the 3utch Constitution )+rt. :A 3utch Constitution/ +rt. A )7* Charter for the 4ingdom*. 'pon the death of the 4ing, his oldest legitimate child, son or daughter, ascends the throne. 'pon ascend ing the throne, a new 4ing must take an oath on the Constitution )+rt. 3: 3utch Constitution*. + 4ing may abdicate by unilateral declaration. "n that case, the rule of royal succession is applied as it would be in the case of his death. + 4ing is deemed to have automatically abdicated, and a potential heir is deemed to have waived his claim to the throne, if they marry without legislative approval. +pproval for marriages in the royal house take the form of statute/ the (tates &eneral meet in 1oint session to discuss and adopt a bill to that effect )+rt. :8 3utch Constitution*. 1arriage $ithout Approval

+ll three sons of Dueen ,eatri% of !range 5assau got married. <rince 0illem +le%ander and <rince Constanti1n received statutory approval for their respective marriage, and they and their offspring are thus still entitled to inherit the crown. For <rince Friso$s marriage, however, the government did not even introduce a bill for a statute of approval, in the light of the controversial past of the <rince$s bride. Having married without statutory approval, he and his offspring are e%cluded from the line of succession. The 3utch #government$ )regering* strictly speaking comprises the 4ing and his ministers )+rt. F: 3utch Constitution*. The ministers together form the council of ministers. The ministers plus the secretaries of state, a sort of 1unior ministers, together form the cabinet ).a,inet*. The council of ministers E and the cabinet as a whole E are headed by the <rime -inister )+rt. FA 3utch Constitution*. The 4ing is stipulated to be #inviolable$, which means he is above legal and political pressures/ responsibility for government action is instead borne by the ministers, including the <rime -inister )+rt. F: ):* 3utch Constitution*, as well as secretaries of state )+rt. F@ ):* 3utch Constitution*. +ll royal decrees and the ap proval of legislation must be countersigned by cabinet members to take effect )+rt. FB 3utch Constitution*. This means that the 4ing does not e%ercise any personal constitutional function. "nstead, he and his cabinet members act 1ointly, whereby only the latter bear responsibility. #.oyal decrees$ by which the 4ing appoints ministers, dissolves parliament, or appoints provincial governors, are de facto government orders. The fact that the 4ing himself e%ercises no power autonomously however does not mean that, as a person, he is not involved in government policy. 0eekly consultations with the monarch are held. "n the process of cabinet formation, even though again only the cabinet bears responsibility, the 4ing$s personal character can play a role. The e%tent to which the monarch as a person actually influences government policy is not disclosed to the public, though. "t is the <rime -inister and his cabinet who e%plain and defend government policies in public in general, and before parliament in particular. The Prime 1inister and his Ca2inet Girtually all rules governing ministerial accountability and the process of cabinet formation in the 5etherlands are matters of constitutional custom. The Constitution itself merely provides that the cabinet members are appointed by royal decree )+rt. F3 3utch Constitution*. "n practice, modern cabinet formation processes follow an established pattern. !n the day that new (econd Chamber elections are held, the cabinet tenders its resignation to the 4ing, indicating that it is prepared to make room for a new cabi net to face a newly composed parliament. The cabinet then stays on as a caretaker cabinet or demissionary cabinet. !nce parliamentary election results are establish ed, the 4ing considers a choice of new <rime -inister. The applicable proportional representation system does not tend to yield any clear absolute ma1orities )see Chapter F*, which means that several parties together must form a coalition so as to rely on an absolute ma1ority of seats. For that, in turn, several alternative combina tions may be possible. The 4ing first obtains the advice from the vice president of the Council of (tate )an advisory body, the 4ing is notionally its chairman himself*, the presidents of both Chambers of parliament, and the leaders of the party groups in the new (econd Chamber. He then appoints one or more informateurs. The informateur is a mediator whose task it is to probe in informal talks which political parties are likely to form a stable coalition, and to report to the 4ing about the available options. ,ased on the informateur0s recommendations, the 4ing then appoints a formateur, who is the envisaged <rime -inister and whose task it is to actually form a cabinet. "f he has been successful, the formateur is then appointed by the 4ing as <rime -inister. + new <rime -inister receives a new appointment/ if he had already been the head of the previous cabinet, the 4ing refuses his earlier resignation offer and keeps him in office. The appointment or re appointment is signed by the 4ing and, since it is a royal decree, it must be countersigned by the new <rime -inister. The other

members of the tentative cabinet are also appointed or re appointed as ministers and secretaries of state, by the 4ing$s signature and the <rime -inister$s counter signature. !nce appointed, the <rime -inister goes on to issue a statement before the (econd Chamber, giving account for his role as formateur and setting out policy priorities. He does not ask for a vote of approval, however. +s long as he and his cabinet have not lost confidence in the (econd Chamber, they remain in office. 1inisterial Accounta2ility The 3utch Constitution does not stipulate to whom ministers and secretaries of state are accountable. The prevailing understanding has in fact shifted in the course of the 79th century, namely from ministerial accountability to the 4ing towards ministerial accountability to the parliament, in particular the (econd Chamber, the directly elected lower house. +s a result, the cabinet, once it is installed, must be able to rely on a workable supportive ma1ority in the (econd Chamber. 'nder the original Constitution of 787A, the 4ing bore responsibility for government policy himself. -inisters were considered the 4ing$s advisors. <ressure to allow for more democracy and popular participation however kept rising in most of post restoration 6urope. "n the 5etherlands, the middle of the 79th century saw a power struggle between parliament and the monarch, in which the latter ceded power to the former. "n 78F;, the countersign for royal decrees was introduced. +cts of the 4ing thus re2uired approval from ministers, depriving him of the capacity to act alone. For ministers, this meant that they were sub1ect to criminal liability in case the 4ing violated criminal law. The key moment in the development of a demo cratic constitutional order came with the constitutional amendment of 78F8. +long with other democratic changes, such as direct elections to the (econd Chamber, ministers were declared to be responsible for government policy. This formed the basis of political ministerial responsibility as it still e%ists to date )+rt. F: ):* 3utch Constitution*. &radually, the ministers asserted their power vis ] vis the monarch and played a more independent role. "n return for the reduction of the 4ing$s power, the right to dissolve parliament was introduced )+rt. @F )7* 3utch Constitution*. (till, while ministers had to defend government policy before parliament, since they were the ones responsible for it, it was still not established that they also needed parliamentary confidence to stay in office. (trictly speaking, ministers remained accountable to the 4ing, not to parliament, in the sense that ministers primarily needed the 4ing$s trust. This changed in a se2uence of political follow up incidents which e%panded ministerial responsibility for all actions of the 4ing, and which ultimately established the #confidence rule$ as it applies today= ministers who can no longer count on parliamentary confidence must resign, irrespective of whether they still en1oy the 4ing$s support or not. ,y e%tension, the 4ing must appoint ministers who are acceptable to a parliamentary ma1ority. "n 78A3, <rime -inister Thorbecke resigned over a dispute with 4ing 0illiam """. "n a period of social unrest E a confrontation between the <rotestant ma1ority and the Catholic Church E the 4ing had re1ected the <rime -inister$s advice on how to proceed. "n a speech, the 4ing sided with the <rotestants instead of stressing the freedom of religion. The <rime -inister refused to take responsibility for the 4ing$s acts and tendered his resignation. This first incident underlined that ministers bear responsibility for the 4ing. + second incident, the so called #-i1er affair$ of 78@@, showed that ministers were responsible even in areas then consider ed to be royal prerogatives. Having 1ust approved the budget of the minister for the colonies, -i1er, the parliament learned that the minister had been appointed to an overseas post. The parliamentarians had e%pected -i1er to implement the approved policies himself. They adopted a motion disapproving of the cabinet$s behaviour in this matter. The government responded by dissolving parliament, which is con sidered to show how seriously it took the criticism. "n 78@B, finally, the #?u%emburg affair$ brought about the definitive confirmation of the parliamentary confidence rule. The government of 0illiam """, who at the time was also &rand 3uke of ?u%embourg in personal union, agreed to guarantee the neutrality of

?u%embourg. The 3utch (econd Chamber criticized the cabinet, in particular the minister of foreign affairs, for harming 3utch interests while taking action with respect to a country with which the 3utch had in fact little connection. The Chamber re1ected the budget of the ministry of foreign affairs. The cabinet tendered its resignation, but the 4ing refused and instead dissolved the Chamber= the parliamentarians were said to have abused their budgetary powers. The new (econd Chamber took issue again and adopted a motion stating that the previous dissolution of parliament had not been 1ustified on any ground of national interest/ also the ne%t budget of the ministry of foreign affairs got re1ected. +gain the cabinet tendered its resignation. Let this time the 4ing did not dissolve parliament but accepted the resignation. The (tates &eneral, and the (econd Chamber in particular, had asserted their rights vis ] vis the government= the cabinet had to resign over a conflict with parliament. The cabinet, and the #inner$ council of ministers, headed by the <rime -inister, e%ercise e%ecutive power. Command of the armed forces is assumed by the government as a collective body )+rt. 9B ):* 3utch Constitution*. The <rime -inister is strictly speaking a first among e2ual ministers/ however, as he is for all practical purposes the head of the government, he is the one to participate in the 6uropean Council, a supreme organ of the 6uropean 'nion/ cabinet ministers participate in the 'nion$s Council of -inisters depending on the sub1ect matter to be discussed. ,ased on the basic relationship of accountability, the (econd Chamber is capable of e%ercising parliamentary oversight over the actions of the <rime -inister and the cabinet. The First Chamber is more restricted in its real capabilities but wields political influence as well. -inisters must answer parliamentary 2uestions under +rticle @8 of the 3utch Constitution. -inisterial accountability applies to domestic and ordinary foreign policies/ it also applies to the cabinet$s conduct of 6uropean 'nion policies. <arliamentary involvement in the 6uropean legislative process is relevant since 6uropean law is binding upon the 5etherlands and can take precedence over 3utch law, without the 3utch legislature being the formal lawmaker )see also Chapter @*. The (econd and First Chamber therefore monitor 6uropean developments/ a 1oint committee has been set up in :;;@ to check the compliance of proposals from the 6uropean Commission with the principle of subsidiarity in the first place/ as regards certain 6uropean measures in the field of police and 1udicial cooperation in criminal matters, ministers may in principle only give their approval if such approval has been cleared by both Chambers. 1otions of .o Confidence The established twin concept of ministerial responsibility and the parliamentary confidence rule remains in place to date. -inisters bear responsibility for their own actions and for the actions of their subordinates )individual ministerial responsibili ty* as well as for actions of the cabinet as a whole )collective ministerial responsibili ty*. This means that ministers may be forced to resign individually/ it is not accepted that ministers claim that they were personally against a cabinet decision. The ultimate sanction against a cabinet is the parliamentary motion of no confidence. ?ike most other aspects of ministerial accountability, this is not regu lated in the 3utch Constitution itself. Thus, a motion of no confidence is not bound to any formal conditions. "t can be directed at the cabinet as a whole or at one or more individual ministers. "n its form it remains a regular motion by which the (econd Chamber e%presses its opinion. "t may be tabled by any member of the (econd Chamber and must be supported by a simple ma1ority vote. 0hat is essential is that the cabinet or individual ministers conclude that they have lost the confidence of the (econd Chamber. + motion is merely one of the means by which to e%press such loss. "n reality, motions of no confidence do not e%plicitly call for a minister$s resignation. "nstead, ministers resign over events which they interpret as a sign of a loss of parliamentary confidence. -ore usual means

are therefore motions calling for policies which would deviate from a minister$s policies so much that the minister cannot read the motion in any way other than as a no confidence vote against him/ the re1ection of a minister$s draft budget/ or the adoption of an amend ment to a bill which is deemed unacceptable to the cabinet or a minister. This also means that ministers retain a margin of freedom to interpret unfriendly motions. + minister may interpret a motion or amendment as criticizing only a particular policy, rather than him as a functionary. The size of the ma1ority that carried the motion may also play a role in interpreting the gravity of the criticism. +gain, a motion of no confidence is any motion or other e%pression of parliamentary opinion that is interpreted by the cabinet or minister as signifying a loss of confidence. 0hat is usually decisive is the confidence that ministers en1oy, or do not en1oy, in the (econd Chamber. The (econd Chamber is directly elected and en1oys the political primacy over the First Chamber. "t is disputed whether the confidence rule also applies to the First Chamber, as also here the rules are not codified. + minister in any event remains free to tie the continuation of his office to approval in the First Chamber, and to resign after a conflict with the First Chamber.

The conse2uence of a loss of parliamentary confidence, in one way or another, is that a minister must tender his resignation with the 4ing. "f the entire cabinet tenders its resignation, it is up to the 4ing to decide whether to keep the cabinet in office as a minority cabinet, to have a new cabinet formed, or to call for early elections. 'sually, the fall of a cabinet leads to the dissolution of the (econd Chamber and therefore to early elections. .ather than as an anti parliamentarian move, such dissolution of the (econd Chamber is seen as a way to allow the citizens to 1udge on the preceding crisis and to cast a fresh democratic vote. The 'overnment of the 0ingdom &overnment functions for the overarching 4ingdom of the 5etherlands are e%ercised by the 3utch 4ing and the 4ingdom Council of -inisters. The 4ingdom Council of -inisters is the ordinary 3utch council of ministers, e%cept that it includes the plenipotentiary ministers from the overseas countries as well )+rt. B Charter for the 4ingdom*. The overseas ministers may delay decision making and seek consultation, but ultimately the Council may decide by ma1ority )+rt. 7: Charter for the 4ingdom*, meaning that the overseas ministers can be outvoted )see also Chapters : and F*.

Chapter @

<UDICIAL RE4IE- AND 1UMAN RI!1TS 1. Overview

The term #1udicial review$ means that a 1udge can e%amine a law, or other ob1ect of scrutiny, and check its compatibility with a higher norm. Thus, a 1udge may, depending on the system, test whether a regional law is in harmony or in conflict with a higher, national law. "f the lower law provides rules that go against the provisions of the higher law, then the 1udge, if he has review power, may establish a conflict. (imilarly, he may check whether an administrative decision by a public authority complies with the authorizing general legislation. He may further, again depending on the system, e%amine the validity of a national statute by setting it against the national constitution, an e%ercise called constitutional review of legisla tion. "n some systems, he may review the constitutionality of political parties. He may review the compatibility of national law with general principles of law, such as proportionality, or with an international treaty, such as the 6uropean Convention on Human .ights. Conversely, he may also, where applicable, check the compliance of treaties or acts of international organizations with the national constitution. >udicial review is thus a court$s power to detect conflicts in law, and possibly to attach conse2uences to resolve the conflict. Three sub1ects shall be discussed here in greater detail. First, constitutional review of legislation, pertaining to the constitutionality of statutes made by the cen tral or national lawmaker/ second, review of such legislation for treaty compliance, in particular for compliance with the 6uropean Convention on Human .ights where applicable/ and review of legislation for compliance with the law of the 6uropean 'nion, including the reverse scenario of the review of the constitutionali ty of 6uropean law. Constitutional Revie$ of )egislation There are few issues where the same doctrinal arguments can lead to such differing results across constitutional systems like the issue of constitutional review of legis lation. 0hile the right of 1udges to declare laws unconstitutional is perceived to be acceptable, normal and perhaps even natural in some systems, in other systems this right is fiercely contested. The two arguments typically brought forward to 1ustify the right for 1udges to review the constitutionality of legislation are, first, that 1udi cial review

guarantees the supremacy of the constitution and, second, that 1udicial review provides a check on the lawmaker for the protection of minorities. The first argument stresses that the constitution is the highest norm in a legal system, and that all other law derives from its authority. Thus, legislation should not be allowed to violate the constitution. (upporters of 1udicial review would argue that, conse2uently, 1udges should refuse to apply normal statutes if they violate the constitution. Having a constitution but no constitutional review powers for the courts would, in that view, be pointless, since the lawmaker could violate the constitution with impunity. Hans 4elsen, an +ustrian scholar credited with design ing the prototype of a continental 6uropean constitutional court in 79:;, argued that laws derive their authority from their compliance with higher law, that non compliant laws cannot be normative and that a constitution cannot be supreme unless it is enforced by 1udicial review of legislation. '( (upreme Court chief 1ustice -arshall had already stated that 1udicial review necessarily follows from the supremacy of the Constitution in 78;3.

However, one may e2ually argue that the constitution can very well be supreme, but that this supremacy does not mean that 1udges should be able to frustrate the will of the lawmaker. The lawmaker should simply take account of the constitution when passing statutes in the first place, and make the right choices himself, sub1ect as he is to democratic oversight from the voters. The 5etherlands subscribes to such #optimist$ school of thought, putting trust in democratically elected office holders rather than in unelected 1udges. "n France, immunity of legislation results from the sovereignty of the people whose representatives adopt laws )although France did introduce constitutional review in :;;8 after all, and a 3utch proposal to allow the same is pending*. The second argument holds that checks and balances are necessary to provide a counterweight against the ma1ority of the day. 3emocracy is not the same as tyranny of the ma1ority, it also includes the protection of minorities. "n the rule of law, minorities can find such protection as even the ma1ority is bound by law. +t the same time, especially in the '(, this very counter ma1oritarian character of 1udicial review is often perceived as problematic, especially where 1udges are sus pected of pursuing their own political agenda against the preferences of the elected institutions. There are more e%amples how it is possible to invoke the same principles and arrive at opposite conclusions regarding the 1ustification of 1udicial review. (epara tion of powers, the notion that legislature and 1udiciary should be kept apart, can be construed as meaning that courts should apply the law, not criticize or second guess it. This is the traditional French reading of such separation, namely the separation of the 1udiciary from the legislature. Let separation of powers can also be taken to include the notion of checks and balances, so that it would appear healthy to have a 1udicial check on the lawmaker. ?egal certainty would command that statutes, once in force, should stand until they are repealed, without courts casting doubt on their validity/ citizens should however also be able to rely, with certainty, on their constitution, which should always triumph over conflicting legislation. !ne might say that 1udges should not be trusted, and not be given too much power, because they are, after all, not elected/ one might e2ually argue that 1udges are trustworthy ,ecause they are not elected, and that they can have a more ob1ective and professional view on constitutionality 2uestions compared to political and ma1ority driven lawmakers. The rule of law can be seen as a principle which 1udges are 2ualified to enforce, as they are trained to interpret written law in practice. Con versely, one may argue that there cannot possibly be only one #correct$ or #orthodo%$ meaning of constitutional provisions, and that there is no reason to assume that the interpretation given by 1udges is any better than the interpretation given by lawmakers. The Procedural Setting of Constitutional Revie$

"n those systems which do feature constitutional review of legislation, it is possible to classify different models under different headings. (ystems differ most funda mentally in whether their constitutional review is= % % % abstract or concrete/ eA ante or eA post/ centralized or decentralized.

Concrete review of legislation means the verification whether a law that is about to be applied in adversarial 1udicial proceedings is actually constitutional. "t arises out of a concrete dispute between two parties before a court. "n abstract review, a law is submitted to scrutiny outside the conte%t of an actual application in a dispute/ it is typically triggered by office holders, such as the government. 6% ante review takes place before the law has entered into force, and strictly speaking it targets bills rather than e%isting legislation/ e% post review sub1ects legislation in force to 1udicial scrutiny. "n decentralized systems of review, any court may check the constitu tionality of legislation/ in centralized systems, a special constitutional court or 2uasi 1udicial body e%ists to carry out this task. -odern notions of constitutional review are rooted in a historical break through within +merican constitutional law. "n 78;3, the '( (upreme Court had held that the '( Constitution had to prevail over ordinary legislation, and that it followed from their professional tasks that in the course of proceedings before them 1udges should detect whether different applicable norms conflict with each other. +s a result, all courts in the '( have the power to verify whether legislation that they are about to apply is at all constitutional. This construction rules out abstract review or the review of bills in the form of advisory opinions or otherwise, because that would take place outside the conte%t of an actual court case and would thus not fall within the professional tasks of the 1udiciary. &ermany, like many other states in Central, (outhern and 6astern 6urope, features a special constitutional court that carries out review functions. The system is called the continental, +ustrian or 4elsenian model of 1udicial review. These systems allow courts to e%amine the constitutionality of statutes, but keep the power to invalidate these statutes centralized in one constitutional court set up specifically for that purpose. .eview is therefore decentralized when arising from concrete cases, but the final decision on constitutionality is centralized. "n addition, 4elsenian systems typically allow constitutional courts to engage in abstract review of legislation upon re2uest from enumerated state institutions. France was long famous for having a system whereby laws could only be reviewed before they had entered into force. This task was carried out by the Constitutional Council. The Council was not strictly a court as it was not necessarily staffed by lawyers and did not hear individual cases, but was usually nevertheless considered to belong to the larger family of constitutional courts in 6urope. (ince the constitutional reform of :;;8, France allows its two supreme courts to refer 2uestions regarding the constitutionality of statutes to the Constitutional Council as well. Thus, in addition to its e% ante review in the abstract, France now also features concrete review e% post. "n the 'nited 4ingdom, constitutionality review of statutes would be difficult, since there is no central document that would codify the most fundamental rules governing the state to start with/ furthermore, second guessing <arliament would mean to violate one of the most important principles of the '4 constitution itself, namely parliamentary sovereignty in the sense of legislative supremacy. Thus, <arliament and only <arliament can unmake a statute. The 5etherlands e%plicitly prohibits its 1udges from 2uestioning the constitutionality of statutes, although an amendment to allow review on enumerated grounds has been adopted in first reading in :;;8. 0hat e%actly is the conse2uence of a 1udicial decision stating that a statute is unconstitutionalP !ften

terms are used interchangeably= the court invalidates the statute, 2uashes it, strikes it down, annuls it, declares it void, disapplies it, sets it aside, etc. Two principal effects should be distinguished, however. #3isapplication$, #invalidation$ or #setting aside$ means to leave the statute as it stands, but to refrain from applying it to a particular case. #+nnulment$ or #declaring void$ carries further reaching conse2uences. "t means that the statute is struck out and ceases to e%ist, as it were. !ne might compare it to an annulled contract. The legal fiction is then even that it in fact never has e%isted, although typically retroactive effects of the annul ment of statutes are limited in order to preserve legal certainty. The &erman Consti tutional Court can declare a statute void/ the 1udgment itself then carries the rank of a repealing statute and is published as such. "n the '(, since all constitutionality review is decentralized and concrete, unconstitutionality means disapplication in concrete cases/ however, once the '( (upreme Court has found a statute in violation of the Constitution, a common law precedent is established so that in the future all other courts will have to disapply the statute as well. !ne might say that in this case #setting aside$ and #declaring void$ boils down to the same thing, namely that the statute loses all practical effect. The legal construction nevertheless is different, since a void statute disappears whereas a statute that is set aside is technically still in force.

Revie$ of Treaty )a$ Compliance + sub1ect often associated with 1udicial review as regards constitutionality is 1udicial review as regards compliance of statutes with international treaty provisions. +fter all, here again 1udges would test legislation for their compatibility with a higher norm/ and yet again, the 2uestion arises whether treaty law really is #higher$ in rank, and what the conse2uence of that would be. "nternational treaty provisions gain particular relevance when human rights are to be derived from them in a domestic setting. The 6uropean Convention on Human .ights, a multilateral human rights instrument, is a case in point. The domestic effect that states give to treaty provisions essentially depends on whether they adhere to a monist or dualist model. "n a monist system, national statutes and provisions from treaties ratified by the state are treated as forming part of one and the same national legal order, hence the term monism. This allows individuals to invoke treaty provisions before a national court, in the same manner as they would invoke national law. "f a conflict arises between national law and a treaty provision, the latter prevails. 'nder dual; ism, meanwhile, national law and treaties are treated as falling under two separate realms. "ndividuals can invoke national provisions only/ in order to profit from treaty provisions, they would have to wait until their lawmaker has transposed them into national law, in pursuance of the state$s international obligations. The case for embracing monism is straightforward. The argument would be that it is pointless to have treaties if citizens cannot rely on them before their national 1udge/ and such reliance would be pointless if treaties would not also over ride conflicting national legislation. The case for dualism is not without merit, either. 'nder the private law concept of privity of contract, contracts are binding upon the parties thereto, not upon third parties/ a treaty may be likened to a con tract between the state and a foreign state making mutual promises, not between the state and its own citizens. To a dualist state, treaty enforcement should be a matter for international diplomacy and public international law, not domestic 1udicial action. +nother argument against unconditional monism might be that it would allow treaties to undermine the national constitution via #imported$ law taking precedence over national law= constitutional review of treaties might be called for. France and the 5etherlands are monist systems, although both 2ualify the overriding effect of treaties somewhat. France makes the override sub1ect to reci procity in the other contracting states, the 5etherlands limits overrides to treaty provisions that can confer individual rights. "n both systems, treaty review may be seen as #compensating$ somewhat for the 1udges$ current or previous lack of consti tutional review powers. The '( is a 2ualified monist system= federal treaties override (tate law and earlier federal legislation, but their domestic effect can be undone by later federal legislation. The '4 and &ermany,

meanwhile, are dualist= treaties can be relied upon only once they have been implemented into national law. + challenge arises for dualist systems when it comes to giving domestic effect to human rights treaties such as the 6uropean Convention on Human .ights. "t may reasonably be argued, and even the lawmaker might agree, that human rights commitments are only credible if they endure and override conflicting national egislation. Think, for e%ample, of unintended human rights breaches. Let national legislation implementing international human rights treaties in a dualist system is not necessarily superior in rank with respect to any other piece of national legisla tion. Thus, the leA posterior rule, and implied repeal in the '4 )meaning that later law overrides earlier law* threaten to render earlier human rights commitments obsolete. ,oth &ermany and the '4 therefore have found techni2ues how to circumnavigate the hierarchy dilemma, to take into account 6uropean human rights and still hold on to a dualist model with respect to treaties. The '4 has incor porated the rights from the 6uropean Convention on Human .ights in a national statute, the Human .ights +ct 7998, and allows 1udges to make known if they detect a violation by another statute )however they are still not allowed to disapply the statute for that reason*. &erman courts take Convention rights into account when interpreting the rights enshrined in the ,asic ?aw/ the fact that the ,asic ?aw anyway contains a human rights catalogue that goes far beyond the minimum guarantees in the Convention already makes the issue less pressing. European Union )a$ For those states that are members of the 6uropean 'nion, the domestic effect of international treaties is no longer merely a 2uestion of monism or dualism. The 6uropean Community, the historical core branch of socio economic integration since 79AB, while still treaty based, has been defined as a sui generis legal order= as one of its kind. The 6uropean Court of >ustice )6C>* has interpreted the law of the 6uropean Community as being capable of having #direct effect$ and #supremacy$ in the member states. 0ith direct effect, individuals can invoke 6uropean law before national courts, without waiting for transposition/ with supremacy, 6uropean law overrides all conflicting national provisions, no matter their rank. The novel thing, which distinguishes the Community from any other international organization in the world, is that direct effect and supremacy is taken to apply irrespective of whether the member state in 2uestion happens to be monist or dualist. 5o matter what the approach to #normal$ treaties is, the 6C> ruled, Community law possesses special 2ualities by virtue of its own special character. +fter all, the 6uropean common market goes far beyond any ordinary trade agreement/ the treaty mentions not only the member states but also its people/ it creates permanent institutions/ and it gives the 6C> 1urisdiction in preliminary rulings precisely so as to ensure uniform application of 6uropean law. Thus, in its breakthrough decision of Gan Gend F Loos v. Bederlandse 'dministratie der Belastingen ):@K@:, Y79@3Z 6C. 7*, the 6C> held= #The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the (tates have limited their sovereign rights, albeit within limited fields, and the sub1ects of which comprise not only -ember (tates but also their nationals$. Thus, the Community was not considered to be based on a #normal$ treaty at all, but on one in which the member states have decided to share their sovereignty for the effective pursuit of rather ambitious common goals. "n the follow up case to Gan Gend F Loos, namely Flaminio Costa v. $B$L )@K@F, Y79@FZ 6C. A8A, A93*, the 6C> urthermore made clear that 6uropean law with direct effect had supremacy over conflicting national law= #The transfer by the (tates from their domestic legal system to the Community legal system of the rights and obligations arising under the Y66CZ Treaty carries with it a permanent limitation of their sovereign rights, against which a subse2uent unilateral act incompatible with the concept of the Community cannot prevail$. ?ater case law specified that Community law overrides all conflicting national law, whenever and in whatever form adopted. The role of national 1udges is crucial to the uniform application of Community law

in he member states. "ndeed, 1udges must set aside all conflicting national provisions. "n 'dministra+ione delle Finan+e dello !tato v. !immenthal !p' )7;@KBB, Y79B8Z 6C. @:9*, the 6C> confirmed the Gan Gend F Loos and Costa doctrines, and added= #"t follows from the foregoing that every national court must, in a case within its 1urisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subse2uent to the Community rule$. 5ational 1udges must invalidate all national provisions incompatible with Com munity law. They may, in turn, not invalidate secondary Community law, such as regulations and directives, on their own. +s the 6C> held in Firma Foto;Frost v. &aupt+ollamt LH,ec.;Ost )37FK8A, Y798BZ 6C. F799*= #(ince +rticle 7BB Yrenumbered :3; 6CZ gives the Y6C>Z e%clusive 1urisdiction to declare void an act of a Community institution, the coherence of the system re2uires that where the validity of a Community act is challenged before a national court the power to declare the act invalid must also be reserved to the Court of >ustice$. "f in doubt about the validity, or simply the correct interpretation, of Community law, both primary and secondary, national 1udges are free to halt proceedings and ask a preliminary 2uestion to the 6C> before resolving the case before them. Courts of last instance in principle even have to refer preliminary 2uestions to the 6C>. -any national courts, in particular constitutional courts, disagree with such a far reaching and unconditional interpretation of the effect of 6uropean law as main tained by the 6C>. "n their view, while 6uropean law indeed should en1oy direct effect and supremacy, these features must be accommodated into national constitu tional law, and thus cannot be unconditional. France, for e%ample, accepts direct effect and supremacy of 6uropean law, but only by virtue of France$s monism. Thus, treaty law does override ordinary legislation, but the French Constitution is above both. The constitutional courts of "taly and other member states also stress that there are certain core features of the domestic constitution which cannot be overridden by 6uropean law. &ermany is famous for its case law whereby a constant threat is in the air that the Federal Constitutional Court might strike down a piece of secondary 6uropean legislation as being incompatible with the ,asic ?aw. "n the 5etherlands, direct effect and supremacy of 6uropean law poses no real conflict. (ince the 5etherlands is monist, and 1udges have no power of constitutional review anyway, the 3utch courts have no problem in pragmatically accepting the 6C>$s reasoning. "n the '4, meanwhile, problems could not have been greater. <arliamentary sovereignty would seem incompatible with a system where, like the 6C> demands, a 1udge can set aside a national statute. "n reality, 6uropean law does possess the 2ualities that the 6C> has interpreted it to have. The French 2ualifications on 6uropean law supremacy are largely academic/ the &erman Constitutional Court has indicated that constitutional review of 6uropean law would not be e%ercised, and instead be reserved only for grave cases= a deterioration of human rights standards, but also an unlawful e%pansion of 6' powers without authorization from the member states. 6ven the '4 has found a way to reconcile parliamentary sovereignty with 6uropean law supremacy. <arlia ment, by freely deciding to 1oin the Community, must have wanted to accept the relevant 6C> doctrines as part of the deal itself. "ndeed, the 6uropean Community conte%t is the only case where a '4 1udge may disapply an +ct of <arliament. The 6uropean 'nion truly is a new legal order. "t is 1ust not unconditionally 6C> driven. The comple% interrelations between 6uropean and national law, and the #dialogue$ between 6uropean and national 1udges over fundamental doctrines, is part of the 6uropean order$s uni2ueness. +nd 6uropean law is not somewhere #abroad$= in one way or another it is an integral part of the member states$ constitu tions. 5o

matter what the doctrinal embedding, it also affects the domestic relations between 1udge and lawmaker. +fter all, the 1udge has, or gains, #6uropean$ review powers, while national legislation cannot stand if it violates 6uropean law. Summary !f the five systems under consideration, three )the '(, France and &ermany* allow courts or court like institutions to review the constitutionality of legislation. "n the '(, review powers in concrete 1udicial disputes apply to all courts/ in &ermany the courts, and in France the two supreme courts, can refer 2uestions regarding the constitutionality of legislation to a central institution. +bstract review of laws is possible in France )before promulgation* and in &ermany )after promulgation*, but impossible in the '(. The constitutionality of legislation may not be 2uestioned by 1udges in the '4 or the 5etherlands. The 5etherlands does allow 1udges to check the compatibility between legislation and international treaty provisions, however/ the same holds true for France and the '(. The '4 and &ermany remain dualist with respect to treaty provisions.

Further Reading % .. ,lackburn C >. <olakiewicz )eds.* Fundamental 4ights in $urope: The $uropean Convention on &uman 4ights and its %em,er !tates 2:@8;7888 )!%ford= !'< :;;7*. % -. Claes, The Bational Courts0 %andate in the $uropean Constitution )!%ford= Hart :;;@*. % T. 4oopmans, Courts and Political "nstitutions: ' Comparative Giew )Cambridge= C'< :;;3*. % -. .osenfeld, #Constitutional ad1udication in 6urope and the 'nited (tates= <arado%es and Contrasts$, : "nternational Journal of Constitutional Law ):;;F*, pp. @33 @@8. % (tone (weet, Governing with Judges: Constitutional Politics in $urope )!%ford= !'< :;;;*. % -. Troper, #The logic of >ustification of >udicial .eview$, 7 "nternational Journal of Constitutional Law ):;;3*, pp. 99 7:7. 2. The United States The Court System There is no such thing as a uniform '( court system. "nstead, there are fifty one court systems. 6ach of the fifty (tates has its own hierarchy of (tate courts, while ne%t to these (tate courts there e%ists a parallel hierarchy of federal courts. The highest federal court is the '( (upreme Court, which is provided for in the '( Con stitution/ other federal courts E the district courts, courts of appeal and specialized federal courts E are set up by federal legislation )+rt. """ )7* '( Constitution*. Federal 1udges, including (upreme Court 1ustices, are appointed by the <resident with the advice and consent of the (enate )+rt. "" ):* '( Constitution*. (upreme Court 1ustices, as well as the 1udges of lower federal courts in the '( proper are appointed for life )#during good behaviour$, +rt. """ )7* '( Constitution*, and may be removed only by conviction upon impeachment by Congress. +s to (tate courts, each (tate decides on its own what courts to set up and how they are to function, including the tenure and manner of appointment, or election, of 1udges. "n principle, (tate courts are competent to hear disputes, whereas parties may bring an action before a federal court only in enumerated cases. These are cases where a #federal 2uestion$ involving the federal Constitution or federal legislation is at hand, including criminal cases launched for violations of federal law/ cases where the '( federation is either the defendant or the applicant/ cases of maritime law/ disputes between (tates/ and cross (tate border cases )+rt. """ ):* '( Constitution*, but the latter type of cases must concern a minimum money value fi%ed by federal legislation, otherwise (tate courts are competent. The '( (upreme Court acts as a court of first instance in cases involving, in short, diplomats, and in cases brought

by or against a (tate/ it also hears appeals from lower federal courts )+rt. """ ):* '( Constitution*, although federal legislation has severely limited the (upreme Court$s appellate 1urisdiction. The most important 1urisdiction that the (upreme Court assumes is discretionary review of cases. This is a common law practice whereby the Court chooses to grant a permission, called writ of certiorari, to parties who have petitioned the Court to present their case. This way, the (upreme Court may consider cases from within both the (tate and the federal court hierarchies. 'nder certiorari 1urisdiction, the Court picks the cases it finds worth considering, where the legal 2uestion is of importance or where different federal courts of appeal have developed conflicting case law. The (upreme Court gives no reasons for re1ecting petitions, though, and if a petition is re1ected then the final (tate or lower federal court 1udgment remains binding. Constitutional Revie$ +ll federal 1udges in the '( may review the constitutionality of legislation, of both (tate and federal statutes, as well as of (tate and lower federal court decisions upholding legislation. "f a constitutionality 2uestion arises in a dispute before a (tate court, or a 2uestion of constitutionality of a federal statute, the matter becomes a #federal 2uestion$ and can be taken to a federal court. The '( Constitution does not e%plicitly provide for any such review power for the courts itself, and the historical record of the Constitution$s drafting process, regarding the intention of the drafters, is also inconclusive. The '( (upreme Court, however, in the 78;3 case %ar,ury v. %adison )A '.(. 73B*, established that 1udicial review powers do flow logically from the Constitution. (everal arguments were put forward to 1ustify this conclusion. The Constitution is defined the highest law of the land, and 1udges, as well as the other functionaries, take an oath to uphold it )+rt. G" '( Constitution*. The Constitution derives directly from the will of the people )<reamble to the '( Constitution* through a solemn and rarely repeated act. The Constitution would lose all practical effect if Congress could violate or change it via simple legislation/ the complicated amendment procedure )+rt. G '( Constitution*, even the effort of writing constitutional rules down in the first place, would become pointless if simple statutes would do 1ust as well. Furthermore, legislation is only possible thanks to the Constitution, and the conferral of power upon Congress. (tatutes can only have authority if made in pursuance of the Constitution )+rt. G" '( Constitution*, whereas a statute that violates the Constitution is clearly not made in pursuance of it. .ests the 2uestion whether 1udges should be the ones to verify the constitutionality of statutes, rather than Congress and the (tate law makers themselves. !n this point, the (upreme Court held= #"t is emphatically the province and duty of the 1udicial department to say what the law is. Those who apply the rule to particular cases, must of necessity e%pound and interpret that rule. "f two laws conflict with each other, the courts must decide on the operation of each. )...* "f, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply$. Thus, it is the 1udiciary$s task to solve disputes between parties by applying the law. "f in that conte%t two applicable sources of law are in conflict with each other, the 1udge must resolve this conflict of norms before being able to solve his case. "f a conflict arises between the Constitution and an ordinary statute, then the former is higher in rank and thus overrides the latter. 'nconstitutional statutes must there fore not be applied to a case, but instead left aside. (ince all 1udges in the country are engaged in the same activity, namely applying the law in order to resolve disputes, and since they all may be confronted with the same problem, namely a conflict between a lower norm and a higher norm, they must all adopt he same solution, namely setting aside unconstitutional legislation. 'nder the common law doctrine of stare decisis, the binding rule of precedent, later and lower 1udges follow the case law of earlier and higher 1udges. This means that ultimately, once the '( (upreme Court has set legislation aside, all other courts, both (tate and federal, will follow this e%ample. Thus, in effect the '( (upreme Court has the last word on constitutionality 2uestions. However being the highest federal court does not make it a special #constitutional court$= all federal courts in the '( are constitutional courts, because they all have the same power of review. (ince 1udicial review of the constitutionality of legislation follows from the tasks of the 1udiciary, it

should be noted that such review can only be e%ercised within the courts$ delimited 1urisdiction in actual #cases and controversies$ )+rt. """ ):* '( Constitution*. .eview must be crucial for the resolution of real disputes. This e%cludes the review of the constitutionality of statutes in hypothetical, moot, or fabricated cases, as well as any kind of advisory opinions to Congress or a constitu tionality assessment in the abstract. The (ac*ground to 1ar2ury The '( (upreme Court decision in %ar,ury v. %adison of 78;3 can be seen against the backdrop of power politics. The applicant in this case, 0illiam -arbury, had been appointed, in a last minute move, by the outgoing <resident >ohn +dams to become a 1ustice of the peace, a type of lower 1udge/ all he needed was the commission, his appointment certificate, to be handed over by the secretary of state. The outgoing secretary of state however had failed to do so in time, and the new one, under the new <resident Thomas >efferson who was hostile to his predecessor, deliberately refused to deliver the document. The applicant sued the new secretary of state, >ames -adison, seeking a #writ of mandamus$ as a 1udicial remedy to receive the document. "n accord ance with a federal legislative provision, the >udiciary +ct, the competent court to ask for this remedy was the '( (upreme Court acting as a court of first instance because the defendant was a '( office holder. The (upreme Court was presided over by chief 1ustice >ohn -arshall, who himself was another of the former <resident$s appointees, and, somewhat embarrassingly, he was the very same former secretary of state who had failed to deliver the sought document to the applicant in the first place. (imply finding in favour of the applicant, the chief 1ustice$s political ally, would however have meant to deliver a 1udgment that the (upreme Court knew would be ignored/ that would have damaged the Court$s credibility. "nstead, the Court ruled that, while the applicant was in principle entitled to receive the document on the merits, the statute that established the Court$s 1urisdiction in this case was in fact unconstitutional. +rticle """ of the '( Constitution provides an e%haustive list of cases that can be brought before the (upreme Court in first instance, and the present case did not fall under that list. Congress had unconstitutionally e%panded the Court$s first instance 1urisdiction. 3eclaring the 1urisdiction granting statute unconstitutional, the Court was able to note that the applicant was right/ it could nevertheless avoid having to actually grant the re2uested remedy itself/ and it set a ground breaking precedent all at once. Thus, while the applicant lost his case )he had a case but had addressed the wrong court, or the right court but under an invalid statute*, the (upreme Court, and the entire '( federal 1udiciary, gained the power to set aside legislation. (tatutes declared unconstitutional lose part or all of their practical effect, since the invalidating court, and all courts below them, will refuse to apply them. Congress, as well as (tate legislatures in case a (tate law has been invalidated, may then choose to repeal these statutes formally and replace them with ones that do comply with the Constitution. "n case of a fundamental issue, Congress or the (tate legis latures may also resort to an overriding measure= start a process of constitutional amendment. 3nternational Treaties +s regards international treaties, domestic effect depends on whether the treaty is self e%ecuting or not. "n general, treaties made by the '( federal authority are 2ualified as being the supreme law of the land )+rt. G" '( Constitution*. They therefore override (tate law. However, treaties are listed as #supreme law$ alongside federal legislation, with no hierarchical relation between the two. Thus, treaties override pre e%isting legislation, but otherwise the leA posterior rule applies, meaning that statutes made later can override treaty provisions made earlier. )egislation through Treaties +s international treaties can take precedence over statutes, the regular lawmaking procedure can be circumvented. Treaties are made by the <resident with the approval of a two thirds ma1ority in the (enate )+rt. "" ):* '( Constitution*. This gives these two institutions 2uasi legislative power which they otherwise would not have= the <resident may adopt binding normative acts, and the (enate does not need to agree

with the House of .epresentatives. "n fact, the '( Constitution is not the only constitution in the world which clearly did not foresee the domestic impact that internationalization would one day have.

!er"an#

The Court System The &erman 1udicial system is characterized by a distinction of layers of lower courts at (tate level and, above them, supreme courts at the federal level. Courts fall into five categories of sub1ect matter 1urisdiction= general 1urisdiction )civil and criminal law*, administrative law, social security law, labour law and ta% law.
The manner of appointment of lower 1udges is determined by the (tates where the courts are located. +top of each of the five court hierarchies there is a federal court acting as court of last instance, ne%t to a number of specialized federal courts. !rdinary federal 1udges are selected by the competent federal minister together with a 1udicial selections committee consisting of the competent (tate ministers and an e2ual number of members elected by the Bundestag )+rt. 9A ):* ,asic ?aw*. 0hat is usually referred to as the &erman #supreme court$ is the Bundesgerichtshof, the highest court of general 1urisdiction dealing with civil and criminal cases.

(et up as another federal court, yet placed outside normal court hierarchies, is the Federal Constitutional Court, the Bundesverfassungsgericht. "ts task is to uphold the &erman ,asic ?aw as a specialized 1udicial body for constitutional matters. "t is therefore not a #supreme court$ but rather a permanent constitutional organ along side the parliament, the government, the Bundesrat and the Federal <resident. The constitutional Court consists of si%teen members, half of whom are elected by the Bundestag and half by the Bundesrat )+rt. 9F )7* ,asic ?aw*. Constitutional 1udges serve non renewable terms of twelve years until the ma%imum age of @8 )I F Federal Constitutional Court +ct*. Constitutional Revie$ +ll ordinary &erman courts have the power to e%amine the constitutionality of statutes/ however, they do not have the power to invalidate these statutes on their own. "nstead, if an ordinary court has doubts as regards the constitutionality of a statute that it crucial to the resolution of a dispute before it, it may freeze proceed ings and refer a preliminary 2uestion to the Constitutional Court )+rt. 7;; )7* ,asic ?aw*. "t is then up to the Constitutional Court to rule on the constitutionality 2uestion. This procedure is called concrete review, since it stems from an actual 1udicial dispute in a concrete case. The Federal Constitutional Court is also competent to decide in a host of other situations, most of them listed in +rticle 93 of the ,asic ?aw. This includes disputes between different organs or layers of public authority about the correct interpreta tion of the ,asic ?aw concerning the scope of their competences. Two procedures stand out= the constitutional complaint procedure and the procedure of abstract review. These are the other two procedures, ne%t to concrete review, where the constitutionality of a federal statute can be of the issue. "n the constitutional complaint procedure, an individual can claim an infringe ment on enumerated constitutional rights by public authority )+rt. 93 )7* )Fa* ,asic ?aw*. The scope of constitutional complaints is broader than what can be reviewed via concrete review, since the Constitutional Court$s 1urisdiction is not limited to statutes but e%tends to any act of public authority, including court decisions/ if statutes are contested, they do not have to be crucial to the resolution of a 1udicial dispute, like it is the case in concrete review, and individuals are furthermore not dependent on their 1udge$s willingness to refer a 2uestion to the Constitutional Court. +t the same time, access for individuals to the Court is restricted= applicants must in principle e%haust all ordinary 1udicial remedies before launching a case before the Constitutional Court )+rt. 9F ):* ,asic ?aw and I 9; ):* Federal Constitu tional Court +ct*. Furthermore, as is further specified in case law, applicants must demonstrate a direct and concrete in1ury as a result of the contested measure in order to be admissible in the first place.

"n abstract review, meanwhile, the Constitutional Court can be seized by the federal government, a (tate government, or one third of Bundestag members, to rule on the constitutionality of a statute )+rt. 93 ):* ,asic ?aw*. The abstractness of this procedure lies in the fact that it can be triggered at any time, without there being a concrete application of the statute in adversarial proceedings. (trictly speaking, in abstract review there is only an applicant but no defendant, although the Court in practice hears parties on both sides of the argument, for e%ample a (tate govern ment versus the federal government. The Sensitivity of &udicial Revie$ That a 1udge might resolve disputes concerning the distribution of power in a federal system is, in the &erman case, nothing new. "t is even a defining feature of a federation that an independent arbiter may check compliance of sub national with national law, or with the constitution, as far as the allocation of competences is concerned. The review of statutes for their substantive compliance with the constitution, including human rights, however, collides with the legitimacy of the democratic lawmaker E even in &ermany, which otherwise seeks to establish many checks on political institutions. Therefore, the ,asic ?aw confines this e%traordinary 1udicial review power to a single and special court, the Constitutional Court. "n fact, this power originally was even confined to only one chamber within that Court. The Court is made up of two chambers, or #(enates$, of eight 1udges each. !riginally, one of them would hear the #usual$ cases on competence 2uestions between organs of public authority, while the other one would hear cases concerning individual rights. "t 2uickly became clear, though, that the latter was burdened with a heavy workload while the former had hardly any cases at all. Today, the two chambers both deal with individual rights, dividing the work between them by sub1ect matter. The Federal Constitutional Court interprets legislation as far as possible in the light of the ,asic ?aw. "f constitution friendly interpretation is not possible, the Constitu tional Court may, in the course of abstract review, concrete review and constitu tional complaint procedures, declare a statute unconstitutional and void )II B8, 8: and 9A ):* Federal Constitutional Court +ct*. The statute is then 2uashed and ceases to e%ist/ in fact, it is deemed never to have e%isted. .etroactive effects of such a deci sion are however limited to criminal provisions, where retrials are made possible in case of a past conviction based on a statute that is later annulled )II B9, 8: and 9A )3* Federal Constitutional Court +ct*. "n all other cases, there is no retroactive effect. The Court may include provisional measures which, 1ust like the 1udgment itself, en1oy the rank of statutory law. (topping short of voidance, the Court has in its case law also developed other techni2ues. Thus, the Court may declare a statute unconstitutional but not void, meaning that the statute will remain in force. +lternatively, it may declare a statute constitutional for now yet note that it will become unconstitutional in the near future. The latter two options are admonitory decisions, reprimanding the law maker and prompting him to change the statute bearing in mind the Court$s guidelines. +hy not ,uash the )a$? The &erman Constitutional Court resorts to annulment of legislation only in e%treme cases, bearing in mind the democratic and federal legitimacy of the lawmaker and the interest of legal certainty. The Court prefers constitution friendly interpretation. "n case interpretation techni2ues do not help, it prefers admonitory decisions, telling the lawmaker to change the statute in 2uestion himself. There are practical reasons to leave an otherwise unconstitutional statute intact. +t times, it is better to have a defective statute than no statute at all. Furthermore, a defect can be remedied in very different manners. For e%ample, discrimination can be addressed by treating the disadvantaged group better, but also by treating the advantaged group worse, as long as both groups as treated e2ually. "t is up to the lawmaker, not the 1udge, to make such political choices.

3nternational Treaties and the EC"R +s far as the review of legislation for treaty compatibility is concerned, &ermany is a dualist system. "nternational treaty obligations must be met by transposing them into national law at the appropriate level )+rt. A9 ):* ,asic ?aw*. 3irect reliance on treaties before &erman courts is in principle not possible. The federal statute that transposes the 6uropean Convention on Human .ights )6CH.* into &erman law is formally no different from any other piece of federal legislation, en1oying e2ual rank with other statutes.
There are ways to nevertheless have treaties prevail domestically, however. The 6CH., to which &ermany is a party, can be invoked indirectly. The &erman ,asic ?aw itself contains an enforceable human rights catalogue/ the national 1udge and the Constitutional Court would then interpret these constitutional human rights in an 6CH. friendly manner, taking into account the case law of the 6uropean Court of Human .ights in (trasbourg. +nother way of indirect reliance is to see at least some 6CH. rights as a codification of principles of international law, which do take precedence over national law )+rt. :A ,asic ?aw*. Let another man ner of indirect reliance is to invoke the 6CH. as overriding leA specialis on human rights guarantees where national law is broadly worded. Thus, the 6CH. is inte grated into the &erman legal order as a privileged source of law via techni2ues of legal interpretation. "f 6CH. protection is deemed to have failed within &ermany, individuals may bring an action against the state before the 6uropean Court of Human .ights )see I B*.

European Union )a$ The law of the 6uropean Community has, according to the 6uropean Court of >ustice )6C>*, special characteristics as a new legal order. "t is capable of having direct effect in the member states by virtue of its own nature, irrespective of whether the member states are monist or dualist, and supremacy over all national provisions. 5ational 1udges must set aside all conflicting national provisions, including their constitutions, in favour of 6uropean law )see I 7.F*. (uch uncon ditional supremacy of 6uropean law collides with the approach of the &erman Constitutional Court, holding that 6uropean law may ultimately be invalidated if in conflict with the &erman ,asic ?aw. "n 79BF, deciding on a preliminary reference in "nternationale &andelsgesellschaft m,& v. $infuhr; und Gorratstelle fHr Getreide und Futtermittel ):9 -ay 79BF, ,v? A:KB7*, in a decision better known as !olange ", the Constitutional Court noted that the 6uropean Community did not yet offer democratic standards and fundamental rights protection e2uivalent to &erman standards. "t therefore held that &erman constitutional provisions would prevail over 6uropean law as long as )&erman= solange* the Community did not remove hypothetical conflicts of norms. "n 798@, then, the Court gave a more 6urope friendly ruling, stating that it would refrain from constitutional review of 6uropean law as long as the Community kept the human rights standards that it had developed in the meantime. This ruling, on a constitutional complaint by #Hnsche &andelsgesellschaft ):: !ctober 798@, : ,v. 79BK83* became known as !olange "". ?ater, prompted by a constitutional complaint by Brunner to review the constitutionality of the -aastricht Treaty )7: !ctober 7993, : ,v. :73F, :7A9K9:*, the Constitutional Court shifted its attention to the safeguard ing of the borders of competences as conferred from &ermany to the 6'. "n %aastricht, as in its 1udgment on the constitutionality of the Treaty of ?isbon of :;;9 )3; >une :;;9, : ,v6 :K;8/ : ,v6 AK;8/ : ,v. 7;7;K;8/ : ,v. 7;::K;8/ : ,v. 7:A9K;8/ : ,v. 78:K;9* the Court restated that it reserves the right to review 6uropean law, recalling the paramount position of the constituent member states in the treaty based Community. 6specially as regards procedures whereby 6' institutions can e%pand their competences without there being a proper Treaty ratification in all member states, it warned that it would invalidate 6' decisions that are based on unlawfully arrogated powers. "n the Lis,on 1udgment, it prescribed prior approval from the &erman legislature for each such dynamic e%pansion of powers. ,ut in spite of the dogmatic upheavals, and sub1ect to the Court$s warnings, &erman courts keep applying 6uropean law in everyday practice, giving it precedence over national provisions. "f in doubt about the right interpretation of Community law that is relevant to the case before them, 1udges may, and in some cases must, refer a preliminary 2uestion to the 6C>. $. The United %in&d'"

The Court System The court system in the '4 is divided into separate court systems for 6ngland and 0ales, (cotland, and 5orthern "reland. The 6nglish and 0elsh court system is based on a hierarchy of county courts and magistrate courts at the lowest level/ above that the High Court, with three divisions for different sub1ect matter 1urisdic tions and the Crown Court for criminal cases/ and the Court of +ppeal, with a criminal division. The highest court in the '4 was traditionally the House of ?ords. +ccording to the Constitutional .eform +ct :;;A, however, the ?ords lose their role as a court/ the ?aw ?ords who have been e%ercising the House$s 1udicial functions are transferred to a (upreme Court of the '4. >udges are appointed by the 4ing upon the advice of the <rime -inister.

Constitutional Revie$ Constitutional review of statutes by 1udges is not permitted in the '4 in the light of the doctrine of parliamentary sovereignty in the sense of legislative supremacy. The 4ing in <arliament is sovereign, meaning that the lawmaker can be bound by no one, not even by itself, and that no one e%cept <arliament itself can undo the will of <arliament. Constitutional review would mean to hold <arliament to a higher norm. That is already problematic since the constitution is not codified in a single document to start with, and, more fundamentally, +cts of <arliament which have received royal assent already are the highest norm. >udges are bound by <arliament, they are not to second guess legislation. Courts accept the supremacy of <arliament over 1udge made law like they accept the supremacy of statute over royal preroga tive. "t should be noted that 1udicial interpretation of statutes may serve to protect certain principles of #constitutional rank$. The implication would be that <arliament, when granting broad e%ecutive powers, is deemed not to wish to deviate from these principles, such as the presumption of innocence, by implied repeal, and would only deviate from them e%plicitly. The Human .ights +ct 7998 in fact orders 1udges to apply human rights friendly interpretation as far as possible, meaning unless <arliament e%plicitly deviates from protected rights. That last aspect is crucial= <arliament does remain free to encroach upon fundamental rights if it so desires. 3nternational Treaties and the EC"R <arliamentary sovereignty in the '4 e%tends to supremacy over domestic as well as foreign sources of law. The '4 is a dualist system/ individuals can rely on inter national treaties only in as far as such treaties have been transposed into national law. For a long time, therefore, individuals could not even invoke the rights contained in the 6uropean Convention on Human .ights )6CH.* before domestic courts. The Human .ights +ct )H.+* 7998 finally did transpose most of the 6CH. into national law. (ince its entry into force in :;;;, individuals can rely on Conven tion rights as enumerated )(ection 7 H.+ 7998*. That does however not mean that 1udges can set aside +cts of <arliament, since that would again undermine legislative supremacy. "nstead, 1udges are instructed to interpret legislation as far as possible in the light of the protected Convention rights. "f a violation is apparent and cannot be remedied via interpretation, the court, from the High Court level upwards, may issue a #declaration of incompatibility$, drawing <arliament$s atten tion to the perceived infringement )(ection F H.+ 7998*. ,efore doing so, the court must notify the government so as to allow it to intervene in the proceedings and comment on the disputed statute. !nce issued, the declaration of incompatibility triggers a fast track legislative procedure, enabling, once the case is concluded and appeal is no longer possible, the minister to insert amendments to

the statute by way of an order )(ection 7; H.+ 7998*. He then puts a draft order before both houses of <arliament, which then can approve it by a resolution/ in cases of urgency, the minister may insert changes without parliamentary approval, but must then seek approval by resolution for a second order so as to keep the original change in force )(chedule : H.+ 7998*. This procedure of resolution plus order is far 2uicker than the usual process of passing formal bills to amend legislation in three readings and a committee stage. "f there is no particular urgency, however, the formal legislative procedure, not the fast track procedure, should be preferred. 6ither way, <arliament remains free to keep its legislation in place, even if a court has declared an incompatibility with Convention rights. +fter all, <arliament can refuse to accept the minister$s draft order, and refuse to change the statute in an ordinary process, so that the statute can remain unamended. The issuing court, meanwhile, must complete the proceedings before it and apply the statute in its original form. Courts below the High Court cannot issue declarations of incompatibility but may e%press their concerns in their 1udgment so that higher courts may take note on appeal. "f 6CH. protection is deemed to have failed within the '4, individuals may bring an action against the state before the 6uropean Court of Human .ights )see I B*. European Union )a$ The law of the 6uropean 'nion in general, and the 6uropean Community in particular, while also based on a treaty, en1oys a special status in the '4. "f '4 1udges would treat 6uropean law on par with ordinary treaty law, then non transposed 6uropean law would have no effect in '4 courts, and, because of parliamentary sovereignty, would certainly not override any national statutes. The law of the 6uropean Community however has, according to the 6uropean Court of >ustice )6C>*, special characteristics as a new legal order. "t is capable of having direct effect in the member states by virtue of its own character, even in dualist states, and supremacy over all national provisions. 5ational 1udges must set aside all con flicting national provisions, including their constitutions, in favour of Community law )see I 7.F*. The first open clash between 6uropean Community supremacy and the '4 doctrine of parliamentary sovereignty came with the Factortame litigation. + fishing company sought interim relief to be able to speedily register its ships as '4 vessels. '4 legislation had limited the registration of fishing vessels to companies that were, essentially, domestic/ this was to prevent foreign fishermen E (paniards, in Factortame0s case E from registering their vessels in the '4 and then e%ploiting '4 fishing 2uotas. 0hile this was plainly in violation of Community law, being a discriminatory barrier to free movement, giving interim relief would have meant to ignore and set aside an +ct of <arliament. The House of ?ords as the highest court referred a preliminary 2uestion to the 6C>, asking whether legislation had to be set aside even against a national constitutional rule/ the 6C>, repeating !immenthal, confirmed that this was indeed what had to be done. The House of ?ords went on to accept the 6C>$s ruling )Factortame Ltd( v. !ecretary of !tate for Transport, Y7997Z 7 +C @;3*. <arliamentary sovereignty was doctrinally preserved, however. "t was noted that the '4 1oined the 6uropean 6conomic Community in 79B3 by virtue of the 6uropean Communities +ct 79B:. "f the Community Treaty was not e%plicit as regards direct effect and supremacy, the relevant 6C> case law on this issue in any event predated the accession of the '4. #Thus, whatever limitation of its sovereignty <arliament accepted when it enacted the 6uropean Communities +ct 79B: was entirely voluntary. 'nder the terms of the 79B: +ct it has always been clear that it was the duty of a 'nited 4ingdom court, when delivering final 1udgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law$. <arliament had itself accepted Community membership, and by the time that it did, the 6C> case law on direct effect and supremacy had already been an established part of 6uropean law. <arliament knew what it was doing and, by implication, could, if it liked, repeal again the 6uropean Communities +ct and have the '4 withdraw from the Community. Thus, '4 courts keep applying 6uropean law in everyday practice,

giving it precedence over national provisions. "f in doubt about the right interpretation of Community law that is relevant to the case before them, 1udges may, and in some cases must, refer a preliminary 2uestion to the 6C>. (. Fran)e The Court System
The most prominent characteristic of the French court system is the parallel hier archy of ordinary courts for civil and criminal cases, on the one hand, and adminis trative courts, on the other hand. The administrative court hierarchy comprises administrative courts, administrative courts of appeal, and the 1udicial division of the Council of (tate as the final instance. The ordinary 1udiciary comprises an echelon of courts of first instance specializing in different sub1ect matter 1urisdic tions, and above that the courts of appeal and, finally, the Court of Cassation. 3is putes as to which of the two 1urisdictions is competent in a matter )imagine a tort claim against a public authority* are settled by the court of conflicts of 1urisdiction, the Tri,unal des conflits. >udges are appointed by the <resident in a procedure involving the competent section of the high council of the 1udiciary )+rt. @A French Constitution*.

Constitutional Revie$ Constitutional review of statutes was originally prohibited in France. >udges were to apply the law, not second guess its constitutionality. The constitutionality of statutes was ensured by the lawmaker, and reviewed before promulgation, where applicable, by the Constitutional Council )see for details Chapter F*. +fter promul gation, if the Constitutional Council had either cleared a bill as constitutional or had not been asked to rule on a bill, statutes were immune from 1udicial review. The Constitutional Council comprises nine appointed members serving nine year terms as well as former <residents for life )+rt. A@ French Constitution*. !f the nine appointed members, three are appointed by the <resident of the .epublic, three by the president of the 5ational +ssembly, and three by the president of the (enate, appointments taking place once every three years. Thus, three of the mem bers are replaced once every three years, meaning that once every three years the <resident and the two chamber presidents get to appoint one new member each. The constitutional reform of :;;8 authorizes parliamentary committees from both chambers to participate in the <resident$s appointments, and such an appointment can be vetoed if three fifths of the added total votes cast by both committees are against the nomination )+rts. 73 and A@ French Constitution*. The constitutional reform of :;;8 also introduced a new +rticle @7 7 to the French Constitution. The provision allows the Court of Cassation, the top court of general 1urisdiction, and the Council of (tate, the highest administrative court, to refer ^2uestions on the constitutionality of statutes to the Constitutional Council. To French constitutional law, this is a remarkable novelty. "n a comparative perspec tive, however, the reform places France in a larger family of 6uropean constitutional systems in the 4elsenian tradition which allow courts, or at least special constitu tional courts, to review the constitutionality of legislation. The new procedure for concrete eA post review does not replace but rather complements the pre e%isting procedure of eA ante review. Thus, the Constitutional Council may still be asked to review the constitutionality of bills before promulga tion. 3nternational Treaties and the EC"R +s far as treaties are concerned, France is a monist system. Treaty law takes preced ence over national statutes, both earlier and subse2uent, under the condition of reciprocity )+rt. AA French Constitution*. The 6uropean Convention on Human .ights )6CH.* can therefore be directly relied upon before all French

courts. "f 6CH. protection is deemed to have failed within France, individuals may bring an action against the state before the 6uropean Court of Human .ights )see I B*. European Union )a$ The law of the 6uropean 'nion, specifically the law of the 6uropean Community has, according to the 6uropean Court of >ustice, special characteristics as a new legal order. "t is capable of having direct effect in the member states by virtue of its own character, irrespective of whether the member states are monist or dualist, and supremacy over all national provisions. 5ational 1udges must set aside all conflict ing national provisions, including their constitutions, in favour of 6uropean law. (upremacy of 6uropean law over French statutes would be largely unprob lematic since France is monist anyway. Thus, the Court of Cassation accepted the supremacy of Community law over statutes by virtue of France$s monism clause )+rt. AA French Constitution* in its ruling in Caf1s JacIues Ga,re ):3 -ay 79BA, 3. 79BA "" F9B*. The Council of (tate, for the administrative courts, seems to have accepted 6C supremacy over statutes on the same basis, in a procedure brought by 4aoul Georges Bicolo ):; !ctober 7989, .T3eur 7989, BB7*. "t is the claimed supremacy over the Constitution that causes doctrinal concerns, however. "ndeed, the Constitutional Council affirmed in its decision of 7; >une :;;F ):;;F F9@ 3C* that 6uropean law does not prevail over the French Constitution. The transposition of 6uropean law into national law is a duty based on +rticle 88 7 of the French Constitution, which authorizes French 6' membership, save for cases where the French Constitution e%pressly stands in the way of French compliance with 6uropean law. (uch specific contrary constitutional provision may e%ist only in theory/ yet in dogmatic terms the hierarchy of norms from the French point of view is clear= 6uropean law takes precedence over French statutes in as far as the French Constitution allows it to. 'nder this proviso, French courts keep applying 6uropean law in everyday practice, giving it precedence over national provisions. "f in doubt about the right interpretation of Community law that is relevant to the case before them, 1udges may, and in some cases must, refer a preliminary 2uestion to the 6uropean Court of >ustice. *. The Nether+ands The Court System The 1udicial system of the 5etherlands as discussed here is the court system of the 5etherlands in 6urope/ the overarching 4ingdom of the 5etherlands )the 5etherlands proper plus the overseas countries* does not have any courts of its own. The 3utch court system is based on a hierarchy of local courts, district courts, and courts of appeal, all of which deal with civil and criminal law cases/ district courts are also competent in matters of administrative law. The highest court for civil and criminal matters is the (upreme Court, or &oge 4aad, acting as a court of cassation. +s regards administrative law, three courts of last instance e%ist side by side, competent depending on the sub1ect matter, namely the administrative 1uris prudence division of the Council of (tate, the Central Council of +ppeals, and a tribunal for commercial matters. >udges are appointed by royal decree for life but statute may fi% a ma%imum age )+rt. 77B 3utch Constitution*. Constitutional Revie$ 0hile applying the law to 1udicial conflicts, 3utch 1udges are e%plicitly forbidden from checking the constitutionality of statutes )+rt. 7:; 3utch Constitution*. This prohibition of constitutional review is also taken to include review with respect to the Charter for the 4ingdom, the constitution of the overarching 4ingdom of the 5etherlands. "t is a recurring item on the 3utch constitutional reform agenda to either repeal +rticle 7:; of the Constitution, and to allow constitutional review, or to insert e%ceptions so that 1udges may at least check the

compatibility of statutes with con stitutional human rights. "n late :;;8, an amendment that would allow for 1udicial review on human rights grounds passed the two Chambers of parliament in first reading. The amendment needs approval in a second reading, however, where two thirds ma1orities are re2uired. .ight of centre parties remain opposed to such a reform, however, so a 2uick approval in second reading is not likely. "t appears anyway that the need for such a change is not very pressing. 3utch monism with respect to treaties, most importantly the 6uropean Convention on Human .ights, already allows individuals to rely on human rights in another way. (elf e%ecuting treaty provisions override conflicting national legislation already, by virtue of the 3utch Constitution$s +rticle 9F. Thus, what the 3utch 1udge lacks in constitutional review, at least as far as human rights are concerned, he largely makes up for via treaty review. 3nternational Treaties and the EC"R The 5etherlands is a monist system with respect to international treaties/ individu als can rely on provisions from treaties that are ratified by the 5etherlands in court )+rt. 93 3utch Constitution*, and treaty provisions can also override conflicting national statutes )+rt. 9F 3utch Constitution*. The only 2ualification is that not all treaty provisions can be relied upon, but only those that can #bind anyone$, meaning provisions that can be binding upon individuals. The substantive rights enshrined in the 6uropean Convention on Human .ights all take precedence over national statutes. "f protection of Convention rights is deemed to have failed within the 5etherlands, individuals may bring an action against the state before the 6uropean Court of Human .ights )see I B*. European Union )a$ The law of the 6uropean Community has, according to the 6uropean Court of >ustice )6C>*, special characteristics as a new legal order. "t is capable of having direct effect in the member states by virtue of its own character, and supremacy over all national provisions. 5ational 1udges must set aside all conflicting national provisions in favour of 6uropean law. Gan Gend F Loos, the groundbreaking direct effect 1udgment of the 6C>, was, incidentally, triggered by a preliminary reference from a 3utch court )see I 7.F*. The national court had asked, in essence, whether the 6uropean treaty provision on free movement of goods was capable of binding #anyone$, conferring individual rights, in the sense of the 3utch monism clause. The 6C>$s answer was, famously, that this provision indeed had direct effect, and that in fact this would even be the case if the member state in 2uestion were not monist. +ccording to the 6C>, Community law even overrides national constitutions/ within the 5etherlands, monism is interpreted in a very far reaching manner, so that treaties are indeed capable of overriding not 1ust statutes but the Constitution, too. There is no constitutional court that might take issue. 6ssentially, 6uropean law is accepted in the 3utch legal order as unconditionally as the 6C> has stipulated. "f in doubt about the right interpretation of Community law that is relevant to the case before them, 1udges may, and in some cases must, refer a preliminary 2uestion to the 6C>. 9. E2r'.ean 12"an Ri&hts

(igned in 79A;, the 6uropean Convention on Human .ights )6CH.* is a multilat eral treaty committing the contracting states to human rights obligations, from the prohibition of torture to the freedom of e%pression. The contracting states are the member states of the Council of 6urope, an international organization that is devoted to promoting democracy, human rights and the rule of law. The Council of 6urope started out with ten members in 79F9/ the '4, France and the 5etherlands were among the founding members, )0est* &ermany 1oined in 79A;. ,y now the organization comprises FB states across 6urope. The (oundaries of Europe The Council of 6urope presently comprises FB states/ in fact, it comprises all states in 6urope )including the microstates*, with only three e%ceptions= the Gatican (tate, recently independent 4osovo as well as ,elarus )whose application is pending since 7993*. The easternmost member states of the Council of

6urope are .ussia, 'kraine, +rmenia, &eorgia, +zerbai1an, Cyprus and Turkey. 0hat is special about the 6CH. is that an international 1udicial mechanism is set up to enforce the rights and freedoms stipulated in the Convention= the (trasbourg based 6uropean Court of Human .ights. The (trasbourg Court consists of FB 1udges, one per contracting state/ they are elected by the <arliamentary +ssembly of the Council of 6urope, a body comprising members of the national parliaments of the contracting states, from a government shortlist of three nominees each. >udges serve renewable terms of si% years until the ma%imum age of seventy )+rts. 79, :;, :: and :3 6CH.*. The Court decides over the admissibility of complaints and ad1udicates in cases of alleged 6CH. violations. 0hat is special about the (trasbourg Court is that while it is an international court, not only member states or an international commission but also individual applicants can bring cases before it. Thus, individuals can #sue$ a state that is party to the 6CH. for violations of the human rights to which that state has committed itself. The 6CH., and the case law of the (trasbourg Court, have already had a profound impact on domestic constitutional systems, from the re2uirements of impartiality and independence of national 1udges to voting rights and the immunity of politicians. -ore generally, (trasbourg places domestic relations between citizens and national public authority under human rights scrutiny via added international 1udicial review in individual cases. The Court interprets the 6CH. as a #living document$, keeping pace with societal developments, and is also in other areas ready to e%pand, or fi% autonomously from the contracting states, the scope of 6CH. concepts. For e%ample, individuals have the right to a fair trial to decide on a #criminal charge$ against them )+rt. @ )7* 6CH.*, but states cannot escape responsi bility simply by calling a procedure differently in national terms= the (trasbourg Court determines what falls under #criminal charge$ as an autonomous concept. "t may be argued that the (trasbourg Court resembles a pan 6uropean constitutional court, at least as far as human rights are concerned, actively holding the contracting states to standards enshrined in a central document. 5o matter the activity in (trasbourg, however, the task of safeguarding human rights primarily remains with the contracting states themselves. "t is up to the states to secure 6CH. rights within their 1urisdiction )+rt. 7 6CH.*, and to provide a remedy for possible infringements domestically )+rt. 73 6CH.*. 0hile the (trasbourg Court has noted that being monist certainly helps, contracting states are not obliged to give the 6CH. itself overriding domestic effect. Thus, there are no supremacy or direct effect doctrines under the 6CH. like they e%ist under the 6uropean Community. +s the contracting states must keep up their human rights levels themselves, the (trasbourg Court only steps in as a subsidiary mechanism, as a last resort if domes tic human rights protection is deemed to have failed. This approach is reflected in the central criteria that determine whether or not an individual is actually ad missible before the (trasbourg Court or not. ,efore launching his case, the applicant must, among other things, first have e%hausted all domestic remedies )+rt. 3A )7* 6CH.*, meaning that he must have tried everything to seek a remedy domestically up until the last instance of appeal. He must then launch his case within si% months of the final domestic decision in last instance. +nd he is only admissible in as far as he still is a #victim$ )+rt. 3F 6CH.*, meaning that once he has received satisfaction for his alleged suffering from domestic authorities, he will no longer be heard in (trasbourg on the merits. (ince prior e%haustion of domestic remedies is an admissibility criterion for individual applicants, the 6uropean Court of Human .ights becomes relevant at the end of domestic proceedings. "t does not, for e%ample, answer preliminary 2ues tions. "n that conte%t, the Court might appear to be a kind of #super appeal$, a supreme 6uropean court of very last instance. (uch an assessment would be misleading, however. The (trasbourg Court cannot overturn any national adminis trative or 1udicial decisions. "t does not 2uash administrative orders, it does not invalidate any national statutes, it does not reverse a #guilty$ verdict against a convicted person nor find in favour of the losing party in a private law dispute. 0hat it can do, however, is find that the respondent state as a whole, including its court system, has infringed upon, and has failed to safeguard, rights and freedoms that are protected under the 6CH.. The remedy it can award to

individuals in such case is #1ust satisfaction$ )+rt. F7 6CH.*. "n light cases, the 1udgment itself that confirms that the applicant was right after all is satisfaction enough/ in most cases, however, 1ust satisfaction means compensation for pecuniary and non pecuniary damage suffered as a conse2uence of the human rights infringement= money, to be paid out to the applicant by the infringing respondent state. 0hile the 1udgment itself pertains to the case at hand only, states may change their laws and practices if they wish to prevent the future cost and embarrassment of more 1udgments against them in similar situations. =. The EC1R, the E2r'.ean Uni'n and the Nati'na+ C'nstit2ti'ns

6uropeanization is not merely a matter for international diplomacy, it is already part of constitutional reality within the nation states. Two bodies of 6uropean law, the law of the 6uropean 'nion and the 6uropean Convention on Human .ights )6CH.*, each with its own 1udiciary, must function alongside domestic courts. "t is a post modern challenge to conceptualize that there can be a supreme pan 6uropean constitutional court for human rights in (trasbourg/ a supreme constitutional court for matters of 6uropean integration in ?u%embourg/ and a plethora of national supreme and constitutional courts. !ne issue of overlapping hierarchies merits particular attention here, namely the issue of human rights protection. The member states of the 6' have in common their commitment to the 6CH., e%pressed directly via reliance on the Convention and via purely domestic human rights standards. 0hat the 6CH. means is interpreted by the (trasbourg based 6uropean Court of Human .ights. 0hat the 6' member states also have in common is the challenge to accommodate 6uropean law in their national legal orders. +nd what 6uropean 'nion law means is interpreted, ultimately, by the ?u%embourg based 6uropean Court of >ustice )6C>*. "f a member state violates human rights, the matter can be resolved domestically and can, after e%haustion of domestic remedies, be taken to (trasbourg. ,ut what if an 6' institution, for e%ample the Commission or the Council, violates human rightsP The 6' is not a party to the 6CH. and, according to the 6C>, it cannot become one unless the member states change the treaties so as to allow for an accession of the Community to the 6CH. )6C> !pinion :K9F, Y799@Z 6C. " 7BA9*. The Treaty of ?isbon allows for such accession )but it should not be forgotten that also the other, non 6' members of the Council of 6urope must admit the 6', too*/ in addition, the Treaty makes the 6' Charter on Fundamental .ights a binding document, which is to be interpreted along the lines of the 6CH.. The 6C>, which has the power to review 6' action, draws inspiration from the 6CH. already to formulate #general principles of Community law$ covering human rights, and the member states have e%pressed their attachment to the 6CH. in the conte%t of the 6uropean 'nion as well, already in the -aastricht Treaty. ,ut what if an individual finds the 6CH. inspired human rights protection offered by the 6C> )and the Charter*, and by the national courts following the 6C> in 6' conte%t, insufficientP 0hat if a member state violates human rights in correct pursuance of its 6' obligationsP The last resort would be to sue the member state in (trasbourg, in case the infringement has been committed by that member state/ the reasoning is then that member states must respect the 6CH. always, even when they e%ecute 6uropean policies. +n e%ample for such an action is Bosphorus 'irways v."reland of 3; >une :;;A )no. FA;3@K98* over the grounding by "reland of Lugoslav owned airplanes pursuant to a Community measure implementing a '5 sanction. "f the infringement is committed by the Community bodies themselves, rather than national authorities, the last resort would still be to sue the relevant member state, or all member states 1ointly/ the reasoning would then be that member states are responsible for the behaviour of #their$ 6uropean Community. ,oth scenarios of suing states for 6' or 6' triggered action cause dilemmas. "s a member state really responsible for each and every action of the 6' institutions, especially the independent ones or the ones acting by ma1orityP "s that action really imputable to the stateP +nd what if the 6', and the 6C>, dictate one course of action while (trasbourg dictates anotherP + classical e%ample is Biemiet+ v. Germany of 7@ 3ecember 799: )no. 73B7;K88*, where the (trasbourg Court held that business premises could be considered part of the #home$ in the sense of the right to inviola bility of the home and private life under +rticle 8

6CH., whereas earlier the 6C> had ruled in &oechst 'G v. Commission )F@K8B and ::BK88, Y7989Z 6C. :8A9* that business premises were in fact not #home$. (hould the member state follow ?u%embourg and upset (trasbourg, or do it the other way roundP 0ith or without the Charter, the 6C> accepts the 6CH. as an authoritative document where it interprets 6' law, but it insists that ultimately, as far as 6' law is concerned, member states must follow 6' law. 5ational courts may not cite the 6CH. E or anything else, for that matter E to set aside Community law, for only the 6C> can set aside secondary Community law )see I 7.F*. The (trasbourg Court, in turn, does ultimately not permit contracting states to escape their 6CH. obligations merely because they have set up 6' bodies and their actions happen to have had an 6' background. 5ational courts, in particular constitutional courts, finally, already have occasional trouble accepting that (trasbourg may have the final word over human rights. That is the case, for instance, if an 6CH. right is construed more strictly than its e2uivalent in the national constitution. +n e%ample is the (trasbourg ruling in favour of the applicant in Gon &annover v. Germany of :F >une :;;F )5o. A93:;K;;* about celebrities$ right to privacy, whereas the &erman Constitutional Court had found against her. The unconditional supremacy of Community law over all national law is even more problematic, and usually the national constitution is, more or less e%plicitly, taken to ultimately override 6uropean law. "n spite of the potential for conflict, national 1udges, however, have no interest in disrupting the functioning of the 6', nor in tarnishing the cherished value of the 6CH.. The 6C>, while upholding 6' law, does not wish to provoke national constitutional courts and risk disapplication of 6uropean law on the ground/ furthermore, it can only profit from the inclusion of 6CH. law into 6' law as it adds to the completeness and unassailability of 6uropean law. The 1udges of the (trasbourg Court, finally, are reluctant to upset the contracting states too much via e%cessively creative case law, and, as far as the 6C> is concerned, they seem instinctively sympathetic to their #fellow$ 6uropean 1udges in ?u%embourg. The solution is a dialogue of 1udges, mutual appeasement, and the avoidance of open clashes. 5ational 1udges interpret national law in an 6CH. friendly manner/ (trasbourg sticks to case to case 1urisprudence and to careful e%ploration of evolving common ground between the contracting states. 5ational courts agree not to sub1ect Community law to constitutional review, as long as the 6', overall, sticks to certain principles, in particular protection of human rights. The 6C>, in turn, keeps formulating 6CH. inspired human rights principles as a part of 6uropean law, doing its part to defuse the conflict and making Community law supremacy easier to accept in the member states. The entry into force of the 6' Charter should help minimize the difference between 6' and 6CH. human rights standards. The (trasbourg Court, finally, seems to agree not to sub1ect Community law to 6CH. review as long as the 6', overall, sticks to the human rights levels that the 6C> is already maintaining. Thus, in Bosphorus, the (trasbourg Court declared 6C> human rights protection to be e2uivalent to its own. 6uropean and national echelons of constitutional law are interwoven. This shows that the 6uropean dimension, concerning both 6uropean integration and human rights, is an established and evolving aspect of national constitutions. "t is therefore an integral part of any study of comparative constitutional law.