Lecture 1

● Constitutions are binding legal rules.

○ Conduit/connection between society and state.
○ Adds an important component to the meaning of the word "constitution".
○ A set of norms (rules, principles, or values) creating, structuring government
power or authority.
○ Limits on government authority.
○ Contains fundamental rules for states rights.
■ Definition (territory, people, institutions)
■ Attribution (rights/competences of the state)
■ Regulation (relations and hierarchies/checks and balances, rights for the
citizens)
○ Symbolism
■ Flag
■ Anthem
■ Etc.
■ US constitution for example is treated almost religiously
○ Constitutions can be unwritten or unwritten in large parts.
■ Dutch constitutions contain unwritten rules for government competences.
○ Constitutions can be uncodified.
■ British constitution.
○ Contain unconstitutional items.
■ "The entire German flagged fleet is the entire German merchant fleet."

● Kelsen/Hart model.
○ Constitutions = ultimate rule of recognition.
■ Everything under is law, by laws, county/municipal regulations, and
administrative acts.

● What is a state, and why do we need one?

● Who holds which competences/rights within a state?
● How are these relations legitimized?
● How are they technically (legally) implemented and structured?

● Rule of law.
○ All citizens and state entities are subject to the law.
○ State authority is constrained by legal norms.
 ○ Legitimacy of state actions is conditional to the compliance with these norms.
○ However this base notion does hot sufficiently qualify content.
● Limitation of state authority require hierarchy of legal norms and separation of powers;
does not necessarily rely on a democratic form of government.
● Constitutional democracy: WE THE PEOPLE.
● Fundamental rights: Basic rights are inalienable and cannot be abolished by democratic
decisions (Bill of Rights).

● Constitutions can be created from:

○ Historical/Political:
■ Independence
■ Wars
■ Deep political crisis
○ Social and geographical circumstances:
■ Homogeneity of population (Iraq, Lebanon, Indonesia)
■ Territorial issues
■ Resource and population distribution
○ Culture: Political traditions, existing norms and values, Constitutions as
aspirational projects.
● Examples:
○ US constitution 1789: Independence and enlightenment
○ German constitution 1949: "Never again" constitution
○ French constitution 1958
○ Indonesia

● Complications:
○ Amendability, continuity, interpretation
■ US debate on originalism (literal meaning of the constitution)
■ Flexibility v. Possibility of abuse
○ Constitution review
■ Should the judiciary be allowed to review the constitution?
○ Clarity of norms
■ The Constitution must be broadly applicable, future oriented, and open for
interpretation.
○ Democracy and representation
■ Consideration of effectiveness and efficiency
■ Model of parliamentarism

● Direct democracy:
○ Fuck no.
○ People are retarded.
 ● Presidential system:
○ Head of governments has an independent mandate.
○ No congressional appointment.
○ No accountability relationship with congress.
○ Shifting congressional majorities do not affect mandate.
○ US: POTUS is the government.
○ Impeachment is a criminal trial.
○ Fucking based.
● Parliamentary systems:
○ Head of government's mandate derives from parliament.
○ Either by parliamentary appointment (investiture), or royal appointment with
parliamentary support.
○ Accountability relationship with parliament.
○ Depending on the system, members are individually or collectively accountable.
○ Fucking cringe.

Task 1

WASHINGTON, D.C. – Yesterday, the President of the United States announced his desire to
raise the minimum drinking age nationwide from the current 21 to 23 years. He justified this
initiative as by referring to the need to protect consumer health and improve public morals. “We
have a responsibility to protect young Americans from the dangers of alcohol,” he told
journalists during a White House press briefing. The President is currently said to consider the
launch of a legislative initiative.

However, Representative Daryl Van Horne (D-Vermont), is skeptical: “The President is there to
execute the laws, not make them,” he asserted in a TV interview. Meanwhile, Governor Jack
Torrance (R-Oklahoma) is upset by the President’s plans – but for a different reason.
“Washington has no business regulating the drinking age,” he stated at a press conference in
Oklahoma City. “The federal government should stick to federal matters.”

Melvin Udall, the current majority leader in the House of Representatives, has already indicated
the House might be willing to support the presidential initiative. Meanwhile, 68 Senators have
openly vowed to oppose the plan to raise the minimum drinking age, unless such a plan were to
be combined with tax breaks for bars and restaurants. “A higher minimum age means a huge
economic loss to the food and beverages sector,” Senator Patrick McMurphy (D-California), the
Golden State’s senior senator, told the press. “Only by lowering the tax burden on bar and
restaurant owners can we prevent a wave of bankruptcies.” In reply, the President swiftly
rebuffed the senatorial attempt to tie the drinking age to any new tax breaks – and urged Mr
McMurphy and the other senators to avoid a deadlock.

Meanwhile, a number of US politicians have proposed that the smallest US State by population,
Wyoming, should have only one instead of two Senators in the US Senate. According to
Californian Senator Roger R. Abbot, it is manifestly unreasonable that Wyoming, with only
576.000 inhabitants (2012) should have the same number of votes in the Senate as California
with a population of over 38 million.

In a Fox News interview, Mr Abbot demands a constitutional amendment. He claims that “no
one of a sound mind can possibly find this over-representation of Wyoming democratic.
Therefore, we are confident that our initiative has the necessary support of a majority of states.”
Immediately, William Hill, the Governor of Wyoming releases the following tweet: “Apparently
California has too many Senators itself. How else could one of them waste his time like this?”

That night, Ted and Sam, two friends from Elk Mountain, Wyoming, discuss the matter over a
couple of beers. Ted proposes a compromise: “I see Mr Abbot’s point, but Senators are too
important. They should reduce the number of Representatives instead.” Sam does not agree.
“The term of representatives is much longer, and only they can impeach the president. Anyway,
nothing is going to happen since any constitutional amendment requires the consent of all 50
states.”

1. Do the actors in the case have the competence to do what they claim?
a. Joe "Sleepy Joe" Biden does not have the competence to issue new laws without
an act of congress. He can however propose laws through opinions.
i. Article I, Section 7 = Guidline for the executive within the legislative
process.
b. The House Whip can ensure that its reflective parties would vote according to the
party values; in this case, voting in favor of raising the drinking age.
c. The Senators are allowed to ask for a compromise (tax breaks) in exchange for
the US Senate supporting the passing of the new drinking age law. The Senate
can legally cause a government deadlock with the HORUS as well as POTUS if
they disagree with the new bill.
i. Article I, Section 8 = Legislative competences of Congress.
1. Clause 3 = "Commerce Clause".
2. Clause 1 = "Finance clause".
3. Clause 12 = "Necessary and proper clause".
ii. 10th Amendment, delegation of powers.
d. The government is not allowed to decrease the number of Senators per state
within the SOTUS under Article I, Section 3, Clause 1 "The Senate of the United
States shall be composed of two Senators from each State, chosen by the
Legislature thereof, for six Years; and each Senator shall have one Vote." as well
as the 17th Amendment. The HORUS provides the checks and balances to even
out the population difference between congressional districts (1 Representative
per 747,000) residents).
e. In order to invoke a constitutional amendment, you would need to do 1 of 4
methods:
i. A two-thirds vote in both houses of the U.S. Congress, then ratified by
three-fourths of the state legislatures.
 ii. A two-thirds vote in both houses of U.S. Congress, then ratified by
ratification conventions in three-fourths of the states.
iii. A national constitutional convention called by two-thirds of the state
legislatures, then ratified by three-fourths of the state legislatures.
iv. A national convention called by two-thirds of the state legislatures, then
ratified by ratification conventions in three-fourths of the states.
v. Article V "No state without its consent shall be deprived of its equal
sufferage in the Senate".
2. Who has the competence to make laws, execute laws, and exercisie judicial tasks,
respectively?
a. Federal:
i. President of the United States (POTUS) = Executive Branch
ii. Congress of the United States (COTUS)= Legislative Branch
iii. Supreme Court of the United States(SCOTUS), the US district courts, and
the US court of appeals for the federal circuit = Judicial Branch
b. State:
i. Governor = Executive Branch
ii. State Congress = Legislative Branch
iii. State Court = Judicial Branch
c. Local:
i. County/Borough/Parish Executive/Administrator (Depends per County) =
Executive
ii. Council/Board = Legislative
iii. County Court = Judicial
3. Considering that the US is a federal state, what does that mean and what does it imply
for the powers of the federal government and the individual states?
a. Divisions of power exist between the Federal Government and those of the State
Governments. Similarly, division of powers also exists between the State
Governments and its Local Governments.
b. The powers of the US government are attributed from the states that comprise
the US.
i. Each state is given 2 Senate seats, as well as House seats that are
proportional to their respective congressional district populations.
ii. States enjoy concurrent powers, meaning that certain
competencies/rights that are held by the federal government are also
enjoyed by the states (lawmaking, taxation, establishing courts).
iii. States also enjoy exclusive powers, such as maintaining a militia (US
National Guard), ratifying constitutional amendments, as well as
conducting state and federal elections.
iv. The federal government meanwhile enjoys exclusive powers such as
foreign relations, printing money, raising a federal military, and declaring
war.
 v. States influence the federal government through elections and Congress,
whereas the federal government can influence the states through things
such as the commerce clause.
vi. The division of powers is enshrined under Article IV of the US
constitution.
4. How are the different branches of government set up, and who
elects/nominates/appoints/dismisses them?
a. Federal:
i. Executive: Voted in by the people through the electoral college, which
casts their votes (normally) based on the popular vote of their respective
states.
1. Article 2, Section 1.
2. 12th Amendment.
ii. Legislative: Voted directly by their constituents/state residents.
iii. Judicial: Appointed by the president and confirmed by the Senate.
1. Article 2, Section 2.
2. Article 3, Section 3.
b. State:
i. Executive: Voted directly by their state residents.
ii. Legislative: Voted directly by their state residents.
iii. Judicial: Depends on state.
1. Some judges are directly voted.
2. Some are voted in by their respective state senates.
3. Some are appointed by the governor.
4. Some are appointed by a judicial board.
5. Some are a combination of these methods.
c. Local:
i. Almost everything is directly voted.

● QUESTIONS TO GUIDE YOUR PREPARATION

○ Constitutionally speaking, what kind of country is the United States?

■ Federal Republic
● A state that has a hierarchical government consisting of a central
government as well as territorial subunits, with powers enshrined
in the constitution.
○ Does it have territorial sub-units? What are they, how many are there?
■ States, Territories, and Local Governments.
■ 50 States.
■ 5 Territories (governed by the federal government).
■ 574 Federally Recognized Indian Tribes with 325 Native American Indian
Reservations (governed by tribal governments and the US Bureau of
Indian Affairs).
■ 3034 Counties.
○ What are the main federal government institutions in the US?
■ Office of POTUS and its 15 Executive Departments.
● State.
● Treasury.
● Defense.
● Justice.
● Interior.
● Agriculture.
● Commerce.
● Labor.
● Health and Human Services.
● Housing and Urban Development.
● Transportation.
● Energy.
● Education.
● Veteran Affairs.
● Homeland Security.
■ COTUS (Congress).
■ SCOTUS (Supreme Court of the United States).
○ What different branches of government are there?
■ Executive
■ Legislative
■ Judicial
○ How and for how long are they elected / appointed?
■ 2 terms with 4 years in each term.
■ Congress:
● Plurality of vote/simple majority.
● Tyranny of the majority.
● Senate: 6 year terms with no term limits.
● House: 2 year terms with no term limits.
■ Judicial: Lifetime appointment.
○ How can they be removed? By whom?
■ Executive:
● Impeached by both the House and the Senate by ⅔ majority
(Article II, Section 4).
■ Legislative:
● Expulsion/Impeachment by Congress (Article I, Section 5, Clause
2).
■ Judicial:
● Impeachment by Congress (Judges fall under "Civil Officers"
within Article II, Section 4).
■ The impeachment trial starts at the House and is conducted in the
Senate, and led by the chief Justice.
○ What are their functions and their competences?
 ■ Executive:
● Enforce Laws.
● Appoint heads of federal agencies and supreme court judges.
● Negotiate and sign treaties.
● Issue Executive Orders (Directives on how to enforce the law).
● Pardon federal crimes.
■ Legislative:
● Enact legislation.
● Declare Wars.
● Ratify treaties.
● Approve or deny presidential appointments.
● Substantial investigative powers towards the executive branch.
■ Judicial:
● Interpret the law.
● Determine the constitutionality of cases.
● Apply it to individual cases.
○ How do they relate to one another?
■ Checks and Balances.
○ How is political accountability and responsibility organized?
■ Checks and Balances.
○ What is the position/the powers of the courts?
■ Judicial/Administrative Review.
○ What is the court system? And how do cases work their way up through the
courts to the US Supreme Court?
■ Original Jurisdiction:
● Cases that originate at the Supreme Court.
■ Appellate/Appeals:
● Advancing through the different appellate courts within the US,
and having SCOTUS agree to hear the case.
○ May the US president engage in a military mission abroad?
■ A US president must notify Congress 48 hours before committing US
troops to a military mission. A US president must also remove troops after
60 days unless Congress approves an extension (War Powers Resolution
of 1973)
■ Only through an act of Congress can a US President engage in an
indefinite military mission abroad.
■ Realistically, this is hotly debated.
○ Who is the legislature and the executive and the courts?
■ POTUS = Executive
■ COTUS = Legislative
■ SCOTUS = Judicial
○ What are the competences of the legislature, the executive and the courts?
■ Look above.
Lecture 2

● Venice electoral.
○ Electoral process was made to be so stupid so as to avoid corruption.
○ Avoids bias.
○ Essentially a lottery.

● Democracy.
○ Plato's argument: "some people are simply better at governing than others
(morality and intelligence)."
○ Division of labor, scarcity of time and resources. "People don't have time."
○ Mass decisions in large societies is never a good idea. "You don't matter since
your impact is so miniscule it's not worth your time."
○ Joseph Schumpeter
■ "The democratic method is that institutional arrangement for arriving at
political decisions in which individuals acquire the power to decide by
means of a competitive struggle for the people's vote."
■ Citizens do not govern but merely choose who does.
○ Representative democracy: "rule by the few on behalf of all"
● Elections and their functions.
○ Elections
■ Franchise: "who may vote?"
■ Right to Stand: "who may run?"

● Representation.
○ Formalities.
■ Standards of authorization and accountability.
○ Symbolic.
■ Representative stands for the represented.
○ Descriptive.
■ Representatives similar to the represented.
○ Substantive.
■ Representative acts In the interest of the represented.
○ James Madison:
■ "Representation as delegation. Representative bound by instruction."
○ Representatives as trustees.
■ Freedom of parliamentary vote.
■ Whip system.
■ Party lists.

● Families of election systems.

○ Majoritarian elections:
■ House of commons elections.
 ■ Whoever has the most votes wins.
■ 'Wasted votes', majority of votes can be wasted.
■ Majority
● Run-off elections (France).
● Alternative voting, rank system voting (Australia).
○ Proportional representation:
■ List system (Israel)
● Party dominance.
■ Preference votes (Netherlands)
● Fragmentation.
■ Electoral threshold (Turkey)
● Wasted vote.
■ Single transfer vote (Ireland)
● Parochialism; campaigns mostly for local issues instead of
national ones.
○ Parallel Voting (Japan)
○ Mixed member proportional (Germany)

● Deutschland Uber Alles!

○ Step 0: Establishing District Winners.
○ Step 1: Allocate seats to Lander according to population size. (Similar to the US
House, based on census)
○ Step 2: Distribute seats within states to parties which pass the electoral threshold
(5% nationwide).
○ Step 3: Overhang mandate (if a party receives more direct mandates,
○ Step 4: Add compensation seats without overhang mandates until proportional
ratio is restored.
○ Reform 2021
■ Reduction of districts from 299 to 208.
■ Three overhang mandates remain uncompensated.
■ Cross-compensation between states in which a party has overhangs and
states in which the same party has a positive difference between districts
won and list seat entitlements.

Task 2

"BERLIN – Today, the German cabinet introduced a new immigration bill intended to reform the
entry and residence entitlements of immigrants, as well as a more effective system of criminal
penalties against illegal immigration. “This is a great step forward,” Julia Kaiser, the minister of
internal affairs, told the Bundestag. “With this bill, Germany will take back control over
immigration, integrate our immigrants into our society, and be more open to much- needed
high-skilled workers. We also intend to make all immigrants learn our language and to adjust to
our way of life.”
Kai Pompe, the internal affairs spokesman of the main opposition party, criticizes the bill. “The
provisions on integrating foreigners are pure window-dressing,” he claimed during a
parliamentary debate. “Nothing has been done about immigrants who stay here even though
their residence permit has long expired, and who just refuse to learn our language” The
opposition has already declared its intent vote against the bill and hopes to be joined by
defecting Government MPs. Further, the opposition also hopes that many MPs will join in taking
this legislative project to court on constitutionality grounds. Since German identity is felt to be at
stake, the opposition believes that the country’s courts must protect the German constitutional
order. German society has been engaging in a very intense debate – meanwhile, non-
governmental groups and individuals providing support to migrants also want to challenge the
proposed law in court.

With the government majority in the Bundestag being a mere two seats, Chancellor Olaf Scholz
is thinking about linking the bill to a confidence motion. “The immigration bill is central to our
manifesto and our coalition agreement,” he noted after a meeting of the leaders of the coalition
parties. The confidence question is expected to impose discipline on the government’s
backbench MPs. “The Chancellor is really shrewd”, a Berlin-based journalist from the
Washington Post noted. “This is something President Biden would never do.”

Following the rows on the immigration bills, rumours are spreading that the coalition in support
of Scholz’s government is falling apart. Well-informed persons suggest, however, that the
Chancellor is not ready resign and would be willing to remain in office even with a majority in
the Bundestag against him. Others in political Berlin are outraged: a spokesperson of the Party
Alternative for Germany demanded that, should Scholz really dare to “follow such dictatorial
patterns”, the other parties in the Bundestag should file a petition to the federal president.
According to the enraged MP, “only the president has the power to fire Scholz and install a
chancellor of his choosing. Alternatively, the Bundestag can also dissolve itself and thus bring
about early elections.”

The thought of early elections excites German citizen Günther: he favours the left-wing party
Die Linke and hopes that, finally, they will be part of the governing coalition. Since voters in
Germany have two votes, he wonders whether it would be good to vote strategically. He also
wonders about a number of things he has heard about in the news but cannot make any sense
of, such as overhang mandates (do they still exist?), negative vote value, and some
constitutionality issues he cannot quite remember. In order to find out how exactly his votes are
translated into Bundestag seats, he turns to the Federal Electoral Code (Bundeswahlgesetz,
BWahlG), takes two Aspirin and a deep breath and asks his lawyer friend Anna to explain the
Bundestag election system to him.

Meanwhile, the sixteen federal states are preparing for the inevitable vote in the Bundesrat. The
opposition parties control just under half of the total Bundesrat votes. The upper chamber’s
assent is required to pass the immigration bill. With the help of the votes from Saxony, the
opposition could defeat the bill. While Markus Krass, the Premier of Saxony, supports the bill,
his junior coalition partner opposes it. “Saxony has four votes in the Bundesrat,” a political
scientist remarks. “Even if the state splits the votes, the bill will pass. It will only fail if Saxony
does not support it”.

The launch of the immigration bill coincides with a state visit of President Biden in Berlin. Mr
Scholz was overheard discussing with the US President over coffee his difficulties in getting the
bill passed. Apparently the Chancellor envied Biden for having a much more powerful office
compared with hers. “Olaf, if you only knew!” Joining the conversation, US Vice President
Kamala Harris in turn opined that the United States might be better off if the US Senate was
much more like the German Bundesrat."

QUESTIONS TO GUIDE YOUR PREPARATION

● Constitutionally speaking, what kind of country is Germany?

○ Federal Republic.
○ German Basic Law states that Germany is a democratic and social federal state
(Art. 20 (1) Basic Law)
● Does it have territorial sub-units? What are they, how many are there?
○ Länder.
○ 16.
○ Each Länder has its own constitution, parliaments, and are all unicameral (no
upper or lower houses).
○ Headed by state prime ministers.
● What does the German Constitution look like?
○ Ridiculous
○ Certain parts cannot be amended.
■ "Forever clause".
■ Fundamental rights.
■ Federal structure.
● What are the main federal government institutions in Germany?
○ Bundesrat: co-legislative chamber that operates besides the directly elected
parliament.
■ Consists of members of the 16 Länders, premiers and ministers of the 16
Länders (similar to the EU European Council) Art. 51 (1) Basic Law.
■ Operates the entire time. Dissolutions do not occur.
■ Similar to the US Senate where it represents the different German states.
However, unlike the US Senate, it's a permanent chamber composed of
the Länder governments.
● What different branches of government are there?
● How and for how long are they elected / appointed?
○ Bundestag: Directly elected parliament representing the people as a whole (Art.
38 (1) Basic Law).
■ 598 seats.
■ Elected for 4 years.
■ Mixed-member proportional system.
 ■ Parties compete via party lists that their regional branches draw up State
by State.
■ Parties enter parliament when they win a district.
■ Seats are initially allocated proportional to the states population. Seats
are first allocated to district winners.
■ Negative vote value: When a party receives more seats in the Bundestag,
while receiving less votes in the 2nd vote, as a result of an overhang
mandate (ex. A party did not meet the threshold, but won 3 districts.
Seats then must be created for them)
○ Bundesrat
■ Led by the Federal Chancellor who is elected through the Bundestag.
○ President
■ Elected through an electoral college.
■ Largely carries out ceremonial functions.
■ Appoints and dismisses federal judges, civil servants, as well as
commissioned and NCOs of the military.
○ Federal Courts/Supreme Court
■ Selected by a federal minister together with a selection committee.
■ Constitutional Court
● 16 members, half elected by the Bundesrat, the other half by the
Bundestag (Art. 94, Basic Law)
● How can they be removed? By whom?
○ The Chancellor is removed through a successful constructive vote of no
confidence initiated by the Bundestag and oust a sitting Chancellor by electing a
new one with an absolute majority vote (Art. 67 (1) Basic Law).
■ A 48 hour cooling period must lapse between the introduction of the vote
and the voting itself.
■ The president must appoint the new Chancellor that was elected.
■ If the vote does not pass, the Chancellor can stay as a minority
government.
○ Federal ministers can be dismissed by the President upon proposal by the
Chancellor (Art. 64 (1) Basic Law)
○ The President can dismiss the Bundestag if an absolute majority vote isn't
supported, upon proposal from the Chancellor (Art. 68 (1) Basic Law)
■ The President can ask for the Chancellor to stay in office.
■ Within 21 days, if the Bundestag can elect a new Chancellor to prevent
dissolution. (Art. 68 (1) Basic Law)
● What are their functions and their competences?
○ Legislative:
■ Cabinet/Federal Government can introduce bills/legislative initiative from
the floor of the Bundestag or the Bundesrat(Art. 76 (1) Basic Law).
● Committee (Amendment + Veto)
● All votes are by absolute majority.
 ■ Bills introduced in the Bundestag must be submitted to the Bundesrat,
who are entitled to give a reaction within six weeks (Art 76 (2) Basic Law).
Simultaneously, the same would be done for bills introduced by the
Bundesrat (Art. 76 (2) Basic Law).
■ Bundesrat
● No objection
● conciliation committee.
● How do they relate to one another?
● How is political accountability and responsibility organized?
○ Federal competences (Art. 73 (1) Basic Law):
■ Immigration
■ Free movement
■ Foreign relations
○ Länder competences (Art. 72 (1) Basic Law):
■
● What is the position/ are the powers of the courts?
○ Power is vested in judges (Art 92 Basic Law)
■ Constitutional Court rules interpretation of Basic Law (Art. 92 (1)/1 Basic
Law)
■ Disagreement or doubts regarding the formal of substantive compatibility
of laws and Basic Law.
● What are the powers of the Federal Constitutional Court and how many cases are
referred to the FCC for a decision?
● What is the difference between a constructive vote of no-confidence and a question of
confidence?
○ There is a possibility to link a vote of confidence to a bill (Art. 68 (1) Basic Law)
● The FRG is a member state of the EU. Does this reflect in the constitution of the FRG?
● According to EU case law, EU law is supreme and prevails in the member states: is this
doctrine fully applied in the FRG?

COMPARATIVE QUESTIONS

● What are the differences between the court structure of Germany and of the USA?
● What are the differences and similarities between the US President and the German
President, and between the US President and the German Federal Chancellor?
○ The US president is the head of state and government in the US.
■ The US President cannot dissolve congress.
○ The head of state in Germany is the president, whereas the Chancellor is the
head of government.
■ The German President can dissolve the Bundestag and dismiss the
Chancellor.

● Who executes the laws in the US and in Germany?

 ● May the US Senate be compared with the German Bundesrat?
○ In a way, yes.
○ They represent states
○ They are elected members
○ The Senate has 2 members, whereas the Bundesrat has at least 3 per state.
○ Unlike the Senate, the Bundesrat does not have the power to make
amendments.
○ The US Senate has the power to have an absolute veto, the Bundesrat doesn't.
However, the have suspension veto.
○ The Senate votes by simple majority, the Bundesrat by absolute majority.

Task 3

"PARIS – Antoine Gicquel is a 43-year-old lawyer from Clermont-Ferrand and has just been re-
elected a member of the National Assembly – or, at least, that’s what he thinks: while he
entered the run-off as the leading candidate in his electoral district, he has just received the
official result of the second round. Robert Picard, 74 years old, a retired chef has apparently
received exactly as many votes as Antoine. Nevertheless, Antoine does not worry too much.
After all, his party has recently nominated him for a prestigious post on the Assembly’s bureau,
surely he cannot be replaced by some newcomer who might not even survive a full
parliamentary term! Immediately, he calls in his secretary to draft a letter to his friend, the
President of the National Assembly.

Nine months later, the recently elected National Assembly has already seen some dramatic
political action: the French government introduced its controversial employment reform bill in
the National Assembly. “Unemployment in our country is too high, because our labour market is
too rigid,” the Prime Minister stated in a speech in the Assembly. “This reform will allow
employers to try out young workers before employing them on a permanent basis. Young and
low-skilled workers will finally get a chance”. The bill and the Prime Minister’s speech
immediately caused a heated debate.

The left-wing opposition denounced the government’s plans as ultra-liberal. “Every young
university graduate is entitled to a lifetime of job security, preferably in the public sector,” argued
Charles Lafitte of the Communist Party. “The Assembly ought not to give its approval to such a
treacherous law”. The Prime Minister dryly responded that if the parliamentarians wished to
oppose the law, they would need to bring down the cabinet. This arrogant attitude did not go
down well with the opposition parties – who now vow to have the constitutionality of the bill
reviewed and have it annulled as soon as possible.

Apart from the employment reform bill, the government also introduced a new bill to modernize
the national school curriculum. In particular, the teaching of both science and foreign languages
is to be promoted. Pierre Haye, the cultural affairs committee chairman, promptly proposed 17
amendments to the bill. In contrast, the Prime Minister insisted that the bill be passed without
any amendments: “My message to the National Assembly is clear: Take it or leave it”. Parents
and affiliated organizations claim that the new law violates their parental rights to make the right
choices for the education of their children. They want to call upon the courts as well.

François Clicquot, a senior Senator, swiftly announced that neither the employment reform nor
the education bill would pass the Senate unchanged. Nonetheless, the Prime Minister remains
uncompromising. “The President and the National Assembly majority have been elected with a
mandate to pursue a reform agenda. The Senate will not stop this much-needed legislation,” he
told the press. “Too many of our compatriots are out of a job. France needs to open up her
labour market, and she deserves to have a modern, well-educated workforce. The Senate
should remember its constitutional role: After all, this is not America or Germany”.

Having antagonized the Assembly with its controversial reform agenda, the government has
narrowly survived three motions of censure since the last elections. Frédéric Angelis, a veteran
member for the Communist Party, is currently gathering support for yet another motion of
censure. He and the 62 other members who had signed the previous motions are convinced
that they can finally generate sufficient support to bring down this government. Following this,
the President of the Republic, a conservative, would presumably have no other choice but to
appoint Charles Marcus, the leader of the Socialists, as the new Prime Minister."

Questions

● What is the National Assembly?

○ The lower chamber of the French parliament.
○ The French parliament is bicameral, comprising the National Assembly and the
Senate.
○ The Senate under the Fifth Republic represents the territorial subdivisions of
France and, historically, French citizens living abroad (Art. 24 French
Constitution).
■ How can you be a member?
■ Election process?
● National Assembly members are elected directly in single-member
districts by absolute majority with run-offs (Art. 24 French
Constitution).
● Senate members are elected indirectly, via a body of electors who
themselves hold elected offices.
○ What happens in the case of a tie?
■ The older candidate is chose
● Who has the right to legislative initiative?
○ Statutes may be passed by the French parliament in as far as they concern
subject-areas that are explicitly listed as being matters for statute (Art. 34 French
Constitution).
■ These parliamentary statutes are then called lois
 ○ Legislative initiative for statutes within national competence lies with the Prime
Minister, the National Assembly and the Senate (Art. 39 French Constitution).
○ Once introduced, a bill must in principle pass both chambers in order to be
adopted (Art. 45 French Constitution).
● What are the competences of the National Assembly?
○ Initiate legislative action.
○ Issue a reasoned opinion if they believe that an EU legislative proposal violates
the principle of subsidiarity, meaning that the European Union should not
exercise its competences because it has not been established that the member
states cannot achieve an EU measure’s aims themselves or that the Union could
achieve them better (Arts. 6 and 7 of Protocol No. 2 TEU/TFEU; Art. 88-6, first
paragraph, French Constitution).
● Can the constitutionality of a bill be reviewed? If so, who has the competence for that?
○ The Constitutional Council.
● Can a National Assembly bring down the cabinet?
○ In that case, the bill is considered adopted unless the National Assembly
brings down the whole government by a motion of censure (Art. 49 French
Constitution, see also Chapter 5).
● Can a court challenge a bill on the grounds of constitutionality?
● Can a president influence a bill or try to force it through?
● What is the Prime Minister's role in forcing a bill?
● Can the National Assembly legislate on education?
● What is the role of the Senate in the legislative process?
● Motion of Censure?
● How many seats are there at the National Assembly?
○ The Assembly comprises 577 seats (the maximum number was inserted into
Article 24 in 2008).
● How many votes to bring down the government?

QUESTIONS TO GUIDE YOUR PREPARATION

● Constitutionally speaking, what kind of country is France?

● Does it have territorial sub-units? What are they, how many are there?
● What are the main government institutions in France?
○ Parliament.
● How and for how long are they elected / appointed?
○ The President
■ The President of the French Republic is elected directly via a run-off
system. In order to get elected in the first round, a candidate must obtain
an absolute majority of votes cast; if no candidate obtains an absolute
majority, the two candidates with the most votes proceed to a second
round. In the second round, by definition one of the candidates will obtain
the necessary absolute majority (Art. 7 French Constitution).
 ○ Parliament
■ National Assembly
● National Assembly members are elected directly in single-member
districts by absolute majority with run-offs (Art. 24 French
Constitution).
● Term of five years (Art. LO 121 Electoral Code).
● The Assembly comprises 577 seats (the maximum number was
inserted into Article 24 in 2008).
● The electoral system is laid down in statutory law (Art. L 162
Electoral Code)
● Run-Off Voting.
■ Senate
● Senate members are elected indirectly, via a body of electors who
themselves hold elected offices.
● The statutory number of Senators increased to 348, and since the
constitutional amendment of 2008 Article 24 of the French
Constitution explicitly caps the number of Senators at 348.
● As of 2011, Senators are elected for six years, with half of the
Senate being re-elected once every three years.
● The Senate is elected by a body of roughly 150,000 electors.
These electors do not meet all at once, however, but cast their
votes at the level of France’s territorial sub-units, more particularly
within those sub-units whose Senators are facing re-election. The
Senate is after all to represent French territorial subdivisions (Art.
24 French Constitution).
● How can they be removed? By whom?
○ The President
■ Once in office, the President may be removed from office when found
incapacitated by the Constitutional Council (Art. 7 French Constitution).
■ President may be removed in an impeachment-type procedure for a
‘breach of his duties manifestly incompatible with the exercise of his
mandate’ (Art. 68 French Constitution).
○ Parliament
● What are their functions and their competences?
○ President
■ The President represents France abroad and fulfills diplomatic functions
(Art. 14 French Constitution).
■ Concludes international treaties (Art. 52 French Constitution).
■ Appoints functionaries (Art. 13 French Constitution).
■ Grants individual pardons (Art. 17 French Constitution).
■ Has no veto power, the President may insist on one reconsideration of
bills passed by parliament (Art. 10 French Constitution).
■ Can refer adopted bills for constitutional review by the Constitutional
Council (Art. 61 French Constitution).
 ■ May also refer to listed categories of government bills for referendum (Art.
11 French Constitution).
○ Parliament
■ National Assembly
● The Senate under the Fifth Republic represents the territorial
subdivisions of France and, historically, French citizens living
abroad (Art. 24 French Constitution).
● Legislative initiative for statutes within national competence lies
with the Prime Minister, the National Assembly and the Senate
(Art. 39 French Constitution).
■ Senate
● The Senate is after all to represent French territorial subdivisions
(Art. 24 French Constitution).
● Legislative initiative for statutes within national competence lies
with the Prime Minister, the National Assembly and the Senate
(Art. 39 French Constitution).
■ Parliament is allowed to initiate a referendum (Art. 11 French
Constitution).
■ Veto certain important presidential nominations (Art. 13 French
Constitution).
■ Under the French Constitution (Art. 35) a declaration of war is authorized
by parliament.
● How do they relate to one another?
○ The government can object to parliamentarians’ amendment proposals if these
proposals have not first been referred to a committee (Art. 44 French
Constitution).
● How is political accountability and responsibility organized?
● What is the position/ are the powers of the courts?
● What is cohabitation?
○ When the president and the prime minister from different political colors have to
cooperate in sharing their powers and to overcome their differences. They live
together without being married, as it were, which is what cohabitation in fact
means.
● How can the French Constitution be changed?
○ The power of amendment lies with the government and, in principle, with the
members of the two chambers of parliament (Art. 44 French Constitution).
■ However, parliamentarians are barred from tabling amendments or
proposing bills of their own if such bills or amendments would raise public
expenditure or decrease revenue (Art. 40 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 (Art. 41 French Constitution).
● Why was the President’s term shortened?
 ● Is the Constitutional Council a constitutional court? What are its powers and how may it
be petitioned?
○ The Constitutional Council is a body that plays an important role in the French
legislative process. The Council is composed of nine appointed members (Art. 56
French Constitution).
○ The main tasks of the Constitutional Council are to check the validity of elections
and referendums, and to check the constitutionality of bills adopted by parliament
before they enter into force.
● France is a member state of the EU. Is this reflected in the French Constitution?
○ The two chambers of parliament are therefore to be kept informed about
European developments and may pass resolutions on drafts (Art. 88-4 French
Constitution)
● Who represents France in the European Council?

COMPARATIVE QUESTIONS

● What are the similarities and differences in the ministerial accountability mechanisms
towards parliament in US, Germany and France?
● How does the constitutional position of the French President compare with his US
counterpart?
● Are there any similarities between the US Supreme Court and the French Constitutional
Council? What about any similarities with the German Federal Constitutional Court?

United Kingdom

❖ Type of country
➢ Unitary with sub-units
❖ Dissolution of HofC and HofL
➢ Cannot be dissolved HofL
➢ HofC can be
■ Statutory law passed
■ Motion of censure against the Cabinet with ⅔ majority - also repealed
■ Vote of no confidence not followed by a vote of confidence within the 14
days - Parliament Act 2011 - REPEALED; No longer applicable
● Vote of confidence - only a convention
◆ A simple majority of the vote
◆ Usually a resignation follows - a new leader from the same
party elected and appointed
● Individual ministerial accountability
◆ Vote of confidence on a minister
■ New PM appointed by the Monarch
➢ Human Rights Act 1998
 ■ Sec 3 - other legislation must be considered and court m
■ ust interpret the laws to be compatible ( as much as possible)
■ Sec 4 - court issue a declaration of incompatibility - and issues a new
legislative procedure
➢ Royal assent is required for all laws
■ a convention
➢ Devolution
■ Is education a devolved matter
● Yes - According to the Scotland Act 1998 which defined the
devolved powers - Sec 29 of Part 1
◆ Can legislate on everything - except reserved matters
◆ Schedule 5
◆ Devolved v Reserved Matters
◆ Scotland can pass a motion to ask Westminster to legislate
on it
■ Competences of the Scotland Act 1998
● Individual Parliament - legislative competence on education,
environmental laws, land laws etc
■ can the courts annul a new law
● No - only issue a declaration of incompatibility
■ Can English members vote on Scottish problems?
● No- Sec 28 (8)
● West Lothian - Can Scottish, Welsh and NI MPs vote on English
matters
■ Scottish independence - another referendum? following the 2014 one
■ Can HofL veto a bill-
● No - Parliament Act 1911/1949
■ Can statutes override case law
● Yes - Acts of Parliament always have greater significance
because of parliamentary sovereignty
■ Fixed Parliament Act 2011 had been repealed - old system is back - In
2022
● Dissolution and Calling of Parliament Act 2022
◆
■ How is a PM elected
● Typically every 5 years (according to the convention, and was the
FTPA 2011)
● Every general election
● Using the plurality system of FPTP
■ Is there a term limit to the PM
● - Typically 5 years, which was outlined by FTPA 2011, however in
the convention as well
■ Focus on comparative
● What is the difference between decentralization and devolution?
 ◆ Symmetrical/Asymmetrical division
◆ Devolution – Parliament still retains the ultimate powers
(parliamentary sovereignty)/ Devolved jurisdictions have
some discretion over certain areas of law - can always be
overruled by Westminster
◆ Decentralisation - all of the states retain autonomy and
have discretion over most areas of law - limiting the power
of the federal government
● In which legal systems is it possible to oust a single Minister?
◆ Netherlands, UK
◆ Either by individual choice or by PM
◆ Originally the monarch’s ministers - appointed
● What are the differences in the ministerial accountability
mechanisms in France, Germany and the UK?
◆ Ministerial accountability is codified in France, Germany -
collective
➢ 2 procedures
■ An initiative by Parliament - censure
● Germany - Art 67 - constructive lack
of confidence
● France - Art 49 (2) - consequence
Art 50
■ Initiative by Government - vote of
confidence
● Germany - Art 68
● France - Art 49 (1) (3)- Followed by
Art 50 only for vote of 49 (1)
● How do the election systems for the French, German and British
lower chambers differ?
◆ French: NA - 2 rounds and based on single-vote majority
voting - purely majoritarian system
◆ Germany: Bundesrat - 2 votes; Federal Elections Act - one
is district vote, another party vote, one is PR the other
majoritarian system
◆ UK: HofC- purely plurality system of FPTP
● In your evaluation, who is more powerful in relative terms: the UK
Prime Minister, the US President, or the German Chancellor?
◆ PM and Chancellor have limited power as they are always
accountable to the Parliament - compared to this the
President is accountable to the electorate
◆ PM and Chancellor elected from the majority in the lower
chambers
◆ PM has greater powers than the Chancellor:
➢ Can appoint Minister themself
 ➢ Adopts royal prerogative
➢ Lays down all of the proposals and future bills -
➢ MPs (even ministers?) may be a part of additional
organisations/companies
➢ Can (formally after the Dissolution Act 2022)
dissolve Parliament - prorogues it - in contradiction
of the Miller v PM decision
➢ Does not have to obey a vote of confidence - Boris
Johnson
➢ More powers of the President and Chancellor -
while some powers of the President are reserved
for the monarch
◆ UK PM can be ousted by a simple majority of no
confidence vote and Chancellor can remain in office after a
vote and must be an absolute majority vote
◆ UK PM and US President -
● Compare the House of Lords with the upper chambers in the US,
Germany and France
◆ HofL - unelected therefore unrepresentative and
unaccountable (dangers of privileged perspective ruling for
the masses) - limited powers, can only amend laws which
have already passed HofC and usually just approve the
legislation - no oversight power and scrutiny - limited to
hereditary and appointed lord - often political appointments
◆ Bundesrat - extended role of legislation, administrative
involvement and involvement in the EU matters
➢ Consists of ministers - appointed by the
government - may be politically swayed; however,
the government is elected by the people and in that
way chosen
➢ Accountable to the State Governments themselves
- to the local areas where they have been elected
from
➢ Bundesrat president - presiding power over the rat -
convienes it
➢ Separate chamber (committee) for areas of EU law
➢ The committees of Bundesrat - effective in
scrutinising and amending legislation
◆ Senate - ensures territorial representation
➢ Elected by indirect suffrage - not directly
accountable
➢ Greater power in the deliberation of bills - decided
between NA and Senate, however, NA can still
overrule Senate by asking the President
 ● Does the electoral system in the four countries determine the
constitutional position of the parliaments and the governments and
if so, how?
● Relationship influence on electoral system on legislature and
government
◆ UK - FPTP - parliamentary sovereignty
◆ France - Majoritarian
◆ Germany - Mixed PR and Majoritarian
◆ USA - FPTP

Netherlands

o THE HAGUE – Today, the Minister of Justice announced the Foreign Nationals Crimes
Prevention Bill. It would increase by the maximum penalty for criminal offences committed
by foreigners by one-third of the sentence imposed upon Dutch offenders. “If you are a guest
in a country, you should behave accordingly,” the minister told the press. “The abuse of our
country’s hospitality by foreign nationals is a serious issue, especially if they are subsequently
treated like Dutch citizens.”

§ Can the government legislate on matters of crimes? Can the maximum penalty be
increased?

§ Can immigrants be treated more unfairly, and can they legislate on immigration?

§ Who can initiate laws? The legislative procedure?

§ Legislative initiative - 82

◆ By Government (or King) or Second Chamber (any member of the

Second Chamber)
◆ Art 81 - Government also part of legislative power as involved in the
adoption
● Council of State (Art 73 (1)) - advisory opinions (not binding)
● Art 83 - Second Chamber (committees- debates) and then sent to the plenary
◆ Rejects - Bill fails
◆ Amends
◆ Adopts
● Art 85 - First Chamber
◆ In principle cannot amend- have the “hidden right” of ”novelle”
(suggest the amendment to the 2nd chamber)
◆ Adopt -
◆ Rejects - the absolute veto - bill fails
● IF ADOPTED - signed by the King and counter-signed by a minister (Art 47,
and 87)
● Majorities of votes - a simple majority and a half of the chamber must be present
(Art 67)
 o The Vice President of the Council of State understands the minister’s reasoning, but harbours
substantial reservations on the details. “The scope of the bill appears too broad,” he noted in
an interview. “Right now, there is no distinction between legal and illegal immigrants, or
between EU citizens and third country nationals. Without wishing to anticipate the Council of
State’s decision, it is my personal view that the bill should be amended or withdrawn.” The
minister responded by affirming that he would review the details raised by the Council’s vice
president. Nevertheless, the minister remains determined to introduce the bill.

§ Legislative procedure?

§ Who has greater authority government or Council of State?

o Gerard van Geldorp, the chairman of the Second Chamber’s justice committee, predicts that the
bill might have sufficient support in the plenary. “However, many of my colleagues argue that
the bill is too harsh. To secure overall approval in the Chamber, I believe the added penalty
should be lowered from one-third to one-quarter of the existing maximum penalty”.

§ Second chamber? Competences?

§ Is the whole unanimous agreement from the Second Chamber needed?

o Meanwhile, Hans Heeze, a First Chamber member from the Green Party, wonders about the
procedure. “The minister should first introduce the bill to the First Chamber, not the Second
Chamber,” he noted at a meeting of his party group. “It is only logical that the First Chamber
comes first, and the Second Chamber comes second. Just like in France and in Germany”. His
colleague, the Social-Liberal Ria Roermans, furthermore, raises substantive issues. “If the bill
passes the Second Chamber in its current form, I will insist on its amendment, so that the new
penalties would only apply to violent crimes. If the government and Second Chamber fail to
listen, then the First Chamber should just kill the bill and initiate a new one on its own”

§ First v Second Chamber? Who has greater competences and authorities?

§ Who takes precedent?

§ Can the First Chamber kill the bill? Can it initiate a new one?

o Human rights groups have already criticized the minister’s initiative. Wouter Weert, an activist,
argues that the law would violate the Dutch constitution. “Everyone should be treated equally,
that is the first Article in our constitution,” he told journalists. “The judges in our country
should refuse to sentence people under the new law, as the new law is unconstitutional”. Jan
Flevodorp, a member of the populist Netherlands Plus party has another idea: “Isn’t it time we
amended the Constitution to enable criminals to automatically lose their Dutch citizenship
upon committing any offence with a custodial sentence – even if that renders them stateless? I
mean, after all, our constitutional amendment procedure is straightforward and easier than in
America, so why not do this and just get this done.”

§ Human rights in the Dutch Constitution? Everyone treated equally?

§ Judicial/constitutional review? How does it apply and how effective is it?

§ Constitutional amendments?

● Constitutionally speaking, what kind of country is the Netherlands?

 ○ Constitutional monarchy
■ Monarchs exercise their authority in accordance with a constitution and are not alone in
decision making.
● Does it have territorial sub-units? What are they, how many are there?
○ Netherlands
■ Provinces
■ Municipality
● Caribbean Netherlands
○ Kingdom of the Netherlands
■ Aruba
■ Curacao
■ Sint Maarten
● What are the main government institutions in the Netherlands?
● What different branches of government are there?
● How and for how long are they elected / appointed?
○ Second Chamber
■ Directly elected
○ First Chamber
■ Not directly elected
■ Member of provincial assemblies
■ 12 provinces; assemblies elect the 1st chamber
■ Not directly elected, but have veto points
■ Provinces + States + Municipalities
● How can they be removed? By whom?
○
○ Collective accountability
■ Whole government resigns
○ Single accountability
■ Single ministers resign
● What are their functions and their competences?
○ King
■ Signs bills
○ Second Chamber
■ Lower chamber
■ Represent the will of the people
■ Right of amendment
■ Right of initiative
○ First Chamber
■ Assemblies
■ Absolute veto power
■ No right of amendment; they can make their approval be dependent on an amendment
● How do they relate to one another?
○
● Explain the steps involved in forming a government.
○ Formateur
■ Envisioned Prime Minister
○ Informateur
■ Random person from government that forms a coalition and appointed by the King
● Explain the system of judicial review of legislation by Dutch
○ Constitutional review is prohibited (Art 120 GW)
○ Supremacy of EU law Van Gend & Loos precedent
○ Monism international treaty
■ Council of Europe
● ECHR ratification
● The Netherlands is a Member State of the EU. Is this reflected in the Dutch Constitution?
○ It is not explicitly stated that it is a member of the EU but a monist country.
HUMAN RIGHTS

Germany

● Chapter 1 German Basic Law is the bill of rights for the German citizen.
● The Federal Constitutional Court uses Chapter 1 to review federal legislation.
○ If not compatible with the bill of rights then it is nullified.
○ The court can declare administrative decisions and practices unconstitutional by nullifying.
○ Article 79 points out that those fundamental rights cannot be amended.
○ The constitutional courts allow for constitutional complaint procedures/concrete complaint
procedures (ex post).
○ Art. 93 allows for constitutional review by the Federal Constitutional Court.
■ Sub-paragraph 1 stipulates rules for the FCC in general.
■ Sub-paragraph 2 stipulates rules for disagreements between the basic law and state law.
■ The court can only review laws, not bills.
○ Art. 100
○ Complainants have to exhaust every other possible remedy before referring to the Federal
Constitutional Court.
○ Unconstitutional statements are declared null and void.
○ Art. 59 states that Germany is a dualistic country by stipulating that the Federal President
represents Germany in International Law.
● Article 1 (3) stipulates that all state authorities are bound by the bill of rights.
● To be able to limit a fundamental right in Germany, it must be proportional in response and live up to the
requirements of legal certainty Art. 8 (2), 11 (2).
○ Art. 1 human dignity cannot be violated.
○ Art. 5 limits freedom of speech.
● Why is ECHR important?
○ Use ECHR + Case law to interpret their own constitution.
○ ECHR has similar status to the constitutional body

United Kingdom

● The UK does not have a constitutional document to entrench human rights. The Westminster model relies
on settled practices/convention.
● Judges in the UK are not allowed to invalidate acts of parliament because of legislative supremacy/no
administrative review.
○ ECHR transformed into the HRA 1998.
○ They can declare a declaration of incompatibility with the Human Rights Act of 1998. It attracts
the attention of parliament.
● Parliamentary sovereignty.

France

● No fundamental rights in the French Constitution; Included/Refers to the preamble of 1946.

○ List of social and economic rights.
○ Refers to the rights of man from the Declaration of Rights of 1789.
○ It affirms the fundamental principles of the laws of the Republic.
● Art. 61 - 61 (1) Constitutional review.
○ The French Constitutional Council focuses on the fundamental constitutional rights.
● Art. 34 obliges fundamental safeguards granted to citizens for the exercise of civil liberties in a statute.
○ In that way, the legislature is strengthened in human rights protection.
● Art. 55 states that International Law are directly applicable in French Law.

Netherlands
 ● Chapter 1 of the Dutch Constitution contains fundamental rights.
● Art. 93 - 94 stipulates that the Netherlands is a Monist country As international law which the Netherlands
is a signatory of becomes binding.
● Treaties of the ECHR are important for the Netherlands as Art. 120 forbids constitutional review.
○ The Constitution contains fundamental rights, statutes of the legislature are not able to be
constitutionally reviewed.
○ Judges are allowed to review legislation for compatibility for the ECHR, as it is a monist country.

European Union

● Four Freedoms of the EU.

○ Goods.
○ Services.
○ Capital.
○ Persons.
● Discrimination Clauses.
○ Sex.
○ Nationality.
● Armt. 6 TEU.
○ European Law.
○ International Law.
○ Concerned with ECHR; noteworthy as the two aren't connected.
● Pg. 550 (1) The Charter of the Fundamental Rights of EU.
○ Binds members states to fundamental rights TCEU.
● 4 Elements of the landscape of human rights.
○ European Convention Human Rights.
■ Multilateral treaty.
■ Living document.
■ Ratified by members of the Council of Europe.
■ Not part of the EU.
○ Charter of Fundamental Rights of the European Union.
○ General of EU law.
○ National Human Rights.
○ European Court of Human Rights.
■ You have to exhaust all domestic remedies before applying to the ECTHR.
■ Binding because ratified.
■ Committee of ministers checks to see if the government complies with the judgment.

Unites States

● Fuck around and find out.

● All federal judges/courts are constitutional judges/court
● Qualified monism.

BONN – Johannes B., a local activist, is facing trial at a court in Bonn today. He has been charged with the
publication of an anti-Muslim leaflet that is deemed in violation of a statutory provision prohibiting incitement to
racial hatred. The defendant argues that the law infringes upon his human rights. The court will decide on further
proceedings after today’s hearing.

● Concrete Ex-post (after a law passes)

BERLIN – The opposition in the German parliament is fed up with many legislative projects that they feel violate
citizens’ rights and other decisions of the majority that curb their rights of scrutiny and possibilities to ask questions
and challenge the government. It wishes to have the relevant constitutional rights protected by the courts.

● Ex-Ante (before a law passes/still a bill)

BERLIN – A newly established political party seeks to justify the burning of houses of immigrants and wishes to
curb the influx of “tsunamis of immigrants”. Concerned citizens wish to undertake legal action to have this party
banned.

● Art. 21 political parties that jeopardize and eliminate the tenets of liberal democracy in Germany are
unconstitutional.
● Art. 93 (1) 4c. The FCC can rule on their objection to a party.

BIRMINGHAM – John B., a local activist, is facing trial at a court in Birmingham today. He has been charged with
the publication of an anti-Muslim leaflet that is deemed in violation of a statutory provision prohibiting incitement to
racial hatred. The defendant argues that the relevant law infringes upon his human rights. The court will decide on
further proceedings after today’s hearing.

● There is no constitutional review.

● HRA 1998
○ Section 3
○ Section 4
○ Section 10 stipulates that the parliament changes the law when there is a declaration of
incompatibility.

BORDEAUX – Jacques B., a local activist, is facing trial at a court in Bordeaux today. He is charged with the
publication of an anti-Muslim leaflet that is deemed in violation of a statutory provision prohibiting incitement to
racial hatred. The defendant argues the relevant law violates his human rights. The court will decide on further
proceedings after the hearing.

● Concrete Ex-post.
● Art. 62 provision declared unconstitutional is repealed/annulled.
● Art. 61-1 Constitutional Council can review a provision when referred by the Council of State or the Court
of Cassation.

PARIS – The French parliament is about to adopt a new law banning face coverings in public. The opposition
parties in parliament claim that this law violates French secular values and relevant constitutional freedoms. They
even announce that they will contest this new law if parliament adopts it.

● Abstract Ex-post.
● Not possible.

BIRMINGHAM (Al. US) – Jason B, is arrested for having burnt the Confederate flag. He invokes the Bill of Rights
and the International Covenant on Civil and Political Rights.

● Concrete Ex-post.
○ Concrete because he is arrested based on a law and in trial and become a constitutional issue.
● Marbury v. Madison.
○ The Constitution is the highest law of the land.
○ US Federal Courts are Constitutional Courts.
 ● Law is set aside/disapplied in that case; law is not rescinded.
● Texas v. Johnson
● US v. Eichmann

STRASBOURG – The European Court of Human Rights has today received several new complaints from individual
applicants.

Ahmed A. has been arrested and detained by French police earlier this year. He claims that he has been subjected to
physical abuse while in custody. He is not very hopeful about his case, since he is a Lebanese national.,
Additionally, Lebanon is neither a European country, nor has it signed the ECHR.

● Art. 3 ECHR, torture

Barbara B., a Hungarian national, had her telephone tapped by the police during an investigation. Two months ago,
the police acknowledged that their actions had not been authorized. B. accepted their apologies along with full
financial compensation, but still wishes to make a point in Strasbourg.

● Art. 34 can inky receive complaints from persons who are victims, as Barbra had received compensation,
she is no longer a victim.
● Art. 8 ECHR, privacy

Carlo C., an Italian farmer, had a part of his land expropriated for the construction of a new municipal road. He
claims that the compensation he received two weeks ago was far below market value. He decided to immediately
launch a case in Strasbourg, arguing that the Italian courts would take too long to decide on his complaint.

● Art. 35, a complainant has to exhaust all domestic remedies.

● Art. 1 Protocol 1 of ECHR, entitled to property.

Daan D., a Dutch used-car salesman, was briefly detained pending an investigation into alleged tax fraud. The case
was time-barred from prosecution, however, and he was released. When he applied for compensation for the time
spent in detention, the court of appeal in Den Bosch rejected the claim, arguing that if the investigation had been
completed, he would have certainly been found guilty. Eight months ago, the Dutch Supreme Court rejected his
claim in final instance.

● Art. 35.
● Protocol 14, Art. 4 ECHR, within a period of four months.

Erwin E., a German school teacher, was refused access to a disco for wearing sandals in combination with white
tennis socks. He complains that he has been discriminated against, and the German courts kept rejecting his claims.

● Art. 35 (3a)-(3b), he has not suffered a significant disadvantage and the complaint is ill-founded.

Fiona F., a British journalist, was sentenced by a court to a fine of GBP 500 for a violation of laws on the protection
of ethnic minorities, after she had published a newspaper article that was considered racist. She demands that the
Strasbourg Court declare invalid the relevant law and have her criminal record cleared accordingly.

● Art. 41 TCEU.

Geraldo G., an Italian businessman wants to challenge the dawn raid by the Commission of his business for
allegedly violating EU competition rules. The EU officials were escorted by national police officers. He demands
that the Commission follows the fair trial and privacy rules in the ECHR and wonders who ultimately interprets the
Charter and the ECHR and whose case-law prevails and where to lodge a complaint.
 ● The EU is not a signatory of the ECHR.
● If the European Charter contains the same rights as the ECHR, the European Court of Justice interprets that
as what is in line with the ECHR.
● Art. 6 ECHR, fair trial.

Hendrick H. is a member of the European parliament for a Eurosceptic party. He is convinced that the fiscal
compact as concluded between 26 EU member-states infringes upon the rule of law and budgetary sovereignty of
the states-parties, and therefore of the right to vote for the national parliaments. Can the fiscal compact be
challenged before national courts? Before the ECJ? Before the ECHR?

● Ratification of an international fiscal compact within a country can be challenged at a national court; they
are not able to challenge the fiscal compact itself.

Iris I. runs a chicken farm. She is indicted for having fraudulently applied for and having misused domestic
subsidies. In the context of these proceedings she finds out that the prosecution case rests on several anonymous
testimonies. Her neighbor James J. is prosecuted for a similar offense, but in his case for misusing EU subsidies. Are
the ECHR and/or the Charter relevant here?

● Iris
○ Art. 6 ECHR, right of fair trial. She was using domestic subsidies.
● James
○ Art. 6 ECHR, as national authorities are bound.
○ Art. 47 of the TCEU, as he was misusing EU subsidies.