Patricia Popelier is a full professor in constitutional law at the University of Antwerp. Her research is focused on issues of (comparative) federalism and multilevel governance
During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Co... more During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.
Maastricht journal of European and comparative law
This paperdeals with the question how national constitutional systems secures the jurisdictional ... more This paperdeals with the question how national constitutional systems secures the jurisdictional integrity of both national and European law within national boundaries while at the same time providing legitimacy for European claims of authority within the national legal system. Constitutional strategies are composed along three strands: enabling strategies, impact strategies and three-layereds strategies. This paper focuses on enabling strategies, using a comparative analysis to identify efficacy strategies vs legitimacy strategies. It concludes with criteria for the adoption of the ‘best strategy’, based upon considerations of national tradition and sentiments, legitimacy interdependency and the duty to challenge, and a striving for harmonious co-existence.
Comparative constitutional scholarship identifies sub-national constituent power as one of the de... more Comparative constitutional scholarship identifies sub-national constituent power as one of the defining features of federal systems. Moreover, according to public choice theory, devolutionary federal systems are expected to favor the creation of sub-national constitutions. For these reasons, the absence of real constitutional power for the sub-states in Belgium appears to be an anomaly. The research question of this paper explores the validity of this approach. More generally, the question is: how important is it in a federal state for sub-states to have their own sub-national constitutions? Arguments pro and contra are analyzed and applied to the Belgian case. I argue that sub-national constitutionalism is a matter of political balance between national and sub-national powers, rather than a principle of federal theory.
In the present era of globalization, federalist theory can no longer ignore multi-tiered dynamics... more In the present era of globalization, federalist theory can no longer ignore multi-tiered dynamics beyond the nation state and its impact on inter-state relationships. The European integration process in particular, has created a multilevel government (MLG) environment, which also impacts upon the position of subnational entities in (quasi-)federal states. In this MLG environment, subnational constitutionalism is not merely defined by the power of subnational authorities to adopt their own constitution, but also by the power to define their position in relation to other layers of authority. European, national and subnational systems are thus intertwined. In this paper, this finding is analyzed as part of a larger theory on comparative federalism. Subsequently, the paper discusses the power of subnational governments to define their position in relation to the EU. A comparative analysis differentiates three strategies for multi-tiered systems to respond to multi-layered challenges res...
ABSTRACT In 2006, the Belgian Court of Cassation laid down the liability of the Belgian State for... more ABSTRACT In 2006, the Belgian Court of Cassation laid down the liability of the Belgian State for loss and damages caused by a fault for which the legislature can be held responsible. This is the next step in the evolution of State liability, which had been triggered earlier by European Court of Justice case law in the case of a violation of European Union law. In this paper it is argued that objections against State liability for the legislature are mainly arguments against constitutional review. Once constitutional review is accepted in a legal system, the case for State liability for the legislature rests on the rule of law and corrective justice. Considering the specific nature of statutes, restrictions to State liability are acceptable, but only in so far as there is an actual danger of disproportionate harm. The Belgian courts, when dealing with State liability for the legislature, do not directly review against a standard of care, but a standard of care is nevertheless incorporated in the review against constitutional rules and principles.
ABSTRACT In the research fields of both law and economics, literature on the quality of regulatio... more ABSTRACT In the research fields of both law and economics, literature on the quality of regulation has gained importance in recent years. Particularly, the economic effect of sound business regulation has been examined. However, almost no research exists on the effect of regulatory quality on litigation and court delay. Therefore, this article examines the latter relationship by developing a conceptual framework, which states that lower regulatory quality: (i) stimulates the recourse to justice and (ii) increases case disposition time by impeding the judge’s and lawyers’ work. Both effects in turn increase backlogs in the courts. Furthermore, this article provides empirical evidence that confirms the hypothesized inverse relationship between litigation and regulatory quality.
De perceptie van wat een trage rechtsgang veroorzaakt, kan verschillen van de realiteit. Daarom i... more De perceptie van wat een trage rechtsgang veroorzaakt, kan verschillen van de realiteit. Daarom is objectief empirisch onderzoek naar doorlooptijden noodzakelijk voor het opstellen van e ectieve beleidsmaatregelen ter versnelling van de rechtspleging. Deze bijdrage gaat na in welke mate verschillende actoren een aandeel hebben in de doorlooptijd van bouwzaken behandeld in de Limburgse rechtbanken van eerste aanleg. Uit de resultaten blijkt dat voornamelijk de procespartijen zelf het grootste deel van de doorlooptijd bepalen. Daarnaast werken ook deskundigenonderzoeken vertragingen in de hand. Zo blijkt dat in zaken waarin een deskundige werd aangesteld, ongeveer 30% van de doorlooptijd wordt bepaald door het deskundigenonderzoek. Het aandeel van de rechter, daarentegen, is opvallend beperkt.
During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Co... more During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.
Maastricht journal of European and comparative law
This paperdeals with the question how national constitutional systems secures the jurisdictional ... more This paperdeals with the question how national constitutional systems secures the jurisdictional integrity of both national and European law within national boundaries while at the same time providing legitimacy for European claims of authority within the national legal system. Constitutional strategies are composed along three strands: enabling strategies, impact strategies and three-layereds strategies. This paper focuses on enabling strategies, using a comparative analysis to identify efficacy strategies vs legitimacy strategies. It concludes with criteria for the adoption of the ‘best strategy’, based upon considerations of national tradition and sentiments, legitimacy interdependency and the duty to challenge, and a striving for harmonious co-existence.
Comparative constitutional scholarship identifies sub-national constituent power as one of the de... more Comparative constitutional scholarship identifies sub-national constituent power as one of the defining features of federal systems. Moreover, according to public choice theory, devolutionary federal systems are expected to favor the creation of sub-national constitutions. For these reasons, the absence of real constitutional power for the sub-states in Belgium appears to be an anomaly. The research question of this paper explores the validity of this approach. More generally, the question is: how important is it in a federal state for sub-states to have their own sub-national constitutions? Arguments pro and contra are analyzed and applied to the Belgian case. I argue that sub-national constitutionalism is a matter of political balance between national and sub-national powers, rather than a principle of federal theory.
In the present era of globalization, federalist theory can no longer ignore multi-tiered dynamics... more In the present era of globalization, federalist theory can no longer ignore multi-tiered dynamics beyond the nation state and its impact on inter-state relationships. The European integration process in particular, has created a multilevel government (MLG) environment, which also impacts upon the position of subnational entities in (quasi-)federal states. In this MLG environment, subnational constitutionalism is not merely defined by the power of subnational authorities to adopt their own constitution, but also by the power to define their position in relation to other layers of authority. European, national and subnational systems are thus intertwined. In this paper, this finding is analyzed as part of a larger theory on comparative federalism. Subsequently, the paper discusses the power of subnational governments to define their position in relation to the EU. A comparative analysis differentiates three strategies for multi-tiered systems to respond to multi-layered challenges res...
ABSTRACT In 2006, the Belgian Court of Cassation laid down the liability of the Belgian State for... more ABSTRACT In 2006, the Belgian Court of Cassation laid down the liability of the Belgian State for loss and damages caused by a fault for which the legislature can be held responsible. This is the next step in the evolution of State liability, which had been triggered earlier by European Court of Justice case law in the case of a violation of European Union law. In this paper it is argued that objections against State liability for the legislature are mainly arguments against constitutional review. Once constitutional review is accepted in a legal system, the case for State liability for the legislature rests on the rule of law and corrective justice. Considering the specific nature of statutes, restrictions to State liability are acceptable, but only in so far as there is an actual danger of disproportionate harm. The Belgian courts, when dealing with State liability for the legislature, do not directly review against a standard of care, but a standard of care is nevertheless incorporated in the review against constitutional rules and principles.
ABSTRACT In the research fields of both law and economics, literature on the quality of regulatio... more ABSTRACT In the research fields of both law and economics, literature on the quality of regulation has gained importance in recent years. Particularly, the economic effect of sound business regulation has been examined. However, almost no research exists on the effect of regulatory quality on litigation and court delay. Therefore, this article examines the latter relationship by developing a conceptual framework, which states that lower regulatory quality: (i) stimulates the recourse to justice and (ii) increases case disposition time by impeding the judge’s and lawyers’ work. Both effects in turn increase backlogs in the courts. Furthermore, this article provides empirical evidence that confirms the hypothesized inverse relationship between litigation and regulatory quality.
De perceptie van wat een trage rechtsgang veroorzaakt, kan verschillen van de realiteit. Daarom i... more De perceptie van wat een trage rechtsgang veroorzaakt, kan verschillen van de realiteit. Daarom is objectief empirisch onderzoek naar doorlooptijden noodzakelijk voor het opstellen van e ectieve beleidsmaatregelen ter versnelling van de rechtspleging. Deze bijdrage gaat na in welke mate verschillende actoren een aandeel hebben in de doorlooptijd van bouwzaken behandeld in de Limburgse rechtbanken van eerste aanleg. Uit de resultaten blijkt dat voornamelijk de procespartijen zelf het grootste deel van de doorlooptijd bepalen. Daarnaast werken ook deskundigenonderzoeken vertragingen in de hand. Zo blijkt dat in zaken waarin een deskundige werd aangesteld, ongeveer 30% van de doorlooptijd wordt bepaald door het deskundigenonderzoek. Het aandeel van de rechter, daarentegen, is opvallend beperkt.
For some time now, the European Court of Human Rights is under substantial pressure. From a case ... more For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. It also assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. The book is topical and innovative, as these questions have so far remained largely unexplored, especially cross-nationally. Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU.
With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Bańczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majerčík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander.
The relationship between national constitutional courts and the European Court of Justice (CJEU) ... more The relationship between national constitutional courts and the European Court of Justice (CJEU) is increasingly cast in terms of communication, understood as having a constructive connotation, and as an alternative to the prior and more destructive language of ‘guerre des juges’, conflict and revolt. This volume provides a critical examination of the normative, empirical and contextual aspects of such judicial conversations. I between the CJEU and constitutional courts.
This book zooms in on various aspects of the interaction between courts in the complex European s... more This book zooms in on various aspects of the interaction between courts in the complex European system of human rights protection. Where courts are faced with a human rights claim, they not only have to examine the validity of that claim, but also need to have a clear understanding of the human rights catalogue that is to be applied, i.e. human rights as guaranteed by the national constitution, human rights as protected under EU law, based or not on the Charter, and human rights as identified in the European Convention of Human Rights.
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Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU.
With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Bańczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majerčík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander.