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Conference Report–Separation of Powers within and beyond Europe: The Evolution of a Foundational Concept

Alessandro Nato, Post-Doctoral Research Fellow, LUISS University; Caterina Mariotti, PhD candidate, LUISS University and Paris 2 Panthéon Assas; Paolo Fernandes, PhD candidate, Tor Vergata University

On 12 April 2019, the Departments of Law and Political Science at
LUISS Guido Carli University hosted a symposium on “Separation of Powers within and beyond Europe: The Evolution of a Foundational Concept.” The Symposium brought together LUISS visiting professors and faculty members to discuss how the classic topic of the separation of powers has changed both in the European multilevel-system and beyond.

In this Conference Report, we summarize the conference proceedings for the benefit those members of the I-CONnect community unable to attend.

Robert Schütze (Durham Law School) focused on the delegation of legislative power to the European Commission under Art. 290 TFEU, exploring the relative judicial and political safeguards. He considered, in particular, the issue of the difference between amending and supplementing delegated acts, arguing that while an amending act has the same hierarchical status as the parent legislative act, a supplementing act is hierarchically subordinate to the primary act. He concluded that Art. 290 TFEU has strengthened the power of the Commission, given that the ex post controls are rarely used and that the ex ante controls are less pervasive than in the context of implementing acts.

The discussant Daniele Gallo (LUISS) reflected on the boundaries between amending and supplementing acts, on the role of the principle of institutional balance, on the impact of delegated acts on the “federalist-alike” character of the EU.

Antoine Vauchez (Universitè Paris 1) dealt with independence and separation of powers and with the case of the ECB in particular. He pointed out the difficulty of applying the separation of powers theory in the EU, and focused on the concept of institutional independence, which is not only functional to the pursuit of EU general interest, but it also allows institutions to discretionarily define their mandate. He argued that the traditional notion of independence, related to the political realm of objectivity of the Commission and the ECJ, has been challenged by the ECB’s understanding of independence as related to the economic realm of objectivity. This tension required the Court to bring the ECB back to the framework of EU law, without jeopardising its independence.

The discussant Marta Simoncini (LUISS) underlined that independence needs to be declined considering the various missions of institutions. However, when the ECB is at stake, she emphasizes that it is still necessary to address issues related to accountability and transparency.

Leonard F. M. Besselink (University of Amsterdam) addressed if and how courts protect democracy in the EU landscape. He considered that between the ECJ and the Constitutional Courts the dialogue is not “quiet” in terms of promoting or counter-acting democratic decision-making. He argued that the ECJ has traditionally exercised an intensive use of its strong “vertical” review powers (i.e. Simmenthal mandate), while national courts have partially come to accept that mandate (i.e. Taricco saga). He also indicated that an enhanced role should be assigned to parliaments in the economic governance; a role that parliaments have not claimed for themselves though.

The discussant Nicola Lupo (LUISS) remarked that Constitutional Courts must establish a new dialogue with national parliaments, protecting the legislator’s role in the multilevel legal system. However, he considered that difficulties exist for Constitutional Courts to defend their independence (i.e. Poland).

Harm Schepel (Kent University) analysed international investment arbitration and separation of powers. He addressed the theory, articulated in Quasar, according to which the protection of property rights of foreigners under international investment law is stronger than that granted by international human rights law and national constitutions in light of: (i) the commitments that States undertake in investment-protection treaties; (ii) the fact that the foreign investor is not a member of the polity in the interest of which the State regulation is adopted, and cannot therefore reap the benefits thereof. Schepel wondered whether it is viable to frame the balance between public interest and private property in terms of losses and benefits that can be individualised.             
             
The discussant Filippo Fontanelli (University of Edinburgh) investigated the tenability of the coexistence, within a single jurisdiction, of the social function of property and of a heightened conception of private property for foreigners.

Iain Cameron (Uppsala University) discussed separation of powers in the context of the Council of Europe. He considered that, according to the ECtHR, a State cannot hide from its responsibility by invoking arguments of separation of powers in three situations: application of the general law; the general framework of data protection and for the exercise of supervisory powers; secrecy in relation to executive privileges and immunity. He further considered that the Venice Commission refers to the separation of powers as a benchmark against which state measures are reviewed, or as part of a principle overlying the rule of law.

The discussant Giovanni Piccirilli (LUISS) remarked that the separation of powers is a complex dilemma in the supranational system. He further considered that the ECHR emphasizes that the problem is the secrecy of the government in limiting access to and participation in the law-making process.

Antoni Abat Ninet (University of Copenhagen) emphasizes that the analysis of Islamic constitutionalism requires a redefinition of what are the powers to be separated. He considered the situation in two Countries: Lybia, where the 2016 Constitutional draft has to pave the way towards a “reverse” mechanism of democratization, with the Constitution preceding democracy; Egypt, where the Supreme Constitutional Court has played an important role during the last years of Mubarak’s regime.

The discussant Cristina Fasone (LUISS) considered that, in the post-Arab Spring context, the dominant role played by the executive power, the abuse of the state of exception and the lack of independence of the judiciary seemed to actually push towards a concentration of powers.

Silvana Sciarra (Italian Constitutional Court) remarked, in conclusion, the importance of a respectful and strong dialogue between national constitutional courts and the ECJ with a view to protecting fundamental rights in a perspective of separation of powers. Recalling how austerity measures impacted both on fundamental rights and on the independence of the institutions, she pointed to the role of solidarity and called for a rebalancing process involving all institutional actors, each within its own sphere. Finally, she stressed the Constitutional Courts’ role in the protection of parliamentary prerogatives.

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Published on May 7, 2019
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