a second year postgraduate student
V.M. Koretskyi Institute of State and Law
of the National Academy of Sciences of Ukraine
It is well-known in the Ukrainian legal science that legal regulation consists of two levels: legislative (including the constitutional level), which defines the most fundamental legal requirements for relevant public relations, and sublegislative, which clarifies and details the relevant legal regulations. In some branches of law (for example, the criminal process) there is practically no sublegislative regulation, which, incidentally, does not change the important principle – sublegislative regulations are generally more adaptive to realities in a rapidly changing world.
At the same time, the creation of a truly legal state requires creative reflection on the experience of foreign democratic states. First of all, it concerns the experience of the European Union (EU) member states. Consequently, the study of such experience of sublegislative regulation is of paramount importance for the Ukrainian legislation development.
Thus, special attention in the constitutions of EU member states has a special role in the constitutions of the EU member states is played by delegated legislation, distributed mainly in states with parliamentary forms of government (parliamentary republic or monarchy). For example, art. 82 of the Constitution of Spain determines that the Cortes Generales may delegate to the Government the power to issue rules with the force of an act of the Parliament on specific matters not included in the foregoing section. Legislative delegation must be granted by means of act of basic principles when its purpose is to draw up texts in sections, or by an ordinary act when it is a matter of consolidating several legal statutes into one. Legislative delegation must be expressly granted to the Government for a concrete matter and with a fixed time limit for its exercise. Nor shall sub-delegation to authorities other than the Government itself be authorized. Acts of basic principles shall define precisely the purpose and scope of legislative delegation, as well as the principles and criteria to be followed in its exercise. Authorization for consolidating legal texts shall determine the legislative scope implicit in the delegation, specifying if it is restricted to the mere drafting of a single text or whether it includes regulating, clarifying and harmonizing the legal statutes to be consolidated. The acts of delegation may provide for additional control devices in each case, without prejudice to the jurisdiction of the Courts.
At the same time, according to Art. 85 of the Constitution of Spain, Government provisions containing delegated legislation shall bear the title of «Legislative Decrees». Article 83 provides that the acts of basic principles may in no case: a) Authorise the modification of the act itself; b) Grant power to enact retroactive regulations .
Parts 1,2 of Art. 80 of the Constitution of Germany established that the Federal Government, a Federal Minister or the Land governments may be authorised by a law to issue the statutory instruments. The content, purpose and scope of the authority conferred shall be specified in the law. Each statutory instrument shall contain a statement of its legal basis. If the law provides that such authority may be further delegated, such subdelegation shall be effected by statutory instrument.
Unless a federal law otherwise provides, the consent of the Bundesrat shall be required for statutory instruments issued by the Federal Government or a Federal Minister regarding fees or basic principles for the use of postal and telecommunication facilities, basic principles for levying of charges for the use of facilities of federal railways or the construction and operation of railways, as well as for statutory instruments issued pursuant to federal laws that require the consent of the Bundesrat or that are executed by the Länder on federal commission or in their own right .
Consequently, the act of delegated legislation of executive authorities in democratic states is adopted on the basis of a special law ruling law, is of an auxiliary nature, and should not go beyond the limits and sometimes the terms established by law.
In addition to acts of delegated legislation, extraordinary acts play a special role in EU legal systems. Thus, Art. 108 of the Constitution of Slovenia provides that in the event that the National Assembly is unable to convene due to a state of emergency or war, the President of the Republic may, on the proposal of the Government, issue decrees with the force of law. Such decrees may, in exception, restrict individual rights and fundamental freedoms as provided by Article 16 of this Constitution. The President of the Republic must submit decrees with the force of law to the National Assembly for confirmation immediately upon its next convening . A similar rule is contained in Art. 234 of the Constitution of Poland .
It is worth noting that such extraordinary powers of executive authorities in democracies are indeed an extraordinary event, since they are usually issued in certain extreme situations (war, mass riots, natural disasters) and are carried out within the shortest possible time to eliminate the corresponding negative phenomena or at least control them.
At the same time, in authoritarian and totalitarian political systems, extraordinary powers of executive bodies are used to replace legislative acts and international legal norms, often with the aim of limiting the generally recognized rights and freedoms of a person and citizen.
Thus, in addition to the “classic” sublegislative regulatory acts, the competence of the executive authorities in the EU member states also includes acts of delegated legislation (especially common in countries with a parliamentary form of government), as well as extraordinary regulatory acts adopted in suddenly arisen complex (extreme) conditions and are aimed at overcoming or minimizing the consequences.
Sources:Constitution of the Kingdom of Spain // Legal Library legalns.com [Online source] – Available at: https://legalns.com/download/books/cons/spain.pdf;Basic Law for the Federal Republic of Germany // Legal Library legalns.com [Online source] – Available at: https://legalns.com/download/books/cons/germany.pdf;Constitution of the Republic of Slovenia // Legal Library legalns.com [Online source] – Available at: https://legalns.com/download/books/cons/slovenia.pdf;Constitution of the Republic of Poland // Sejm Rzeczypospolitej Polskiej [Online source] – Available at: http://www.sejm.gov.pl/prawo/konst/rosyjski/kon1.htm