CONTENTS CONSTITUTIONAL COURTS: EFFECTS EX TUNC 15

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1 CONTENTS Chapter 1. The Effect Decisions in Time: Comparative Notes 1 Patricia Popelier, Sarah Verstraelen, Dirk Vanheule and Beatrix Vanlerberghe 1. Introduction 1 2. A comparative overview: threads The need for flexibility The Court's discretion Variations in approaches to the balancing exercise 7 3. Definition and terminology Effect ex tunc Effect ex nunc pro futuro Umbrella terms Approach in this volume 12 CONSTITUTIONAL COURTS: EFFECTS EX TUNC 15 Chapter 2. Germany 17 Bundesverfassungsgericht - Excerpt from the Judgment First Senate of 28 March 2006 on the basis oral hearing of 8 November BvR 1054/01-17 Temporal Effects of Decisions German Federal Constitutional Court 21 Werner Schroeder 1. Introduction Decision Federal Constitutional Court in the Sports Betting case Role FCC within the German judicial system Limitation legal effects of judgments through a declaration of incompatibility Development ofthe practice Legal basis practice 23 The effects of judicial decisions in time 2014 digitalisiert durch: IDS Luzern

2 2.3. Prerequisites of a declaration of incompatibility Declaration of incompatibility to preserve the scope of manoeuvering legislature Declaration of incompatibility to prevent a situation remote from the Legal effects declaration of incompatibility Ban on application as standard consequence declaration of incompatibility Continued application despite declaration of incompatibility due to order by the FCC Provisional orders FCC Resume 31 Chapter 3. Belgium Belgian Court of Cassation - 20 December C N 35 The Interplay of Temporal Effects of Judicial Decisions within the Belgian Legal Order 37 Sarah Verstraelen 1. Introduction Belgian Constitutional Court Appeals for annulment General temporal effect Deviation from the general temporal effect Legal basis Usage Case in point Preliminary rulings General temporal effect Deviation from the general temporal effect No legal basis Case no. 125/ Belgian Court of Cassation General temporal effect Deviation from general temporal effect Internationa] private law case Aftermath ECHR Marckx case Decision Supreme Court of 20 December 2007: interplay Circumstances case Decision Court of Cassation Analysis Legislative lacuna until Further case law 50

3 Competence Court of Cassation Article 4, 2 Special Act on the Constitutional Court Legal certainty Conclusion 53 PART II CONSTITUTIONAL COURTS: EFFECTS NUNC 55 Chapter 4. Austria 57 Decision Austrian Constitutional Court, December 11190/ Pro Futuro and Retroactive Effects of Rescissory Judgments in Austria 63 Manfred Stelzer 1. Introduction pro futuro effect a judgment Setting deadlines Case in point Granting (general) retroactive effect Conclusion 73 Chapter 5. Hungary 77 33/2012. (VII. 17.) AB hatarozat / Decision 33/2012 (VII. 17.) AB Constitutional Court of Hungary 77 Temporal Effects of Decisions Hungarian Constitutional Court 87 Timea Drinoczi 1. Introduction to the constitutional review system in Hungary Temporal effects decisions Constitutional Court Temporal effect: general rules Invalidity (null and void) and temporal effect The concept law' and temporal effect Temporal effects Ex nunc effect: the main rule Ex tunc pro futuro effects: deviations from the main rule Decision on the constitutionality ex nunc effect Application of pro futuro effect Suspending the setting date of annulment 'Condition-setting' and combined 'condition-setting' and 98

4 4.3. Exact date setting 'Warning to exercise the competence to annul' Application of ex tunc effect Decision on the general retirement case and implications The decision Temporal effect applied and some criticism Related decision Court of Justice European Union focusing on the temporal effect decision Constitutional Court Related decision Constitutional Court: retroactive annulment of the Transitory Provisions Combined 'time-setting' and 'condition-setting' Conclusion 105 Chapter 6. France 107 Constitutional Council of France - Decision no of 25 March Temporal Effects of Judicial Decisions in France Millet 1. The Constitutional Council's broad approach to the immediate effects of abrogation A limited retroactive effect The adoption of transitory measures by the constitutional judge The grounds for a deferred abrogation The respect for parliamentary will The disproportionate consequences' test The immediate application of EU law The emphasis on the 'usefulness' QPC decision Conclusion 121 Chapter 7. Italy 123 Italian Constitutional Court - Judgment no. 113 of The Temporal Effects Italian Constitutional Court and the Mechanism of Warning Decisions 135 Giuseppe Martinico 1. Introduction and overview relevant literature The Dorigo saga as a case study Factual background

5 2.3. Dorigo II: the relevance ECHR in the case law ICC Why Dorigo II is relevant Final remarks 149 PART III SUPREME COURTS 151 Chapter 8. The UK 153 Opinions Lords of Appeal for in the Cause National Westminster Bank v. Spectrum Plus Ltd and others [2005] UKHL 41 on 30 June The Temporal Effect of Judgments in the United Kingdom 159 Ben Juratowitch 1. Introduction Adjudicative retroactivity Private law: Kleinwort Benson v. Lincoln City Council Public law: R v. Governor Prison, Evans (No. 2) Criminal law: Shaw v. DPP Consideration of prospective overruling in the United Kingdom Problems with prospective overruling Where the new rule does not apply to the case in which it is Where the new rule does apply to the case in which it is announced Where the new rule concerns the interpretation of a statute Evaluation of prospective overruling Conclusion 178 Chapter 9. The Netherlands 181 High Council 13 November 1991, No , BNB 1992/ The Temporal Effect of Dutch Tax Court Decisions 183 Hans Gribnau and Allard Lubbers 1. Introduction The temporal effect of court decisions in tax cases The duties tax courts Interpreting tax legislation Tax courts as developers law Principles of proper administration Review of tax regulations Instruments to limit the temporal effect Grounds for limiting the temporal effect Conclusion 195

6 Chapter 10. Israel 197 Summary Judgment in HCJ 6298/07 Ressler, adv. (IDF Major, ret.) v. The Knesset 197 Time and Judicial Review in Israel: Tempering the Temporal Effects of Judicial Review 207 Bar-Siman-Tov 1. Introduction General rule about the temporal effects of judicial decisions Tempering the temporal effects of judicial decisions invalidating statutes Doctrine of relative voidance Absolute voidance, voidablity and relative voidance Relationship between relative voidance and prospective effect Suspension declaration of invalidity Relationship between suspension and prospective effect Relationship between suspension and relative voidance From theory to practice: the actual use of modulating remedies Application Boneh in later cases Expansion and prevalence of relative voidance in Israeli law Remedies employed in cases invalidating statutes Trend towards modulated invalidations The surprising absence of relative voidance Emergence of suspension as the preferred remedy Prospective application as the latest development Normative evaluation Modulated remedies and rights Modulated remedies and separation of powers The need for flexibility and the fear of unbridled discretion The appropriate approach Conclusion 232 PART IV EUROPEAN COURTS 235 Chapter The Court of Justice European Union Court of Justice European Union, C-292/04, Meilicke and others v. 6 March 2007 [2007] 237 Limitation of Temporal Effects of CJEU Judgments: Mission Impossible for Governments of EU Member States 245 Michael Lang 1. Meilicke and the CJEU case law on the limitation temporal effects ofthe CJEU 245

7 2. Existing case law on the limitation of temporal effects of CJEU judgments The rule and the exception Good faith and legal uncertainty Serious economic repercussions Limitation of temporal effects: applicable in all Member States? The relevant judgment Good faith and legal uncertainty Serious economic repercussions Conclusion 262 Chapter 12. The European Court of Human Rights 265 ECtHR, Legrand v. France (App No 23228/08) 26 May 265 The European Court of Human Rights' Approach Retrospective Judicial Reversals 269 Patricia Popelier 1. Legrand: a failed operation and the quest for damages Retroactive reversals and the principle of legal certainty Reversals in the case law ECtHR Reversals in the case law of national courts The legitimacy of reversals in the law The legitimacy of reversals in the case law ECtHR The legitimacy of reversals in the case law of national courts The retroactive application of reversals The temporal effect of ECtHR judgments The temporal effect of national judicial judgments Conclusion 284