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Developments in Abstract Judicial Review in Austria, Italy and Germany by Nicola Christine Corkin

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Developments in Abstract Judicial Review in Austria, Italy and Germany by Nicola Christine Corkin ! Developments in Abstract Judicial Review in Austria, Italy and Germany by Nicola Christine Corkin A thesis submitted to The University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of Political Science Muirhead Tower The University of Birmingham Birmingham B15 2TT March 2010 ! 1 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ! DEDICATION I thank Professor Anand Menon for all the patience and humour whenever I did something stupid and Professor Simon Green for all the laughter when I planned something extremely stupid. This thesis does not live up to all the help and advice I have received from both of you. I thank Philip Pogge von Strandmann for my sanity, my parents for a link to reality and the Kids and Bratz for helping me to increase my coffee intake. For Ilse Editha Irmgard de Gruyter and Dagmar Maria Corkin-Nonnenmacher “No written law has ever been more binding than unwritten custom supported by popular opinion.” Carrie Chapman Catt, Women's Rights Activist ! 2 ! TABLE OF CONTENTS INTRODUCTION! 1 1.What is abstract norm review?! 3 1.1 Constitutional Courts, Constitutions and abstract judicial review! 7 2. Outline of the thesis! 9 3. Originality and contribution to the literature! 14 3.1 Socio-Political field! 14 3.2 Methodological contributions to the literature! 16 CHAPTER I! 17 THE DEVELOPMENT OF ABSTRACT NORM REVIEW IN EUROPE! 17 1.1 The process of abstract judicial review - a definition spanning the different jurisdictions in Europe! 17 1.2 Development of abstract judicial review 1980-2009! 21 1.2.1 The development of the number of abstract judicial review proceedings! 22 1.2.2 Developments in the decisions patterns in abstract norm review! 26 1.2.3 There is an increase in norms being declared unconstitutional! 27 1.3 Political importance of Abstract Judicial Review! 37 CHAPTER II! 40 LITERATURE REVIEW AND RESEARCH DESIGN! 40 2.1 Court models across the world! 40 2.2 Case Selection! 44 2.3 Legislative process and judicial process in Germany, Italy and Austria! 47 2.3.1 Political Process - proposition to promulgation! 47 2.3.2 Judicial process of abstract judicial review at the court! 48 2.4 Literature Review! 49 2.4.1 Legal model! 50 2.4.2. Attitudes! 55 2.4.3. Political institutions! 57 2.4.4 Popular opinion! 61 ! 3 ! 2.4.5. European Influence! 63 2.5 Judicial review in Europe! 65 CHAPTER III! 67 METHODS! 67 3.1 Choice of methods and form of analysis! 67 3.2. Statistical Analysis! 69 3.3. Interviews! 76 3.4 Content Analysis - Qualitative and Quantitative! 77 3.5. Issues with Mixed Methods! 78 CHAPTER IV! 80 FIRST EXPLORATIONS OF THE DATA! 80 4.1. Distribution of cases in kind 1980-2009! 81 4.2. Distribution of cases across time - Has a fundamental change in any of the categories caused the overall change in the decision making pattern?! 85 4.2.1 Is the change in overall pattern based on a fundamental change of the ruling pattern in the Finance category?! 85 4.2.2 Is the change in overall pattern based on a fundamental change of the ruling pattern in the Political and Social Rights category?! 94 4.2.3 Environment, Education and Other cases 1980-2008! 103 4.2.5 Other! 112 4.3. Can the change in decision-making pattern in any of the categories explain the overall change?! 113 4.4. Interesting statistics - style, membership and levels of trust! 116 4.4.1 Style expressed through length of decisions! 116 4.4.2 Membership of the court! 118 4.4.3. Levels of Public Trust! 120 4.4.4. Increased reference to extra-national concepts - namely “European” concepts.! 124 CHAPTER V! 128 INTENT, PRECEDENT AND THE BLACK LETTER OF THE LAW! 128 5.1 Particularities of the Research design concerning the legal variables! 129 5.2 Empirical Evidence: Black Letter and Precedent! 132 5.2.1 The development of interpretation in case materials based on length of decisions! 134 ! 4 ! 5.2.2 The development of interpretation on case materials based on style! 135 5.3 Is there a correlation between the level of interpretation in the case materials and the increased levels of review in abstract judicial review?! 139 5.4 The development of the use of precedent! 140 5.5 The public image of the judge as antecedent variable! 142 5.6 Political institutions as antecedent variable! 149 5.7 Philosophical Attitudes of Judges as antecedent variable! 151 5.8 Conclusion! 152 CHAPTER VI! 154 POLITICAL AND PHILOSOPHICAL ATTITUDES OF THE JUDGES AS CAUSES FOR THE CHANGES IN THE DECISION-MAKING PATTERN! 154 6.1 Appointment Procedures! 155 6.2 Philosophical Attitudes! 159 6.2.1 Professional Background! 160 6.2.2 Academic Background! 164 6.3 Political Attitudes! 165 6.3.1 The “origin of cases based on plaintiffs” as cause for increased “levels of review”! 166 6.3.2 The political identity of the region where the law under review originated and its influence on the levels of review! 171 6.4 Political Attitude as Regional Affiliation and its influence on the outcome of a case! 174 6.5 Conclusion! 176 CHAPTER VII! 177 DEFERENCE TO POLITICAL INSTITUTIONS AS CAUSE FOR THE CHANGE IN DECISION-MAKING PATTERNS?! 177 7.1 Is the increase in review due to the court"s increasing their review of laws of past administrations?! 178 7.2 Does a change in the treatment of laws by a party not part of the current administration cause the increased level of review?! 180 7.3 Does an increase of regional laws originating with one of the regions not governed by the party in government cause the increased levels of review?! 181 7.4 Does a change in the treatment of groups of parliamentarians with a party affiliation of a party not in government cause the increased levels of review?! 184 7.5 Does a lower percentage of judges seeking further political office cause higher levels of review?! 187 7.6 Conclusion! 191 ! 5 ! CHAPTER VIII! 193 THE INFLUENCE ON IMPORTANCE OF THE PUBLIC IMAGE OF THE COURT!193 8.1 Problems with the research design! 194 8.2 Abortion, Church State Relations and Minority Rights! 195 8.2.1 Abortion! 195 8.2.2. Relations between Church and State! 197 8.2.3. Minority Rights! 199 8.3 Interviews! 200 8.4 Conclusions! 202 CHAPTER IX! 204 A CHANGE IN THE NUMBER OF “EUROPEAN CONNECTIONS” AS REASONS FOR THE CHANGE IN THE DECISION-MAKING PATTERN! 204 9.1 Increasing reference to “European” in case materials! 205 9.2 Does the increase in the occurrence of “Europe” cause the change in decision-making pattern?! 208 9.3 Regional identity of a law! 211 9.4 Parliamentarians and the “European”! 212 9.5 Europe as an intervening variable?! 212 9.6 Interviews! 215 9.7 Conclusion! 218 CHAPTER X! 221 CONCLUSIONS! 221 10.1 Harmonisation of national and European law! 222 10.2 Law-making, within the borders of national AND European law, is more complicated than law-making only within the borders of national law.! 223 10.3 This complexity of making legislation in the framework of national and European law allows politicians to force courts to make decisions on topics the political institution would prefer not to decide upon! 224 10.4 The courts try to clarify the combined rules of national and European law by making clearer and more definite laws! 226 10.5 The argument summarised! 228 10.6 Austrian exceptionalism, theory and further avenues of enquiry! 228 10.6.1 Austrian Exceptionalism! 229 ! 6 ! 10.6.3 Wider implications! 230 10.7 Possible further avenues of study! 232 10.8 Contributions to the field! 232 APPENDIX 1! 234 Italy cases! 234 APPENDIX 2! 237 Germany cases! 237 APPENDIX 3! 238 Austria cases! 238 APPENDIX 4! 245 Statistical Formula! 245 APPENDIX 5! 248 Interview Questions! 248 APPENDIX 6! 250 Governments, party affiliation! 250 APPENDIX 7! 258 Legal Provisions! 258 ! 7 ! LIST OF TABLES I. Chapter I 1. Table 1: Table of abstract judicial review proceedings in Europe 2. Table 2: Development of abstract judicial review proceedings 1980-2009 3. Figure 1: Abstract Judicial review in Italy, Germany and Austria. 4. Table 3: Development of percent of laws reviewed in abstract norm control across the time period 1980-2010 5. Figure 2: Development of review in Poland 6. Figure 3: Distribution of rulings in Germany 7. Figure 4: unconstitutionality rulings in Germany 8. Figure 5: Distributions of rulings in Italy 9. Figure 6: Italy unconstitutionality rulings 10.Figure 7: Distribution of rulings in Austria 11.Figure 8: Development of rulings in Austria II. Chapter II 1. Table 1: the models in comparison 2. Figure 1: distribution of constitutional court models in Europe 3. Table 2: List of countries with similar forms of judicial review 4. Table 3: Independent and Dependent Variables present/absent. 5. Figure 2: The equilibrium point for a court in a game with two legislative bodies 6. Table 4: coding scheme for “decision rendered” 7.
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