Descriere
Until recently, the CCR invalidated „individual” laws, in which the „scope of the regulation” covered „a single, unequivocally predetermined case”. This was considered contrary to the „constitutional purpose of the legislative activity, which involves regulating the widest possible sphere of general relations”. The CCR thus deduced, among other things, that the handover of individual state property, as well as the establishment and reorganization of legal entities cannot be carried out directly by law. Likewise, regarding transfers between the public and the private domains, or between state and local authorities, albeit with certain exceptions. Recently, the CCR has changed its perspective – in its terms, a simple clarification that its earlier decisions actually relied on the „personal or particular” „purpose” of the provisions at stake. It follows that „individual” laws would no longer be declared unconstitutional as a matter of principle. This would only occur if they were found not to follow the public interest. It will be demonstrated however that both approaches are highly questionable, with references to some foreign systems that have also addressed this issue – France, Italy, the USA or the UK. There is also a bit of case-law by the ECHR on this matter, however the proclaimed prohibitions were never put into practice. Thus, the arguments for a general prohibition of laws considered „individual” because of their „scope” prove problematic and outdated, while the recent emphasis on the „personal or particular” „purpose” of the act raises issues of legitimacy, as observed in France by the late Professor Georges Vedel. Indeed, jurisdictional control over the legislator’s assessment of what is or is not in the public interest may disregard the principle of democratic representation. Anyway, this does not necessarily concern only laws considered „individual” because of their „scope” – as laws drafted in abstract or general terms can also hide a „personal or particular” „purpose”. Thus, the two arguments were mistakenly entwined by the CCR, which rather should have adequately justified in each case a valid ground for unconstitutionality.
