Person: Kouroutakis, Antonios
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Antonios
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Kouroutakis
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IE University
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IE Law School
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Public Law and Global Governance
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Publication Inaction as a State Response to the Coronavirus Outbreak: Unconstitutionality by Omission(Seattle University School of Law, 2022-07-19) Kouroutakis, Antonios; https://ror.org/02jjdwm75The World Health Organization on March 11 declared the novel coronavirus outbreak a pandemic. While the pandemic was spreading across the globe, governments were under pressure to respond. Still, some countries during the first wave of the pandemic, in their first reaction, did not put in place any emergency regulations. Such reaction, which was a policy option, was an intended omission as lawmakers and policy makers decided not to take action and such emergency omission was a novelty and a paradox in emergency situations. Moreover, I argue that during emergencies governments have a distinct duty to act, and I offer justifications. In this article, I seek to answer that question and to inspire reflection on what constitutional mechanisms we have to compel the executive to take action in an emergency. I will argue that the legal mechanism to provide remedies because of emergency inaction are subject to some inherent limitations, while such issues are left to be resolved via the political process with ordinary politics. I will argue that there are three approaches to compel action and avoid emergency omission. I base the first approach on constitutional design. While in most of the countries the emergency power is concentrated in the hands of the executive, what I call the monopoly of emergency powers, in countries with multilevel governments such as in federal and devolved states, the two-tier executive, at national and local level, allows constitution designers to allocate to both executives emergency powers. The second approach puts courts at the heart of the solution with judicial review. However, courts are less likely to find state authorities liable for non-feasance. On the top of that, the deference that judges show in times of emergency would deter the chances for judges to compel emergency action. Finally, this article will conclude with a third approach. This approach stresses that the evaluation of the emergency omission is left to be resolved via the political process with ordinary politics.Publication The Henry VIII powers in the Brexit process: justification subject to political and legal safeguards(Taylor & Francis, 2020-09-03) Kouroutakis, Antonios; https://ror.org/02jjdwm75Henry VIII powers, which are commonly found in legislation, until recently, were not an issue of major constitutional concern. However, their extensive use in the EUWA and the subsequent EUWAA attracted the attention of academics and politicians alike. This article aims to offer justifications for the use of Henry VIII powers in extraordinary situations such as Brexit, given that such powers would be subject to enhanced legal safeguards. In doing so, this article examines the challenge that the Brexit process poses to the law making institutions, and it elaborates on how the proper use of Henry VIII powers has the capacity to meet the Brexit ends. It also focuses on the particular Henry VIII powers in the EUWA and the EUWAA and it examines both the legal and the political safeguards. It evaluates both the legal and the political safeguards and it highlights their positive and negative aspects. Finally, this article concludes with a set of legal safeguards, procedural and material, that are necessary for the proper use of such powers in future legislation. In particular, it argues that the proper use of Henry VIII powers should include at least two safeguards; first a pre-legislative stage attracting public engagement and second a substantive limit according to which the executive should not be allowed to use Henry VIII powers to amend acts of constitutional value and most importantly the enabling act. Accordingly, it proposes that there is need for a constitutional statute to set uniform safeguards and standards for every use of Henry VIII powers.Publication The Architecture of the Emergency Framework of Greece: Inactivity and Second Generation Emergencies(SSRN, 2019-03-03) Kouroutakis, Antonios; https://ror.org/02jjdwm75In 20th century Greece, officially Hellenic Republic, which is an independent state from 1830, wars, social unrest, and armed coups informed the drafters of the 1975 Greek Constitution on the issue of emergency. The Constitution of 1975, which established the so-called third Republic, replaced the Constitution of 1952, which was overthrown in 1967 by a military coup that lasted seven years until 1974. The current constitutional document was amended three times in 1986, in 2001 and finally in 2008. The first part of this article will show that de lege lata, the emergency toolbox of Greece, provides policymakers with a plethora of options to address emergency situations. But given the fact that policymakers in Greece have such powerful tools at their disposal to address potential threats to national security before these escalate and cause breakdowns, one may wonder why the constitutional system has been unable to respond promptly and efficiently during recent emergencies — like the economic crisis in 2009 and the emerging refugee crisis that began in 2015. This article will argue that the reason why the Greek constitutional system repeatedly fails to address emergencies in practice is threefold. First and foremost, the emergency framework of Greece is well equipped with numerous provisions, but it still lacks specific provisions on economic emergencies. Suffice to mention here that many newly adopted constitutions contain provisions and regulate economic emergencies explicitly. Second, the imperfect formulation of the separation of powers makes emergencies initiative monopolized by the cabinet, thus, allowing the Prime Minister, head of the cabinet and leader of the majority party in Parliament, to remain inactive during emergencies. Third, despite the fact that the constitutional drafters have foreseen the need to regulate second generation emergencies when there is an official declaration of the state of emergency (de jure), the absence of a specific derivative emergency framework during de facto emergencies creates deadens and inefficiencies. In particular, the occurrence of the refugee crisis amidst the economic crisis is a prime example of an emergency within an emergency. In principle, it is apparent that governments rely on the emergency provisions to face second-generation emergencies as well. But given that emergency provisions are drafted on the assumption that an emergency will occur under normal circumstances, one must wonder if the existing emergency provisions will be good enough to address second-generation emergencies.Publication Disruptive Innovation and Sunset Clauses: The Case of Uber and Other on Demand Transportation Networks(SSRN, 2019-07-10) Kouroutakis, Antonios; https://ror.org/02jjdwm75Uber and other on-demand transportation network companies, such as Lyft and Cabify, have brought significant change in the transportation industry within cities. Calling a taxi was never so simple and easy, while the payment transaction was never so fast and convenient. However, such ride sharing platforms brought significant disruption within the taxi business. Nowadays, ride-sharing platforms operate in the vast majorities of the big cities; in some cities like New York, cars affiliated with on-demand ridesharing platforms have not only outnumbered taxis but also and more importantly have taken away millions of rides from taxi drivers. Due to the noticeable drop in passengers, the value of taxi licences has drastically reduced. According to anecdotal references, in 2013, a taxi licence in New York was worth as much as $1.3 million, however, nowadays the price has dropped down to as low as $200,000. As a result, such disruption in the taxi business has brought protests from taxi drivers around the world, and has created challenges to policy makers on how to resolve the conflicting interests and resolve the tension. Such challenges are expected to rise with the spread of the autonomous cars in the future. This chapter aims to examine the utility of sunset clauses in order to resolve this issue. It will use the progressive abolition of roaming changes as a pilot case, which took place with a number of laws subject to sunset clauses, in order to show how such clauses may with temporary regulations to deregulate the taxi industry by creating a predictable business environment for all parties involved.Publication Courts in the Constitution making process: Paradoxes and Justifications(Taylor & Francis, 2019-10-16) Kouroutakis, Antonios; Belov, Martin; https://ror.org/02jjdwm75This chapter examines the role of the judiciary in four constitutional orders, Colombia, South Africa, Honduras, and Nepal in the constitution-making process in 1991, 1993, 2009, and 2011, respectively. It highlights paradoxes but also to offer justifications, both formal and substantive, for the intervention of the courts in the constitutionalization of a new legal order. The chapter argues that the existence of an interim constitution or a total revision of the existing constitution may grant direct authority to the court to intervene in the constitution-making process, for instance by controlling the constituent assembly, reviewing its acts and even certifying the final constitutional document. It examines the formal justifications for the courts’ intervention. The chapter focuses on the case of South Africa and shows that the existence of an interim constitution may provide the positive law ground for the courts’ intervention. It also focuses on the substantive grounds that permit the courts’ intervention in such process, when formal justifications are absent.Publication The Constitution of Somalia on Paper and the Constitutional Reality(SSRN, 2018-01-12) Kouroutakis, Antonios; https://ror.org/02jjdwm75Somalia in 2012 adopted a new constitution and it became another African country with a new constitutional order such as Egypt, South Sudan, Libya and Tunisia. The recent Constitution like a palimpsest, embodies the constitutional acquis, and the lessons learned from past constitutional experiences. At the same time, it encapsulates the hopes for a stable and prosperous constitutional status quo in Somalia. While the Governments are enriched with a new constitutional cloak, the ideals for democracy, reconciliation and peace will not be materialized with an automatic pilot. It has been acknowledged numerous times that constitutional documents are not panacea solving all problems. With this caveat, it is important to take into consideration the constitutional reality in Somalia. Since 2012, the state building with its institutions is still in the making. The second legislative chamber is still absent from the mechanism of separation of powers. In addition, the building of the federal states is still ongoing distorting the balance within the vertical separation of powers. Moreover, elections do not take place due to security concerns evaporating the fuel of the political process and a fortiori the provision of referenda in the amendment process was proven an excessive expectation.Publication EU Action Plan Against Disinformation: Public Authorities, Platforms and the People(SSRN, 2020-10-30) Kouroutakis, Antonios; https://ror.org/02jjdwm75In democracies, people (demos in Greek) hold the power (kratos in Greek). When people elect their representatives from a number of candidates, such power is temporarily transferred to their elected representatives. Thus, the quintessence of democracy is a system of trust and accountability. Such power is returned to the people every time elections are held and people periodically evaluate their representatives and hold them accountable for their actions and omissions. If people are not satisfied with their representatives, they can always replace them with their competitors. For democracy to function in a proper manner, it is important that people are able to actively participate and vote based on trustworthy, accurate and complete information. But this system of trust is distorted by disinformation which became a fast-paced and widespread phenomenon. A foriori, during electoral periods, disinformation might have a decisive impact on the electoral result. A number of incidents of orchestrated disinformation around the world, alarmed the policy makers in the EU ahead of the European Parliament elections in May 2019 and the EU Action Plan Against Disinformation was adopted. This Action Plan is the most concrete and specific initiative on the matter. It is a modest regulatory intervention, based on soft law and self-regulation. As it is subject to a 12 month sunset clause, this marked its experimental nature and the EU Commission’s effort to monitor closely its application. The success of the action plan was based on the cooperation of the public authorities, of the platforms and the people. In substance, it was focused on four core areas: first on the improved detection of disinformation, second on the coordinated responses of disinformation, third on the cooperation with online platforms and the industry, and finally on the raising awareness and building resilience amongst citizens.Publication Anti-democratic political parties as a threat to democracy: Models of reaction and the strategic democracy(Thomson Reuters, 2018-12-01) Kouroutakis, Antonios; https://ror.org/02jjdwm75There is a consensus among policymakers, lawmakers, legal scholars and ‘we the people’ in the western world, that democracy is a blessing. However, how do we defend democracy from anti-democratic political parties that aim to overthrow the democratic regime by abusing the guarantees and the tolerance of democracy? This article argues that there are three public policy options: the traditional model that permits the dissolution of anti-democratic political parties; the business as usual model, that regulates such parties with ordinary administrative law and controls the conduct of their members via ordinary criminal law; and finally, the strategic model that employs an electoral system according to which political parties, like the anti-democratic, having more enemies than supporters are ostracized. That said, this article argues that whilst electoral law is the most rule-of-law based mechanism to safeguard democracies from anti-democratic parties, not all electoral systems are capable. Only the electoral systems that allow for ‘strategic voting’ can be employed for this purpose.Publication Public Data, AI Applications and the Transformation of the State: Contemporary Challenges to Democracy(Springer Nature, 2024-12-12) Kouroutakis, Antonios; https://ror.org/02jjdwm75The use of AI applications and their abilities might have an unparallel transformative force on the state and the administration’s relationship with its citizens. Their application has the potential to usher in a new paradigm where alternative ways to perform administrative tasks may emerge. The deployment of such technology in the private and the public sector signals that the time has come for their regulation. The current EU legal framework and proposed legislation for regulating AI is limited in critical ways, as demonstrated by the analysis of the AI Act and positive law in Sect. 3.2. This chapter argues that AI applications employed by the public sector should be subject to a separate risk category for two reasons: first because specific safeguards are necessary in relation to the AI applications in the public sector in order to enhance the legitimacy and accountability of such applications, and second because AI applications in the public sector with access to the lake of data of the state create an unprecedented public resource, which must be safeguarded from malicious incumbents who would be keen to take advantage of such resource for self-entrenchment purposes.Publication Strong economic rights, weak political rights in the EU: a constitutional cacophony(Edward Elgard, 2022-02-11) Kouroutakis, Antonios; Hartzén, Ann Christine; Iossa, Andrea; Karageorgiou, Eleni; https://ror.org/02jjdwm75From a legal and political perspective, the European Union (hereinafter EU) is a very ambitious project. On the one hand, it challenges the hierarchical structure of the ordinary constitutional systems of the Member States; on the other, it distorts the notion of national sovereignty and the unity of the political nature of the nation state. The core achievement of the EU, and its heart, is the Single Market, which allows the free movement of goods, services, capital and workers within the EU. The Single Market was founded in 1986 with the Single European Act, which was the first major revision of the Treaty of Rome and was projected to be established by 1992. In particular, the free movement of workers, which was first established with the Treaty of Rome, is currently a fundamental right guaranteed by the Treaty on the Functioning of the European Union (hereinafter TFEU).