Intertemporeel recht

Whenever an Act is changed, the question arises how to apply it intertemporally. Is the new Act applicable only to future situations? Or does it also apply to existing situations, or even to past situations? These questions (a.k.a. "intertemporal conflicts") are governed by a branch of law called "transition law". Sometimes the legislator solves these intertemporal conflicts via transition measures in the new Act ("explicit transition law"). Failing such transition measures, the intertemporal scope of the new Act is determined by "default transition law", which mainly consists of four rules. (1) A new Act does not normally have a "retroactive effect", but (2) it does normally have an "immediate effect". (3) When the new Act concerns contract law, however, the old Act "survives" for existing contracts, unless (4) it is mandatory or a matter of ordre public. Current transition law has two major flaws. Firstly, its technique is underdeveloped. It uses general and abstract notions such as "retroactivity", "immediate effect" and "survival of the old Act". These "temporal functions", however, are understood in multiple ways, are difficult to apply in practice, and often cause confusion. Secondly, transition law is increasingly subject to requirements resulting from fundamental rights and principles, such as the right to a fair trial, the right to property, the equality principle and the principle of protection of legitimate expectations. However, current default transition law does not comply with all of these requirements. Not only does the main rule of immediate effect sometimes disturb the legitimate expectations of legal subjects. In addition, new Acts enter into force on the tenth day after their publication (unless the legislator provides otherwise), even though sometimes, this is too short a term for the legal subjects to comply with the new rules. Our research attempts to solve both problems. The central research question is: how can we solve intertemporal conflicts in a clear and predictable manner which conforms with fundamental rights and principles? We answer that question via two sub-questions: (1) which techniques can we use to solve intertemporal conflicts in a predictable manner? and (2) how can we define the content of those techniques so that transition law no longer runs counter to fundamental rights and principles? In order to answer these questions, we conduct a functional and integrated comparison between Belgian, German, Dutch and French l