Proportionality, Fundamental Rights and Balance of Powers [1 ed.] 9789004189669, 9789004182868

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Proportionality, Fundamental Rights, and Balance of Powers

Proportionality, Fundamental Rights, and Balance of Powers By

Davor Šušnjar

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Susnjar, Davor. Proportionality, fundamental rights, and balance of powers / by Davor Susnjar. p. cm. Includes bibliographical references and index. ISBN 978-90-04-18286-8 (hardback : alk. paper) 1. Court of Justice of the European Communities. 2. Constitutional courts—European Union countries. 3. Proportionality in law—European Union countries. 4. Civil rights— European Union countries. 5. Separation of powers—European Union countries. I. Title. KJE5461.S87 2010 340’.11—dc22 2010003947

ISBN 978 90 04 18286 8 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

∗

Mojim Roditeljima

∗

This book is dedicated to my parents.

Preface The idea for this study was born in 2004/05 during a project directed by Felix Ekardt. During that time I had the first opportunity to think about proportionality, fundamental rights, and the balance between powers of government. In 2005, Felix Ekardt and I agreed that this idea should be pursued. In 2006, after my graduation, I decided to shift the focus to the European level. Before, I focused on German law. In that year I was mainly occupied with preparatory work. In January 2007, the Studienstiftung des Deutschen Volkes started to fund my project. The major part of this book was written between January 2007 and December 2008. The thesis was submitted to the examination board in January 2009, the viva took place in May 2009. During autumn/winter 2009, the thesis was prepared for publication. I am very much indebted to Felix Ekardt for giving me the unique opportunity to conduct this study under this direction within his working group. Without his efforts and encouragement, you could not read these lines and those to come. I greatly enjoyed his inspiration, motivation, and critique. All members of this working group are thanked for their patience in listening to my theses, for asking questions, and for always helpful critique. I am also grateful for Josef Falke’s help with fund raising and his advice during all stages of this study. This book is dedicated to my parents, who ever supported and encouraged me. Many others helped me by reading proofs of this study or the exposé, commenting on presentations, offering mental and social support, and/or giving advice and hints: Daniel Buscher, Bettina Hennig, Andreas Heym, Nadine Holzapfel, Elisabeth Linek, Till Markus, Nina Neumann, Torsten Preuß, Heiko Sabatzki, Andrea Schmeichel, Sebastian Schwenen, Jan Seidel, and Stefanie Woborschil. Moreover, I would like to thank the people at Brill, namely Bea Timmer, for their helpful advice concerning the typesetting of this book and for their patience. I also find it appropriate to mention the authors of the great pieces of software that helped me writing this book: (pdf)TEX and LATEX, VIM, and Perl. With these tools, composing such a large document was a joy. I appreciate that the University offered an office and printing opportunities. The Studienstiftung des Deutschen Volkes is thanked for their grateful financial support.

DS, December 2009

Contents Abbreviations Note on Citations

xiii xv

List of Figures

xvii

List of Tables

xix

List of Symbols

xxi

Table of Cases

I

Foundations

Introduction 1 Standards of Legal Reasoning 1.1 Nature of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Clear Cases—Hard Cases . . . . . . . . . . . . . . . . . . . . . 1.3 Syllogism and Deductivism . . . . . . . . . . . . . . . . . . . . 1.4 Scepticism: Is Rationality Possible? . . . . . . . . . . . . . . . . 1.4.1 Interpretative Rule Sceptics . . . . . . . . . . . . . . . . 1.4.2 Rule Sceptics . . . . . . . . . . . . . . . . . . . . . . . . 1.4.3 Moral and Problem Case Sceptics . . . . . . . . . . . . 1.4.4 Is There a Universal Language?—the Post-Modern Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.5 One Right Answer Thesis vs. Very Moderate Scepticism 1.4.6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Approaches Against Scepticism . . . . . . . . . . . . . . . . . . 1.5.1 Dworkin’s Principle Approach . . . . . . . . . . . . . . . 1.5.2 Evaluation Jurisprudence . . . . . . . . . . . . . . . . . 1.5.3 Common Problems . . . . . . . . . . . . . . . . . . . . . 1.5.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Major Tenets of Modern Legal Theory . . . . . . . . . . . . . . 1.6.1 Coherence . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6.2 Consistency . . . . . . . . . . . . . . . . . . . . . . . . . 1.6.3 Universalizability . . . . . . . . . . . . . . . . . . . . . . 1.6.4 Defeasibility . . . . . . . . . . . . . . . . . . . . . . . . . 1.7 Justifying Fundamental Rights and Democracy . . . . . . . . . 1.7.1 H.L.A. Hart . . . . . . . . . . . . . . . . . . . . . . . . .

xxiii

1 3 9 9 11 13 17 17 19 20 25 28 29 29 30 31 33 34 34 35 39 41 43 45 46

Contents 1.7.2 1.7.3 1.7.4

II

Neil MacCormick . . . . . . . . . . . . . . . . . . . . . . Discourse Theory . . . . . . . . . . . . . . . . . . . . . . The Relationship between Law and Morals—the Special Case Thesis . . . . . . . . . . . . . . . . . . . . . . . . . 1.8 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.8.1 Ordinary Meaning . . . . . . . . . . . . . . . . . . . . . 1.8.2 Systematic Interpretation . . . . . . . . . . . . . . . . . 1.8.3 Teleological Interpretation . . . . . . . . . . . . . . . . . 1.8.4 Relevance of Interpretation for this Study . . . . . . . . 1.9 Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.9.1 Case Law in England . . . . . . . . . . . . . . . . . . . 1.9.2 Case Law in Germany . . . . . . . . . . . . . . . . . . . 1.9.3 Comparison . . . . . . . . . . . . . . . . . . . . . . . . . 1.9.4 Case Law and Community Law . . . . . . . . . . . . . . 1.10 Proportionality and the Application of Fundamental Rights . . 1.10.1 Principle Theory of Fundamental Rights . . . . . . . . . 1.10.2 Framework Model of Fundamental Rights . . . . . . . . 1.10.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 1.11 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54 57 58 59 60 61 61 62 64 66 67 69 69 77 79 80

The Application of Fundamental Rights and the Proportionality Principle

81

2 Case Law 2.1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 European Court of Human Rights . . . . . . . . . . . . . . . . 2.2.1 Background and Context . . . . . . . . . . . . . . . . . 2.2.2 Margin of Appreciation and Proportionality . . . . . . . 2.2.3 The Margin of Appreciation—a Desirable Doctrine? . . 2.2.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 German Federal Constitutional Court . . . . . . . . . . . . . . 2.3.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Proportionality Principle . . . . . . . . . . . . . . . 2.3.3 The Court’s Role and its Methods . . . . . . . . . . . . 2.3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 US Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Marbury v. Madison and Judicial Review under the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Between ‘Mere Rationality’ and ‘Strict Scrutiny’ . . . . 2.4.3 The Role of the US Supreme Court . . . . . . . . . . . . 2.4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . x

47 47

83 83 85 85 88 114 116 117 117 121 142 145 146 146 149 157 159

Contents 2.5

Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

160

3 Case Law of the ECJ 163 3.1 Legitimate Aims . . . . . . . . . . . . . . . . . . . . . . . . . . 164 3.1.1 Legal Bases . . . . . . . . . . . . . . . . . . . . . . . . . 164 3.1.2 Fundamental Rights . . . . . . . . . . . . . . . . . . . . 166 3.1.3 International Treaties . . . . . . . . . . . . . . . . . . . 167 3.1.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 167 3.2 Suitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 3.3 Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 3.4 Proportionality in the Narrow Sense . . . . . . . . . . . . . . . 173 3.4.1 Definition of Review Standards . . . . . . . . . . . . . . 174 3.4.2 The Application of the Standards . . . . . . . . . . . . . 176 3.4.3 Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . 181 3.5 The Role of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . 183 3.5.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 183 3.5.2 Burden of Proof . . . . . . . . . . . . . . . . . . . . . . 185 3.5.3 The Precautionary Principle—Dealing with Uncertainty 191 3.5.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 195 3.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

III Theoretical Treatment of Balancing

199

4 Balancing and Decision Theory 201 4.1 Instrumental Rationality and Utility Theory . . . . . . . . . . . 204 4.1.1 Utility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 4.1.2 Cardinal Scales . . . . . . . . . . . . . . . . . . . . . . . 206 4.1.3 Combination of Utility with other Variables . . . . . . . 208 4.2 Utility Theory and the Weight Formula . . . . . . . . . . . . . 211 4.2.1 Why the Weight Formula Requires Cardinal Scales . . . 213 4.2.2 Why Cardinal Scales Are Problematic . . . . . . . . . . 219 4.2.3 Possible Objections . . . . . . . . . . . . . . . . . . . . . 221 4.2.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 224 4.3 An Alternative Vision of Individual Choice . . . . . . . . . . . 226 4.3.1 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . 226 4.3.2 Satisficing—General Characteristics . . . . . . . . . . . 229 4.3.3 Priority Heuristic . . . . . . . . . . . . . . . . . . . . . . 231 4.3.4 Characteristics Summarized . . . . . . . . . . . . . . . . 234 4.4 Heuristics and Legal Reasoning . . . . . . . . . . . . . . . . . . 235 4.4.1 Connexions . . . . . . . . . . . . . . . . . . . . . . . . . 235 4.4.2 Characteristics of the Heuristics Approach Summarized 240 4.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 xi

Contents 5 Balancing—A Legal Perspective 245 5.1 Methodical Objections . . . . . . . . . . . . . . . . . . . . . . . 246 5.1.1 Principle Theory and the Structure of Legal Reasoning 247 5.1.2 Cardinal Scales and Objectivity . . . . . . . . . . . . . . 249 5.1.3 Balancing and Dogmatic Structures . . . . . . . . . . . 253 5.2 Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . 255 5.2.1 The Relevance of the ‘Separation Between Powers’ Problem 255 5.2.2 The Role of Separation of Powers Arguments in Light of the Democracy Deficit . . . . . . . . . . . . . . . . . . . 258 5.2.3 The Impact of Principle Theory on the Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 5.2.4 Heightened Scrutiny of Assessments of Facts . . . . . . 269 5.3 The Nature of Fundamental Rights . . . . . . . . . . . . . . . . 274 5.3.1 The Analytical Distinction . . . . . . . . . . . . . . . . 274 5.3.2 Normative Aspects . . . . . . . . . . . . . . . . . . . . . 281 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 6 A Rule Based Model of Balancing 6.1 The Pivotal Role of Methodical Considerations . . 6.2 Justifying the Satisficing Ideal . . . . . . . . . . . . 6.3 Objectivity . . . . . . . . . . . . . . . . . . . . . . 6.3.1 The Standard in General . . . . . . . . . . 6.3.2 Implementation of the Standard . . . . . . 6.3.3 Justifying Minimal Standards . . . . . . . . 6.4 Conformity with Constitutional Requirements . . . 6.4.1 Separation of Powers—Discretion in Setting 6.4.2 Standard of Protection . . . . . . . . . . . . 6.5 Remaining Objections . . . . . . . . . . . . . . . . 6.5.1 Uniformity . . . . . . . . . . . . . . . . . . 6.5.2 Really Non-Consequentialist? . . . . . . . . 6.5.3 Case Law Positivism? . . . . . . . . . . . . 6.6 The Model Summarized . . . . . . . . . . . . . . . 6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Policy Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

297 297 299 300 300 301 310 317 317 322 344 344 345 347 348 352

General Summary 353 The Plan of this Study Revisited . . . . . . . . . . . . . . . . . . . . 353 A Summary of Concrete Results—in Theses . . . . . . . . . . . . . . 356 References

365

Translations

379

Index

383

xii

Abbreviations AG BSE BVerfGG CFI CFREU CMLR CT EC ECHR ECJ ECSCT ECtHR EEC EU Euroatom GATT GDR GFCC GG GMO IA ICCPR ICESCR OJ RP SEU TAC TEC TEU UNCLOS USA VC VDStRL VVDStRL VwGO

Advocate General Bovine spongiform encephalopathy Bundesverfassungsgerichtsgesetz [Federal Constitutional Court Act] European Court of First Instance Charter of Fundamental Rights of the European Union Common Market Law Reports Treaty Establishing a Constitution for Europe European Community European Convention on Human Rights European Court of Justice Treaty Establishing the European Coal and Steel Community European Court of Human Rights European Economic Community European Union European Atomic Energy Community General Agreement on Tariffs and Trade German Democratic Republic German Federal Constitutional Court Grundgesetz Genetically modified organism Impact Assessment International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Official Journal Rules of Procedure for the European Court of Justice Subjective expected utility Total allowable catch Treaty Establishing the European Community Treaty on Establishing the European Union United Nations Convention on the Law of the Sea United States of America Vienna Convention on Law of Treaties Vereinigung der Deutschen Staatsrechtslehrer Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer Verwaltungsgerichtsordnung [German Rules of Procedure for the Administrative Courts]

Abbreviations WRV WTO WWF

Weimarer Reichsverfassung [Constitution of the Weimar Republic] World Trade Organization Worldwide Fund for Nature

xiv

Note on Citations Provisions from the Treaty, directives, regulations, statutes, and international treaties are cited in a uniform manner: art. § paragraph

subparagraph

The title of the instrument is omitted if it is obvious from the context which one is meant. German statutes are only cited by section numbers, not articles. Examples: art. 6 § 2 TEU § 1 German Unfair Competition Act art. 100 § 1 GG

German commentaries are cited in this form: , in: , , para.

for example: Starck, in: Hermann von Mangoldt et al., Kommentar zum Grundgesetz: Präambel, Artikel 1 bis 19 vol. 1 (Vahlen, Munich, 5th edn., 2005), Art. 1 Abs. 3, para. 194. Dreier, in: Horst Dreier, Grundgesetz: Kommentar: Präambel, Artikel 1–19 vol. 1 (Mohr Siebeck, Tübingen, 2nd edn., 2004), Art. 1 III, para. 1

The portion is retained from the original without change, which results in some variety between, for example, “Art. 1 Abs. 3”, “Art. 1 III”, and the convention of this study. Older German commentaries do not provide paragraph numbers. In that case, page numbers are given and preceded by “p. ” instead of “para. ”. Some texts are available in English and German.∗ Citing these texts, unbracketed page numbers refer to the German text, while page numbers in angle brackets refer to the English text. ∗ Aulis Aarnio et al., ‘Grundlagen juristischer Argumentation’, in: Krawietz, Werner and Aarnio, Aulis (eds.): Metatheorie juristischer Argumentation (Duncker Humblot, Berlin, 1983), p. 9/Aulis Aarnio et al., ‘The Foundation of Legal Reasoning’ 12 (1981) Rechtstheorie, p. 133; Jürgen Habermas, Faktizität und Geltung (Suhrkamp, Frankfurt am Main, 2nd edn., 1992)/Jürgen Habermas, Between Facts and Morms: Contributions to a Discourse Theory of Law and Democracy (Polity Press, Cambridge, 2004); Niklas Luhmann, Das Recht der Gesellschaft (Suhrkamp, Frankfurt am Main, 2nd edn., 1997)/Niklas Luhmann et al., Law as a Social System (Oxford Univ. Press, Oxford, 2004); Robert Alexy, Theorie der Grundrechte (Suhrkamp, Frankfurt am Main, 1994)/Robert Alexy, Theory of Constitutional Rights (Oxford University Press, Oxford, 2002)

List of Figures 1.1 1.2 1.3

Optimization of two principles or goods. . . . . . . . . . . . . . Proportionality according to Schlink. . . . . . . . . . . . . . . . Discretion in a model of minimal standards. . . . . . . . . . . .

4.1 4.2 4.3 4.4

Temperatures in ◦ C (left) and ◦ F (right). . Two indifference curves. . . . . . . . . . . . A Vector Utility Function . . . . . . . . . . Utility functions over a continuum and with

. . . .

207 217 230 231

5.1 5.2 5.3

Optimization of conflicting principles . . . . . . . . . . . . . . . Diminishing substitution rates and minimal positions . . . . . . Decreasing marginal utility . . . . . . . . . . . . . . . . . . . .

262 278 279

6.1

Two essence paradigms. . . . . . . . . . . . . . . . . . . . . . .

342

. . . . . . . . . . . . . . . . . . . . . three values

. . . .

. . . .

. . . .

73 78 78

List of Tables 4.1 4.2 4.3 4.4 4.5 4.6

Illustration of the subjective expected utility (SEU) formula. . . A genetically modified organism (GMO)-marketing problem. . . A generalized form of policy choices. . . . . . . . . . . . . . . . The genetically modified organism (GMO) problem form a legal perspective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The same problem as in table 4.4 with different ratings. . . . . The priority heuristic is illustrated with this gamble. Note that the probabilities for the occurrence of S1 and S2 differ slightly.

209 210 212 212 212 231

List of Symbols ∀ → |

T

for all implication given, for example: P(A|B), probability (P) of A given B preferred to greater than less than equal greater or equal less or equal preferred to preferred or indifferent to indifferent to subordinated to indifferent orPsubordinated to i summation: n an = an + an+1 + an+2 + · · · + an+i comparison

S ¬ ≈

comparison negation approximately

P > < = ≥ ≤  % ∼ ≺ P

Operators from cited works are retained even if it leads to inconsistencies with the conventions of this study because it eases further reading. So, while Alexy uses P, I use .

Table of Cases Alphabetical List International Courts European Court of First Instance Case T–521/93, Atlanta AG et al. v. European Community [1996] ECR II–1707 194 Case T–13/99, Pfizer Animal Health v. Council of the European Union [2002] ECR II–3305 169, 184, 191, 194, 196, 271 Case T–91/07, WWF-UK Ltd (Godalming, United Kingdom) v. Council of the European Union [2008] 192

European Court of Justice Joined Cases C–453/03, C–11/04, C–12/04 and C–194/04, ABNA Ltd et al. v. Secretary of State for Health et al. [2005] ECR I–10423 5, 170 Case 64/74, Adolf Reich v. Hauptzollamt Landau [1975] ECR 261 181 Case C–183/95, Affish BV v. Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I–4315 3, 175, 176 Case T–306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2005] ECR II–3533 285, 327 Case C–298/94, Anette Henke v. Gemeinde Schierke und Verwaltungsgemeinschaft „Brocken“ [1996] ECR I–4989 59 Case 18/70, Anne Duraffour v. Council of the European Communities [1971] ECR 515 187 Case C–104/97 P, Atlanta AG et al. v. European Community [1999] ECR I–6983 194 Case 5/73, Balkan-Import-Export GmbH v. Hauptzollamt Berlin-Packhof [1973] ECR I–1091 176 Case 114/76, Bela-Mühle Josef Bergmann KG v. Grows-Farm GmbH und Co. KG [1977] ECR I–1211 170, 179 Case C–94/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others [1996] ECR I–3953 58, 291 Case C–491/01, British American Tobacco v. Secretary of State for Health [2002] ECR I–11453 3, 4, 180, 307, 311, 315, 345, 348 Case C–122/94, Commission of the European Communities v. Council of the European Union [1996 ] ECR I–881 195 Case C–265/95, Commission v. France [1997] ECR I–6959 289 Case 116/82, Commission v. Germany [1986] ECR 2519 170 Case C–13/03 P, Commission v. Tetra Laval BV et al. [2005] ECR I–1113 195 Case 6/64, Costa v. E.N.E.L. [1964] ECR 614 (English Special Edition) 57, 290 Case C-289/97, Eridania v. Azienda Agricola San Luca di Rumagnoli Viannj [2000] ECR I–5409 177 Case C–405/92, Établissements Armand Mondiet SA v. Armement Islais SARL [1993] ECR I–6133 177, 192

Table of Cases Case 6/72, Europemballage Corporation and Continental Can Company Inc. v. Commission [1973] ECR 215 60 Case C–91/92, Faccini Dori v. Recreb [1994] ECR I–3325 58 Joined Cases C–254/94, 255/94 and C–269/94, Fattoria autonoma tabbacchi et. al. v. Ministero dell’Agrigolture e dellle Foreste et. al. [1996] ECR I–4235 3, 177, 190, 303, 341 Case C–280/93 R, Federal Republic of Germany v. Council of the European Communities [1993] ECR I–3676 172 Case 280/93, Federal Republic of Germany v. Council of the European Union [1994] ECR I–4973 5, 6, 172, 173, 185, 188, 236, 269, 270 Case C–367/98, Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR I–2247 6 Case C–233/94, Federal Republic of Germany v. European Parliament and Council of the European Union [1997] ECR I–2405 165 Case C–331/88, Fédération européenne de la santé animale (Fedesa) et al. v. The Minister for Agriculture, Fisheries and Food and The Secretary of State for Health [1990] ECR I–4023 3, 178 Case 209/83, Ferriera Valsabbia SPA v. Commission [1984] ECR 3089 166 Case C–63/93, Fintan Duff, Liam Finlay, Thomas Julian, James Lyons, Catherine Moloney, Michael McCarthy, Patrick McCarthy, James O’Regan, Patrick O’Donovan v. Minister for Agriculture and Food and Attorney General [1996] ECR I–569 5 Joined Cases 26 and 86/79, Forges de Thy-Marcinelle et Monceau SA v. Commission of the European Communities [1980] ECR 1083 176 Case 66/82, Fromançais SA v. Fonds d’orientation et de régularisation des marchés agricoles (FORMA) [1983] ECR 395 179 Case 149/77, Gabrielle Defrenne v. Société anonyme beldge de navigation aérienne Sabena [1978] ECR 1365 58, 60 Case 34/62, Germany v. Commission [1963] ECR 291 (German Edition) 184 Case C–257/00, Givane et al. v. Secretary of State for the Home Department [2003] ECR I–345 59 Case C–189/01, H. Jippes v. Minister van Landbouw, Natuurbeheer en Visserij [2003] ECR I–8055 164 Case 138/78, Hans-Markus Stölting v. Hauptzollamt (Principal Customs Office) Hamburg-Jonas [1979] ECR 713 168 Case 44/79, Hauer v. Land Rheinland-Pfalz [1979] ECR 3727 3 Case C–365/92, Henrik Schumacher v. Bezirksregierung Hannover [1993] ECR I–6071 170 Case 265/87, Hermann Schräder HS Kraffutter GmbH & Co. KG, Ochtrup v. Hauptzollamt Gronau [1989] ECR 2237 3 Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125 3, 34, 45 Joined Cases C–90/90 and C–91/90, Jean Neu and others v. Secrétaire d’Etat à l’Agriculture et à la Viticulture [1991] ECR I–3617 168 Case C–3/00, Kingdom of Denmark v. Commission of the European Communities [2003] ECR I–2643 194 Case C–179/95, Kingdom of Spain v. Council of the European Union [1999] ECR I–6475 184, 272 Joined Cases C–61/96, C–132/97, C–45/98, C–27/99, C–81/00 and C–22/01, Kingdom of Spain v. Council of the European Union [2002] ECR I–3439 273

xxiv

Table of Cases Case 6/54, Kingdom of the Netherlands v. High Authority of the European Coal and Steel Community [1955] ECR 103 (English Special Edition) 3 Joined Cases 197–200, 243, 245 and 247/80, Ludwigshafener Walzmühle Erling KG v. Council and Commission of the European Communities [1981] ECR I–3211 165, 318 Case 152/84, M. H. Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723 58 Case 84/87, Marcel Erpelding v. Secrétaire d’État à l’Agriculture et à la Viticulture [1988] ECR 2647 176 Case C–236/01, Monsanto Agricoltura Italia SpA and Others v. Presidenza del Consiglio dei Ministri and Others [2003] ECR I–8105 192 Case 299/84, Neumann v. Balm [1985] ECR 3663 170 Case C–4/96, Northern Ireland Fish Producers’ Organisation Ltd (NIFPO) and Northern Ireland Fishermen’s Federation v. Department of Agriculture for Northern Ireland [1998] ECR I–681 184 Case C–319/90, Otto Pressler Weingut-Weingrosskellerei GmbH & Co. KG v. Federal Republic of Germany [1992] ECR I–203 170, 171 Case 179/84, Piercarlo Bozzetti v. SPA Invernizzi and Ministero del Tesoro [1985] ECR 2301 172 Case 30/77, Régina Bouchereau v. Pierre Bouchereau [1977] ECR 1999 59 Case 59/83, SA Biovilac NV v. European Economic Community [1984] ECR 4057 189 Case 122/78, SA Buitoni v. Fonds d’orientation et de régularisation des marchés agricoles [1979] ECR 677 179 Case 138/79, SA Roquette Frères v. Council of the European Communities [1980] ECR 3333 177 Case C-451/05, SA Roquette Frères v. Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité [2007] ECR I–1993 177 Joined Cases C–248/95 and C–249/95, SAM Schiffahrt GmbH and Heinz Stapf v. Bundesrepublik Deutschland [1997] ECR I–4475 7 Case C–306/93, SMW Winzersekt GmbH v. Land Rheinland-Pfalz [1994] ECR I–5555 3 Case C–284/95, Safety Hi-Tech Srl v. S. & T. Srl [1998] ECR I–4301 193, 237, 324, 325 Case C–112/00, Schmidberger v. Republic of Austria [2003] ECR I–5659 292 Case C–210/03, Swedish Match UK Ltd v. Secretary of State for Health [2004] ECR I–11893 5, 68 Case C–68/95, T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I–6065 172 Case C–269/90, Technische Universität München v. Hauptzollamt München-Mitte [1991] ECR I–5469 194, 240 Case C–22/94, The Irish Farmers Association and others v. Minister for Agriculture, Food and Forestry, Ireland and Attorney General [1997] ECR I–1809 166, 174 Case 181/84, The Queen, ex parte E. D. & F. Man (Sugar) Ltd v. Intervention Board for Agricultural Produce (IBAP) [1985] ECR 2889 179, 238, 252, 305, 309 Case C–157/96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National Farmers’ Union [1998] ECR I–2211 192 Case C–180/96, United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities [1998] ECR I–2265 3

xxv

Table of Cases Case 84/94, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union [1996] ECR I–5755 6, 165, 168, 169, 189, 298, 343 Case C–26/62, Van Gend & Loos v. Inspecteur der Invoerrechten en Accijnzen, Enschede [1985] ECR 779 57 Case C–92/89, Zuckerfabrik Soest v. Hauptzollamt Paderborn [1991] ECR I–415 3

European Court of Human Rights Re Certain Aspects of the Laws on the Use of Languages In Education In Belgium, (1979–80) 1 EHRR 252 285 Agosi v. United Kingdom, (1987) 9 EHRR 1 90, 312 Airey v. Ireland, (1979) 2 EHRR 305 113 Allan Jacobsson v. Sweden, (1990) 12 EHRR 56 88 Barthold v. Germany, (1985) 7 EHRR 383 112 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, (2006) 42 EHRR 1 83, 162 Brannigan and McBride v. United Kingdom, (1994) 17 EHRR 539 90 Casado Coca v. Spain, (1994) 18 EHRR 1 90 Cossey v. United Kingdom, (1991) 13 EHRR 622 90, 103 Dudgeon v. United Kingdom, (1981) 3 EHRR 40 87, 102 Fredin v. Sweden, (1991) 13 EHRR 784 88 Gäfgen v. Germany, 30 July 2008 (Gäfgen)

326, 329 Gaygusuz v. Austria, (1997) 23 EHRR 364 88 Guerra and others v. Italy, (1998) 26 EHRR 357 90, 113 Handyside v. United Kingdom, (1979–80) 1 EHRR 737 90 Hentrich v. France, (1994) 18 EHRR 440 90, 112, 349 Ireland v. The United Kingdom, (1979) 2 EHRR 25 330 Jacubowski v. Germany, (1995) 19 EHRR 64 90 James and others v. United Kingdom, (1986) 8 EHRR 123 7, 93, 95, 314 Kokkinakis v. Greece, (1994) 17 EHRR 397 88 L.C.B. v. United Kingdom, (1999) 27 EHRR 212 90, 92 Lingens v. Austria, (1986) 8 EHRR 407 101 Lithgow and others v. the United Kingdom, (1986) 8 EHRR 329 93, 96, 109 Marckx v. Belgium, (1979–80) 2 EHRR 330 113 Markt Intern Verlag GmbH and Klaus Beermann v. Germany, (1990) 12 EHRR 161 91, 98, 100 Mathieu-Mohin and Clerfayt v. Belgium, (1988) 10 EHRR 1 91 Mellacher and others v. Austria, (1990) 12 EHRR 391 88, 94, 107, 182 National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. United Kingdom, (1998) 25 EHRR 127 90 Open Door and Dublin Well Woman v. Ireland, (1993) 15 EHRR 244 88, 90, 97 Powell and Rayner v. United Kingdom, (1990) 12 EHRR 355 104, 108 Prager and Oberschlick v. Austria, (1996) 21 EHRR 1 88, 99, 289 Price v. United Kingdom, (2002) 34 EHRR 53 330 Raninen v. Finnland, (1998) 26 EHRR 563 330 Rees v. United Kingdom, (1987) 9 EHRR 56 113 Smith and Grady v. United Kingdom, (2000) 29 EHRR 493 111 Sporrong and Lönnroth v. Sweden, (1983) 5 EHRR 35 89, 106, 111 Sunday Times v. United Kingdom, (1979–80) 2 EHRR 245 100, 282 Traktörer Aktiebolag v. Sweden, (1991) 13 EHRR 309 90

xxvi

Table of Cases Vo v. France, (2005) 40 EHRR 12 88, 105, 114 X and Y v. Netherlands, (1986) 8 EHRR 235 107 Young, James and Webster v. United Kingdom, (1983) 5 EHRR 201

90, 91, 110

National Courts Bundesverfassungsgericht BVerfGE 39, 1 (1975) [Abortion I ] 141 BVerfGE 88, 203 (1993) [Abortion II ] 142, 335 BVerfG, 1 BvR 357/05, 15 November 2006 (Aeroplane) 326, 331, 332, 333, 334, 347 BVerfGE 94, 372 (1996) [Apothekenwerbung] 123 BVerfGE 81, 157 (1990) [Arbeitsförderungsgesetz] 121, 340 BVerfGE 85, 248 (1992) [Ärztliches Werbeverbot] 124, 133 BVerfGE 90, 241 (1994) [Auschwitzlüge] 137, 139 BVerfGE 102, 347 (2000) [Benetton Werbung] 137 BVerfG NJW 2000, 3413 (2000) [Berufsunwürdiges Verhalten] 137 BVerfGE 25, 256 (1969) [Blinkfüer] 136 BVerfGE 54, 208 (1980) [Böll] 138 BVerfG NJW 2002, 3767 (2002) [Bonnbons] 137 BVerfG, 1 BvR 608/99, 31 October 2000 (Elektroeinzelhändler) 126 BVerfGE 30, 292 (1971) [Erdölbevorratung] 123, 127, 350 BVerfGE 43, 130 (1976) [Flugblatt] 137 BVerfGE 56, 54 (1981) [Fluglärm] 141 BVerfGE 95, 173 (1997) [German Tobacco Labelling] 123, 124, 128, 308 BVerfG NJW 1999, 2358 (1999) [Greenpeace] 137 BVerfG NJW 1996, 651 (1996) [Ground Near Ozone] 141 BVerfGE 13, 97 (1961) [Handwerksordnung] 123, 125, 129, 235 BVerfG NJW 2000, 2413 (2000) [IM-Liste] 137 BVerfG NJW 2001, 3613 (2001) [Ironischer Pressekommentar] 137 BVerfG NJW 2001, 2957 (2001) [Kaisen] 137 BVerfGE 93, 1, 21 (1995) [Kruzifix] 7 BVerfGE 54, 129 (1980) [Kunstkritik] 138 BVerfGE 111, 10 (2004) [Ladenschluss] 123 BVerfGE 35, 202 (1973) [Lebach] 134, 137 BVerfGE 16, 194 (1963) [Liquorentnahme] 122, 239 BVerfGE 7, 198 (1958) [Lüth] 121, 135, 143 BVerfGE 97, 391 (1998) [Missbrauchsvorwurf ] 137 BVerfGE 50, 290 (1979) [Mitbestimmung] 130, 131, 146 BVerfGE 25, 1 (1968) [Mühlengesetz] 123, 126, 313 BVerfGE 39, 210 (1975) [Mühlenstrukturgesetz] 123 BVerfGE 7, 377 (1958) [Pharmacy] 122, 123, 167 BVerfG NJW 2002, 1187 (2002) [Produktwerbung] 137 BVerfGE 46, 160 (1977) [Schleyer] 335 BVerfGE 12, 113 (1961) [Schmidt Spiegel] 135, 140 BVerfG 2 CMLR 1974, 540 (1974) [Solange] 269 BVerfG 3 CMLR 1987, 225 (1987) [Solange 2 ] 269

xxvii

Table of Cases BVerfGE 93, 266 (1995) [Soldaten sind Mörder] 137 BVerfG NJW 1996, 651 (1996) [Speed Limits] 141 BVerfG NJW 2001, 3403 (2001) [Therapeutische Äquivalenz] 138 BVerfGE 86, 1 (1992) [Titanic] 134, 138, 203, 249, 250, 251, 266 BVerfGE 67, 154 (1984) [Überwachungsgesetz] 122 BVerfGE 51, 324 (1979) [Verhandlungsunfähigkeitsbeschluss] 275 BVerfG NJW 1999, 204 (1998) [Verunglimpfung des Staates] 137 BVerfGE 61, 1 (1982) [Wahlkampf ] 138 BVerfGE 37, 1 (1974) [Weinwirtschaftsabgabe] 123 BVerfG, 1 BvR 1730/02 , 5 January 2005 (Zimmerhandwerk) 126

German Courts RGZ 111, 320 (1925) [Aufwertungsgesetz] 119 BGHZ 85, 64 (1982) [BGHZ 85, 64 ] 66 LG Frankfurt NJW 2005, 692–6 (2004) [Daschner]

326

US Supreme Court Abby Gail Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18 (1981) 156 Baker v. Carr, 369 U.S. 186 (1962) 152 Boerne v. Flores, 521 U.S. 507 (1997) 147 Craig v. Boren, 429 U.S. 190 (1976) 153 Dandridge v. Williams, 397 U.S. 471 (1970) 150, 151 Dolan v. City of Tigard, 512 U.S. 374 (1994) 154 F. David Mathews, Secretary of Health, Education and Welfare v. George H. Eldridge, 424 U.S. 319 (1976) 156 Ferguson v. Skrupa, 372 U.S. 726 (1963) 6 Griswold v. Conneticut, 381 U.S. 479, 85 (1962) 152 Lochner v. New York, 198 U.S. 45 (1905) 6, 150, 321 Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803) 6, 7, 147, 148 Minnesota v. Clover Leaf Creamery Company, 289 N.W.2d 79 (1979) 150 New Jersey v. T.L.O., 469 U.S. 325 (1985) 156 Plyler v. Dole, 457 U.S. 202 (1982) 150 Railway Express Agency v. People of the State of New York, 33 U.S. 106 (1949) 150 Roe v. Wade, 410 U.S. 113, 99 (1973) 149, 160 San Antonio Independent School District v. Rodiriguez, 411 U.S. 1 (1973) 150 Shapiro v. Thompson, 394 U.S. 618 (1969) 153 Tennessee v. Cleamtee Garner, etc. et al, 471 U.S. 1 (1985) 155 United States v. Carolene Products Co., 304 U.S. 144 (1938) 150 United States v. Rosa Elivra Montoya de Hernandez, 473 U.S. 531 (1985) 155, 156 Williamson v. Lee Opticals, 348 U.S. 483 (1955) 7, 157

xxviii

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Chronological List International Courts European Court of First Instance Case T–521/93, Atlanta AG et al. v. European Community [1996] ECR II–1707 194 Case T–13/99, Pfizer Animal Health v. Council of the European Union [2002] ECR II–3305 169, 184, 191, 194, 196, 271 Case T–91/07, WWF-UK Ltd (Godalming, United Kingdom) v. Council of the European Union [2008] 192

European Court of Justice Case 6/54, Kingdom of the Netherlands v. High Authority of the European Coal and Steel Community [1955] ECR 103 (English Special Edition) 3 Case 34/62, Germany v. Commission [1963] ECR 291 (German Edition) 184 Case 6/64, Costa v. E.N.E.L. [1964] ECR 614 (English Special Edition) 57, 290 Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125 3, 34, 45 Case 18/70, Anne Duraffour v. Council of the European Communities [1971] ECR 515 187 Case 5/73, Balkan-Import-Export GmbH v. Hauptzollamt Berlin-Packhof [1973] ECR I–1091 176 Case 6/72, Europemballage Corporation and Continental Can Company Inc. v. Commission [1973] ECR 215 60 Case 64/74, Adolf Reich v. Hauptzollamt Landau [1975] ECR 261 181 Case 114/76, Bela-Mühle Josef Bergmann KG v. Grows-Farm GmbH und Co. KG [1977] ECR I–1211 170, 179 Case 30/77, Régina Bouchereau v. Pierre Bouchereau [1977] ECR 1999 59 Case 149/77, Gabrielle Defrenne v. Société anonyme beldge de navigation aérienne Sabena [1978] ECR 1365 58, 60 Case 44/79, Hauer v. Land Rheinland-Pfalz [1979] ECR 3727 3 Case 138/78, Hans-Markus Stölting v. Hauptzollamt (Principal Customs Office) Hamburg-Jonas [1979] ECR 713 168 Case 122/78, SA Buitoni v. Fonds d’orientation et de régularisation des marchés agricoles [1979] ECR 677 179 Joined Cases 26 and 86/79, Forges de Thy-Marcinelle et Monceau SA v. Commission of the European Communities [1980] ECR 1083 176 Case 138/79, SA Roquette Frères v. Council of the European Communities [1980] ECR 3333 177 Joined Cases 197–200, 243, 245 and 247/80, Ludwigshafener Walzmühle Erling KG v. Council and Commission of the European Communities [1981] ECR I–3211 165, 318 Case 66/82, Fromançais SA v. Fonds d’orientation et de régularisation des marchés agricoles (FORMA) [1983] ECR 395 179 Case 59/83, SA Biovilac NV v. European Economic Community [1984] ECR 4057 189 Case 209/83, Ferriera Valsabbia SPA v. Commission [1984] ECR 3089 166 Case C–26/62, Van Gend & Loos v. Inspecteur der Invoerrechten en Accijnzen, Enschede [1985] ECR 779 57

xxix

Table of Cases Case 181/84, The Queen, ex parte E. D. & F. Man (Sugar) Ltd v. Intervention Board for Agricultural Produce (IBAP) [1985] ECR 2889 179, 238, 252, 305, 309 Case 179/84, Piercarlo Bozzetti v. SPA Invernizzi and Ministero del Tesoro [1985] ECR 2301 172 Case 299/84, Neumann v. Balm [1985] ECR 3663 170 Case 116/82, Commission v. Germany [1986] ECR 2519 170 Case 152/84, M. H. Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723 58 Case 84/87, Marcel Erpelding v. Secrétaire d’État à l’Agriculture et à la Viticulture [1988] ECR 2647 176 Case 265/87, Hermann Schräder HS Kraffutter GmbH & Co. KG, Ochtrup v. Hauptzollamt Gronau [1989] ECR 2237 3 Case C–331/88, Fédération européenne de la santé animale (Fedesa) et al. v. The Minister for Agriculture, Fisheries and Food and The Secretary of State for Health [1990] ECR I–4023 3, 178 Case C–92/89, Zuckerfabrik Soest v. Hauptzollamt Paderborn [1991] ECR I–415 3 Case C–269/90, Technische Universität München v. Hauptzollamt München-Mitte [1991] ECR I–5469 194, 240 Joined Cases C–90/90 and C–91/90, Jean Neu and others v. Secrétaire d’Etat à l’Agriculture et à la Viticulture [1991] ECR I–3617 168 Case C–319/90, Otto Pressler Weingut-Weingrosskellerei GmbH & Co. KG v. Federal Republic of Germany [1992] ECR I–203 170, 171 Case C–280/93 R, Federal Republic of Germany v. Council of the European Communities [1993] ECR I–3676 172 Case C–405/92, Établissements Armand Mondiet SA v. Armement Islais SARL [1993] ECR I–6133 177, 192 Case C–365/92, Henrik Schumacher v. Bezirksregierung Hannover [1993] ECR I–6071 170 Case 280/93, Federal Republic of Germany v. Council of the European Union [1994] ECR I–4973 5, 6, 172, 173, 185, 188, 236, 269, 270 Case C–306/93, SMW Winzersekt GmbH v. Land Rheinland-Pfalz [1994] ECR I–5555 3 Case C–91/92, Faccini Dori v. Recreb [1994] ECR I–3325 58 Case C–94/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others [1996] ECR I–3953 58, 291 Case C–63/93, Fintan Duff, Liam Finlay, Thomas Julian, James Lyons, Catherine Moloney, Michael McCarthy, Patrick McCarthy, James O’Regan, Patrick O’Donovan v. Minister for Agriculture and Food and Attorney General [1996] ECR I–569 5 Joined Cases C–254/94, 255/94 and C–269/94, Fattoria autonoma tabbacchi et. al. v. Ministero dell’Agrigolture e dellle Foreste et. al. [1996] ECR I–4235 3, 177, 190, 303, 341 Case 84/94, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union [1996] ECR I–5755 6, 165, 168, 169, 189, 298, 343 Case C–68/95, T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I–6065 172 Case C–122/94, Commission of the European Communities v. Council of the European Union [1996 ] ECR I–881 195 Case C–298/94, Anette Henke v. Gemeinde Schierke und Verwaltungsgemeinschaft „Brocken“ [1996] ECR I–4989 59

xxx

Table of Cases Case C–183/95, Affish BV v. Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I–4315 3, 175, 176 Joined Cases C–248/95 and C–249/95, SAM Schiffahrt GmbH and Heinz Stapf v. Bundesrepublik Deutschland [1997] ECR I–4475 7 Case C–22/94, The Irish Farmers Association and others v. Minister for Agriculture, Food and Forestry, Ireland and Attorney General [1997] ECR I–1809 166, 174 Case C–233/94, Federal Republic of Germany v. European Parliament and Council of the European Union [1997] ECR I–2405 165 Case C–265/95, Commission v. France [1997] ECR I–6959 289 Case C–284/95, Safety Hi-Tech Srl v. S. & T. Srl [1998] ECR I–4301 193, 237, 324, 325 Case C–157/96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National Farmers’ Union [1998] ECR I–2211 192 Case C–180/96, United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities [1998] ECR I–2265 3 Case C–4/96, Northern Ireland Fish Producers’ Organisation Ltd (NIFPO) and Northern Ireland Fishermen’s Federation v. Department of Agriculture for Northern Ireland [1998] ECR I–681 184 Case C–104/97 P, Atlanta AG et al. v. European Community [1999] ECR I–6983 194 Case C–179/95, Kingdom of Spain v. Council of the European Union [1999] ECR I–6475 184, 272 Case C–367/98, Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR I–2247 6 Case C-289/97, Eridania v. Azienda Agricola San Luca di Rumagnoli Viannj [2000] ECR I–5409 177 Case C–491/01, British American Tobacco v. Secretary of State for Health [2002] ECR I–11453 3, 4, 180, 307, 311, 315, 345, 348 Joined Cases C–61/96, C–132/97, C–45/98, C–27/99, C–81/00 and C–22/01, Kingdom of Spain v. Council of the European Union [2002] ECR I–3439 273 Case C–112/00, Schmidberger v. Republic of Austria [2003] ECR I–5659 292 Case C–3/00, Kingdom of Denmark v. Commission of the European Communities [2003] ECR I–2643 194 Case C–189/01, H. Jippes v. Minister van Landbouw, Natuurbeheer en Visserij [2003] ECR I–8055 164 Case C–236/01, Monsanto Agricoltura Italia SpA and Others v. Presidenza del Consiglio dei Ministri and Others [2003] ECR I–8105 192 Case C–257/00, Givane et al. v. Secretary of State for the Home Department [2003] ECR I–345 59 Case C–210/03, Swedish Match UK Ltd v. Secretary of State for Health [2004] ECR I–11893 5, 68 Case T–306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2005] ECR II–3533 285, 327 Joined Cases C–453/03, C–11/04, C–12/04 and C–194/04, ABNA Ltd et al. v. Secretary of State for Health et al. [2005] ECR I–10423 5, 170 Case C–13/03 P, Commission v. Tetra Laval BV et al. [2005] ECR I–1113 195 Case C-451/05, SA Roquette Frères v. Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité [2007] ECR I–1993 177

xxxi

Table of Cases European Court of Human Rights Re Certain Aspects of the Laws on the Use of Languages In Education In Belgium, (1979–80) 1 EHRR 252 285 Handyside v. United Kingdom, (1979–80) 1 EHRR 737 90 Ireland v. The United Kingdom, (1979) 2 EHRR 25 330 Airey v. Ireland, (1979) 2 EHRR 305 113 Marckx v. Belgium, (1979–80) 2 EHRR 330 113 Sunday Times v. United Kingdom, (1979–80) 2 EHRR 245 100, 282 Young, James and Webster v. United Kingdom, (1983) 5 EHRR 201 90, 91, 110 Dudgeon v. United Kingdom, (1981) 3 EHRR 40 87, 102 Sporrong and Lönnroth v. Sweden, (1983) 5 EHRR 35 89, 106, 111 Barthold v. Germany, (1985) 7 EHRR 383 112 X and Y v. Netherlands, (1986) 8 EHRR 235 107 Rees v. United Kingdom, (1987) 9 EHRR 56 113 James and others v. United Kingdom, (1986) 8 EHRR 123 7, 93, 95, 314 Agosi v. United Kingdom, (1987) 9 EHRR 1 90, 312 Lingens v. Austria, (1986) 8 EHRR 407 101 Lithgow and others v. the United Kingdom, (1986) 8 EHRR 329 93, 96, 109 Mellacher and others v. Austria, (1990) 12 EHRR 391 88, 94, 107, 182 Traktörer Aktiebolag v. Sweden, (1991) 13 EHRR 309 90 Allan Jacobsson v. Sweden, (1990) 12 EHRR 56 88 Markt Intern Verlag GmbH and Klaus Beermann v. Germany, (1990) 12 EHRR 161 91, 98, 100 Cossey v. United Kingdom, (1991) 13 EHRR 622 90, 103 Powell and Rayner v. United Kingdom, (1990) 12 EHRR 355 104, 108 Fredin v. Sweden, (1991) 13 EHRR 784 88 Open Door and Dublin Well Woman v. Ireland, (1993) 15 EHRR 244 88, 90, 97 Kokkinakis v. Greece, (1994) 17 EHRR 397 88 Brannigan and McBride v. United Kingdom, (1994) 17 EHRR 539 90 Casado Coca v. Spain, (1994) 18 EHRR 1 90 Jacubowski v. Germany, (1995) 19 EHRR 64 90 Hentrich v. France, (1994) 18 EHRR 440 90, 112, 349 Prager and Oberschlick v. Austria, (1996) 21 EHRR 1 88, 99, 289 Gaygusuz v. Austria, (1997) 23 EHRR 364 88 Raninen v. Finnland, (1998) 26 EHRR 563 330 Mathieu-Mohin and Clerfayt v. Belgium, (1988) 10 EHRR 1 91 National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. United Kingdom, (1998) 25 EHRR 127 90 L.C.B. v. United Kingdom, (1999) 27 EHRR 212 90, 92 Guerra and others v. Italy, (1998) 26 EHRR 357 90, 113 Smith and Grady v. United Kingdom, (2000) 29 EHRR 493 111 Price v. United Kingdom, (2002) 34 EHRR 53 330 Vo v. France, (2005) 40 EHRR 12 88, 105, 114 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, (2006) 42 EHRR 1 83, 162 Gäfgen v. Germany, 30 July 2008 (Gäfgen)

326, 329

xxxii

Table of Cases

National Courts Bundesverfassungsgericht BVerfGE 7, 198 (1958) [Lüth] 121, 135, 143 BVerfGE 7, 377 (1958) [Pharmacy] 122, 123, 167 BVerfGE 12, 113 (1961) [Schmidt Spiegel] 135, 140 BVerfGE 13, 97 (1961) [Handwerksordnung] 123, 125, 129, 235 BVerfGE 16, 194 (1963) [Liquorentnahme] 122, 239 BVerfGE 25, 1 (1968) [Mühlengesetz] 123, 126, 313 BVerfGE 25, 256 (1969) [Blinkfüer] 136 BVerfGE 30, 292 (1971) [Erdölbevorratung] 123, 127, 350 BVerfGE 35, 202 (1973) [Lebach] 134, 137 BVerfG 2 CMLR 1974, 540 (1974) [Solange] 269 BVerfGE 37, 1 (1974) [Weinwirtschaftsabgabe] 123 BVerfGE 39, 210 (1975) [Mühlenstrukturgesetz] 123 BVerfGE 39, 1 (1975) [Abortion I ] 141 BVerfGE 43, 130 (1976) [Flugblatt] 137 BVerfGE 46, 160 (1977) [Schleyer] 335 BVerfGE 50, 290 (1979) [Mitbestimmung] 130, 131, 146 BVerfGE 51, 324 (1979) [Verhandlungsunfähigkeitsbeschluss] 275 BVerfGE 54, 208 (1980) [Böll] 138 BVerfGE 54, 129 (1980) [Kunstkritik] 138 BVerfGE 56, 54 (1981) [Fluglärm] 141 BVerfGE 61, 1 (1982) [Wahlkampf ] 138 BVerfGE 67, 154 (1984) [Überwachungsgesetz] 122 BVerfG 3 CMLR 1987, 225 (1987) [Solange 2 ] 269 BVerfGE 81, 157 (1990) [Arbeitsförderungsgesetz] 121, 340 BVerfGE 86, 1 (1992) [Titanic] 134, 138, 203, 249, 250, 251, 266 BVerfGE 85, 248 (1992) [Ärztliches Werbeverbot] 124, 133 BVerfGE 88, 203 (1993) [Abortion II ] 142, 335 BVerfGE 90, 241 (1994) [Auschwitzlüge] 137, 139 BVerfGE 93, 1, 21 (1995) [Kruzifix] 7 BVerfGE 93, 266 (1995) [Soldaten sind Mörder] 137 BVerfGE 94, 372 (1996) [Apothekenwerbung] 123 BVerfG NJW 1996, 651 (1996) [Ground Near Ozone] 141 BVerfG NJW 1996, 651 (1996) [Speed Limits] 141 BVerfGE 95, 173 (1997) [German Tobacco Labelling] 123, 124, 128, 308 BVerfG NJW 1999, 204 (1998) [Verunglimpfung des Staates] 137 BVerfGE 97, 391 (1998) [Missbrauchsvorwurf ] 137 BVerfG NJW 1999, 2358 (1999) [Greenpeace] 137 BVerfG, 1 BvR 608/99, 31 October 2000 (Elektroeinzelhändler) 126 BVerfG NJW 2000, 3413 (2000) [Berufsunwürdiges Verhalten] 137 BVerfG NJW 2000, 2413 (2000) [IM-Liste] 137 BVerfGE 102, 347 (2000) [Benetton Werbung] 137 BVerfG NJW 2001, 3613 (2001) [Ironischer Pressekommentar] 137 BVerfG NJW 2001, 3403 (2001) [Therapeutische Äquivalenz] 138 BVerfG NJW 2001, 2957 (2001) [Kaisen] 137 BVerfG NJW 2002, 3767 (2002) [Bonnbons] 137 BVerfG NJW 2002, 1187 (2002) [Produktwerbung] 137

xxxiii

Table of Cases BVerfGE 111, 10 (2004) [Ladenschluss] 123 BVerfG, 1 BvR 1730/02 , 5 January 2005 (Zimmerhandwerk) 126 BVerfG, 1 BvR 357/05, 15 November 2006 (Aeroplane) 326, 331, 332, 333, 334, 347

German Courts RGZ 111, 320 (1925) [Aufwertungsgesetz] 119 BGHZ 85, 64 (1982) [BGHZ 85, 64 ] 66 LG Frankfurt NJW 2005, 692–6 (2004) [Daschner]

326

US Supreme Court Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803) 6, 7, 147, 148 Lochner v. New York, 198 U.S. 45 (1905) 6, 150, 321 United States v. Carolene Products Co., 304 U.S. 144 (1938) 150 Railway Express Agency v. People of the State of New York, 33 U.S. 106 (1949) 150 Williamson v. Lee Opticals, 348 U.S. 483 (1955) 7, 157 Griswold v. Conneticut, 381 U.S. 479, 85 (1962) 152 Baker v. Carr, 369 U.S. 186 (1962) 152 Ferguson v. Skrupa, 372 U.S. 726 (1963) 6 Shapiro v. Thompson, 394 U.S. 618 (1969) 153 Dandridge v. Williams, 397 U.S. 471 (1970) 150, 151 San Antonio Independent School District v. Rodiriguez, 411 U.S. 1 (1973) 150 Roe v. Wade, 410 U.S. 113, 99 (1973) 149, 160 F. David Mathews, Secretary of Health, Education and Welfare v. George H. Eldridge, 424 U.S. 319 (1976) 156 Craig v. Boren, 429 U.S. 190 (1976) 153 Minnesota v. Clover Leaf Creamery Company, 289 N.W.2d 79 (1979) 150 Abby Gail Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18 (1981) 156 Plyler v. Dole, 457 U.S. 202 (1982) 150 United States v. Rosa Elivra Montoya de Hernandez, 473 U.S. 531 (1985) 155, 156 Tennessee v. Cleamtee Garner, etc. et al, 471 U.S. 1 (1985) 155 New Jersey v. T.L.O., 469 U.S. 325 (1985) 156 Dolan v. City of Tigard, 512 U.S. 374 (1994) 154 Boerne v. Flores, 521 U.S. 507 (1997) 147

xxxiv

Part I

Foundations

Introduction This study tries to clarify the conditions under which legislative Community acts can be annulled on grounds of violations of fundamental rights and the principle of proportionality. Fundamental rights and proportionality have evolved as standards of review of Community acts. Both are regarded as general principles of Community law, while proportionality is the older principle. In a very early judgment,1 the Court has first introduced it and applied it ever since, even to legislative Community acts.2 Fundamental rights are rights of the individual against the Community, which protect several aspects of one’s life. In Community law, economic rights are of particular interest, namely the right to property and the freedom to choose an occupation and to engage in work. The Court first employed fundamental rights as review standards in the Handelsgesellschaft 3 case. Ever since, they constitute review standards of Community legislation.4 Although the Court has applied these standards for decades (50 years in the case of proportionality, 40 years in case of fundamental rights), their application is deemed unsatisfactory by many scholars. In connexion with fundamental rights, the Court is not applying the law strictly enough, leaves too much discretion to the legislature, and does not adequately consider rights.5 In this connexion, 1 Case 6/54, Kingdom of the Netherlands v. High Authority of the European Coal and Steel Community [1955] ECR 103 (English Special Edition). 2 For example, Joined Cases C–254/94, 255/94 and C–269/94, Fattoria autonoma tabbacchi et. al. v. Ministero dell’Agrigolture e dellle Foreste et. al. [1996] ECR I–4235, para. 55; Case 265/87, Hermann Schräder HS Kraffutter GmbH & Co. KG, Ochtrup v. Hauptzollamt Gronau [1989] ECR 2237, para. 21; Case C–331/88, Fédération européenne de la santé animale (Fedesa) et al. v. The Minister for Agriculture, Fisheries and Food and The Secretary of State for Health [1990] ECR I–4023, para. 13; Case C–180/96, United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities [1998] ECR I–2265, para. 97 (henceforth cited: BSE); Case 44/79, Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, para. 5; Case C–491/01, British American Tobacco v. Secretary of State for Health [2002] ECR I–11453, para. 149 (henceforth cited: Tobacco Labelling); Case C–92/89, Zuckerfabrik Soest v. Hauptzollamt Paderborn [1991] ECR I–415, para. 73; Case C–183/95, Affish BV v. Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I–4315, para. 42; Case C–306/93, SMW Winzersekt GmbH v. Land Rheinland-Pfalz [1994] ECR I–5555, para. 22. 3 Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125, para. 4. 4 For example, Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. 5 Angelika Emmerich-Fritsche, Der Grundsatz der Verhältnismäßigkeit als Direktive und Schranke der EG-Rechtsetzung: Mit Beiträgen zu einer gemeineuropäischen Grundrechtslehre sowie zum Lebensmittelrecht (Duncker & Humblot, Berlin, 2000), p. 224; Margit Bühler, Einschränkung von Grundrechten nach der Europäischen Grundrechtecharta (Duncker & Humblot, Berlin, 2005), p. 205; Stefan Storr, ‘Zur Bonität des Grundrechtsschutzes in der Europäischen Union’ 36 (1997) Der Staat, p. 547, pp. 558–9; Martin Nettesheim, ‘Grundrechtliche Prüfdichte durch den EuGH’ 1995 Europäische Zeitschrift für Wirtschaftsrecht, p. 106, p. 107.

Introduction proportionality is so important because the Court acknowledges that rights are subject to limitations, but the limitations in turn must not amount to a disproportionate burden for the individual.6 In fact, it is the application of this principle that evokes critique. Critics of the Court have a certain proposition of the application of the proportionality principle. It manifests itself in the Principle Theory of fundamental rights, developed by Robert Alexy.7 Departing from this standard, they believe that the Court is not properly applying the proportionality principle and, hence, fails to protect rights adequately.8 The application of the proportionality principle involves balancing. The stricter the principle is applied, the less discretion legislators enjoy, and vice versa. Too strict an application can thus remove discretion entirely, a consequence that is largely deprecated, at least in context of nation-states. The problem is how to deal with it under Community law. The purpose of this study is thus to develop a model of the application of rights and proportionality, one that considers the right balance between powers of government. To do so, it must also establish whether Principle Theory is an adequate foundation for such a model, as critics believe. These introductory remarks presented three critical concepts: fundamental rights, proportionality, and balance between powers of government. They need some clarification. Fundamental rights are general principles of Community law. Although one could interpret ‘fundamental rights’ to cover both, human rights and fundamental freedoms of the Common Market, this study confines itself to the former class of fundamental rights because its concern is the relationship between the legislature and the judiciary and because fundamental freedoms have only little importance in this relationship.9 Fundamental rights thus understood protect the individual against certain encroachments. For the purpose of this study, the most important are the right to property and the right to choose an occupation and to engage in work because the Community usually regulates economic relationships and social services.10 For the interpretation of these rights, art. 6 § 1 and 2 Treaty on Establishing the European Union (TEU) requires that the traditions of the Member States and the Convention be taken into account. The right to property protects established rights, not market shares 6 Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. 7 Robert Alexy, Theorie der Grundrechte (Suhrkamp, Frankfurt am Main, 1994) 8 Pauly, ‘Strukturfragen des unionsrechtlichen Grundrechtsschutzes: Zur konstitutionellen Bedeutung von Art. F. Abs. 2 EUV’ 3 (1998) Europarecht, p. 242, pp. 257–60 or EmmerichFritsche, supra note 5, p. 69; Storr, supra note 5, pp. 558–9; Nettesheim, supra note 5, pp. 106–7. 9 But cf. BSE, supra note 2. 10 See art. 32 (agricultural policy), 70 (transport policy), 81 (competition and taxation), 94 (approximation of laws for the functioning of the common market), 98 (economic policy), 125 (employment), 131 (common commercial policy), 157 (industry), etc.

4

Introduction or opportunities on the market.11 Typical infringements are those that restrict the use of property.12 The other protects the pursuit of economic activities, e. g. selling tobacco products or using a label for one’s product.13 The latter right can be infringed in many ways, e. g. by the imposition of levies,14 by restricting the use of labels or designations,15 by limiting the production of agricultural goods,16 or by altering the competitive position of operators.17 The Court usually focuses on the justification step, not on the interpretation of rights,18 and so will this study. Yet it is criticized that the Court does not properly define the scope of rights. 19 In focusing on the justification step, the Court follows an international tendency.20 The justification step is necessary, because rights are not absolute but allow for limitations. Yet the principle of proportionality poses some limits on the power to limit rights. The proportionality principle can be applied in connexion with fundamental rights or independently. In the former case it requires that measures shall serve the public interest, be suitable and necessary for the attainment of that goal, and shall not impose intolerable and disproportionate burdens impairing the very substance of the right involved.21 The requirement is similar if proportionality is applied independently. It is required that measures be suitable to serve a public interest, that they shall not go beyond what is necessary to attain that aim, and that the disadvantages must not be disproportionate to the aims.22 Hence, the principle, comprises three elements: suitability, necessity, and proportionality 11 Case C–210/03, Swedish Match UK Ltd v. Secretary of State for Health [2004] ECR I–11893, para. 73; Winzersekt, supra note 2, para. 23; Case 280/93, Federal Republic of Germany v. Council of the European Union [1994] ECR I–4973, para. 79 (henceforth cited: Bananas). 12 Hauer, supra note 2, para. 7; Tobacco Labelling, supra note 2, para. 150. 13 Swedish Match, supra note 11, para. 73; Winzersekt, supra note 2, para. 24. 14 Zuckerfabrik Soest, supra note 2, para. 76. 15 Winzersekt, supra note 2, para. 24. 16 Case C–63/93, Fintan Duff, Liam Finlay, Thomas Julian, James Lyons, Catherine Moloney, Michael McCarthy, Patrick McCarthy, James O’Regan, Patrick O’Donovan v. Minister for Agriculture and Food and Attorney General [1996] ECR I–569, para. 30. 17 Bananas, supra note 11, para. 81. 18 Schräder, supra note 2, para. 3; Tobacco Labelling, supra note 2, para. 149; Joined Cases C–453/03, C–11/04, C–12/04 and C–194/04, ABNA Ltd et al. v. Secretary of State for Health et al. [2005] ECR I–10423, para. 88; Swedish Match, supra note 11, paras. 73–4; Hauer, supra note 2, paras. 4, 5; Winzersekt, supra note 2, para. 24. 19 Emmerich-Fritsche, supra note 5, p. 224; Bühler, supra note 5, p. 205; Storr, supra note 5, p. 559; Nettesheim, supra note 5, p. 107. 20 David M. Beatty, ‘Human Rights and the Rules of Law’, in: Beatty, David M. (ed.): Human Rights and Judicial Review: A Comparative Perspective (Martinus Nijhoff Publishers, Dordrecht, 1994), p. 1, pp. 18–9. 21 Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. This standard is also implicitly applied in Duff, supra note 16, para. 30. 22 Fattoria, supra note 2, para. 55; Schräder, supra note 2, para. 21; Fedesa, supra note 2, para. 13; BSE, supra note 2, para. 97.

5

Introduction in the narrow sense. It is also required that the aim be legitimate. However, this aspect is not assessed in connexion with proportionality but as a separate review step.23 Usually, the first two elements are applied separately,24 while the last element is usually always found in connexion with fundamental rights appraisal.25 The scrutiny of legislative acts by the Court, which is necessary to enforce the rights, obviously raises the relationship between the Court and the legislative. The extent of the debate depends on the legal framework. Where judicial review is not explicitly provided for, e. g. in the USA and the former Weimar Republic, nearly every aspect is debated: Should there be review at all? 26 If yes, should it be confined to formal aspects? In the 19th century in Germany, review was limited to establish whether statutes were properly proclaimed and publicized;27 the observation of other rules of procedure could not be enforced.28 If review should extent to substantial aspects, then further differentiations are possible: should review encompass the setting of policy objectives, the assessment of facts,29 and/or the expediency of the measure at issue?30 Again, answers to these questions can be differentiated: Review of facts may be admissible in principle but limited discretion may be granted if facts are complex. A similar conception could be applied to the setting of policy objectives or judging the expediency of a measure.31

23

Bananas, supra note 11, paras. 48–9; Tobacco Labelling, supra note 2, paras. 60–2; Case 84/94, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union [1996] ECR I–5755, paras. 11–17 (henceforth cited: Worker’s Health); Schräder, supra note 2, paras. 7–11; Case C–367/98, Federal Republic of Germany v. European Parliament and Council of the European Union [2000] ECR I–2247, paras. 76–84 (henceforth cited: Tobacco Advertisement). 24 For example, ABNA, supra note 18, paras. 69–85. 25 Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22; Schräder, supra note 2, para. 15; Hauer, supra note 2, para. 29. 26 Larry D. Kramer, ‘Marbury at 200: A Bicentennial Celebration of Marbury v. Madison. Marbury as History. Marbury and the Retreat from Judical Supremacy’ 20 (2003) Constitutional Commentary, p. 205, pp. 207-8; Kathleen M. Sullivan and Gerald Gunther, Constitutional Law (Foundation Press, New York, 14th edn., 2001), p. 13; Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), p. 177. 27 Gerhard Anschütz, Die Verfassung des Deutschen Reichs (Georg Stilke, Berlin, 14th edn., 1933), p. 371. 28 Christoph Gusy, Richerliches Prüfungsrecht: Eine verfassungsgeschichtliche Untersuchung (Duncker & Humblot, Berlin, 1985), pp. 37, 39, 41. 29 Fritz Ossenbühl, ‘Die Kontrolle von Tatsachenfeststellungen und Prognoseentscheidungen durch das Bundesverfassungsgericht’, in: Starck, Christian (ed.): Bundesverfassungsgericht und Grundgesetz (Mohr, Tübingen, 1976), p. 458, p. 462. 30 Ferguson v. Skrupa, 372 U.S. 726 (1963), p. 730; Lochner v. New York, 198 U.S. 45 (1905). 31 Worker’s Health, supra note 23, para. 23.

6

Introduction The deeper justification of judicial review is that constitutions would not be effective if they were not legally enforced by the Courts.32 Correspondingly, art. 220 Treaty Establishing the European Community (TEC) forces the Court to enforce the law of the Treaty. The principal argument against judicial review in a national setting is that it is undemocratic. Indeed, Courts justify deferential review with democracy considerations.33 A similar justification can also be found in the case law of the Court: In examining the arguments put forward by SAM and Mr Stapf, it is important to bear in mind the limits of the Court’s power to review legislative measures adopted by the Council. Those limits arise from the fundamental principle of the separation of powers within the Communities. Where the Treaty has conferred wide legislative powers on the Council, it is not for the Court to substitute its own assessment of the economic situation or of the necessity or suitability of the measures adopted for those of the Council. By doing so it would usurp the legislative role of the Council by imposing its own views of the economic policies to be pursued by the Communities.34

Yet the problem differs slightly in Community law, because the Community suffers from a democratic deficit. This allows critics to argue that Community legislators deserve less discretion than national legislators under comparable conditions, because it is democratic legitimacy that justifies discretion.35 However, democratically legitimate representatives have worked out a differentiated system of legislative procedures. It is doubtful whether these representatives wanted to establish a Court that could overthrow each and every Community act.36 Besides, the Court has to enforce the law, not some form of political morality.37 These are the front-lines. Deciding the dispute depends on the following elements. Because the Court is bound to enforce the law, it must be established what the law is. If it is identical to morals then the stance of advocates of rigorous review is improved, because art. 220 TEC would not pose any limits to judicial review. It must moreover be established how law (and morality if both turn out to be identical) operates. After all, it is the application of rights and proportionality that is at issue; hence, a theory of legal reasoning is required. To increase the robustness of the doctrine of applying rights and proportionality, it is feasible to proceed in two steps: First, a common ground for the interpretation and application of law 32 See Marbury, supra note 26, p. 177, where this rationale is employed; and Hans Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ 5 (1931) Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, p. 30, pp. 78–9. 33 For example, Skrupa, supra note 30, p. 730; Williamson v. Lee Opticals, 348 U.S. 483 (1955), p. 488; BVerfGE 93, 1, 21 (Kruzifix), pp. 22–3; James and others v. United Kingdom, (1986) 8 EHRR 123, para. 46. 34 Joined Cases C–248/95 and C–249/95, SAM Schiffahrt GmbH and Heinz Stapf v. Bundesrepublik Deutschland [1997] ECR I–4475, para. 23 (Jacobs AG). 35 Pauly, supra note 8, pp. 257–8. 36 SAM Schifffahrt, supra note 34, para. 23 (Jacobs AG). 37 Cf. Worker’s Health, supra note 23, para. 23, art. 220 TEC .

7

Introduction in general should be elaborated. Second, based on these findings, a theory of applying rights and proportionality can be developed. This two-step approach is necessary, because any theory must be workable, otherwise it cannot be understood as a sound proposal. Whether it is workable, however, can only be decided with some background theory of legal reasoning—a meta-theory. For the same reasons, it is necessary to assess the approach of the Court and other courts. Based on all these findings, theoretical approaches to the application of rights and proportionality can be discussed and evaluated. In this way, this study will proceed. First, it will lay some foundations by elaborating a meta-theory of legal justification. Second, it will discuss the case law of the European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), the German Federal Constitutional Court (GFCC), and the US Supreme Court. Third, it will discuss theoretical approaches to balancing, among them Principle Theory.

8

1 Standards of Legal Reasoning In the introduction it was outlined that the proportionality principle will be regarded from a methodical point of view. Balancing concepts shall be tested against standards of legal reasoning. A meta-theory of legal justification shall provide the standards required to perform such a test. Such standards may vary depending on the complexity of the problem at hand. Two levels of complexity can be distinguished: Justification in clear cases and in problem cases. At each level of complexity, jurisprudence is faced with sceptic critique, which denies (to varying degrees) the objectivity and rationality of legal reasoning. If sceptics were right then a legitimacy problem would arise for the Court: If the text of the Treaty together with some method of legal reasoning cannot provide predictable results, then one may wonder what legitimizes the Court to declare Community acts void.38 Those who endorse strict scrutiny of legislative acts must accordingly be able to provide a method of justification on which strict scrutiny could rest. Therefore, the sceptic critique will be refuted, in a next step elements of rational argumentation will be gathered. Furthermore, sources of legal justification will be identified. Then two specific methods for the application of the proportionality principle will be presented: Principle Theory and its anti-thesis. At first, however, we shall roughly define what is understood by ‘legal’ for the rest of this study. Then I shall discuss the process of legal reasoning in general; the concept of deductive or syllogistic reasoning; and its role for legal justification.

1.1

Nature of Law

According to the introduction, it is required that this study shall elaborate a proposition of law and the separation of law and morals, because it determines the set of legally relevant arguments. For the purpose of this chapter and the rest of this study law should be understood as: A system of norms that either impose obligations that are backed by sanctions or that regulate the creation, change, recognition, or enforcement of norms of the former type.39 It is a system, because all norms are derived from an ultimate and superior fundamental norm 38 Cf. Mark Tushnet, Taking the Constitution Away From the Courts (Princeton University Press, Princeton, NJ, 2000); cf. Ingeborg Maus, Zur Aufklärung der Demokratietheorie (Suhrkamp, Frankfurt am Main, 1st edn., 1994), pp. 303, 305, 335–6. 39 H.L.A. Hart, The Concept of Law (Oxford University Press, London, 2nd edn., 1994), pp. 79–110; Klaus F. Röhl and Hans Christian Röhl, Allgemeine Rechtslehre: Ein Lehrbuch (Heymanns, Köln, 3rd edn., 2008), p. 190; Jürgen Habermas, Faktizität und Geltung (Suhrkamp, Frankfurt am Main, 2nd edn., 1992), pp. 147–8 [114–6].

Chapter 1. Standards of Legal Reasoning (rule of recognition).40 The validity of law can be defined in three ways:41 (a) Law is valid if it conforms to some requirements of justice. (b) Law is valid if it is derived from a valid superior norm. (c) Law is valid if certain social facts, like habitual obedience or institutional support, obtain.42 Because European Community (EC)-law is law according to all three definitions, it need not be decided which one is more adequate. This definition requires some explanation. The definition mainly aims at distinguishing legal norms from other norms. Legal norms differ from Moral Norms Moral norms express universal claims about what is right and just, i. e. they transcend individuals and cultural contexts—even the norm “Every society should define for itself what is right and just.” is such a norm. They differ from legal norms because they lack sanctions and an organizational structure which implement it.43 Ethical Norms Ethical norms express what is right for the pursuit of an individual plan of life. They differ from law (and morals) because they are addressed at one person only.44 Political Norms Political norms express what is good for a particular society. As well as morals, political norms are not backed by sanctions and are not enforced by an organized structure.45 Social Norms Social norms express behavioural expectations. Although legal norms may be understood in this sense, they are very special social norms because they are enforced by some accepted authority.46

This distinction is not compelling. Others distinguish only between morality (i. e. moral and political norms) and conceptions of good life (i. e. ethical and social norms), as many liberals do.47 Distinguishing between different kinds of norms does not imply that legal norms may not be congruent with the contents of one of these norms. However, there is no necessary connexion between valid law and other norms.48 Moreover, nothing has been said about the relationship between law and other sets of norms. At this point it is left open, whether legal norms must conform

40

Hart, supra note 39, p. 101. See Alexy, supra note 7, pp. 49 [27]. 42 Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford University Press, Oxford, 2005), pp. 2–7; Joxerramon Bengoetxea, ‘Institutions, Legal Theory and EC Law’ 77 (1991) Archiv für Rechts- und Sozialphilosophie, p. 195, p. 196; cf. Hart, supra note 39, p. 117. These authors combine (b) and (c), since the social fact only has to support the ultimate rule. 43 Röhl and Röhl, supra note 39, p. 190; Habermas, supra note 39, pp. 200 [161–2], pp. 147–8 [114–6]. 44 Ibid., pp. 198–9 [160–1]. 45 Ibid. 46 Hart, supra note 39, pp. 17–19; Röhl and Röhl, supra note 39, p. 190; Habermas, supra note 39, pp. 47 [29–30]. 47 See Ted Honderich, The Oxford Companion to Philosophy (Oxford University Press, Oxford, 1995), s. v. ‘liberalism’. 48 Hart, supra note 39, pp. 185–6. 41

10

1.2 Clear Cases—Hard Cases to moral norms,49 whether judges may have recourse to moral arguments,50 or whether law may cover ethical questions. This is possible because this definition of law is that of an observer who is neutral towards law. The perspective is thus external, in particular, a validity statement does not imply a statement on moral rightness. It is rather a statement of fact. 51 The validity of a rule of recognition cannot be assessed in terms of legal validity,52 because that would be circular. Furthermore, this definition does not try to explain whether, under which conditions, and to which extent arguments that are not based on legal norms may be introduced into a legal argumentation. At any rate, you should not read any philosophical convictions into this definition. What is most important for the course of this study are two questions: (i) Which arguments play a role in a legal discourse and (ii) how are they operated with? This study focuses on the second question and will only discuss the first one as far as necessary. Thus, this definition does not express the result of a discussion of these problems, but is its starting point.

1.2

Clear Cases—Hard Cases

Today, the distinction between clear and so-called hard cases seems to be a centre of gravity for some scholars.53 Justification in hard cases differs from justification in clear cases. From a sceptic stance, this distinction might not be a useful one, and some may wonder whether it is workable. The purpose of this section is to discuss it with an eye kept on the application of fundamental rights. MacCormick refers to hard cases as problem cases;54 here, both terms will be used interchangeably. Hard cases can occur under the following circumstances: • There may be no statute or precedent (assuming their being a source of law) applicable in this case.55 49 Karl-Otto Apel, ‘Das Apriori der Kommunikationsgemeinschaft und die Grundlagen der Ethik’, in: Apel, Karl-Otto (ed.): Transformation der Philosophie: Das Apriori der Kommunikationsgemeinschaft (Suhrkamp, Frankfurt am Main, 1999), p. 358, p. 375; Habermas, supra note 39, pp. 48–9 [30–1]. 50 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’ 71 (1958) Harvard Law Review, p. 593, p. 608; Hart, supra note 39, p. 204; Robert Alexy, Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung. Nachwort: Antwort auf einige Kritiker (Suhrkamp, Frankfurt am Main, 2nd edn., 1991), p. 347. 51 Hart, supra note 39, pp. 242–3. 52 Ibid., p. 110; Ronald Dworkin, Taking Rights Seriously (Duckworth, London, 3rd edn., 1981), p. 21. 53 Hart, supra note 50, pp. 614–5; MacCormick, supra note 42, pp. 49–52; Joxerramon Bengoetxea, The Legal Reasoning of the European Court of Justice (Clarendon Press, Oxford, 1993), pp. 168–9. 54 Rhetoric and the Rule of Law: A Theory of Legal Reasoning 168. 55 Dworkin, supra note 52, pp. 14, 17; Alexy, supra note 50, pp. 17–8; José Juan Moreso,

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Chapter 1. Standards of Legal Reasoning • • • •

Legal language is vague.56 Norms may conflict and it must be decided which one is applicable in a case.57 It is possible to decide against the explicit wording of a provision.58 The validity of legal rules may be questioned.59

Methods of interpretation alone are unlikely to resolve these issues, because it is not clear how many exist, how they should be ordered hierarchically, and because they themselves are vague.60 Although these cases still require the syllogistic application of norms, this mode of justification is not sufficient, because the premisses of the syllogism require justification (so-called material justification). The work of scholars like Dworkin or Alexy and others was dedicated to show that in these cases legal reasoning is still a rational and objective procedure and not arbitrary. Which kinds of arguments apply in these cases will be discussed in the rest of this chapter. Clear cases are cases where such problems do not arise. Although material justification, i. e. the justification of the premisses, is still necessary, it happens implicitly and is not controversial.61 These cases are also called routine cases.62 The feasibility of this distinction can be questioned from two points of view: (a) A radical sceptic may deny that rules provide any guidance in clear cases63 and that objectivity in so-called hard cases is not possible;64 hence, the distinction is a sham because it pretends the existence of rationality in a field that cannot be objectively assessed.65 According to this view, all cases are results of subjective considerations. 66 (b) According to anti-positivist critique, the distinction obfuscates that in all cases a moral consideration is indeed Legal Indeterminacy and Constitutional Interpretation (Kluwer Acad. Publ., Dordrecht, Boston, London, 1998), pp. 88–9; Bengoetxea, supra note 53, p. 168. 56 Alexy, supra note 50, pp. 17–8; Hart, supra note 39, p. 126; Joseph Raz, ‘Legal Principles and the Limits of Law’ 81 (1972) Yale Law Journal, p. 823, p. 846; Bengoetxea, supra note 53, p. 168. 57 Moreso, supra note 55, pp. 88–9; cf. Bengoetxea, supra note 53, p. 134; Alexy, supra note 50, pp. 17–8; Hart, supra note 39, p. 126; Moreso, supra note 55, pp. 88–9; Bengoetxea, supra note 53, p. 168. 58 Alexy, supra note 50, pp. 17–8. 59 Hart, supra note 39, p. 148. 60 Alexy, supra note 50, pp. 19–20; Hart, supra note 39, p. 126; Raz, supra note 56, p. 846. 61 Bengoetxea, supra note 53, pp. 167–8. 62 Ibid., p. 168. 63 Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ 11 (1989–90) Cardozo Law Review, p. 921, p. 961 could be read in this way: “each decision is different and requires an absolutely unique interpretation”. (1. aporia); Karl-Heinz Ladeur and Ingo Augsberg, ‘Auslegungsparadoxien: Zu Theorie und Praxis juristischer Interpretation’ 2005 Rechtstheorie, p. 143, p. 157. 64 This is definitely meant by Derrida, supra note 63, p. 967: “The instant of a decision is madness.” and “[T]he decision would be structurally finite . . . acting in the night of non-knowledge and non-rule” (3. aporia); Ladeur and Augsberg, supra note 63, pp. 147, 152, 157. 65 Cf. ibid., p. 150. 66 See Section 1.4 for a discussion of legal scepticism.

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1.3 Syllogism and Deductivism necessary, namely to classify a case as clear or hard:67 a balance between appropriateness and certainty must be found in every case. The sceptic critique will be dealt with in Section 1.4. The anti-positivist criticism is valuable because it shows that the distinction between clear and problem cases is not always obvious and requires judgement. However, these objections cannot shake the positivist distinction between law and morals, because appropriateness and legal certainty are legal values. Nor can the objection question the rationality of legal reasoning, if it can be shown that these classifications can be justified rationally. The distinction between clear and hard cases is pragmatic. A case is a problem case if parties challenge certain premisses and if this challenge is not rejected at the outset. Therefore, it cannot be universally stated whether a case is clear or hard.68 Fundamental rights cases are often problem cases,69 though not always in their entirety. Usually the problems concern the justification of interferences, i. e. proportionality. The distinction between clear and hard cases is at least useful from an analytical point of view, because scepticism can be directed at the solution of hard cases only or of clear cases and hard cases.

1.3

Syllogism and Deductivism

It has just been outlined that legal reasoning in clear cases and problem cases differs because problem cases require explicit material justification (of the premisses). But in both kinds of cases, the starting point of legal justification is syllogistic reasoning. It can formally be described in this way:70 1. ∀x: If x is an f , then the (legal) consequence c ought to occur. 2. a is an f . 3. Consequence c ought to occur.

This form of justification is called internal or formal justification because the validity of the premisses is not verified.71 Its structure is similar to predicate logic, although there are important differences to the latter. However, I will not go into the details of deontic logic here.72 Of greater interest are the problems 67

Fernando Atria Lemaître, On Law and Legal Reasoning (Hart, Oxford, 2001), pp. 165,

167. 68

MacCormick, supra note 42, p. 52; Bengoetxea, supra note 53, p. 184. Lorenzo Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA (Oxford University Press, Oxford, 2008), p. 116. 70 See for example Alexy, supra note 50, p. 274. 71 Ibid., p. 275; Bengoetxea, supra note 53, p. 171; MacCormick, supra note 42, p. 33; Aulis Aarnio, On Legal Reasoning (Turun Yliopisto, Turku, 1977), pp. 53–5. 72 See Georg Henrik von Wright, ‘A New System of Deontic Logic’, in: Hilpinen, Risto (ed.): Deontic Logic: Introductory and Systematic Readings (Reidel, Dordrecht, Boston, London, 2nd edn., 1981), p. 105; Aarnio, supra note 71, pp. 53–5. 69

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Chapter 1. Standards of Legal Reasoning related to legal reasoning in general. Syllogistic reasoning requires two steps: One must identify the meaning of the norm in question and one must show that the particulars of a case instantiate the universals that are expressed by a norm.73 It is nowadays undisputed that formal justification does not exhaust legal reasoning, because law cannot be applied mechanically and allows for different interpretations (see Section 1.2).74 Shortly, there are circumstances that make cases problem cases, because of difficulties on the normative side of the problem. Empiric problems left aside (establishment of facts), there is another category of difficulties in the application of a norm: problems of classification. A nondeductive value judgement is required to determine that a is an instance of the universal f .75 Its non-deductive nature makes rationality more difficult to achieve but not impossible; the rest of this chapter will clarify under which conditions non-deductive value-judgements can be rational. Actually, problems of classification can often determine whether a case is a problem case.76 To summarize, there are the following defects of this model: (a) Norms always require interpretation and their validity may often be questioned. (b) Depending on the chosen classification, a norm may not be available; therefore, judges may be forced to find (or create) new norms. (c) It is unclear which norm is applicable. There are two approaches to these defects of the deductive model of legal reasoning. The most radical one (scepticism) is to deny that deductivism can at all convey objectivity of legal reasoning. Even in so-called clear cases, deductive reasoning is not objective—if clear and hard cases are, after all, distinguishable. We shall deal with scepticism in the next section. According to another approach, there are two models of legal justification. The first is represented by syllogism and subsumption. There are many cases where justification indeed works in this way. However, there are cases where the structure of the applicable norms requires an altogether different way of reasoning: balancing. This is the approach of Principle Theory.77 Despite the deficits of the deductive scheme, many scholars argue that the syllogistic model is still important. It serves as a framework that determines which premisses need to be justified and which facts are (potentially) relevant.78 73

MacCormick, supra note 42, p. 36. Massimo la Torre, ‘Theories of Legal Argumentation and Concepts of Law. An Approximation’ 15 (2002) Ratio Juris, p. 377, pp. 380–1; MacCormick, supra note 42, p. 30. 75 la Torre, supra note 74, p. 380; Atria Lemaître, supra note 67, pp. 172–84; Aarnio, supra note 71, pp. 63–70; MacCormick, supra note 42, pp. 70–2. 76 Cf. Atria Lemaître, supra note 67, pp. 182–3. 77 Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’ 16 (2003) Ratio Juris, p. 433; Alexy, supra note 7, pp. 145 [101–2]; Hege Stück, ‘Subsumtion und Abwägung’ 84 (1998) Archiv für Rechts- und Sozialphilosophie, p. 405, p. 405. 78 Alexy, supra note 50, p. 275; Bengoetxea, supra note 53, pp. 172–3; MacCormick, supra note 42, pp. 32–48. 74

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1.3 Syllogism and Deductivism The additions to the syllogistic model are commonly referred to as external justification.79 External justification is principally characterized as non-deductive80 and at least partly as a subset of practical reasoning.81 ‘External’ in no way means ‘non-legal’ but simply “external to the formal scheme of deductive justification”. Because of this ambiguity I will use the more precise term ‘material justification’. MacCormick uses the term ‘rhetoric’ and understands it as the search for good arguments in a practical discourse on the background of the rule of law.82 I will not use this term because it is quite ambiguous. It often refers to the art of persuasive speaking and writing. For persuasive arguments need not be convincing arguments, the expression can be misleading. Atria Lemaître stresses that material justification is always necessary, even if a case seems to be clear because the classification as clear already is a value judgement in the context of material justification.83 Neither should the importance of syllogistic reasoning be underestimated nor should it be overstated. It is never—even in so-called clear cases—sufficient. However, it always provides the framework for legal reasoning, even in hard cases, and even in those problem cases where a norm that can serve as a major premiss is missing. In that case, it is the goal of material justification to find (or create) such a norm.84 As it has just been mentioned, material justification in the deductive scheme requires non-deductive evaluations regarding legal questions and empiric matters. Aarnio et al. have characterized these steps in reasoning as transformations (others refer to them as ‘jumps’).85 A transformation takes place if p is adduced as a reason for q, although the latter does not logically ensue from the former.86 However, this ‘jump’ can be justified in a deductive manner if a transformation rule can be adduced.87 A minimal transformation rule may be p → q. This rule can be universalized (∀x : px → qx), and further rules can be founded on it.88 Weinberger questioned the utility of transformations as a description or explanation of legal reasoning because of methodical issues89 and because he 79

Alexy, supra note 50, p. 273; Bengoetxea, supra note 53, pp. 172–3. la Torre, supra note 74, p. 380; Bengoetxea, supra note 53, p. 170. 81 la Torre, supra note 74, p. 380; Alexy, supra note 50, pp. 333–4. 82 MacCormick, supra note 42, pp. 7, 17. 83 Atria Lemaître, supra note 67, pp. 182–3. 84 Alexy, supra note 50, p. 275. 85 The concept of transformation can be dated back to Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (Duncker & Humblot, München, 6th edn., 1993), pp. 37 [31]. 86 Aulis Aarnio et al., ‘Grundlagen juristischer Argumentation’, in: Krawietz, Werner and Aarnio, Aulis (eds.): Metatheorie juristischer Argumentation (Duncker Humblot, Berlin, 1983), p. 9, pp. 14 [138]. 87 Ibid., pp. 16 [139]. 88 Ibid., pp. 15 [138–9], n. 15. 89 Ota Weinberger, ‘Logische Analyse als Basis juristischer Argumentation’, in: Krawietz, Werner and Aarnio, Aulis (eds.): Metatheorie juristischer Argumentation (Duncker Humblot, 80

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Chapter 1. Standards of Legal Reasoning believed that it was inappropriate to transform legal reasoning in this field into a deductive structure.90 The methodical problems are mainly the following:91 • In which occasions are transformations necessary? • From where can one ‘jump’? • How does one perform a ‘jump’, i. e. what determines the direction and how does one find correct results?

The rest of this chapter is concerned with finding an answer to these questions for legal reasoning in general. At this point, a terminological clarification seems due: In the course of this study the terms ‘value judgement’ or ‘evaluation’ will be used. These are opposed to ‘facts’. If it is said that something is a value judgement, then this will only be an indication for the circumstance that the rightness or ‘truth’ of value judgements cannot be determined in the same way as the truth of facts or even be directly inferred from facts.92 As such it merely reflects the difference between is and ought.93 Moreover, I distinguish deductive from non-deductive value judgements. The latter are those that follow logically from norms, as it was described in this section. We have also learned in this section that the premisses of deductive inference cannot be completely justified by deductive inference, but that we also need non-deductive means of reasoning. This is what Habermas described as informal logic (informelle Logik).94 Although the rationality of non-deductive means of reasoning is more difficult to grasp, this study is based on the belief that it is nonetheless rational, or in terms of transformations: that the questions concerning ‘jumps’ can be answered. The rest of this book tries to clarify whether there are questions that cannot be answered from within a deductive framework. Three solutions are possible: (a) Balancing could indeed be an independent way of reasoning next to deductivism. (b) Moreover, it could be embedded within the deductive model as a means to justify one of the premisses. (c) Or one could deny that balancing in either form is a useful method of legal reasoning. It should be noted that deductivism does not exist for its own sake. It is only a means to ensure objective and transparent justifications by conforming to some basic principles which will be outlined later in this chapter. The question is therefore whether balancing can—alone or in conjunction with deductive methods—ensure objectivity of legal reasoning.

Berlin, 1983), p. 159, p. 164. 90 Ibid., pp. 181–2. 91 Ibid., p. 164. 92 See Jürgen Habermas, Wahrheit und Rechtfertigung: philosophische Aufsätze (Suhrkamp, Frankfurt am Main, 1st edn., 1999), pp. 271–318. 93 See David Hume, A Treatise of Human Nature, Book III, , 4 October 2007, Part. 1, section 1. 94 Jürgen Habermas, Theorie des kommunikativen Handelns vol. 1 (Suhrkamp, Frankfurt am Main, 1995), pp. 45–6.

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1.4 Scepticism: Is Rationality Possible?

1.4

Scepticism: Is Rationality Possible?

Scepticism, i. e. the denial of objectivity, poses a major threat to the legitimacy of judicial review. Those who regard legal decisions as mere products of subjective and irrational considerations cannot accept that these irrational judgments should replace the decisions of accountable bodies.95 The argument is based on two pillars. First, it is argued that laws are legitimized if and only if they are stipulated by a democratically elected body.96 Second, it is contended that interventions of constitutional courts cannot be legitimized because legal reasoning is not objective. Hence, the judgment of the court cannot be presented, not even indirectly, as expressing the will of the pouvoir constitutant.97 The latter point is decisive. Assuming for a moment that the first point is correct and given that the constitution is legitimized (because it was enacted in a democratic process) and if there is some objective link between this text and the decision of a court, then the sceptic objection must falter.98 Analogously, this consideration also applies to EC -law. Though there are legitimacy deficits, the Court is still less legitimized than the Council and the Parliament. Scepticism can affect three aspects: • Scepticism can be directed at interpretation. According to this view, legal texts do not convey objective meaning. • At least in cases where written rules do not exist it could be denied that adjudicative decision making is not governed by written rules at all. • At least in hard cases objectivity is impossible to achieve.

In terms of transformations sceptics argue that there is no starting point for a jump and that one cannot tell even the rough direction of a jump. In its extremest form, it denies the existence of objectivity even in clear cases, i. e. where transformations are not necessary.

1.4.1

Interpretative Rule Sceptics

One way to deny that there is rationality in legal reasoning is to deny that legal language, e. g. in statutes, conveys any objective meaning. This threat to rationality can have two forms. It can deny that a particular text at issue does not have an objective meaning (internal scepticism) or it can deny that legal language in general cannot have an objective meaning (external scepticism).99 An example for interpretative scepticism is the statement “The Constitution 95

Tushnet, supra note 38; Maus, supra note 38, pp. 303, 305, 335–6. Ibid., pp. 335–6. 97 Ibid., p. 306; Ingeborg Maus, ‘Vom Rechtsstaat zum Verfassungsstaat’ 49 (2004) Blätter für deutsche und internationale Politik, p. 835, p. 849. 98 This is in essence the argumentation of the Federalist Paper no. 78 (p. 492–3); see Section 2.4.1. 99 The distinction between external and internal in this connexion is also made by Ronald 96

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Chapter 1. Standards of Legal Reasoning is what the Court says it is.” (Hughes) Esser also believed that the meaning of legal words was solely and authoritatively determined by the courts.100 The scepticism presented in Hughes’ statement can be interpreted in both ways, external and internal. Internal scepticism is easiest to refute: That a statement does not mean anything is actually an interpretation, just like any other one. And as such, it must be tested against standards of interpretation as any other statement, e. g. it must be supported by reasons. It is hard to imagine that a statute or a constitutional provision does not mean anything. But often this is not what sceptics claim. Usually they claim that legal language in general does not have an objective meaning. Tentatively, ‘objective’ can be defined as being free of bias and related to a world that is independent of the speaker and is implying that there can be wrong and right interpretations. This is what external sceptics deny: Interpretations are laden with personal and subjective convictions and it cannot be shown that an interpretation is either right or wrong, i. e. objective.101 Denying objectivity of legal language is suspect to deny the objectivity of language in general. If that be true, then every external sceptic must commit a self-contradiction because the denial of objectivity is uttered in a language and the denial is certainly meant objectively. So, can the objectivity of legal language be denied but the objectivity of language in general be maintained without a self-contradiction? Can one reasonably say that the sentence “This ball is red.” has objective content but not “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.” (art. 6 TEC )? It might be argued that in the latter case thick concepts are involved, and thick concepts cannot be objective.102 Thick—or parochial—concepts are concepts that cannot be mastered by everyone, but that require special capabilities to do so; abstract normative notions are thick concepts. 103 Even if the sceptic is able to escape a self-contradiction with a reference to thick concepts, then he or she will necessarily encounter another one: The body of theories that explains what a thick concept is and the idea that there might be differences between sentences like “There is a red ball.” and art. 6 § 1 TEC is a thick concept in the first place. There is a host of linguistic theories that explain how such sentences function and there is certainly some debate within linguistic theory. So, the Dworkin, Law’s Empire (Belknap Press of Harvard University Press, Cambridge, Mass., 9th edn., 1995), pp. 78–83. 100 See Franz Bydlinski, Juristische Methodenlehre und Rechtsbegriff (Springer, Wien, 2nd edn., 1991), p. 155. 101 Mark Tushnet, ‘Legal Scholarship: Its Causes and Cure’ 90 (1981) Yale Law Journal, p. 1205, pp. 1206, 1209. 102 See Joseph Raz, ‘Notes on Value and Objectivity’, in: Leiter, Brian (ed.): Objectivity in Law and Morals (Cambridge University Press, Cambridge, 2001), p. 194, pp. 225–9 for a description of the problem. 103 Ibid., pp. 205–6.

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1.4 Scepticism: Is Rationality Possible? sceptic is objectively stating that there are thick concepts and that because art. 6 § 1 TEC refers to thick concepts, that sentence cannot have an objective meaning, i. e. he is also using thick concepts. This is contradictory, because it presupposes that there is at least one thick concept—‘thick concepts’—that does have an objective meaning and that can be used in that way.104 The result of interpretation may be that a text provides only loose limits, for example, a constitution may only roughly define a framework for legislators. However, this assessment cannot be turned against objectivity of interpretation.105 If a constitution provides large discretion for political bodies and if this is inferred from the text, then this does not demonstrate the arbitrariness of interpretation but the circumstance that the constitution at issue only provides a framework. Such arguments are at least related to transcendental arguments and the use of performative contradictions, which are used as a foundation of discourse ethics. This form of reasoning will be described in more detail in Section 1.4.3 and Section 1.7. There is yet another argument against external scepticism. In a given case with certain rules that seem to govern that case, the external sceptic will necessarily turn into an internal sceptic. According to the sceptic doctrine a sceptic judge will believe that the norm does not contribute anything to the solution of the case and will start off with subjective evaluations. Determining that a norm does not contribute anything to the case is an interpretation, may the sceptic like it or not.106 Recasting external to internal scepticism has evoked some resistance by sceptics; actually, the very distinction is believed to be unsound.107 The problems that interpretative sceptics pose are similar to those posed by sceptics in general. I will therefore postpone the debate. The discussion of this extreme form of scepticism may appear needless. It is necessary, however, to clarify an anti-sceptic stance. Interpretative scepticism is dangerous in particular, because it denies that even in clear cases there is predictability and thus does not only advocate a limitation of judicial review but does not permit it at all.108

1.4.2

Rule Sceptics

The scepticism just described only applies where written rules exist. Yet sceptics also deny that in areas that are not governed by written rules, decisions are not 104 In a similar vein Matthias Klatt, Theorie der Wortlautgrenze: semantische Normativität in der juristischen Argumentation (Nomos Verl.-Ges., Baden-Baden, 1st edn., 2004), p. 107. 105 Cf. Otto Depenheuer, Der Wortlaut als Grenze: Thesen zu einem Topos der Verfassungsinterpretation (Decker & Müller, Heidelberg, 1988), p. 41. 106 Dworkin, supra note 99, pp. 83–5 also transforms external to internal scepticism. 107 Brian Leiter, ‘Objectivity, Morality and Adjudication’, in: Leiter, Brian (ed.): Objectivity in Law and Morals (Cambridge University Press, Cambridge, 2001), p. 66, pp. 68–78. 108 Tushnet, supra note 38; Maus, supra note 38, pp. 303, 305.

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Chapter 1. Standards of Legal Reasoning made objectively. Proponents of the Critical Legal Studies Movement and some contemporary American scholars in the tradition of American Realism advocate this view.109 Hart showed that this form of scepticism is also contradictory. Proponents of this view believe that adjudicative decisions are not governed by legal rules and that there cannot be right or wrong decisions. Hart argued that rule sceptics must at least assume a rule that stipulates that any decision a judge makes shall be legally valid. 110 So, sceptics of this form have to argue why this rule is sound. This form of scepticism may not appear to be relevant for the ECJ . Yet there are decisions by the Court that do not only create law, but that create new rights, e. g. fundamental rights. Allowing the Court to grant fundamental rights in one judgment and to deny them in another one, would heavily impair the Court’s legitimacy. The consequence of the rejection of rule scepticism is that objectivity and rationality in this area are possible, though it is still open how it can be achieved.

1.4.3

Moral and Problem Case Sceptics

Scepticism can have various forms. So far, sceptics towards interpretation and the existence of rules have been discussed. Both kinds of sceptic positions belong to a more general group of sceptics. According to this general scepticism, there is no objectivity when it comes to the determination of normative judgements be they deduced from legal texts or certain moral considerations. This form of scepticism is also relevant from a positivist stance, for the following reasons: • Some legal norms may refer to moral propositions, especially where written constitutions exist.111 • At least where interpretation is inconclusive, one must rely on some proposition of what the law ought to be if the judgement not be irrational. This is necessarily a moral judgement.112

For these two reasons, problem case sceptics and moral sceptics may be treated identically, without prejudicing a separation of law and morals. Moral sceptics argue that only questions of fact can be assessed in an objective manner. Because there are no moral facts (normative statements cannot be inferred from facts alone, doing so would constitute a naturalistic fallacy113 ) there is no objectivity in moral reasoning and hence not in legal reasoning, at 109 Tushnet, supra note 101, p. 1207; cf. Katja Langenbucher, ‘Das Dezisionismusargument in der deutschen und in der US-amerikanischen Rechtstheorie’ 88 (2002) Archiv für Rechtsund Sozialphilosophie, p. 398, pp. 399–401. 110 Hart, supra note 39, p. 137. 111 Ibid., p. 204, see for example art. 1 Grundgesetz (GG) and Felix Ekardt, Zukunft in Freiheit (Schleussig Verlag, Leipzig, 2004), pp. 180–1. 112 Alexy, supra note 50, p. 347; Hart, supra note 50, p. 608; Bengoetxea, supra note 53, p. 146; cf. Leiter, supra note 107, p. 66. 113 Hume, supra note 93, Part. 1, section 1.

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1.4 Scepticism: Is Rationality Possible? least in problem cases. This is the position of Naturalists.114 Moral sceptics would agree to a suitability test, because such a test only involves questions of fact.115 In other words, questions concerning the means-end relationship could be answered in a rational way. This philosophical position can be called ‘analytical’.116 All attempts to arrive at a rational justification of the final aims will lead to a trilemma: In justifying the premisses one will • end in an infinite regress; • use a circular argument; or • interrupt the logical chain at an arbitrarily chosen point.117

A recourse to evident insights also constitutes an arbitrary interruption of the justification.118 Objectivity, as a pre-condition for rationality, can thus only be ascribed to statements about what there is anyway.119 Those who believe that there is no objectivity in moral and legal reasoning believe that objectivity is necessarily tied to mind independent facts that can influence our behaviour.120 Two issues are involved here: If objectivity is a pre-condition for rationality, what constitutes objectivity? If objectivity in morals and legal reasoning is possible in principle, how can it be achieved? Both aspects are crucial. The legitimacy problem cannot be avoided if objectivity is possible in principle but practically not achievable and, of course, one cannot conceive a method to find objective answers in a field that does not allow for objective answers.121 The whole problem can also be reformulated in terms of cognition: Sceptics claim that there is no normative cognition, while others (especially proponents of discourse ethics) claim that moral ‘cognition’ is indeed possible, although it differs from the cognition of facts.122 A first step is to refute the moral-sceptic claim, in other words: Is moral ‘cognition’ possible in principle? Then the ‘truth’-criterion must be defined. Based on these premisses, some basic moral norms can be found.123 The present section will mainly discuss the first problem, i. e. it tries to disarm the sceptic. 114

Leiter, supra note 107, pp. 91–2. Ibid. 116 Apel, supra note 49, p. 373. 117 Herbert Keuth, ‘Fallibilisumus versus transzendentalpragmatische Letztbegründung’ 1983 Zeitschrift für allgemeine Wissenschaftstheorie, p. 320, p. 321; see Karl-Otto Apel, ‘Das Problem der philosophischen Letztbegründung im Lichte einer transzendentalen Sprachpragmatik’, in: Kanitscheider, Bernulf (ed.): Sprache und Erkenntnis: Festschrift für Gerhard Frey zum 60. Geburtstag (Institut für Sprachwissenschaft der Universität Innsbruck, Innsbruck, 1976), p. 55, p. 55. 118 Ibid., p. 56. 119 Cf. Raz, supra note 102, p. 215. 120 Leiter, supra note 107, p. 79. 121 Gerald J. Postema, ‘Objectivity Fit for Law’, in: Leiter, Brian (ed.): Objectivity in Law and Morals (Cambridge University Press, Cambridge, 2001), p. 99, pp. 111–2. 122 Habermas, supra note 92, pp. 275 et seq.; Jürgen Habermas, Moralbewußtsein und kommunikatives Handeln (Suhrkamp, Frankfurt am Main, 3rd edn., 1988), pp. 73–85. 123 Ibid. approaches the problem in the same manner. 115

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Chapter 1. Standards of Legal Reasoning The truth criterion will only be sketched. The rest of this chapter will describe its elements in more detail. There are two strategies to show that scepticism is unconvincing. The first is to show that every sceptic is contradicting himself or herself by denying, on an ontological level, the objectivity of moral reasoning. The second strategy tries to show that sceptics contradict themselves because they actually do make moral claims. Sceptics claim that moral statements cannot be right or wrong, i. e. objective. Dworkin believes that one cannot make this assessment without making a moral judgement because usually sceptics do have moral beliefs.124 For Dworkin there is no difference between saying that, for example, slavery is unjust and that it is ‘objectively’ unjust. Critics argue that Dworkin misses an important distinction: Saying that something is objectively wrong is to say, that it is wrong independently of what we think it is and that this property cannot be ascribed to moral beliefs.125 And they believe that this denial of objectivity is not a moral claim, but a metaphysical or ontological claim.126 Whether or not an ontological claim about morality has substantive consequences ‘within’ morality is irrelevant form that point of view.127 One would not even make a moral claim, if one believed that the moral virtue of something is directly linked with some factual consequences (as is assumed by Utilitarian theory). 128 Moreover, sceptics need not presuppose the existence of moral ‘facts’ in order to deny their existence.129 The sceptics try to escape the anti-sceptic criticism into the realm of ontology. That escape can only be successful, though, if sceptics withdraw from the field of morals completely and forever. If they do not do so, then they will inevitably run into a self-contradiction. Anyone who denies that there are objective moral views may not by himself or herself make such a claim. Take the view of a cultural relativist who says that there is no objectivity in morals, therefore everybody should do whatever he or she pleases to do.130 This claim, however, is in itself not meant subjectively but shall be valid everywhere because the sceptic tries to show that the non-sceptic is wrong.131 And this is the reason, why every sceptic judge would contradict himself or herself. If a judge said: “There is no

124 Ronald Dworkin, A Matter of Principle (Harvard University Press, Cambridge, Mass., 1985), pp. 171–3. 125 Leiter, supra note 107, p. 69. 126 Ibid.; Alexander Dilger, ‘Ökonomik vs. Diskursethik. 10 Thesen zu Felix Ekardt’ 29 (2006) Zeitschrift für Umweltpolitik & Umweltrecht, p. 383, pp. 384–5. 127 Leiter, supra note 107, p. 72; Dilger, supra note 126, pp. 384–5. 128 Leiter, supra note 107, p. 74. 129 Ibid., p. 81. 130 Cf. Felix Ekardt, Das Prinzip Nachhaltigkeit: Generationengerechtigkeit und globale Gerechtigkeit (Beck, Munich, 2005), p. 65. 131 See ibid.

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1.4 Scepticism: Is Rationality Possible? objectivity in moral and legal reasoning, therefore any132 regulation or directive of the Council and the European Parliament ought to be valid.”,133 then this is in itself a moral or legal proposition that is meant objectively because a constitutional court has authority and a decision of such a court is not just an opinion. Yet this objective claim is grounded on the assumption that there are no objective legal and moral claims. There is yet another approach, developed by Apel, which does not even try to show that scepticism is contradictory given that one has to come to a decision. Rather, this conception aims at showing that independently of what one wants, argumentation and communication cannot be avoided and that certain normative (i. e. moral) requirements can be inferred from this circumstance.134 The construction of the whole argument is quite complex and evoked fierce critique. For one reason, this approach is not relevant at this point of this study: From the point of view of legal discourse, a sceptic who does not want to discuss and decide is simply impossible. Judges, lawyers, and advocates general are forced to give a decision or apply for a certain decision, to give reasons for their claims, and to react on these reasons. This is simply a characteristic of legal trials;135 there must not be a denial of justice. Therefore it is superfluous to justify why we have to argue in a legal discourse even if we do not want to. It may be that our whole life is defined by communication and by certain normative requirements entailed by this circumstance.136 In this study such far reaching claims need not be discussed (at least at this point). Even if some believe that answers to moral questions are neither possible nor necessary, they must give up this believe as soon as they enter the court room (or at least as soon as a case turns out to be a problem case). Otherwise they would not participate in a trial. If sceptics that have to make a decision must necessarily accept moral or legal ‘truths’ then we must ask ourselves how such a ‘truth’ must look like. ‘Truth’ is set in quotation marks to avoid the impression that moral statements have 132

That is: No substantive limitations whatsoever apply. In a similar vein, Maus, supra note 38, pp. 335–6, who claims that all laws that are stipulated by a democratically elected body should be valid (without any material limitations). Thus, she tries to free constitutional judges from moral judgements; yet this approach itself contains a legally relevant moral proposition, namely that the laws passed by a majority are always right. It is thus self-contradictory. 134 Apel, supra note 49; Karl-Otto Apel, ‘Sprechakttheorie und transzendentale Sprachpragmatik zur Frage ethischer Normen’, in: Apel, Karl-Otto (ed.): Sprachpragmatik und Philosophie (Suhrkamp, Frankfurt am Main, 1st edn., 1976), p. 10; this approach was further elaborated by Wolfgang Kuhlmann, Reflexive Letztbegründung: Untersuchungen zur Transzendentalpragmatik (Alber, Freiburg, 1985), pp. 11–104 and 181–253. 135 Cf. Alexy, supra note 50 who connects this assessment with a general theory of practical discourse. The difference to Alexy is nothing is said about other areas of practical discourse. 136 Apel, supra note 49, pp. 398–402, 414; Robert Alexy, Recht, Vernunft, Diskurs: Studien zur Rechtsphilosophie (Suhrkamp, Frankfurt am Main, 1st edn., 1995), p. 139. 133

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Chapter 1. Standards of Legal Reasoning the same objectivity conditions as statements about facts; rather, the ‘truth’ of normative statements is only treated similarly as the truth of facts.137 Indeed, it is not enough to show the contradictions of sceptic thought. How does objectivity in the moral or legal field look like, if it is not identical to the Naturalistic conception? Objectivity may be understood as a set of properties that the decision maker and the judgement must have in relation to the subject matter.138 Naturalistic objectivity focuses on the mind-independence of the subject.139 Objectivity in morals does not deny the importance of this element.140 But relying on it alone would deprive us of knowledge about many social concepts, especially law.141 Therefore it is feasible to adapt a domain-specific approach to objectivity. In case of so-called thick concepts, it is sufficient that the concept can be understood by others and that it can be deployed outside the context of its creation.142 Accordingly, a decision maker is independent if a decision is not based on circumstances peculiar to the decision maker and if a certain procedure is observed.143 Moreover, the judgement must exhibit a certain invariance or inter-subjectivity between subjects.144 And there must be validity criteria, i. e. it must be possible to find mistakes in a judgement. 145 As such, objectivity is not identical to truth or the correctness of a decision.146 It rather describes a relationship between the subject matter, the decision maker, and the outcome. Moreover, it must be possible to express disagreement in words,147 i. e. in an inter-subjective way and in this way invariance can be achieved. Objectivity is thus conveyed through reasons. These criteria are very similar, if not identical, to U the principle of universalizability developed by discourse theory and the rules of legal discourse developed by Alexy:148 Rule 5.1.1 The consequences of a rule must be acceptable even under the premise that it can be applied to oneself. Rule 5.1.2 The consequences of a rule must be universally acceptable. Rule 5.1.3 Every rule must be open and teachable. Rule 5.2.1 Moral convictions must satisfy a test of historical reconstruction: The test is not satisfied if a. they were originally rationally justified but if the reasons have lost their force over time. 137 138 139 140 141 142 143 144 145 146 147 148

Habermas, supra note 92, pp. 272–3. Postema, supra note 121, p. 105. Ibid., p. 106; Leiter, supra note 107, p. 79. Postema, supra note 121, p. 107; Raz, supra note 102, p. 200. Ibid., p. 215. Ibid., pp. 220, 223. Postema, supra note 121, p. 106; Raz, supra note 102, pp. 195–6. Postema, supra note 121, pp. 105–6; Raz, supra note 102, pp. 195–6. Postema, supra note 121, p. 107. Raz, supra note 102, p. 197; Postema, supra note 121, p. 112. Ibid., p. 108. Habermas, supra note 122, p. 103; Alexy, supra note 50, pp. 250–54.

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1.4 Scepticism: Is Rationality Possible? b. they were not originally justified and if no new reasons can be adduced to support them.

Rule 5.1.1 and rule 5.1.2 explicate U .149 These principles are, as well as U , normatively neutral. It were an error, if one would identify it with some normative requirements, such as D—the principle of democratic deliberation formulated by Habermas.150 Weinberger argued that mere procedural requirements alone could not guarantee the rationality of the outcome and that therefore such requirements had to be backed up by substantial criteria.151 The assessment is correct, but the critique misses its aim, because discourse theory does provide a set of substantial criteria, namely human rights.152 The correctness of a decision indeed depends on material criteria (see Section 1.5), however, their application and interpretation may in itself be questionable and thus material criteria alone are not conclusive. Thus, the procedural criteria of discourse theory are certainly relevant, though not alone decisive. The discussion of all variants of scepticism, relevant to this field, shows that objectivity in legal reasoning is indeed possible: In some cases either certain aspects of that case are clear or the whole case is clear because written or unwritten rules provide the relevant answers. But even when this is not the case there are still objective and rational answers possible. Sceptical doubts that are cast on the legitimacy of judicial review in general are therefore unfounded. This section only gave a rather superficial overview over the rationality conditions. The rest of this chapter is dedicated at explicating them in more detail.

1.4.4

Is There a Universal Language?—the Post-Modern Challenge

Postmodern legal theory is a stunning example of legal scepticism. It represents all forms of scepticism so far. ‘Post-modern’ is a label for a set of theories that have the following distinctive characteristics. The most important stylistic element is the use of paradoxes,153 tautologies,154 and circularities155 to explain 149

Cf. Habermas, supra note 122, p. 103. Ibid., p. 104. 151 Weinberger, supra note 89, pp. 188–93. 152 Alexy, supra note 136, pp. 127–64; Apel, supra note 49, pp. 428, 431; Habermas, supra note 39, pp. 155–6 [122]. 153 Ralph Christensen and Andreas Fischer-Lescano, Das Ganze des Rechts: Vom hierarchischen zum reflexiven Verständnis deutscher und europäischer Grundrechte (Duncker & Humblot, Berlin, 2007), pp. 222–3, 238; Derrida, supra note 63, pp. 961, 971; Ladeur and Augsberg, supra note 63, pp. 150, 147, 151, 157, 164, 176, 177; Niklas Luhmann, ‘Gibt es in unserer Gesellschaft noch unverzichtbare Normen?’, in: Horster, Detlef (ed.): Die Moral der Gesellschaft (Suhrkamp, Frankfurt am Main, 2008), p. 228, pp. 224, 230, 244. 154 Christensen and Fischer-Lescano, supra note 153, p. 224; Ladeur and Augsberg, supra note 63, p. 173. 155 Christensen and Fischer-Lescano, supra note 153, p. 223; Niklas Luhmann, Das Recht 150

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Chapter 1. Standards of Legal Reasoning and justify their views. First, it is argued that at least in hard cases, rational interpretation and justification is impossible. The step from norms to judgments is free and not programmable.156 Interpretative decisions are a paradox:157 They cannot be fully justified because they are grounded on the “undecidable”.158 Final judgements or truth are impossible.159 No decision can be sufficiently justified, if even the law itself permits dissenting opinions.160 When it comes to material justification, there is no objective ground for a decision.161 In particular, principles are of no help because there is no scale to decide conflicts between principles.162 According to Derrida, the moment of decision is madness;163 it cannot be grasped by the means of deductive logic.164 This implies that rationality is equivalent to and exhausted by deductive logic. 165 At best, interpretation can provide negative criteria, i. e. consistency, but never positive ones.166 Moreover, clear cases and hard cases cannot be distinguished because all cases require a fresh judgement.167 Finally, post-modern theory denies that there are universal norms of justice.168 The approach of discourse ethics—universal norms can be justified by requirements of language—is deemed impossible because there is no universal language.169 Instead, there exists a différend, i. e. a fundamental and unbridgeable gap between certain parts of a society.170 Thus, the fundamental condition for a discourse rational model of justice is missing. The same is true from a der Gesellschaft (Suhrkamp, Frankfurt am Main, 2nd edn., 1997), pp. 50 [85], pp. 75 [105], pp. 143–4 [157]. 156 Ladeur and Augsberg, supra note 63, p. 145; Christensen and Fischer-Lescano, supra note 153, p. 235; Derrida, supra note 63, p. 961 (1. Aporia). 157 Cf. Luhmann, supra note 153, p. 243. 158 Ladeur and Augsberg, supra note 63, p. 147; Christensen and Fischer-Lescano, supra note 153, p. 235; Derrida, supra note 63, pp. 965, 963 (2. Aporia). 159 Ladeur and Augsberg, supra note 63, p. 148; Derrida, supra note 63, p. 963. 160 Ladeur and Augsberg, supra note 63, p. 150. 161 Christensen and Fischer-Lescano, supra note 153, p. 221; Luhmann, supra note 155, pp. 310 [345]. 162 Christensen and Fischer-Lescano, supra note 153, p. 220; Luhmann, supra note 153, p. 243. 163 Derrida, supra note 63, p. 967. 164 Ibid., p. 968. 165 Ladeur and Augsberg, supra note 63, pp. 151–2; Derrida, supra note 63, p. 969. 166 Ladeur and Augsberg, supra note 63, p. 157. 167 Derrida, supra note 63, p. 961; Ladeur and Augsberg, supra note 63, p. 150. 168 Karl-Heinz Ladeur, Kritik der Abwägung in der Grundrechtsdogmatik (Mohr Siebeck, Tübingen, 2004), p. 52; Andreas Fischer-Lescano, ‘Kritik an der praktischen Konkordanz’ 2008 Kritische Justiz, p. 166, pp. 173, 175; Christensen and Fischer-Lescano, supra note 153, pp. 200–5. 169 Ibid.; Fischer-Lescano, supra note 168, pp. 173, 175. 170 Jean-François Lyotard, Le différend (Ed. de Minuit, Paris, 1994), p. 10, § 12–13.

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1.4 Scepticism: Is Rationality Possible? system theoretic stance: Since systems are operatively closed by coding the communication in a particular way, direct communication is impossible.171 However, post-modern theory is not morally indifferent. Law is right if it guarantees social self-organisation,172 i. e. if it respects the actual preferences of society.173 Others argue that law should be freed from particular interests.174 Thus, post-modern theories also commit the typical sceptic self-contradiction: denying the objectivity of moral judgements—and even language in general—but in the same breath uttering moral judgements. What post-modernism adds to the sceptics discussed so far is the ‘paradoxology’. Employing this rhetorical device, proponents of post-modernism try to uncover paradoxes and propose paradoxes as solution for problems. This rhetorical device is a sham because it only works by juxtaposing abstract, empty and decontextualized concepts 175 or by relying on a certain non-obvious—but obfuscated—understanding of concepts. Take the Recht–Unrecht paradox.176 In German the contradiction is perfect at first glance. By adding the negation prefix un, Recht can be easily negated. However, if both terms are put into concrete terms, then the contradiction vanishes. This is even more apparent if these terms are translated: Recht can signify many things: ‘claim’, ‘right’, ‘something legal’, or ‘competence’. Unrecht can mean ‘tort’, ‘something illegal’, or ‘crime’. Not always is the juxtaposition complete: One’s right may correspond to one’s obligation or duty. However, can we say that an obligation is illegal, a tort, or a crime? On the contrary! The obligation can even create rights. For example, one may have the right to choose how the obligation can be fulfilled. Moreover, it may be regulated when and where the obligation may be fulfilled. The English translation is also quite misleading because it translates Recht–Unrecht (two nouns!) with ‘legal–illegal’ (two adjectives). The paradox “decisions are grounded on the undecidable”177 can be easily resolved: If rationality is reduced to deductive logic, then it must indeed appear that such decisions depend on something that cannot be decided by deductive logic.178 Then one is confronted with the said problem. However, the paradox is conjured up by inadmissibly reducing rationality to deductive logic.179 For those who accept that logic includes both deductive and inductive reasoning, 171

Luhmann, supra note 155, chapter 2. Ladeur and Augsberg, supra note 63, p. 168; Ladeur, supra note 168, p. 15. 173 Ibid., p. 33. 174 Christensen and Fischer-Lescano, supra note 153, pp. 204–5. 175 Jochen Bung, ‘Das Bett des Karneades: Zur Metakritik der Paradoxologie’, in: Brugger, Winfried et al. (eds.): Rechtsphilosophie im 21. Jahrhundert (Suhrkamp, Frankfurt am Main, 2008), p. 72, p. 87. 176 Luhmann, supra note 155, pp. 168 [175]. 177 Derrida, supra note 63, p. 969. 178 Ibid. 179 Joachim Lege, ‘Was Juristen wirklich tun: Jurisprudential Realism’, in: Brugger, Winfried et al. (eds.): Rechtsphilosophie im 21. Jahrhundert (Suhrkamp, Frankfurt am Main, 2008), p. 207, § 18. 172

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Chapter 1. Standards of Legal Reasoning the assessment that deductivism is exhausted only causes the switch to material justification—not to rolling dice or madness. Moreover, rationality is inadmissibly equated to infallibility and monotonous reasoning.180 Yet it has already been argued that objectivity indeed implies that there exist criteria to distinguish the right form the wrong and that there may be wrong decisions. Therefore, fallibility does not contradict objectivity; instead, this notion only makes sense where objective criteria for the right and wrong exist. This includes that knowledge may change over time (non-monotonous reasoning).

1.4.5

One Right Answer Thesis vs. Very Moderate Scepticism

So far, the threats to legitimacy that are posed by sceptic critique are defeated. But acknowledging the objectivity of legal reasoning produces another one: Objectivity implies that propositions can be right or wrong and if there is an objective way to find value judgements, then this suggests that there is one right answer to a legal claim.181 If it be true that the law, in our case fundamental rights, provides a single right answer for a case, then can legislators have discretion, i. e. freedom to make political choices? Does a one right answer thesis lead into a government of judges? It would be natural to accept, at least in the area of fundamental rights, a very moderate scepticism: Where fundamental rights provide equally good answers and where the legislator has chosen among these, the directive or regulation passes judicial scrutiny.182 Such a view would promote the protection of fundamental rights and still respect the necessary discretion of political bodies. This position need not necessarily contradict the one right answer thesis. Only a position that does not allow for the exact definition of the limits is at odds with the one right answer thesis and leads to uncertainties that undermine the legitimacy of judicial review as well as a radical sceptic position would do. To avoid a sceptic stance, a threefold distinction seems feasible: (a) Fundamental rights clearly rule out certain legislative measures. This is a clear case, which is uninteresting in this regard. Then there are controversial cases, that offer more than one legislative solution. Fundamental rights would be almost superfluous if all controversial cases were deferred to the legislature. So, one must further distinguish between cases that are (b ) legitimately controversial and (c ) cases that are only at first glance controversial. At least in this respect—the distinction between really controversial cases and actually clear cases—there must be a right answer. Allowing unreasoned, decisionistic decisions in these cases is equivalent 180

Ladeur and Augsberg, supra note 63, p. 148. Dworkin, supra note 52, pp. 81, 279–80. 182 Cf. Bydlinski, supra note 100, p. 174; Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie: Studien zur Verfassungstheorie und zum Verfassungsrecht (Suhrkamp, Frankfurt am Main, 1991), pp. 188–9, 198; Ekardt, supra note 130, pp. 184, 192. 181

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1.5 Approaches Against Scepticism to saying: “I do not know whether this directive (or regulation) is constitutional. Therefore I toss a coin.” This is unacceptable from a legitimacy stance. However, the seemingly needed rest of scepticism is unnecessary. The one right answer to a case may be that the legislators have discretion in a given case.183 In principle, legislative bodies are free. Legal limitations must be grounded on legal rules, e. g. that the Council and the Parliament can only act if a corresponding power is attributed. Another rule may be that directives must further their pursued goal. The one right answer thesis is a requirement for adjudicative, not legislative, decisions. There may always be many politically and legally conceivable ways to regulate a certain matter, but the Court is only confronted with this problem: “Do any legal rules exist that limit the legislative powers of the Council and the Parliament and does any of them apply in this case?” To this question there must be a one right answer, if fundamental rights shall be of any use. The one right answer thesis does not rule out disagreement or discourse, on the contrary.184 And it certainly does not entail mechanical jurisprudence.185 Finally, it embraces defeasible and non-monotonic reasoning and is thus fully compatible with principles described in the next section. So, objectivity in law ensures the legitimacy of judicial review and the necessary respect for discretion of legislative, i. e. political, bodies.

1.4.6

Summary

Sceptic positions have proven themselves to be unconvincing. Objectivity in law is thus possible in principle: Legal language conveys meaning; legal decisions are governed by rules even where written rules do not exist; and legal reasoning is rational where recourse must be had to non-legal evaluations. It was shown that objectivity implies a one right answer thesis but the thesis does not necessarily lead into a government of judges. What is left is to go beyond a mere refutation of scepticism and to show how rationality and objectively can be arrived at. In other words: It has been shown that cognition of normative rightness is possible in principle. What needs further elaboration are the conditions that allow us to say of a norm that it is right.

1.5

Approaches Against Scepticism

While the previous section dealt with the possibility of rationality and objectivity, this one deals with attempts to achieve it and to overcome the inherent 183 Robert Alexy, ‘Verfassungsrecht und einfaches Recht—Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit’ 61 (2002) Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, p. 7, p. 22 n. 88. 184 Dworkin, supra note 99, p. 83. 185 Dworkin, supra note 52, p. 81.

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Chapter 1. Standards of Legal Reasoning indeterminacy in problem cases. Starting points are Dworkin’s early principle approach and German evaluation jurisprudence.186 Then more elaborate theories will be presented.

1.5.1

Dworkin’s Principle Approach

The open texture of law,187 which is caused by the circumstances that were mentioned above on page 11, has urged some scholars to develop further criteria for the justification of judgments. One of the most discussed is Dworkin’s approach to legal indeterminacy. The starting point is that law consists of two types of norms, rules and principles. Rules are applicable in an all-or-nothing fashion, while principles only point to certain directions.188 When a judge meets a problem case he or she will justify his or her decision with a recourse to principles.189 Principles effect the exclusion of strong discretion in Dworkin’s words. ‘Strong discretion’ means that the decision maker is not guided by any legal standards whatsoever. Because principles are legal standards and because they point to one direction, they impose legal limits on a judge’s decision. Still, the judge has to exercise judgement. But he or she is not free to make any decision, this is termed discretion in the weak sense.190 Dworkin argues that anyone must accept some principles that guide the decision in a problem case, these reflect the supremacy of legislators and consistency with prior decisions and statue law. If these principles were not accepted, no one, even positivists, could speak of binding law. Dworkin’s approach aimed at positivism and primarily addressed issues of validity of law but also addressed methodical questions. Methodically, the disagreement between positivists and Dworkin is not that strong, if it exists at all. Raz for example, challenged the distinction between rules and principles but did acknowledge that abstract norms guided judges in problem cases, namely in the interpretation, alteration and creation of rules.191 Especially regarding interpretation, principles ensured consistency and coherence between different rules.192 Principles limited the range of permissible solutions and guided the exercise of discretion, yet they did not dictate the result in any case.193 Hence, principles presupposed the existence of discretion (in the strong sense).194 Thus, the difference between Dworkin and positivists is not that severe as it seems. Where judges were forced to create law, Hart enunciated some “principles” 186 187 188 189 190 191 192 193 194

Ibid. Hart, supra note 39, p. 128. Dworkin, supra note 52, pp. 24, 26. Ibid., p. 28. Ibid., pp. 31–2. Raz, supra note 56, pp. 840–1. Ibid., p. 841. Ibid., p. 847. Ibid.

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1.5 Approaches Against Scepticism that should govern the decision making process (without dictating a single result, of course): “impartiality and neutrality in surveying the alternatives; consideration of the interest of all who will be affected; and a concern to deploy some acceptable general principle as a reasoned basis for decision”. 195 That is, even Hart acknowledged that there are some more general norms that guided the creation of new rules in adjudicative processes. Hart and Raz would claim that to a certain degree the law singles out certain solutions in problem cases. All of them agree that there are some formal or general requirements, like consistency, that exclude certain results. Dworkin goes so far to say that principles are so strong that one can never say that a judge is legally free to follow any option (discretion in the weak sense). Though it cannot be demonstrated that a decision is required by a principle, a judge must advance additional principles and must see to it that the decision appears as a reasonable one.196 But Raz does not really contradict in this respect.197 Discretion does not—even in terms of many positivists—justify capricious decisions. All in all, the debate can be summarized as follows: There is agreement that general norms substantially narrow the set of available alternatives for the solution of a case. Moreover, competing theoreticians agree that despite the application of principles, a room for the exercise of judgement will remain and that there will be more than one solution that can be regarded as reasonable.

1.5.2

Evaluation Jurisprudence

In a similar vein and from the same starting point, German evaluation jurisprudence (Wertungsjurisprudenz) tries to pose further limitations on judicial decision making. The starting point is the deficiency of purely syllogistic reasoning for answering legal problems. Also the basic approach is the same. The set of available solutions is narrowed by having recourse to more general propositions, evaluations. The necessarily sketchy description will concentrate on the following points: What was the motivation for refining legal reasoning; what is the moral background of this school of thought; from where are the respective values derived; and, finally, which function is assigned to legal theory and which ideal these theoreticians strive for? The predecessor of evaluation jurisprudence was the so-called interests jurisprudence (Interessenjurisprudenz). According to this view, the propositions of the law-maker should be used to solve unforeseen cases. Though this approach has its virtues and is still deployed today, it also has some deficits. It is particularly useless where the legal order has changed substantially, e. g. because of a shift from an undemocratic to a democratic political system.198 195 196 197 198

Hart, supra note 39, p. 205. Dworkin, supra note 52, p. 36. Raz, supra note 56, p. 848. Bydlinski, supra note 100, p. 127; Hans-Martin Pawlowski, ‘Allgemeines Persönlich-

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Chapter 1. Standards of Legal Reasoning Evaluation Jurisprudence tries to provide solutions for these problems by relying on evaluations or values. A precondition for evaluation jurisprudence is the rejection of value scepticism.199 On one hand, values are not merely subjective or an emotional fact. On the other hand it is acknowledged that disagreement may remain and that sometimes legal reasoning is not demonstrative but only persuasive.200 The major problem for this jurisprudence is: Which values should the judge rely on if not those of the legislator? One option is to rely on social views and tradition.201 This approach is unfavourable, for many reasons: First, it is difficult to assess social opinion.202 On many questions, a consensus may be missing and it is the judge’s task to find a solution.203 Besides, it is a violation of the is-ought-dichotomy to rely on them.204 If proponents of evaluation jurisprudence rely on social opinion at all, they accept only those opinions that pass legal scrutiny.205 Recent voices prefer to find values and evaluations in statutes, precedent and the constitution.206 In relying on evaluations the proponents of evaluation jurisprudence can be identified with Dworkin, because they find these evaluations to be expressed by principles.207 Principles are guiding ideas.208 They guide judges in two ways: They point into one direction (positive effect) and they exclude certain results (negative effect).209 Principles serve as a justification for rules.210 Proponents of evaluation jurisprudence differ from Dworkin in that they do not distinguish as neatly as he does between rules and principles.211 There is yet another difference: In contrast to Dworkin they believe that one can distinguish legal and non-legal principles by requiring that principles be supported by statute, precedent or the constitution.212 Whether a validity test for principles is conceivable or not has been discussed in Section 1.1. From a methodological point of view these aspects deserve keitsrecht oder Schutz der Perönlichkeitsrechte?—Zur Struktur zivilrechtlicher Denkformen’ 12 (1987) Jahrbuch für Rechtssoziologie und Rechtstheorie, p. 113, para. 4c. 199 Karl Larenz and Claus-Wilhelm Canaris, Methodenlehre der Rechtswissenschaft (Springer, Berlin, 3rd edn., 1995), p. 111. 200 Ibid., p. 114. 201 Cf. Bydlinski, supra note 100, p. 129. 202 Alexy, supra note 50, p. 27; Raz, supra note 56, p. 850. 203 Bydlinski, supra note 100, p. 130; Alexy, supra note 50, p. 27; Raz, supra note 56, p. 850. 204 Alexy, supra note 50, p. 28; Bydlinski, supra note 100, p. 130. 205 Ibid., p. 131; Larenz and Canaris, supra note 199, pp. 263, 110; Karl Larenz, Methodenlehre der Rechtswissenschaft (Springer, Berlin, 6th edn., 1991), p. 291. 206 Larenz and Canaris, supra note 199, pp. 112, 302. 207 Ibid., pp. 263, 303. 208 Ibid., p. 304. 209 Karl Larenz, Richtiges Recht: Grundzüge einer Rechtsethik (Beck, Munich, 1979), p. 26. 210 Ibid. 211 Larenz and Canaris, supra note 199, p. 308. 212 Larenz, supra note 205, p. 291.

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1.5 Approaches Against Scepticism observation: It is an essential feature of legal reasoning and one of its advantages over moral reasoning that practical reasoning happens within a framework of legal norms.213 Hence, the direction and some outer limits of legal reasoning are determined. This methodological feature would be given up if any moral proposition could override a given legal principle. The limited certainty that is established by legal principles would falter and could even vanish. Which moral propositions should guide a decision in that case if this feature were indeed sacrificed? Even discourse ethicists, who claim that their conception rests on undeniable conditions, can only justify some generic and necessarily abstract principles and, on ground of these principles, can exclude only a few results.214

1.5.3

Common Problems

A problem that value jurisprudence and the early Dworkin must face is the combination of values. Values themselves are not self-executing. They need interpretation and it is not obvious which principle will succeed in case of a ‘conflict’. What follows is a synthesis of criteria that can be found in works of recent German theoreticians, among them some that have already been discussed. It is noteworthy that these authors often refer only incidentally to these criteria. They are especially apparent when theories or concepts are rejected. One theme that is persistent among all authors is that law requires that equal cases be treated equally according to a general rule.215 Law has to be systematized in order to avoid contradictions between value judgements in different cases,216 in other words: consistency and coherence shall guide the judge in a problem case.217 Legal certainty and predictability of our legal order are mentioned in this connexion.218 These requirements influence the finding and testing of legal theories: Legal theory shall help to formulate (general) rules, that can be falsified like theories in other fields as well.219 Legal theories must must be consistent in themselves and with the legal order. 220 A rule must not allow for unjustified exceptions.221 However, a rule may be altered or amended if this is necessary for the sake of consistency.222 These are principles that can be found in the later work of Dworkin. 213

Larenz and Canaris, supra note 199, p. 112; Habermas, supra note 39, pp. 147 [114–15]. Alexy, supra note 50, p. 171; Habermas, supra note 39, pp. 147 [114–15]. 215 Pawlowski, supra note 198, pp. 4, 59, 167; Larenz and Canaris, supra note 199, p. 311; Larenz, supra note 205, p. 334; Wolfgang Fikentscher, Methoden des Rechts: In vergleichender Darstellung: Dogmatischer Teil vol. 4 (Mohr, Tübingen, 1977), p. 191. 216 Larenz and Canaris, supra note 199, p. 278; cf. Pawlowski, supra note 198, p. 206. 217 Bydlinski, supra note 100, p. 538; Pawlowski, supra note 198, p. 158. 218 Bydlinski, supra note 100, p. 534. 219 Larenz and Canaris, supra note 199, p. 278. 220 Ibid., pp. 279–80. 221 Ibid., p. 280. 222 Ibid., p. 281. 214

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Chapter 1. Standards of Legal Reasoning The criteria presented so far are formal, because they do not answer which values should be combined and with which values legal norms should be consistent and coherent. One need not consider jurisprudence in dictatorships to illustrate the problem: In the Handelsgesellschaft 223 case, the Court had to react on the legitimacy deficit that was caused by a lack of a charter of rights. Any court in such a situation must ask itself: Which rights deserve acceptance and which weight do they have? Why should jurisprudence rely on at least a minimal set of essential values?224 For the purpose of this study and under the current framework of the TEC and TEU we can readily assume that the fundamental values are those of the law state and democracy, including human rights. A—necessarily philosophical—justification of these values is thus necessary to answer these questions (see Section 1.7).

1.5.4

Summary

A key for the achievement of objectivity in legal reasoning is the recourse to more general rules (principles)225 and to establish coherence and consistency between them. What needs further elaboration is finding a set of admissible principles and rules governing their implementation.

1.6

Major Tenets of Modern Legal Theory

The previous section touched on principles that define objectivity in legal reasoning. A survey of legal theory from the last 30 years reveals the following principles of legal reasoning: coherence, consistency and universalizability. Because legal reasoning has a dynamic aspect and is open to change, legal reasoning is also of a defeasible nature, i. e. it allows for the change of established rules. This section will describe these general rationality conditions in more detail, while the next section will discuss two concrete implementations: interpretation and the consideration of precedents.

223

Supra note 3. See for example Hart, supra note 39, pp. 193–200; MacCormick, supra note 42, pp. 114–20; Alexy, supra note 136, pp. 127 et seq.. 225 I do not treat rules and principles as categorically different kinds of norms, I rather believe that there is only a gradual difference between these two kinds of norms, see Section 5.3.1. 224

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1.6 Major Tenets of Modern Legal Theory

1.6.1

Coherence

A central theme of legal reasoning is coherence.226 This section will first try to give a broad definition of the term and then will outline in more detail which connexions must be established between elements of a coherent set. It will furthermore outline some general characteristics of a coherent set as a whole. Because coherence is not only a characteristic that can be ascribed to legal reasoning but to the legal order (global coherence) or its subsystems (local coherence), the role of coherence in this regard will be discussed, too. Finally, it will analyze the relationship between the concepts of integrity and coherence. Coherence can be broadly defined as a requirement for the elements of something to fit or to “make sense as a whole”.227 Coherence is thus a property of the totality of arguments228 or legal norms if coherence is understood in a broader context. That means that coherence is a relative criterion, coherence of something must be determined in relation to something else.229 In case of a judgment, for example, it must be shown that it fits well with already established principles of law.230 More broadly speaking, coherence requires that something shall relate to something else that is already accepted.231 At the outset an important distinction between coherence and consistency should be noted: The latter is usually understood as the absence of contradictions. The concept of coherence is distinct from that concept because it usually requires more (or something else) than the mere absence of contradictions. Coherence requires a connexion between the elements of a set, a connexion that must be as tight as possible. The elements of a coherent set have to support each other.232 Moral Soriano uses the metaphor of a net.233 Others stress, in the same vein, that legal reasoning does not happen in a vacuum, rather norms 226 Aldo Schiavello, ‘On “Coherence” and “Law”: An Analysis of Different Models’ 14 (2001) Ratio Juris, p. 233, p. 235. 227 Leonor Moral Soriano, ‘A Modest Notion of Coherence in Legal Reasoning: A Model for the European Court of Justice’ 16 (2003) Ratio Juris, p. 296, p. 299; Dworkin, supra note 99, pp. 230, 226; Bengoetxea, supra note 53, p. 159; la Torre, supra note 74, p. 388; Aulis Aarnio, The Rational as Reasonable: A Treatise on Legal Justification (Reidel, Dordrecht, 1987), p. 200; MacCormick, supra note 42, p. 48. 228 Aarnio, supra note 227, p. 201. 229 Luc J. Wintgens, ‘On Coherence and Consistency’, in: Krawietz, Werner and Aarnio, Aulis (eds.): The Reasonable as Rational?: On Legal Argumentation and Justification; Festschrift for Aulis Aarnio (Duncker & Humblot, Berlin, 2000), p. 539, pp. 547–8; Moral Soriano, supra note 227, p. 300; MacCormick, supra note 42, pp. 23, 48, 188; Jaap Hage, ‘Law and Coherence’ 17 (2004) Ratio Juris, p. 87, p. 89. 230 Bengoetxea, supra note 53, p. 171. 231 Hage, supra note 229, p. 89. 232 Aarnio, supra note 227, p. 199; Moral Soriano, supra note 227, p. 310; Aleksander Peczenik, ‘Certainty or Coherence?’, in: Krawietz, Werner and Aarnio, Aulis (eds.): The Reasonable as Rational?: On Legal Argumentation and Justification; Festschrift for Aulis Aarnio (Duncker & Humblot, Berlin, 2000), p. 157, p. 162. 233 Moral Soriano, supra note 227, p. 311.

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Chapter 1. Standards of Legal Reasoning of a legal order cannot be understood without regard to the rest of a legal (sub)system.234 According to Hage, a coherent set, i. e. an argumentation, must also contain the reasons that explain why the pieces of an argumentative chain relate to each other.235 Thus defined, coherence appears to be a matter of degree.236 And this is the major difference to consistency, which either obtains or does not obtain between reasons in an argumentation or norms in a legal order. Although coherence is understood to be partly described by rules of deductive logic, it is also characterized by non-deductive, i. e. plausible, relations between its elements.237 Many believe that coherence is not a definite criterion for the correctness of a judgment.238 The reason is that even a wicked legal order could be applied in a coherent way.239 At this point, however, there is some dispute concerning the contents of coherence: Is it just a formal principle240 or is it also a substantive criterion, too241 ? Dworkin introduced a concept that is very similar if not identical to coherence, integrity. It is not very clear whether Dworkin understands integrity and coherence as two different concepts or as identical notions.242 Some deeper discussion of the concept of integrity is necessary to clarify this issue. Integrity is a requirement for legislation and adjudication.243 Dworkin clearly distinguishes integrity from justice and fairness. 244 On the other hand, integrity requires that the law be justified by a coherent set of principles about justice, fairness, and procedural due process.245 As such, for Dworkin integrity means coherence together with some substantive requirements, although sometimes the concepts seem to be identical. One author rightly notes that there is some incoherence in Dworkin’s thought.246 Dworkin’s concept of integrity is not convincing in my eyes, mainly because it starts form unconvincing examples. He shows the reader examples of a chequerboard statute and arbitrary abortion laws. He concludes that although these statutes are arbitrary, they are nevertheless just and fair, therefore integrity must accompany justice and fairness. This is questionable, although not the main defect of the concept. The main defect is that at some point integrity requires the judge to integrate justice, 234

MacCormick, supra note 42, pp. 23, 188; see also Hart, supra note 39, pp. 274, 275. Hage, supra note 229, p. 98. 236 MacCormick, supra note 42, p. 190; Peczenik, supra note 232, p. 162. 237 Aarnio, supra note 227, p. 200; Moral Soriano, supra note 227, p. 310. 238 Schiavello, supra note 226, p. 238; Moral Soriano, supra note 227, p. 302; cf. MacCormick, supra note 42, p. 203. 239 Cf. ibid. 240 Ibid.; Schiavello, supra note 226, p. 242. 241 Dworkin, supra note 99, p. 243. 242 Ibid., p. 186. 243 Ibid., p. 176. 244 Ibid., pp. 179, 181. 245 Ibid., p. 243. 246 Schiavello, supra note 226, p. 242. 235

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1.6 Major Tenets of Modern Legal Theory fairness, and procedural due process,247 while on other occasions he maintains a distinction between these principles.248 That does not mean that his conception is totally useless. Especially the chain novel metaphor is enlightening. But I tend to reinterpret it as describing coherence as a formal principle. Coherence has also an aspect in time: It is dynamic because it allows for a change but ensures continuity by requiring the change to fit well into the existing legal order.249 Although the concept of coherence as such is accepted as a major tenet of legal reasoning,250 its role for the legal order in part or as a whole is disputed. The underlying problem is whether it suffices to require the reasoning as such to be coherent, or whether (additionally) the resulting judgment must fit into the legal order as a whole or the respective subsystem. The strongest claim is made by Dworkin. According to him, coherence (understood as integrity) is the governing theme of legal reasoning and the legal order as a whole and its subsystems. Therefore, so-called compartmentalization is rejected by Dworkin as an ideal, although he acknowledges that it is part of the current working-reality of jurists and therefore cannot be ignored.251 That parts of the legal order do not fit together is regarded as a defect.252 This view is criticized. Opponents claim that this view does not pay regard to the plurality of values and the complexity of law.253 An even stronger claim is put forward to by Moral Soriano: He stresses that coherence is a matter for the single decision in question. According to this view, it is more important that the judgment is coherent than the fit of the judgment with the legal order because coherence hampers legal development.254 247

Dworkin, supra note 99, p. 243. Ibid., p. 217. 249 Hage, supra note 229, p. 95; Dworkin, supra note 99, pp. 219, 245; Peczenik, supra note 232, p. 169. 250 MacCormick, supra note 42, p. 189; Moral Soriano, supra note 227, pp. 307–8; Dworkin, supra note 99 (coherence is part of integrity); Hage, supra note 229; Wintgens, supra note 229; Peczenik, supra note 232, p. 158 ; Germans refer to it as “systematic thinking”: Alexy, supra note 50, pp. 320–5 (systematische Überprüfung im weiteren Sinne); Friedrich Müller and Ralph Christensen, Juristische Methodik. Grundlagen. Öffentliches Recht vol. 1 (Duncker & Humblot, Berlin, 8th edn., 2002), paras. 366–8 (systematische Interpretation); Larenz and Canaris, supra note 199, p. 157 (inneres System); Hans-Martin Pawlowski, Methodenlehre für Juristen: Theorie der Norm und des Gesetzes (Müller, Heidelberg, 3rd edn., 1999), paras. 782–5 (systematisch-begriffliche Begründungszusammenhänge); Röhl and Röhl, supra note 39, p. 443 (Kohärenz/Systemdenken); Habermas, supra note 39, pp. 258 [211] (Kohärenz/coherence); Hans-Joachim Strauch, ‘Die Bindung des Richters and Recht und Gesetz—eine Bindung durch Kohärenz’ 2002 Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, p. 311 (Kohärenz ). The German scholars, however, do not always (an exception is Strauch) distinguish coherence from consistency. 251 Dworkin, supra note 99, pp. 251–2. 252 Ibid., p. 217. 253 Wintgens, supra note 229, p. 543.cf. Moral Soriano, supra note 227, pp. 304–5; Cf. Hage, supra note 229, p. 104. 254 Moral Soriano, supra note 227, pp. 305–6. 248

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Chapter 1. Standards of Legal Reasoning I believe that this strong argument in favour of coherence in legal reasoning points to the right direction but is exaggerated, for three reasons: (a) The approach is based on a confusion between consistency and coherence.255 Coherence, as a gradual requirement to make sense as a whole, does allow for the departure from prior judgments and allows to take particulars into account (though within certain limits only).256 In other words, this position aims at a problem that does not exist with that severity. (b) This claim seems to disregard, or at least does not pay sufficient regard to, the principle of equal treatment and universalizability. If one is not eager to fit a judgment into the whole, how can equal protection and predictability be ensured? (c) This view produces the danger of individual judgments’ being detached from the legal order by neglecting a test of fit with previous judgments and statute or the Treaty. Furthermore it begs the question where arguments for a coherent set should be derived from. At least consistency with the legal order must be required. For a legal order to be coherent I agree with MacCormick that the legal order as a whole must make sense and must be shown to hang together.257 For coherence is a matter of degree and connectedness, I believe, in contrast to Dworkin, that the connexion within parts of a legal order must be stronger than the connexion between the parts. Departmentalization and diversity of principles that govern areas of our legal order do no harm to justice. That is especially true for federal states and the EC . Can one really say that a legal order suffers from a defect because different principles reign with different weight in the legal orders of the states or Member States? As long as there are not blatant contradictions between norms, diversity can be accepted. This dispute is not of utter importance for the conduct of this study. What needed clarification, though, was the importance of local coherence and coherence of a decision. Local and decision-wide coherence are important for two reasons. Local coherence is closely linked with equal protection and universalizability. 258 Together these principles form another major tenet of legal reasoning. In order to be acceptable, any theory of the application of fundamental rights must be framed such that it allows for a test of fit with the rest of the legal order. Coherence is also linked with methods of interpretation. According to one method of interpretation, the context of a norm should be taken into account to clarify its meaning (contextual interpretation). Coherence explains why this method should be utilized. Contextual interpretation is a means to ensure coherence. But the notion of coherence is wider than the scope of contextual interpretation, because the latter is only applied to statutes. 255 256 257 258

Ibid., p. 306. Dworkin, supra note 99, pp. 219–20. MacCormick, supra note 42, p. 48. Dworkin, supra note 99, p. 185; cf. la Torre, supra note 74, p. 289.

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1.6 Major Tenets of Modern Legal Theory

1.6.2

Consistency

A recurrent theme in legal theory is consistency. Consistency is defined as the absence of contradictions259 and is usually understood as being different from the concept of coherence, though both concepts are related.260 Coherence describes the degree to which something makes sense and has persuasive or convincing force; a non-deductive property is thus assigned to this concept, in contrast to consistency.261 These concepts are not always strictly distinguished.262 Yet I believe that the fundamental difference between these concepts—consistency being a matter of all or nothing, the other a matter of degree—warrants a clear distinction that should be reflected in the language. From the stance of a discourse theory of law, consistency is one of the most fundamental rules of speech and argumentation.263 There is some dispute regarding the relationship between these concepts. Some believe that consistency is a necessary requirement for coherence, others believe that this relation does not hold. At a closer look, the opinions depend on the scope that their proponents ascribe to consistency. Consistency can be a property of legal reasoning in a specific judgment or it can be a property of the legal order. The latter scope of consistency can be further divided: It can be global if consistency is a property of the legal order as a whole and it can be local if it is a property of a subsystem only. Sometimes the scope of legal argumentation and the local scope are equated.264 From scope to scope not only the relationship between consistency and coherence varies but also the relevance of consistency as such changes. Furthermore, consistency can also have a dynamic aspect: It can relate to the legal order or an argumentation as it is (simultaneous) or it can be ascribed to the relation between a new argumentation or part of a legal system on one hand and the corresponding original element on the other (consecutive).265 Most authors regard consistency within a legal argumentation, i. e. simultaneous consistency, as a necessary requirement for its correctness and also for its coherence.266 MacCormick denies that this relation holds. He believes that an argumentation can make sense as a whole although it does contain 259 Wintgens, supra note 229, pp. 539, 540; Aarnio, supra note 227, p. 196; MacCormick, supra note 42, p. 190; Honderich, supra note 47, s. v. ‘consistency proofs’. 260 Wintgens, supra note 229, p. 540; Aarnio, supra note 227, pp. 196, 199; MacCormick, supra note 42, p. 190; Dworkin, supra note 99, p. 219. 261 Wintgens, supra note 229, p. 539; MacCormick, supra note 42, p. 190; Aarnio, supra note 227, p. 199; Hage, supra note 229, p. 90. 262 See, for example, la Torre, supra note 74, p. 388. 263 Alexy, supra note 50, p. 234, rule 1.1; Bengoetxea, supra note 53, p. 171. 264 Wintgens, supra note 229, p. 543. 265 Ibid., pp. 543, 544–6. 266 la Torre, supra note 74, p. 388; Wintgens, supra note 229, p. 543; Schiavello, supra note 226, p. 237; Hage, supra note 229, p. 90; Aarnio, supra note 227, p. 199; Peczenik, supra note 232, p. 161; Strauch, supra note 250, p. 325.

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Chapter 1. Standards of Legal Reasoning inconsistencies.267 He even is of the opinion that complete consistency can impair the overall coherence of an argumentation.268 Moreover, coherence is a matter of degree, hence some inconsistencies cannot diminish the coherence of an argumentation.269 Yet, MacCormick acknowledges the pivotal role of consistency in legal reasoning.270 The chain of arguments presented by MacCormick makes sense, at least at first glance. Because coherence is a matter of degree, the negative effect of inconsistencies may be outweighed by other aspects. But it is only under this premiss that this argument can make sense. If inconsistencies cannot be outweighed or at least explained,271 they do impair the overall consistency and coherence of the argument. Moreover, by stressing the importance of consistency MacCormick cannot deny that, in order to be convincing, an argument must be consistent. Consistency, though, cannot guarantee the coherence and hence the correctness of the argument as a whole because it is a negative criterion.272 It is possible that a decision is free of contradictions but is incoherent because the fit with other principles is not as tight as it could be. In the wider local scope consistency is usually held to be a necessary precondition for coherence, MacCormick again being an exception.273 At the global level, i. e. concerning the whole legal system, the views are divided. No one denies that, actually, legal systems are not consistent.274 What differs, though, is the appreciation of this fact. Dworkin believes that this is a defect. Many authors believe that consistency is a desirable aim, because it would lead to a system of law that would produce certain and correct answers in nearly all cases.275 At least at this stage some authors must perform the same step like MacCormick276 or Dworkin. Either consistency is not relevant in this connexion or it is relevant. As we have seen in the previous section, coherence is always deemed to be a necessary requirement. If, however, consistency is believed to be irrelevant at this state, then coherence must be irrelevant, too, if the necessity relation between consistency and coherence shall still hold. So either one has to give up the necessity relation (MacCormick) or must believe that consistency is relevant at this state (Dworkin). I believe that MacCormick’s approach is more realistic.

267

MacCormick, supra note 42, p. 190. Ibid. 269 Ibid. 270 Ibid., p. 53 n. 16. 271 Cf. Peczenik, supra note 232, p. 161. 272 MacCormick, supra note 42, p. 190; Hage, supra note 229, p. 90; Aarnio, supra note 227, p. 199; la Torre, supra note 74, p. 388; Wintgens, supra note 229, p. 539. 273 Ibid., p. 543; Peczenik, supra note 232, p. 161; Hage, supra note 229, p. 100. 274 Dworkin, supra note 99, p. 217; MacCormick, supra note 42, p. 52. 275 Ibid.; Moral Soriano, supra note 227, p. 306; Wintgens, supra note 229, p. 543. 276 Or Moral Soriano, supra note 227, p. 299. 268

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1.6 Major Tenets of Modern Legal Theory As mentioned before, consistency can be either simultaneous or consecutive. Wintgens believes that consecutive inconsistencies do not violate coherence.277 I do not believe that this is correct, for two reasons: (a) The example that Wintgens adduces is inconclusive. It is about a judgment that resolved a dispute among courts and scholars alike. Wintgens assumed that the judgment at issue was inconsistent with prior judgments. Where a court resolves a dispute one cannot call that judgment inconsistent with prior judgments because they themselves did not form a consistent body of case law. On the contrary, where a court or a legislator resolves disputes and hence inconsistencies, the respective authority establishes consistency. (b) Where two elements of a legal system or subsystem do not match, the inconsistency may be resolved in two ways, i. e. by removing one of the two elements. 278 The removed or overruled element is thus considered inconsistent with the rest of the legal order and not vice versa. This aspect is related to another aspect that is unmentioned as far as I can see. Under which circumstances can one speak of an inconsistency? Is every contradiction within a system or argumentation also an inconsistency? I believe that this is only true for unexplained contradictions, i. e. those that are not only contradictory at first sight but remain so even after attempts to justify the differences. Dworkin seems to propose the opposite view.279 This view increases the inconsistencies in our legal order. But it diverts our attention from those “inconsistencies” that really deserve attention, i. e. those that exist without a justification. Therefore it seems appropriate to introduce a differentiation. There are prima facie inconsistencies and real inconsistencies or inconsistencies in the true sense of the word. This is important insofar as prima facie inconsistencies require the court to resolve the contradiction by either finding a justification for the difference or by removing one of the contradicting propositions. In the first way a prima facie contradiction may remain but not a real inconsistency.

1.6.3

Universalizability

The other major tenet of legal reasoning besides consistency and coherence is universalizability.280 ‘Universal’ is a property of a legal statement that must be distinguished from ‘general’. A proposition is universal if it applies to every case in a given class or category. ‘Universal’ can thus be distinguished from ‘particular’ and is a matter of all or nothing: Either a statement is universal or it is not. ‘General’ on the other hand is a matter of degree, can be contrasted to ‘specific’ and indicates a lack of precision. ‘Universal’ is a formal criterion and does not refer to its moral or legal quality and must be distinguished in particular from 277

Wintgens, supra note 229, pp. 544–6. Alexy, supra note 50, p. 322. 279 Dworkin, supra note 99, p. 220. 280 For rest of the following paragraph see MacCormick, supra note 42, p. 94 and Bengoetxea, supra note 53, p. 224. 278

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Chapter 1. Standards of Legal Reasoning ‘universally acceptable’ in the sense of discourse ethics and related approaches. The statement “Any non-EC citizen that committed a misdemeanour must immediately leave the EC .” is universal in this sense, though it might not be universally acceptable. The requirement of universalizability can be applied to single arguments that are put forth in a discourse or the resulting decision or rule as a whole.281 Both aspects do not depend on each other: One could ground universal rules on particular arguments and vice versa. The decision as a whole is deficient if it is particular or grounded solely on particular arguments.282 Universalizability is a fundamental aspect of normativeness and law.283 Yet the satisfaction of this criterion alone is not conclusive for the correctness of the decision.284 Universal norms may be incoherent or inconsistent with fundamental values. Yet without universalizability, it would not be possible to apply coherence and consistency checks to judgments. For a decision to be universal it must abstract from the particulars of a case.285 The neglect of certain features of a case is a virtue of legal rules because only by this characteristic can rules determine the decision in a case by determining which facts are relevant and which questions the decision maker must ask.286 Universal decisions therefore have a syllogistic structure, because they require norms or rules. A popular counter-example is the decision of King Salomon in the case of the two mothers and their claim for a baby. In that case two women, who shared a house, gave birth to a son each, approximately about the same time. One of them suffocated her child, took the child of the other and claimed it as its own. Salomon found out who the real mother was and returned the child to her. He found out by pretending to divide the child into two halves. The real mother then withdrew her claim while the false one sustained it, enough evidence for Salomon. This case is not resting on universal rules because the ‘rule’ of evidence applied only worked in that unique (particular) situation.287 The problem of such a way of decision making is that it violates a basic assumption of argumentation, not only in the legal field: That a decision be justified by a recourse to a (universal) norm, showing which norm is applied.288 Even in the Salomon case a universal rule can be discerned, namely that a child be returned to its mother.289 As was already noticed in connexion with 281

MacCormick, supra note 42, p. 21. Alexy, supra note 50, p. 275. 283 Pawlowski, supra note 250, para. 53, cf. 40. 284 Cf. MacCormick, supra note 42, p. 91. 285 Pawlowski, supra note 250, para. 55. 286 MacCormick, supra note 42, pp. 34, 42; Röhl and Röhl, supra note 39, p. 665. 287 Cf. Pawlowski, supra note 250, para. 46; MacCormick, supra note 42, p. 79. 288 Ibid., pp. 80, 88; Peczenik, supra note 232, p. 166; Aarnio, supra note 227, p. 198; Alexy, supra note 50, pp. 237, 251, 252 (with further references); Bengoetxea, supra note 53, pp. 171, 173, 224; Habermas, supra note 122, p. 103. 289 MacCormick, supra note 42, p. 88. 282

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1.6 Major Tenets of Modern Legal Theory coherence, universal rules need not be immutable.290 Universal rules can be qualified by adding exceptions to the rule. However, the exception must be universalizable.291 This is essentially the concept of defeasible logic. There is more to universalizability than formulating rules in a universal language. Although this is a necessary precondition for a rule being universal, is not sufficient. It is moreover important that the rule offers operability.292 Judges must be able to make the assessments necessary to apply the rule. The deep justification of this requirement lies in the rule of law and the principle of equal protection.293 This justification opens up a host of other relationships, namely to consistency and coherence. Because coherence and consistency are linked with equal protection, they are linked with universalizability, too. Universalizability allows for the falsification of a rule through a coherence and consistency test.294 Legal syllogism rests on the formulation of universal rules and syllogism in turn is a necessary tool for the justification of decisions or at least for their rational reconstruction.295 It is also a necessary step for the justification of a doctrine of binding precedent.296 Universalizability is after all only an instrumental criterion. A decision that is based on a universal norm may be wrong if this norm does not fulfil additional requirements, like coherence and consistency, e. g. with fundamental values. Still universalizability is indispensable because it connects a decision with the rest of the legal order and thus constitutes a necessary requirement to perform consistency and coherence tests.

1.6.4

Defeasibility

The syllogistic model and the central role of universal rules might suggest that rules are immutable, once established and interpreted. But the dynamic aspect of legal reasoning is commonly acknowledged. Legal reasoning does not yield infallible results. Rather, legal rules are continuously subject to modifications (qualifications and exceptions).297 This property of law is typically termed defeasibility.298 Defeasibility marks the non-monotonicity of the development of knowledge: Convictions can change by the discovery of new information 290

Ibid. Ibid., p. 94; Alexy, supra note 50, p. 275. 292 Robert S. Summers, ‘Resolving Conflicts Between Substantive Reasons’, in: Summers, Robert S. (ed.): Essays on the Nature of Law and Legal Reasoning (Duncker & Humblot, Berlin, 1992), p. 125, § II; Zucca, supra note 69, pp. 159–60. 293 Pawlowski, supra note 250, para. 36; MacCormick, supra note 42, p. 78. 294 Larenz and Canaris, supra note 199, pp. 279–80. 295 Alexy, supra note 50, pp. 275, 283; MacCormick, supra note 42, p. 33. 296 Ibid., p. 91. 297 Henry Prakken and Giovanni Sartor, ‘The Three Faces of Defeasibility in the Law’ 17 (2004) Ratio Juris, p. 118; MacCormick, supra note 42, pp. 239–53. 298 Ibid., p. 241; Prakken and Sartor, supra note 297, p. 122. 291

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Chapter 1. Standards of Legal Reasoning and previously deprecated beliefs can regain their importance.299 MacCormick distinguishes explicit and implicit defeasibility. The former describes the fact that many legal provisions that grant rights also prescribe exceptions to these rights or an exception can be found in related legal norms.300 Express defeasibility is related to the nature of legal proceedings: An applicant has to show that the conditions of a norm are satisfied. If he or she succeeds the respondent has to show that the conditions for the exception are fulfilled. So every legal claim may be defeated by showing that exceptions obtain.301 More important, however, is implicit defeasibility, i. e. the unforeseen establishment of exceptions. In legal reasoning, theory based defeasibility is of particular importance. 302 Theory based defeasibility refers to the amendment of theories by the substitution of sub-theories.303 The revised theory—and not only the sub-theory therein—must cohere and be consistent.304 Criteria for evaluating the quality of a new theory are: • • • •

How many cases can a theory explain (case-coverage)? How many features of precedents are taken into account (factor-coverage)?305 How many values are taken into account (value-coverage)? How many connexions exist between the components of the theory (analogical connectivity)? • How many ad hoc (unexplained) statements does the theory contain (non-arbitrariness)?306

The notion of a legal theory needs some explanation. It comprises a universal rule with the underlying value judgements and a list of paradigmatic examples. 307 The theory must be consistent and coherent, and falsifiable.308 According to Larenz and Canaris ‘coherence’ also requires that a theory must not contain unjustified exceptions because they question the credibility of the theory as a whole. A theory is falsified if it is shown that it does not cohere with settled law. In that case a theory need not be abandoned completely, if it can be altered or amended.309 This account of defeasibility could be interpreted as an acknowledgement of the Realist criticism: “As you can see, there is no legal knowledge and no legal rules whatsoever, because they are defeasible anyway. Rules may be changed ad hoc, so the purported value of rules (ensuring predictability) does not exist.”310 299

Ibid., pp. 118–9. MacCormick, supra note 42, p. 241. 301 Prakken and Sartor, supra note 297, pp. 124–5 term this as process based defeasibility. 302 For a more detailed explanation: Ibid., pp. 130–6. 303 Ibid., p. 134. 304 Ibid., pp. 131–2. 305 I have to add: Where a written constitution and statutes exist, one also has to gauge a theory by its considering written requirements. 306 Ibid., p. 134. 307 Larenz and Canaris, supra note 199, pp. 277–8. 308 Ibid., pp. 279–80. 309 Ibid., pp. 281–2. 310 Cf. MacCormick, supra note 42, pp. 247–9; see Atria Lemaître, supra note 67, pp. 184–8 300

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1.7 Justifying Fundamental Rights and Democracy Rules must show at least some resistance to maintain their effect, e. g. rules should only be changed in extreme cases.311 If defeasibility is viewed in context, the alleged problem does not arise. To recapitulate: Rules must have a universal structure. Exceptions may be added to any rule, but there are some requirements that such an amendment must meet: The exception must • • • •

be stated in universal terms; be justified with a recourse to universals; e. g. principles of law; meet the consistency and coherence test; and conform to substantial values.

Taking defeasibility into account, the considerations of this section form a coherent picture, with the syllogistic application of rules in its centre. The syllogistic application of rules ensures the fulfilment of requirements of universalizability and coherence. Material justification is ordered around the syllogistic model of legal reasoning and is supplementing it by justifying its premisses, especially where new rules have to be created or interpretation seems inadequate. Here, material justification aims at the formulation of a new rule and this justification is limited by requirements of universalizability, coherence and local consistency. Thus, the character of legal reasoning as a discourse is revealed.

1.7

Justifying Fundamental Rights and Democracy

So far, the study presented formal criteria of legal reasoning. It left open with what coherence and consistency should be ultimately established, especially if recourse must be had to ‘moral’ arguments in problem cases. The reader could have the impression that any universally applicable and coherent rule should be applied, no matter how the rest of the legal system was shaped. This impression might even be reinforced by the starting point of this study: Legal validity was defined as, among others, a social fact. That definition is feasible insofar as the interest is in how the current legal system works. To the extent that it should be fully explained and justified why the Court felt forced to acknowledge fundamental rights in the Handelsgesellschaft 312 case, the approach is deficient. It cannot explain why fundamental rights had to be acknowledged and which ones are required in such situations. Asking and answering these questions is not a legal question any longer, at least if ‘legal’ is defined as a fact. These questions are of a deeply moral character but answering them is nevertheless indispensable for legal reasoning, especially because the justification of fundamental rights can influence their application. for a detailed discussion. 311 Cf. ibid., pp. 184–7. 312 Supra note 3.

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Chapter 1. Standards of Legal Reasoning I shall present three candidates. The first two will be dealt with briefly for their being dissatisfying.

1.7.1

H.L.A. Hart

In The Concept of Law, Hart presented and justified a minimum content of natural law, which could be understood as a set of fundamental rights. A legal system must • • • •

protect bodily integrity; respect approximate equality; provide for a system of property rights; and be a coercive, i. e. enforceable system.313

Although it poses a legitimacy problem for a legal system, it need not grant all these essentials to all of its members. 314 However, the greater the inequalities, the more unstable the system will be and the more force will be necessary to sustain it.315 It is Hart’s justification of this set of values that renders it quite interesting: Neither does he have recourse to some authority (God, tradition, etc.) nor does he infer these values from facts alone.316 Instead he founds his idea on a “central indisputable element”, namely that humans want to survive (as an association of individuals).317 This is not just regarded as some contingent opinion of a majority of people (which would be normatively irrelevant due to Hume’s Law), rather . . . this is reflected in whole structures of our thought and language, in terms of which we describe the world and each other. We could not subtract the general wish to live and leave intact concepts like danger and safety, harm and benefit, need and function, disease and cure; . . . We are committed to it [survival] as something presupposed by the terms of the discussion; for our concern is with social arrangements for continued existence, not with those of a suicide club.318

The argument is quite strong: Survival is stated as something that cannot be eschewed in human thought. And the conditions sketched above ensure just that. Therefore they are as necessary as what they ensure. One may wonder, however, whether Hart completely described all essentials of humans: Is there more to humanity than a will to survive? Proponents of discourse ethics would answer in the positive, which entails that the set of essential values is somewhat broader. What is especially missing is a justification of basic requirements of democracy. Minimum requirements of the law state may be inferred from his set 313 314 315 316 317 318

Hart, Ibid., Ibid., Ibid., Ibid., Ibid.,

supra note 39, pp. 194–8. p. 201. p. 202. pp. 185–90. p. 191. p. 192; emphasis added.

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1.7 Justifying Fundamental Rights and Democracy of values, but they are not obvious either. Moreover, equality is not sufficiently stressed. In other words: According to this set of values an absolute monarchy would be as acceptable as a democratic republic, provided both foster these basic values equally. Although the force of the justification is quite strong, its scope is limited because is does not provide for a justification of democracy.

1.7.2

Neil MacCormick

MacCormick presents are more comprehensive set of values. He suggests these basic values: • Live honestly! • Harm nobody! • Treat all persons with the respect due to them!319

According to MacCormick these values are reflected in most legal orders. The first criterion can be found in criminal law against fraud and in the good faith requirement. The second value concerns bodily integrity and the very right to life, including environmental quality. The last value underlies the present idea of human rights. It also requires democratic participation, a system of legal protection of rights, and a large body of public law.320 Although MacCormick includes democratic participation, his justification is quite unsatisfactory because it rests on the ancient authority of the Digest of Justinian, i. e. on tradition.321 If the mere fact of an existing practice is used to justify a normative ideal, then the whole argument will suffer from a naturalistic fallacy. That is not say that tradition is completely irrelevant; for example, it could be relevant where all other arguments are inconclusive. Tradition is especially problematic in the EC , since not all Member States share a common traditional ground for all problems. Therefore a criterion is needed that discriminates between ‘right’ and ‘wrong’ traditions.322 Thus a normative theory is needed that avoids the naturalistic fallacy of traditionalist arguments323 but that has a broader scope than the approach favoured by Hart.

1.7.3

Discourse Theory

Discourse theory could provide the foundation for a normative theory that fulfils the requirements stated at the end of the previous section, namely being free from fallacies and with enough reach to justify equal rights and democratic participation. However, discourse theory is heterogeneous; two positions can be 319 320 321 322 323

MacCormick, supra note 42, p. 115. Ibid., pp. 115–6. Ibid., p. 115, n. 35. Cf. Ekardt, supra note 111, pp. 82–3. And other fallacies, see below.

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Chapter 1. Standards of Legal Reasoning discerned: According to the older position, the core principles of discourse theory rest on a single undeniable and universal footing, i. e. the justification claims to be quite strong.324 Others concede that the foundation of core principles must be supported by additional arguments drawn from psychological research, cost-benefit-analyses, or cultural contexts.325 Independent from these differences, there are differences regarding the reach and content of the core principles. Discourse theory can be discussed and criticized on various levels: 1. Is it possible answer normative problems rationally? 2. Can any normative requirements be derived from answering the first point in the positive?326 3. If the inference from point 2 can be made, how far-reaching are these requirements? Do they extend to all people or only some? Must additional assumptions be made to support such conclusions?327 4. What is the reach, content, and relationship among these principles?328

The first point was discussed above, in Section 1.4, and answered in the positive. Critics moreover challenge point 2; while proponents of discourse theory argue about points 3 and 4. (a)

Claims of Discourse Theory

It is agreed among proponents of discourse theory that a just legal system must provide for a comprehensive range of fundamental rights. 329 These must moreover be granted to all persons, i. e. irrespective of any particulars like religion, sex, or origin.330 The necessary, i. e. essential, social and ecological preconditions for exercising political rights must also be protected.331 The 324 Apel, supra note 49, pp. 405–22; Apel, supra note 117, p. 71; Kuhlmann, supra note 134, p. 23. 325 Habermas, supra note 122, pp. 107–8; Alexy, supra note 136, pp. 139–41. 326 Acknowledging this: Apel, supra note 117; Ekardt, supra note 111, pp. 63–5; Alexy, supra note 136, pp. 133–9; Kuhlmann, supra note 134, pp. 181 et seq.; Habermas, supra note 122, p. 103; against this: Karl-Eberhard Hain, ‘Diskurstheorie und Menschenrechte’ 40 (2001) Der Staat, p. 193, pp. 204, 206; Peter Gril, ‘Alexys Version einer transzendental-pragmatischen Begründung der Diskursregeln im Unterschied zu Habermas’ 83 (1997) Archiv für Rechtsund Sozialphilosophie, p. 206, p. 213; Armin Engländer, ‘Zur begrifflichen Möglichkeit des Rechtspositivismus’ 1997 Rechtstheorie, p. 437, p. 448; Herbert Keuth, Erkenntnis oder Entscheidung: Zur Kritik der kritischen Theorie (Mohr, Tübingen, 1993), p. 317; Keuth, supra note 117, pp. 334–5. 327 Habermas, supra note 122, pp. 107–8; Alexy, supra note 136, pp. 139–41; Ekardt, supra note 111, pp. 65–7 and 123–40. 328 See Felix Ekardt, Wird die Demokratie ungerecht? Politik in Zeiten der Globalisierung (Beck, Munich, 2007), pp. 146–55 and Habermas, supra note 39, pp. 324–48 [267–86]; the former proposes a more rigorous model of judicial review than the latter. 329 Ibid., pp. 155–6 [122]; Alexy, supra note 136, p. 154; Ekardt, supra note 111, p. 61; cf. Apel, supra note 49, p. 428 who argues that people should not be treated as a means. 330 Habermas, supra note 39, pp. 109–10 [82–3]; Alexy, supra note 136, pp. 156, 163; Ekardt, supra note 328, p. 62. 331 Habermas, supra note 39, pp. 156–7 [123]; Alexy, supra note 136, pp. 156, 163; Ekardt,

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1.7 Justifying Fundamental Rights and Democracy foundation of discourse theory lies in the use of language or certain speech acts.332 Connected with this foundation is the view that normative questions must be solved by a communicative process that fulfils at least certain formal requirements.333 This entails some form of democratic government.334 Whether and to which extent substantive requirements must be observed is contentious. Habermas seems to opt mainly for enforcement of procedural requirements only,335 while Alexy and Ekardt opt for enforcement of substantive requirements through judicial review—to varying degrees, however.336 Moreover, rights receive additional force by requiring that rights can only be limited for the sake of other rights. This element can be found with varying strength: Alexy assumes a primafacie preference for rights over collective goods that are not backed by rights.337 Habermas argues that rights trump policies (i. e. collective interests) and that rights may only be limited by policies if these are supported by rights.338 Ekardt argues that limitations of rights may only be justified with a recourse to rights of others or the preconditions for exercising rights.339 This admittedly sketchy overview should not disguise that there are differences not only regarding the reach, content, and relationship among these principles but also regarding their justification. However, the core of the justification is principally the same: (b)

Justification of Discourse Theory

Discourse theory founds its fundamental norms by relying on a transcendental argument.340 The basic structure of the argument runs as follows: (i) Show that supra note 328, p. 88. 332 Alexy, supra note 136, pp. 135–9 [assertion (Behauptung)]; Ekardt, supra note 111, pp. 63–73 [reason (Grund)]; Kuhlmann, supra note 134, p. 51 [meaningful argumentation (sinnvolle Argumentation)]; Apel, supra note 49, pp. 399–401, 403–5 and Habermas, supra note 122, pp. 99–101 [argumentation (Argumentation)]. 333 Alexy, supra note 50, pp. 233–55; Habermas, supra note 122, p. 103; Habermas, supra note 39, pp. 138 [107]; Apel, supra note 49, pp. 426–9. 334 Habermas, supra note 39, pp. 138–9 [108–9], pp. 161–2 [127–8]; Alexy, supra note 136, p. 163; Ekardt, supra note 328, p. 236. 335 Habermas, supra note 39, pp. 324–48 [267–86]. 336 Alexy, supra note 7; Ekardt, supra note 328, pp. 146–55. See also Apel, supra note 134, p. 428, who argues that people must not be treated as a means. 337 Alexy, supra note 136, p. 154. 338 Habermas, supra note 39, pp. 316 [259–60]. 339 Among preconditions, essential preconditions for the exercise of rights can be distinguished from others, which only foster their their enjoyment. The former may be called ‘necessary preconditions’. See Ekardt, supra note 111, p. 89; ibid., p. 218; and n. 1907. 340 Alexy, supra note 136, p. 133; Ekardt, supra note 111, pp. 57–77; Ekardt, supra note 328, p. 54; terminology varies, some call this argument ‘transcendental-pragmatic’ (transzendental-pragmatisch, Apel, supra note 49, pp. 401–2); ‘language-pragmatic’ (sprachpragmatisch, Apel, supra note 134) or ‘universal-pragmatic’ (universal-pragmatisch,Jürgen Habermas, ‘Was heißt Universalpragmatik?’, in: Apel, Karl-Otto (ed.): Sprachpragmatik und

49

Chapter 1. Standards of Legal Reasoning A is necessary. (ii) Show that conditions C must be fulfilled if A be possible. (iii) C is also necessary.341 This argument is based on the necessities of human speech and language. First, the very fact that humans communicate (through exchange of assertions, reasons, etc.) is shown to be essential for being human.342 In a next step it is shown that certain normative requirements must be effective for speech to function properly, e. g. mutual respect and equal treatment.343 That communication is essential cannot be denied without participating in communication and in employing certain speech acts; in other words: Denying them constitutes a performative contradiction.344 This strategy is not only used to disarm the sceptic but also to provide an undeniable foundation for the most essential normative requirements: respect (i. e. autonomy, dignity) and impartiality. Fundamental rights and democratic deliberation are founded on these two core principles, which are in turn founded on the possibility of resolving normative problems by means of rational argumentation. Thus discourse theory can provide a firm justification for these fundamental principles. To be able to discuss the objections against discourse theory, the justification must be discussed in more detail. Alexy is taken as an example. References point to differences to other authors. Alexy’s argument begins by explicating the implications of ‘assertions’ (Behauptungen):345 1. The speech act ‘assertion’ implies a claim that the assertion is true and correct.346 2. It implies that it can be justified.347 3. Justifications require reasons and reasons imply equality of proponent and opponent, including respect.348 Moreover, universalizability is implied, too. 4. Discourses thus defined cannot be avoided for one’s whole life without ceasing to be human; at least sometimes and towards some persons one has to act in the manner just specified.349 5. The argumentation so far has only a limited scope, because it presupposes an interest in moral rightness.350 Philosophie (Suhrkamp, Frankfurt am Main, 1976), p. 174, pp. 201–4, Alexy, supra note 50, p. 231). 341 Alexy, supra note 136, p. 133. 342 Apel, supra note 49, p. 414; Ekardt, supra note 111, p. 65; cf. Alexy, supra note 136, p. 139. 343 Ekardt, supra note 111, pp. 64–5; Alexy, supra note 136, pp. 135–9; Habermas, supra note 122, pp. 100–3. 344 Ekardt, supra note 111, p. 63; Habermas, supra note 122, pp. 100–1; Kuhlmann, supra note 134, p. 76; cf. Alexy, supra note 136, p. 138. 345 Numbers in parentheses refer to Ibid. 346 Ibid., p. 135; Ekardt, supra note 111, pp. 63–4 starts with ‘reason’ (Grund); see also n. 332. 347 Alexy, supra note 136, p. 136. 348 Ibid., pp. 13–78; Habermas, supra note 122, pp. 98–101; Ekardt, supra note 111, pp. 63–4; cf. Apel, supra note 49, pp. 400-1. 349 Alexy, supra note 136, p. 139; Apel, supra note 49, p. 414. 350 Alexy, supra note 136, p. 142; cf. Habermas, supra note 122, p. 106; this is a difference to Apel, supra note 49

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1.7 Justifying Fundamental Rights and Democracy 6. Therefore, Alexy claims that it is in one’s personal interest to observe basic discourse principles.351 7. The basic principle of autonomy, which implies other human rights, can be founded on discourse rules.352 8. The validity of autonomy is extended beyond mere discourses, because it must be always possible to re-open a discourse and to question the results of prior discourses. 353 This is necessary because discourses lead to fallible knowledge, which requires the real chance to rethink it.354 9. Autonomy is backed up by the principle of universalizability.355

Despite the differences, a general structure can be discerned: A speech act, a group thereof, or language in general is defined as being governed by rules which have certain moral implications. At least sometimes people must obey these rules, i. e. they cannot be disregarded always and forever. Therefore the named moral implications must always be observed towards anybody. Those who deny the validity/existence of these rules have already accepted them by using the speech act ‘denial’; thus they contradict themselves. The point of the whole argument is not the explication of certain normative requirements which follow logically from one’s participating in a discourse. The significance lies in showing that there is no choice in accepting or rejecting the rules because we are—by being humans—forced to participate in a discourse and that the stated rules are universally valid even if we only participate in discourses which are restricted regarding the number of addressees and the extent in time. (c)

Objections

Critics argue that the justification, in particular the argument of performative contradiction, is circular because a contradiction can only obtain if and only if the definition of certain rules is accepted. 356 The definitions, however, are not compelling: Neither must assertions ( Behauptungen ) have the specific content that Alexy ascribes to them, nor need communication always be directed at comprehension or be governed by claims of truthfulness and sincerity.357 The rules declared as necessary preconditions for discourses can only be compelling if it is accepted that there is some interest in truth.358 It is therefore necessary 351

Alexy, supra note 136, p. 142. Ibid., p. 148. 353 Ibid., p. 149. 354 Ibid., p. 150; Ekardt, supra note 111, p. 67. 355 Alexy, supra note 136, p. 156. 356 Hain, supra note 326, pp. 204, 206; Gril, supra note 326, p. 213; Engländer, supra note 326, p. 448; Keuth, supra note 326, p. 317; Keuth, supra note 117, pp. 334–5; Alexy, supra note 136, n. 27. 357 Hain, supra note 326, p. 204; Gril, supra note 326, p. 209; Engländer, supra note 326, p. 452; Keuth, supra note 117, pp. 334–5. 358 Gril, supra note 326, p. 208; Keuth, supra note 326, p. 308; Keuth, supra note 117, p. 336. 352

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Chapter 1. Standards of Legal Reasoning to explain why this interest in truthfulness or related conditions is necessary.359 The problem is recognized by advocates of discourse theory.360 There are three strategies to answer the critique: (a) Although it might be possible that people can evade the necessary conditions of argumentation, no one can do so for ever. At least from time to time one has to engage in an argumentation as defined by discourse ethics.361 Alexy and critics agree that this reservation substantially weakens the transcendental argument.362 It remains open why one should obey the discourse rules always and towards everyone, just because one does so from time to time. Alexy tries justify this claim with a recourse to a Utilitarian argument: In the long run, it is cheaper to accept the freedoms which are implied by discourse rules.363 This approach is objectionable for various reasons: First, Alexy must assume that the rulers have a long run interest.364 Moreover, it is questionable whether a ruler will really be willing to accept limitations of his or her authority.365 Finally, there are people that do not aim at maximizing their personal utility.366 Based on some knowledge of decision theory, I wish to add: Alexy must assume that people maximize their utility, which is questionable.367 Moreover, he must assume a particular utility function with a certain shape, according to which the cost of oppression is higher than the cost of democracy and human rights. Furthermore, the ruler must be risk averse, i. e. he or she must find it likely that his or her rule will be overthrown within a certain time-span. If the loss of authority is estimated to occur in the far future, then the tendency to discount future losses must be overcome. Although these premisses are not impossible, they are far from being trivial and require a thorough justification. (b) Ekardt doubts that certain empiric findings, e. g. people sometimes do not obey the standards of rational discourse, can have any bearing on the rightness of the normative claims of discourse ethics. Stated in simple terms: The mere violation of a norm has no impact on its validity.368 Corresponding to this, he argues that the mere existence of a dispute about the validity and content of rules of rational discourse does not effect their actually being invalid. 369 Both 359

Gril, supra note 326, p. 208; Keuth, supra note 326, p. 308; Keuth, supra note 117,

p. 336. 360 Habermas, supra note 122, p. 105; Alexy, supra note 136, p. 142; Apel, supra note 49, p. 415; Ekardt, supra note 111, p. 72. 361 Habermas, supra note 122, p. 110; Alexy, supra note 136, pp. 139–40; cf. Apel, supra note 49, p. 414. 362 Alexy, supra note 136, p. 142; Hain, supra note 326, p. 207; Gril, supra note 326, pp. 209, 214. 363 Alexy, supra note 136, pp. 142–3. 364 Gril, supra note 326, p. 214. 365 Ibid. 366 Ibid. 367 See Chapter 4. 368 Ekardt, supra note 111, p. 69. 369 Ibid., pp. 72–3.

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1.7 Justifying Fundamental Rights and Democracy arguments are based on the distinction between is and ought. The difficulty is that a recourse to the is-ought-dichotomy does not seem appropriate when transcendental arguments are at issue. According to discourse theory, it is impossible to act and even live without acceptance of certain rules. If it can be shown, however, that it is indeed possible to live, act, and talk without accepting the stated requirements, then this fact does have a normative bearing. In this way it is not more or less violating the dichotomy of is and ought as the transcendental argument does. The transcendental argument bridges is and ought through the concept of impossibility and a refutation of the argument must correspondingly be allowed to tear down this bridge by employing the notion of possibility. Where it otherwise, it would be impossible to refute the argument. Critics argue that manipulation, fraud, etc. constitute human communication as well as sincere and truthful argumentation.370 Moreover, it is possible to escape the threat of self-destruction by founding smaller societal units.371 In other words: Although discourse theory is right in claiming that one cannot eschew rational argumentation always and forever, it is an exaggeration to claim that this ideal must always be followed; rather, one can decide to argue with certain persons only. And it is possible to challenge the discourse ethical definitions of assertion, reason, or argumentation, simply because one does not necessarily reject the whole definition but only particular implications. 372 The main problem is thus not that the definition of ‘assertion’ or ‘reason’ is circular. The point is that it remains unclear why the occasional use of certain speech acts obliges one to accept moral standards towards everyone at any time. Ekardt adduces further arguments.373 However, they cannot be discussed in their entirety, since this exceeds the scope of this study. It suffices to show that a universal and undeniable justification of fundamental principles of justice must meet considerable difficulties. (c) The difficulties arise around the levels two and three of justification. Do we really have to accept certain normative requirements just because we are human beings and do have to grant respect to everyone? However, it is not disputed that normative rationality is possible. Moreover, critics do not challenge the conclusions made at level four. So, if the demand of the justification at level two/three is lowered, then discourse theory proves to be quite valuable. The inferences at level four can hardly be challenged, once it is accepted that social problems should not be solved by means of war, oppression, or other forms of unlimited power. The European Union (EU) is an attempt to achieve just this.374 Today, its Member States are committed to the values that are endorsed by discourse theory.375 If the universal demands of discourse theory are 370 371 372 373 374 375

Gril, supra note 326, p. 209. Ibid., pp. 209–10. Keuth, supra note 117, p. 335. See Ekardt, supra note 111, pp. 57–77. See the preamble of the TEU . See, in addition to the TEU , the preambles to the European Convention on Hu-

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Chapter 1. Standards of Legal Reasoning dropped376 and if we acknowledge that we are committed to peace, democracy, and individual liberty, then discourse theory provides a good reconstruction of what these ideals mean.

1.7.4

The Relationship between Law and Morals—the Special Case Thesis

In Section 1.1 it was left open how law and legal reasoning on one hand and morals and “general practical argumentation” on the other are related. From the previous section we learned that fundamental rights and democracy can be morally justified and that a legal system should provide a system for the protection of rights and democratic deliberation. Some scholars place considerable emphasis on elaborating the proper relationship between legal and ‘general practical’ reasoning.377 Is legal reasoning a special case of general practical reasoning or something entirely different? 378 Alexy argues that legal reasoning is a special case of general practical reasoning, because legal discourse deals with practical questions which are moreover discussed with claims of rightness.379 However, there are properties that distinguish the legal discourse from its general form.380 This specialness can be understood in three ways:381 1. Legal argumentation can be regarded as moral justification behind a legal façade. 2. Practical arguments become relevant when legal arguments are inconclusive (supplementation thesis). 3. Practical arguments always play a role along with legal arguments (integration thesis).

I believe that the debate about the special case thesis as well as the term itself is highly misleading, once the actual relevance is considered.382 Although commentators use the word ‘is’ to describe the relationship between different forms of practical reasoning, it cannot be understood as a mere descriptive account of different forms of reasoning. Understood as a mere taxonomy, the special case thesis is not worth the debate. So, what are the possible effects man Rights (ECHR), Charter of Fundamental Rights of the European Union (CFREU), International Covenant on Civil and Political Rights (ICCPR). 376 as Habermas, supra note 39, pp. 537 [446] does, for example. 377 See, for example, Robert Alexy, ‘The Special Case Thesis’ 12 (1999) Ratio Juris, p. 374; Bengoetxea, supra note 53, pp. 141–8; Habermas, supra note 39, pp. 252–8 [206–11]; Georgios Pavlakos, ‘The Special Case Thesis: An Assessment of R. Alexy’s Discursive Theory of Law’ 11 (1998) Ratio Juris, p. 126 378 See Alexy, supra note 50, pp. 426–35; Alexy, supra note 377 for a more recent discussion. 379 Ibid., p. 375. 380 Ibid. 381 Alexy, supra note 50, p. 38. 382 In the rest of this section, I shall take for granted that legal reasoning is after all concerned with practical arguments, see Pavlakos, supra note 377, pp. 127–9 for a discussion.

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1.7 Justifying Fundamental Rights and Democracy of applying a special case thesis; what is implied with it? I shall present some variations that do not square with Alexy’s three-pronged classification. His classification is imprecise because it does not distinguish the following aspects: • When do practical arguments play a role? • Which practical arguments are relevant and which priority do they enjoy over legal considerations? • How should they be operated? • By which institution should practical arguments be eventually considered?

The last two variants presented by Alexy only concern the first aspect. Alexy supports the integration thesis, according to which practical arguments always play a role in legal reasoning, but the conception of integration remains quite unclear, as Alexy himself notes.383 At the end of Theorie der juristischen Argumentation, Alexy is more precise: Practical arguments are necessary where normative premisses need saturation, where a choice must be made among forms of arguments, where dogmatic rationales need justification, where distinguishing and overruling require justification, or they may be directly employed for internal justification.384 However, Alexy adds that practical arguments are only necessary, where legal forms of argument cannot fill the gaps just described. But this is not always possible.385 Shortly: Practical arguments are necessary where legal arguments are inconclusive.386 This, however, is known since the acknowledgement of the open texture of law and is held by a range of authors,387 even by positivist ones.388 It also squares with the view advocated in this study (see Section 1.4.3). This also means that Alexy’s view is quite contradictory: He advocates the integration thesis, but after putting it into concrete terms, it appears to be a supplementation thesis.389 So, one may wonder whether there is more to it: The other possible effects of the special case thesis could thus relate to the admissible range of arguments, their force, or the way they are operated. Practical arguments can cover a range of different aspects. According to the classification made above,390 it concerns moral, political, ethical (i. e. individual), and pragmatic (i. e. concerning the means-end relationship) arguments.391 It is at least an oversimplification to talk of the relevance of practical arguments in general: Taken literally, it means that ethical arguments, i. e. conceptions of the good life, should play a role in legal reasoning. This is at least questionable and 383 384 385 386 387 388 389 390 391

Alexy, supra note 50, p. 38; see also Bengoetxea, supra note 53, p. 142. Alexy, supra note 50, p. 347. Ibid. See also ibid., p. 383. For authors like Dworkin, supra note 52, pp. 22–3. Bengoetxea, supra note 53, p. 142; Hart, supra note 50, p. 608. See also Alexy, supra note 377, p. 383. See page 10. See also ibid., p. 378.

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Chapter 1. Standards of Legal Reasoning requires a thorough debate.392 At least some proponents of discourse ethics believe that such arguments be always defeated by rights.393 If law should deal with conceptions of good life, then as a mere means to ensure private autonomy in this regard.394 Whether political arguments should play a role is problematic from a separation of powers point of view: Can courts substitute their political convictions, if they may have some at all, for those of legislators? Separation of powers considerations will be recurrent theme of this study. Here, the problem cannot be solved but only uncovered. The same applies to pragmatic arguments. The suitability test as part of the proportionality principle certainly is such an argument. Acknowledging this, however leads directly to the next questions: How should it be operated? Do legislators enjoy discretion and how broad is it? Again, the problems are only stated. Solving them is the over-all purpose of this study. Gauging the relevance of moral arguments is not less difficult: We know from the previous section that certain requirements of justice must be met by a legal order. These principles of justice direct its addressees and also exclude certain things. But it should also be clear that they allow for some variety, although the extent of discretion could be debated.395 Anyway, moral arguments may itself turn out to be not conclusive. Even if a violation of moral principles is established, it is unclear how it should be resolved. Although the principles were found by moral reasoning, their application must be governed by standards of legal, not moral, reasoning. Otherwise legal reasoning would not be ‘special’ but identical to moral reasoning. Any argument must be transformed into legal language and must be operated as if it were a legal argument.396 These considerations show that the special case thesis creates problems that cannot be easily answered. Determining the range of arguments, their force, the methodical approach, and the institutional setting are complexsubstantive questions. After these problems are solved, classifications such as Legal reasoning is

a special case of a subset of different from

general practical argumentation.

can be made. But it would be a petitio principii to do it the other way round. So, understood as a supplementation thesis, the special case thesis could be consented. Still, the thesis should be rejected because it conceals complex substantive problems behind the veil of a taxonomy. 392

See Ekardt, supra note 111, p. 265. See Habermas, supra note 39, pp. 316 [259–60] (rights trump interests that are not backed by rights); Ekardt, supra note 111, p. 265 (rights may only be restricted to protect rights and their preconditions). 394 Ibid., p. 266; Habermas, supra note 39, pp. 112 [84–5] private autonomy (private Autonomie). 395 See ibid., pp. 324–48 [267–86] and Ekardt, supra note 328, pp. 146–55 for opposing views. 396 Habermas, supra note 39, pp. 250–3 [204–7]. 393

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1.8 Interpretation

1.8

Interpretation

One of the characteristics of the legal discourse is that it is restricted by a framework of legal norms, 397 in case of the EC of written ones. The ECJ has to enforce the law of the Treaty (art. 220 TEC ). This requires the text being interpreted. As a form of legal argument, interpretation instantiates the general requirements that were presented above in Section 1.6.398 Generally, there are four methods of interpretation:399 • • • •

ordinary meaning, historical interpretation, systematic interpretation, and teleological interpretation.

Although the TEC is an international treaty, there seems to be a consensus that not all international rules of interpretation apply to the TEC , for example the rule that a state’s sovereignty should be respected as much as possible.400 The circumstance that the Treaty aims at integration prohibits such an approach. Instead, the Court employs the effet utile rationale.401 Moreover, the national rules of interpretation cannot be directly applied to the TEC because the Community constitutes an autonomous legal order.402 One of the most notable differences to national law and also to international law is the irrelevance of historical interpretation of the Treaty (not of secondary legislation) because the preparatory works are not published.403 Therefore the Court only relies on systematic and teleological interpretation where the wording of the Treaty is inconclusive.404 Historical interpretation will therefore be omitted for the rest of the analysis. 397

Alexy, supra note 50, p. 262. See ibid., pp. 123–4 for a description of the concept ‘form of argument’ (Argumentform). 399 See art. 31–2Vienna Convention on Law of Treaties (VC). 400 Borchardt, in: Reiner Schulze et al., Europarecht: Handbuch für die deutsche Rechtspraxis (Nomos Verl.-Ges., Baden-Baden, 1st edn., 2006), § 15, para. 31; Guy Isaac, Droit Communautaire Général (Masson, Paris, 3rd edn., 1993), pp. 151–2; Schwarze, in: Jürgen Schwarze and Bertold Bär-Bouyssière, EU-Kommentar (Nomos Verl.-Ges, Baden-Baden, 2nd edn., 2009), Artikel 220 EGV, para. 27 with further references; Hans Peter Ipsen, Europäisches Gemeinschaftsrecht (Mohr, Tübingen, 1972), § 5, para. 77. 401 Ibid. and cf. Case C–26/62, Van Gend & Loos v. Inspecteur der Invoerrechten en Accijnzen, Enschede [1985] ECR 779 and Case 6/64, Costa v. E.N.E.L. [1964] ECR 614 (English Special Edition) where the Court stressed the particularity of the Treaty. 402 Borchardt, in: Schulze et al., supra note 400, § 15, para. 31; Wegener, in: Christian Calliess and Matthias Ruffert, Kommentar zu EU-Vertrag und EG-Vertrag (C.H. Beck, Neuwied, Kriftel, 3rd edn., 2007), Art. 220 EGV, para. 12; cf. Van Gend & Loos, supra note 401 and Costa v. ENEL, supra note 401. 403 Borchardt, in: Schulze et al., supra note 400, § 15, para. 41; Schwarze, in: Schwarze and Bär-Bouyssière, supra note 400, Artikel 220 EGV, para. 28; cf. Ipsen, supra note 400, § 5, para. 80. 404 Borchardt, in: Schulze et al., supra note 400, § 15, paras. 27–8; Isaac, supra note 400, pp. 150–3. 398

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Chapter 1. Standards of Legal Reasoning Following Alexy, one can describe the function of interpretation as follows:405 Legal reasoning is based on a syllogistic framework: 1. ∀x: If x is an f , then the (legal) consequence c ought to occur. (∀x : f x → c) 2. a is an f . 3. Consequence c ought to occur.

It is not always possible to say that x is an f . In that case one needs a rule in the form of: “∀x: If x is an m, x is an f .” The syllogism is thus transformed into this form: 1. 2. 3. 4.

∀x: If x is an f , then the (legal) consequence c ought to occur. ∀x: If x is an m, x is an f . a is an m. Consequence c ought to occur.

So, instead of ∀x: f x → c, the norm ∀x : mx → c can be applied. In other words, interpretation transforms abstract norms into more concrete ones and helps to perform the conclusion that the facts instantiate the universals of a norm.

1.8.1

Ordinary Meaning

Above, in Section 1.4.1, it was argued that the ordinary meaning of texts can generally be determined and that this contributes to the rationality of legal argumentation. Indeed, the Court relies on the wording.406 However, two reasons are often adduced for demonstrating the insufficiency of textual interpretation: (a) The multi-lingual nature of Community law and (b) the way in which many Community provisions are drafted.407 (a) The Court attributes equal weight to all languages, i. e. their importance does not depend on the size of the population speaking the language in question.408 Divergence between different versions can sometimes require additional interpretative efforts but can sometimes be used to support the findings from other methods. Additional efforts may be necessary where a term 405

See Alexy, supra note 50, p. 288 and Section 1.3. Case 149/77, Gabrielle Defrenne v. Société anonyme beldge de navigation aérienne Sabena [1978] ECR 1365, para. 19/23 (henceforth cited: Defrenne); Case 152/84, M. H. Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723, para. 48; Case C–91/92, Faccini Dori v. Recreb [1994] ECR I–3325, para. 22; Case C–94/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and others [1996] ECR I–3953, para. 11; see Anthony Arnull, The European Union and its Court of Justice (Oxford University Press, Oxford, 2nd edn., 2006), p. 608 and Schwarze, in: Schwarze and Bär-Bouyssière, supra note 400, Artikel 220 EGV, para. 28. 407 Wegener, in: Calliess and Ruffert, supra note 402, Art. 220 EGV, para. 12; Borchardt, in: Schulze et al., supra note 400, § 15, paras. 34–9; Ipsen, supra note 400, § 5, para. 75; Arnull, supra note 406, p. 608. 408 Borchardt, in: Schulze et al., supra note 400, § 15, para. 35; Arnull, supra note 406, p. 609. 406

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1.8 Interpretation is used consistently in language version A but inconsistently in languages B, C, and D. In that case, it cannot be taken for granted that the term really has the same meaning.409 Additional means may moreover be required if a term appears unambiguous in language versions A, B, and C but is expressed differently and ambiguously in language versions D, E, and F .410 Resolving ambiguities, the Court supports its findings by stating that the interpretation is not contradicted by any language version.411 (b) The second reason for difficulties with Treaty interpretation is its vague language, imprecision, and the existence of gaps. 412 However, this is a feature of constitutions in general.413 It makes other means of interpretation more necessary.414 In a more formalized fashion, interpretation can be described to work as follows: (a) The wording can definitely support an interpretation or exclude certain interpretations.415 (b) Where a concept is vague, there will moreover remain neutral “candidates”—the wording is inconclusive.416 In many cases, it is possible to determine what a text includes and excludes by assessing the use of the expression at issue in normal or specialized languages.417 However, in the EC it is more probable that the wording appears inconclusive due to many language versions. On the other hand, where language versions are congruent they provide an even stronger argument. Thus, lingual diversity can sometimes increase certainty.

1.8.2

Systematic Interpretation

For the problems just described, the Court must rely on other means of interpretation. Of pivotal importance, together with teleological interpretation, is 409 Ibid., p. 610 citing Case 30/77, Régina Bouchereau v. Pierre Bouchereau [1977] ECR 1999, para. 13 (henceforth cited: Bouchereau). 410 Arnull, supra note 406, p. 610 citing Case C–257/00, Givane et al. v. Secretary of State for the Home Department [2003] ECR I–345, paras. 34–7. 411 Arnull, supra note 406, p. 611 citing Case C–298/94, Anette Henke v. Gemeinde Schierke und Verwaltungsgemeinschaft „Brocken“ [1996] ECR I–4989, para. 15 (henceforth cited: Henke); Bosphorus (Community), supra note 406, para. 16. 412 Arnull, supra note 406, pp. 611–12. 413 Arnull, see previous footnote, cited Lord Denning, who compared the Treaty to statutory law. In such a competition a constitutional document will always lose in terms of precision. 414 See for vagueness in general: Alexy, supra note 50, pp. 290–1; cf. Hans-Joachim Koch and Helmut Rüßmann, Juristische Begründungslehre (CH Beck, Munich, 1982), p. 210; Larenz and Canaris, supra note 199, pp. 141–2; Bydlinski, supra note 100, p. 441. 415 Alexy, supra note 50, p. 289; Klatt, supra note 104, p. 97; cf. Larenz and Canaris, supra note 199, p. 143; Röhl and Röhl, supra note 39, pp. 34–5; cf. Bydlinski, supra note 100, p. 441. 416 Koch and Rüßmann, supra note 414, p. 196. 417 Alexy, supra note 50, p. 289; Klatt, supra note 104, pp. 215–6; Larenz and Canaris, supra note 199, p. 141; Röhl and Röhl, supra note 39, p. 614.

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Chapter 1. Standards of Legal Reasoning systematic interpretation.418 In determining the scope of a provision it considers the meaning of provisions from the same Treaty section.419 It also considers the effects of an interpretation for the rest of the system, e. g. an interpretation of one provision must not render other provisions useless.420 In its narrowest sense this method of interpretation moreover consists in clarifying the sense of one expression by referring to the already established meaning of the same expression as it is used in the same statute or related statutes.421 As such its aim is to ensure consistency between interpretations.422

1.8.3

Teleological Interpretation

Closely linked with systematic interpretation is teleological interpretation, both methods are often mentioned in one breath.423 Teleological interpretation requires that the object and purpose of a provision be taken into account.424 The link between systematic and teleological interpretation is obvious in EC law because the Treaty lays down its purposes in its preamble, art. 2 and 3, and in many other provisions (e. g. art. 174 § 1 and 2). In a broad sense, the object and purpose can be drawn from the wording of provisions and their context. Understood in this way teleological interpretation is rather uncontroversial. In Germany, critics object to teleological interpretation because it is either circular or a misnomer: Learning the purpose of a norm is the aim of interpretation, not one of its means.425 If, in determining the purpose, the interpreter relies on the context of norms, or preparatory works, then he or she is actually applying textual, systematic, or historical means of interpretation. 426 In European law, this critique is of little importance: Because the Treaty defines its purposes, the Court can rely on the Treaty and it also does so. It is admissible to prefer the 418 Borchardt, in: Schulze et al., supra note 400, § 15, para. 46; Schwarze, in: Schwarze and Bär-Bouyssière, supra note 400, Artikel 220 EGV, para. 28; Wegener, in: Calliess and Ruffert, supra note 402, Art. 220 EGV, para. 14; Anthony Arnull, ‘Owing up to Fallibility: Precedent and the Court of Justice’ 30 (1993) Common Market Law Review, p. 247, p. 612; Isaac, supra note 400, p. 150. 419 Defrenne, supra note 406, para. 19/23. 420 Case 6/72, Europemballage Corporation and Continental Can Company Inc. v. Commission [1973] ECR 215, para. 24 (henceforth cited: Continental Can). 421 Larenz and Canaris, supra note 199, pp. 145–6; Alexy, supra note 50, p. 295; Bydlinski, supra note 100, pp. 442–3. 422 Alexy, supra note 50, p. 295. 423 Continental Can, supra note 420, paras. 23–4; Defrenne, supra note 406, para. 19/23; Arnull, supra note 406, p. 611; Borchardt, in: Schulze et al., supra note 400, § 15, para. 45; Wegener, in: Calliess and Ruffert, supra note 402, Art. 220 EGV, para. 14. 424 Alexy, supra note 50, pp. 295–7; Isaac, supra note 400, pp. 150–1. 425 Rolf Dietrich Herzberg, ‘Die ratio legis als Schlüssel zum Gesetzesverständnis?—Eine Skizze und Kritik der überkommenen Auslegungsmehtodik’ 2005 Juristische Schulung, p. 1, pp. 7, 8; Horst Schlehofer, ‘Juristische Methodologie und Methodik der Fallbearbeitung’ 1992 Juristische Schulung, p. 572, p. 577. 426 Herzberg, supra note 425, p. 7.

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1.9 Case Law term ‘teleological’ to ‘systematic’ because the argument can be formalized in this way:427 1. Establish that it is desirable to achieve aim Z (OZ)! 2. Find an interpretation of a rule (R0 ) that is suitable for the attainment of Z (¬R0 → ¬Z)! 3. Choose R0 if it fulfils the second criterion!

Where this form of argument is applied it is feasible, for clarity’s sake, to call it teleological, even if Z is derived from the wording of a norm or its context.

1.8.4

Relevance of Interpretation for this Study

Interpretation requires a text to be interpreted. This is trivial. For the application of fundamental rights this fact means that interpretation is only of limited use, because there is not yet a binding charter. However, this circumstance should not be overestimated. It was noted above, in Section 1.6, that even where written norms do not exist, decisions must be made rationally within a framework. This framework is defined by the TEC and the TEU , and managing this framework requires its being interpreted. The principle of proportionality requires that only legitimate aims be pursued. Which aims may be pursued by the Community is defined by the Treaty, see art. 2, 3, 95, 174, etc. Moreover, the proportionality principle is at least partly codified in art. 5 § 3. Furthermore, art. 220 provides a general limitation to the powers of the Court, which is of course relevant for the application of the proportionality principle. Thus, ‘limited’ is not ‘useless’. Any filling of gaps has to take the existing legal framework into account, this is expressed by the requirements of consistency and coherence. To be able to exercise the necessary checks, one must already have an understanding of the rest of the legal system, which is among others conveyed through interpretation of the Treaty.

1.9

Case Law

This section will deal with the methodical role of case law under the law of the Community, for two reasons: (a) The case law of the Court exhibits a central position in this study. Therefore, it must be justified whether and to which extent one can rely on case ‘law’. (b) The discussion about this topic reveals—more than other discussions—important insights concerning methodical standards, i. e. a meta theory of justification. In the course of this section I shall present the discourse from two jurisdictions, England and Germany. Both shall be regarded as paradigmatic examples of two traditions, namely common law countries and civil law countries. England is an appropriate example because it has a rather 427

Alexy, supra note 50, p. 298.

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Chapter 1. Standards of Legal Reasoning strict doctrine of precedent. Germany is chosen because it is a civil law country and because I am most familiar with its legal order. The analysis aims at the following questions: • • • •

To what extent are prior judgments regarded as binding? What does ‘binding’ mean? Which courts are bound by prior judgments? Under which conditions can prior judgments exhibit a binding force, are there exceptions? • Which problems do arise? • What is the justification for an acceptance or rejection of a theory of binding precedent?

The presentation will abstract from particular provisions or judgments but will concentrate on the arguments that are advanced. We will see that the problem and its solution hardly depend on particular characteristics of certain legal orders. I shall then turn to the ECJ and provide a justification for the consideration of case law.

1.9.1

Case Law in England

Under English law the ratio decidendi of a judgment can be binding for the court that issued the judgment and for other courts (this is meant when I shall speak of binding precedents in subsequent paragraphs). The ratio is a proposition of law that is somehow necessary for the justification of the judgment. In being a proposition of law, the ratio cannot encompass classifications or subsuming of facts.428 Identifying the ratio is quite intricate and the definition of the term is controversial. There are formalistic, sceptic and intermediate conceptions.429 According to the more formalistic views, the ratio are the reasons for the judgment or the rule stated in the judgment that are explicitly given. Less formalistic views require that either the rule or the justification be at least implicit, while sceptics let any attributed meaning to the judgment suffice. 430 Depending on the understanding of the ratio, the views on its interpretation differ. The more formalistic the understanding is, the more static an interpretation is preferred.431 Any way, the rule stated or the justification given must (broadly speaking) be a necessary step in reaching the judgment.432 Further problems relate to the interpretation of the ratio, mainly because it is hard to distinguish 428 William Twining and David Miers, How to do Things with Rules: A Primer of Interpretation (Weidenfeld and Nicolson, London, 3rd edn., 1991), p. 311; S. H. Bailey et al., Smith, Bailey and Gunn on the Modern English Legal System (Sweet & Maxwell, London, 4th edn., 2002), p. 478. 429 Ibid., p. 480; Twining and Miers, supra note 428, p. 311; MacCormick, supra note 42, p. 146. 430 Twining and Miers, supra note 428, p. 312. 431 Ibid., p. 313. 432 Ibid., p. 312; Bailey et al., supra note 428, p. 480.

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1.9 Case Law between the finding of the ratio and its interpretation.433 Twining and Miers believe that over time the context of a precedent and thus the possibilities for interpreting it vary. In context of other precedents the scope of possible interpretations is narrowed over time. 434 Besides, there can be more than one ratio in one case.435 Precedents can be binding in three directions: they can bind inferior courts, courts of co-ordinate jurisdiction, or the court that issued the judgment.436 Even if a judgement is not binding, it can exhibit persuasive authority, i. e. the court may adhere to the ratio but does not have to do so.437 Usually, only the judgments of the House of Lords and the Court of Appeal have binding authority.438 ‘Binding’ means that the ratio from a prior case has to be applied to the new one if the cases are similar.439 Twining and Miers note that the practice of courts in England is to follow persuasive precedents, although they are not binding.440 However, precedents do not bind unconditionally. The Court of Appeal and the House of Lords can under certain circumstances depart from a precedent: Both courts can do so if a precedent was given per incuriam, i. e. if a statutory provision or a binding precedent was not considered when the prior case was decided.441 The interpretation of the per incuriam exception is rather restrictive. It does not suffice that a different solution was possible.442 Rather, the prior judgment must lead to serious inconvenience in the administration of justice, significant injustice to citizens or equally serious consequences.443 The Court of Appeal will depart from a precedent if it is inconsistent with subsequent judgments of the House of Lords, even if not explicitly overruled.444 Furthermore, the Court of Appeal can choose between conflicting prior judgments.445 The House of Lords can, since 1966 (on grounds of the Practice Statement), depart from precedents if this is appropriate in the light of the development of law or to do justice in a particular case.446 Yet the House of Lords has been reluctant to use this option. 447 Bailey et al. note that a departure from precedent must not circumvent legislative consent to the former practice and must 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447

Twining and Miers, supra note 428, pp. 313–14. Ibid., p. 317. Ibid., p. 313; Bailey et al., supra note 428, p. 480. Twining and Miers, supra note 428, p. 291. Ibid., pp. 291, 296, 299. Bailey et al., supra note 428, pp. 456–7. Twining and Miers, supra note 428, p. 290; Bailey et al., supra note 428, p. 478. Twining and Miers, supra note 428, pp. 296, 299. Ibid., p. 294; Bailey et al., supra note 428, paras. 7-016–17, 7-019. Twining and Miers, supra note 428, p. 295. Bailey et al., supra note 428, para. 7-017. Twining and Miers, supra note 428, p. 294; Bailey et al., supra note 428, para. 7-019. Twining and Miers, supra note 428, p. 294. Ibid., p. 292; Bailey et al., supra note 428, paras. 7-026, 7-001. Twining and Miers, supra note 428, p. 292; Bailey et al., supra note 428, paras. 7-026,

7-001.

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Chapter 1. Standards of Legal Reasoning • • • •

lead to an improvement in law; be grounded on new arguments that were not considered in earlier cases; observe legitimate expectations; and make a difference in the current case.448

Yet because of these exceptions, the English doctrine of precedent is quite permissive.449 The application of the stare decisis doctrine poses specific difficulties. The problems regarding the interpretation and finding of the ratio have already been mentioned. Another problem is the distinguishing of cases. Only similar cases allow for the application of the same ratio. Yet abstract criteria for the process of distinguishing do not exist.450 Another problem is the balancing of needs of justice in particular cases on the one hand and the equal treatment of cases on the other.451 One of the most important aspects form a meta-methodical point of view is the justification of the doctrine of binding precedent. The doctrine provides for (a) (b) (c) (d) (e) (f) (g)

the efficiency of the administration of justice; consistency;452 a protection against arbitrariness; equal treatment; stability; legal certainty453 and predictability of the legal order; and the rational development of policies.454

These criteria reflect the major tenets of legal reasoning: consistency (b); universalizability (c,d); coherence (e,f ); and defeasible logic (g). Together they express the rule of law.

1.9.2

Case Law in Germany

The civil law concept of precedent is usually contrasted with the common law approach. The main point of dissent is whether and to which extent precedents can be binding. Those who believe that precedents are at least partly binding, basically make the same points as scholars in England. There is a similar concept of the ratio. It is not the judgment itself that is binding but a legal rule that is implicit or explicit in the justification of the judgment.455 Many problems that have arisen in English law (regarding the 448 449 450 451 452 453 454

Ibid. Twining and Miers, supra note 428, p. 293. Ibid., p. 296; Bailey et al., supra note 428, para. 7-033. Twining and Miers, supra note 428, p. 298. Ibid., p. 293. Bailey et al., supra note 428, paras. 7-026, 7-001. Twining and Miers, supra note 428, p. 289; see also MacCormick, supra note 42,

p. 143. 455 Larenz, supra note 205, pp. 429, 432; Larenz and Canaris, supra note 199, p. 253; cf. Bydlinski, supra note 100, p. 504.

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1.9 Case Law interpretation of the ratio) were not recognized as such in Germany due to the fact that precedents have not been an acknowledged source of law.456 The judgments of the federal courts and high courts may bind inferior courts.457 Any authority by lower courts is denied because there are so many, so that it would depend on accidental circumstances which lower court would decide the case first.458 In older sources the binding force of precedents is rejected and this can be explained with a certain interpretation of ‘binding’ in this context. Larenz believed that ‘binding’ meant that a court had to apply the rule without an obligation to regularly check whether the rule was valid.459 He was of the opinion that assuming a ‘binding’ force of precedents could tempt the judge to neglect her or his obligation to check for the validity of the rule expressed by the precedent.460 He also feared that a doctrine of binding precedent could hamper legal development by not paying sufficient regard to the dynamic aspect of law.461 The judge should not blindly rely on precedents. 462 These arguments led to a rejection of a doctrine of binding precedent. However, more recent commentators (since Kriele463 ) converge to the view in England. At least where the law does not unequivocally determine a specific interpretation, the court should rely on precedent.464 Especially Bydlinski is careful to distinguish his position from a realist position, he does not endorse “a shallow case law positivism”. 465 There are two qualifications to the binding precedent doctrine: (a) Precedents are subsidiary to legislation.466 (b) The binding force is only presumptive,467 i. e. they do not bind if arguments are advanced that demonstrate the invalidity of the ratio. ‘Subsidiary’ means that precedents only play a role if the meaning of a statute cannot be unequivocally determined and that precedent may not change statute law. Today, many voices in Germany accept this moderate doctrine of binding precedent.468 In terms of Alexy, precedents constitute burdens of demonstration: If a judgment can be supported by a precedent, then it should be cited; the burden of demonstration rests on those who wish to depart from 456

Ibid., p. 502; Röhl and Röhl, supra note 39, pp. 567–8. Bydlinski, supra note 100, p. 508; Larenz, supra note 205, p. 430; Larenz and Canaris, supra note 199, p. 253; Röhl and Röhl, supra note 39, p. 567. 458 Larenz and Canaris, supra note 199, p. 257. 459 Larenz, supra note 205, p. 431,n. 152. 460 Ibid., p. 431. 461 Ibid. 462 Ibid., p. 430. 463 Theorie der Rechtsgewinnung: Entwickelt am Problem der Verfassungsinterpretation. 464 Bydlinski, supra note 100, p. 505. 465 Ibid., p. 507. 466 Ibid. 467 Ibid., p. 510. 468 Larenz and Canaris, supra note 199, pp. 257–8; Martin Kriele, Theorie der Rechtsgewinnung: Entwickelt am Problem der Verfassungsinterpretation (Duncker & Humblot, Berlin, 2nd edn., 1976), pp. 259–64; Röhl and Röhl, supra note 39, p. 567; Pawlowski, supra note 198, pp. 519–20; Alexy, supra note 50, pp. 334–41; see also Bydlinski, supra note 100, p. 510. 457

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Chapter 1. Standards of Legal Reasoning established case law.469 This view squares with the idea of subsidiary and presumptive binding force: It is possible to depart from precedents; however, departure from precedent requires justification, while sticking to it does not. German scholars stress the exceptions to the doctrine. Decisions are not binding if they are founded on an error in law; if they are not sufficiently justified; or if a substantive change in the legal order or social views has occurred.470 This is in substance the per incuriam exception. The German Federal Court of Justice seems to have adopted the per incuriam exception not only in principle but also regarding the severity an error must have: It must be a substantive error in law.471 As noted above, many problems of the application of the stare decisis doctrine are not or only hardly discussed because of the reluctance to accept precedents as a source of law. The reasons that have led scholars to finally acknowledge a doctrine of precedent are the same as in England: to ensure legal certainty and predictability;472 efficiency;473 equal treatment and impartiality;474 and stability and continuity.475 Pawlowski stresses that the principle of equal protection before the laws requires a (moderate) doctrine of binding precedent.476 Alexy argued, from a discourse theory stance, that the consideration of precedents is required by U , the principle of universalizability, which underpinned every conception of justice.477

1.9.3

Comparison

The brief overview of the English and German law of precedent shed some light on differences and resemblances. First, the justification for a doctrine of precedent is almost identical; the rule of law and the principle of equal treatment require that courts, in principle, adhere to the ratio of a prior judgment. Second, scholars and practitioners also recognize the dangers of a strict and blind application of prior rationes, namely the need for a development of the respective legal order and the need to to do justice in a given case. Yet a judicious application of the doctrine of binding precedent can prevent these problems from becoming acute. The rule of law and the principle of equal treatment allow for a departure from prior rationes if a sound justification is given. Therefore, this doctrine allows 469

Alexy, supra note 50, p. 339 (rules J.13 and J.14). Bydlinski, supra note 100, p. 509; Pawlowski, supra note 198, paras. 523, 1049; Larenz and Canaris, supra note 199, p. 258. 471 BGHZ 85, 64, p. 66. 472 Kriele, supra note 463, p. 259; Bydlinski, supra note 100, p. 506; Larenz and Canaris, supra note 199, p. 253; Alexy, supra note 50, p. 338. 473 Kriele, supra note 463, pp. 260, 262; Bydlinski, supra note 100, p. 504. 474 Ibid., p. 506; Kriele, supra note 463, pp. 260–1; Alexy, supra note 50, p. 335. 475 Kriele, supra note 463, pp. 263–4; Bydlinski, supra note 100, p. 511; Alexy, supra note 50, p. 338. 476 Pawlowski, supra note 198, para. 520a. 477 Alexy, supra note 50, p. 335. 470

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1.9 Case Law for a rational legal development. Besides, the importance of distinguishing must not be underestimated. Particulars of a case can be considered, if need be. Eventually, the principle that courts shall apply the law cannot be advanced against a doctrine of binding precedent. A precedent that violates law or that was decided without due consideration of established case law shall not be regarded as binding, neither according to English nor German law. Highest courts do have the opportunity to depart from established case law where this is deemed appropriate to pay due regard to social or legal development. Of course there may be a difference in degree as to the weight of reasons that favour a change of established case law. A doctrine of binding precedent understood in this way strikes a sound balance between the rule of law and the requirement to do justice to particulars of a case. And it also perfectly squares with major tenets of legal reasoning that have been identified in Section 1.6.

1.9.4 (a)

Case Law and Community Law

The Position of the Court and the Literature

We can now come to the ECJ . Koopmans stated that the Court usually sticks to its judgments.478 On the other hand, the Court does not regard itself to be bound by previous judgments479 and this position is shared in the literature.480 However, one should not commit a naturalistic fallacy by believing that the Court should be bound or should not be bound by previous judgments simply because the Court expresses the respective belief. Besides, it would be circular to answer the question whether the stare decisis doctrine applies with a reference to the case ‘law’ of the Court, because the problem in the first place is whether such a reference is a valid argument.481 Arnull remarks that a doctrine of binding precedent is unsuitable for a court of (originally) first and last resort because the only way to correct errors would be the amendment procedure which is regarded as inadequate.482 Yet this argument is not correct any more. At least since 1966 (i. e. the Practice Statement) the House of Lords, a court of last resort, does have the possibility to depart from established case law. Still, one must concede that the conditions for a departure should be applied in a more relaxed fashion due to the fact that the only way to correct errors by the Court is the tedious amendment procedure. Arnull interprets the practice of 478

T. Koopmans, ‘Stare decisis in European Law’, in: O’Keeffe, David and Schermers, Henry G. (eds.): Essays in European Law and Integration: To Mark the Silver Jubilee of the Europa Institute, Leiden 1957–1982 (Kluwer-Deventer, Antwerp, Boston, London, Frankfurt, 1982), p. 11, p. 18. 479 Arnull, supra note 418, p. 248. 480 Norbert Reich, Understanding EU Law: Objectives, Principles and Methods of Community Law (Intersentia, Antwerp, 2003), pp. 34–5; Bengoetxea, supra note 53, p. 69; Bailey et al., supra note 428, para. 7-029. 481 For example Koopmans, supra note 478, p. 17. 482 Arnull, supra note 418, p. 248.

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Chapter 1. Standards of Legal Reasoning the Court in a similar way as German scholars construe the practice of German courts.483 But he points out that the Court commits severe errors in applying the concept of binding precedent,484 maybe because there is an unwillingness to accept that judgments may constitute a source of law.485 (b)

Justifying a European stare decisis Doctrine

The reasons in favour of a doctrine of precedent that were presented above are valid in the context of Community law as well. To repeat: Considering precedents is mainly required by (a) the principle of equal treatment, which instantiates U and (b) legal certainty and the protection of legitimate expectations, which are in turn founded on the rule of law. The latter requirements also require some stability and continuity of legal development. The rule of law and the principle of equal treatment are valid principles of Community law.486 Moreover, the efficiency considerations are even more important from the Court’s stance, due to its heavy workload. These justifying principles also demarcate the limits of the binding force of precedents. The principle of equal treatment only requires that equal cases be treated equally, while differences between cases require a different solution or a different justification. This restriction is commonly known as distinguishing. Since stare decisis is a law state requirement, a precedent that violates primary or secondary Community law must not be considered. In this case overruling is required. Where there is no case for distinguishing or overruling, a precedent is binding even for the ECJ . But since there always remains a possibility for either distinguishing or overruling, the binding force is only of a presumptive nature. As soon as distinguishing or overruling are required, but only then, a precedent loses its force for the case at hand. Therefore, Alexy’s description of precedents as distributing the burden of demonstration is accurate. From this point of view, i. e. accepting a subsidiary and presumptive binding force of precedents, it does not add any substance to discuss whether case law can be regarded as a source of law in the strict sense. If case law were a source of law, it could be changed either by secondary legislation or an amendment of the constitution (i. e. the Treaty). As law it would bind the European Court of First Instance (CFI) and Member State courts. Moreover, any legal act can be changed by a legal act of the same quality, e. g. any directive can be changed by a later directive (a legal procedure provided). Therefore the case law of the Court could be changed by later case law of the Court. The requirements 483

Ibid., p. 251. Ibid., pp. 252–61. 485 Ibid., p. 265. 486 For the rule of law, see art. 6 § 1 TEU ; for the principle of equal treatment, see Swedish Match, supra note 11, para. 70. 484

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1.10 Proportionality and the Application of Fundamental Rights were given above. All this is an expression of the lex posterior rule. And more important, the lex superior rule would be applicable to the case law of the Court: The Court cannot change the Treaty and in the area of secondary legislation, the case law of the Court may not violate directives and regulations. One could object that one does not have to assign such a weight to case law because some norm that can be interpreted will always be available. Yet, such a view gravely exaggerates the potency of interpretation. On page 12, it was shown that hard cases cannot solely be resolved by means of interpretation. In problem cases a decision has to rely on additional sources; it is this circumstance, among others, that makes a case problematic. Besides, one encounters a legitimacy problem if one denies the presumptively binding force of precedent (maybe because one relies on Montesquieu and his view that courts only be the mouth of the law). If judges, which are usually weakly legitimized, may depart without due reason from precedent then this will amount to a violation of the principles of equal protection and the rule of law. Therefore it is not a matter of a judges’ choice to rely on precedents but, on the contrary, a binding legal requirement.

1.10

Proportionality and the Application of Fundamental Rights

1.10.1

Principle Theory of Fundamental Rights

So far, a model of the application of law was presented that was centred around rules and their deductive application, subsumption. Though there is room for non-deductive reasoning within this model, some believe that there is another model of legal reasoning that supplements or replaces subsumption in some respects, balancing.487 This mode of legal reasoning is especially relevant for the application of the proportionality principle.488 It is important to note that balancing can have two meanings. Jurists use it frequently to indicate complex value judgements, in particular as an element of material justification.489 There is nothing special about this mode of balancing that was not described up to this point. Balancing in the sense of Principle Theory has a particular meaning that must be distinguished from balancing in the former and more general sense and it requires a special mode of justification.490 This mode of justification 487

See Alexy, supra note 77 Alexy, supra note 7, pp. 100 [66]. 489 T. Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ 96 (1987) Yale Law Journal, p. 943, p. 945; Stück, supra note 77, p. 406. 490 Alexy, supra note 7, pp. 145 [101–2]. 488

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Chapter 1. Standards of Legal Reasoning is described by the Law of Balancing, which runs as follows: ’The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.’491 An example for the application of the weighing formula is: “The massive interferences with the exercise of the right to property come up against a very low and indirect effect for the protection of health. Therefore the protection of property takes precedence in the means-end-relationship of the proportionality test.”492 Balancing will usually have this special meaning in the rest of this study. Also outside Principle Theory, balancing is usually associated with assigning weights to particular interests and comparing these weights.493 This distinction is important because one does not necessarily have to reject non-deductive schemes of legal reasoning altogether simply because one rejects this special mode of balancing. The rest of this section will explicate what is meant by the Weight Formula. (a)

The Notion of ‘Principle’

The advocates of Principle Theory of fundamental rights are of the opinion that there are two distinct kinds of norms, rules and principles.494 This distinction is the foundation of Principle Theory. The difference is not one of degree, in particular the generality of a norm is not the decisive criterion.495 Rather, there is a clear-cut and fundamental difference in character. Rules are definite commands and can either be fulfilled or not.496 In contrast to rules, principles are optimization commands; they can be fulfilled to different degrees, depending on the legal and factual possibilities.497 Every norm is either a principle or a rule.498 According to this view, positivism must be rejected as inadequate because it excludes legal principles from its considerations and only considers rules.499 The optimization character warrants some deeper discussion. Optimization is closely related to maximization.500 Principles require that something be realized 491

Ibid., pp. 146 [102]. Emmerich-Fritsche, supra note 5, p. 639: “Der massiven Beeinträchtigung der Eigentumsausübung steht aber eine sehr geringe mittelbare Auswirkung auf den Gesundheitsschutz gegenüber. In der Zweck-Mittel-Relation der Verhältnismäßigkeitsprüfung überwiegt daher hier der Schutz des Eigentums.”; English translation of the German original by the author. 493 Aleinikoff, supra note 489, p. 946. 494 Instead of many others see Alexy, supra note 7, pp. 71–7 [44–8] and more recently: Robert Alexy, ‘On the Structure of Legal Principles’ 13 (2000) Ratio Juris, p. 294, pp. 294–5. 495 Alexy, supra note 7, pp. 72–5 [45–7]. 496 Ibid., pp. 76 [48]. 497 Ibid., pp. 75–6 [47–8]. 498 Ibid., pp. 77 [48]. Actually, the distinction is not as clear-cut as it has appeared in this paragraph. But the differentiations of the basic distinctions are likely to evoke some criticism therefore they will be discussed in Chapter 5. 499 Jan-Reinard Sieckmann, Regelmodelle und Prinzipienmodelle des Rechtssystems (Nomos Verl.-Ges., Baden-Baden, 1st edn., 1990), p. 138. 500 Alexy, supra note 7, pp. 80 [51], n. 37. 492

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1.10 Proportionality and the Application of Fundamental Rights as far as possible. Alexy prefers the term ‘optimization’ because competing principles must be taken into account and the notion of ‘maximization’ tends to obscure this fact.501 This is a major difference to Dworkin, who understands principles to be pointers into a direction, without necessarily implying maximization.502 The strive of principles for the optimum is still—despite some differentiations of Principle Theory in general (see Section 5.3.1)—an essential element of Alexy’s Principle Theory.503 So, the goal in applying the principle of proportionality is to find correct conditional priorities, or ideal balances between principles, which satisfy the maximization or optimization ideal.504 Principles are closely related to values. According to Alexy, principles are the deontological equivalent to values, while values are the axiological equivalent to principles.505 In other words: Principles express some duty, while values are expressions of the good.506 Liberty is one value among others.507 In this relationship the optimization idea reappears: The difference between principles and values is reduced to just one point. What under a system of values is prima facie the best, is under a system of principles what prima facie ought to be; and what under a system of values is definitely the best, is under a system of principles what definitively ought to be.508

(b)

Collision Rule and Collision Behaviour

The fundamental difference between rules and principles effects a difference in their collision behaviour. Because rules are applied in an all-or-nothing fashion, a collision must be resolved by invalidating one of the rules or by qualifying it, for example, by adding an exception.509 Conflicts between principles, however, are resolved in a fundamentally different manner: Neither principle is declared invalid or augmented by an exception clause. Rather, the weight of a principle and the concrete circumstances of a case together determine that one principle shall take precedence over another without impairing its validity or content (by adding an exception clause).510 Because the preference that is described by these conditions is not absolute, the preference relation is called conditional 501

Ibid. Ibid., pp. 78 [48], n. 27. 503 Robert Alexy, ‘Constitutional Rights, Balancing, and Rationality’ 16 (2003) Ratio Juris, p. 131, p. 135; Alexy, supra note 494, pp. 295–6. 504 Ibid., pp. 297, 300. 505 Alexy, supra note 7, pp. 125–6 [86–7]. 506 Ibid., pp. 126 [87]. 507 Ibid., pp. 155 [109]. 508 Ibid., pp. 133 [92]: “Der Unterschied zwischen Prinzipien und Werten reduziert sich damit auf einen Punkt. Was im Wertemodell prima facie das beste ist, ist im Prinzipienmodell prima facie gesollt, und was im Wertemodell definitiv das beste ist, ist im Prinzipienmodel definitiv gesollt.”; English translation of the German original by Julian Rivers. 509 Ibid., pp. 77–8 [49]; Alexy, supra note 494, pp. 295–6. 510 Alexy, supra note 7, pp. 78–9 [50]. 502

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Chapter 1. Standards of Legal Reasoning and is formalized in this way: (P1 PP2 )C, i. e. principle 1 (P1 ) is preferred to (P) principle 2 (P2 ) under conditions (C). The conditions (C) form the antecedent of a rule with its consequent (R) being what the succeeding principle demands: C → R.511 Alexy believes that principles are prima facie commands, i. e. they require that something specific be done but it is not clear in advance whether this principle will prevail. The prima facie character can be intensified by introducing burdens of demonstration. But it will never be as definitive as a rule. He believes that despite some further differentiations, a fundamental difference remains.512 According to Alexy, principles can be reasons for both, rules and concrete actions or commands. The difference lies in the force of the reasons: Principles are prima facie reasons, while rules are definite.513 (c)

Proportionality and Balancing—the Weight Formula

The great relevance of Principle Theory for the proportionality principle originates in the alleged strong relationship between the principle character of fundamental rights and the proportionality principle.514 The principle nature of fundamental rights implies the proportionality principle and vice versa.515 According to Alexy suitability and necessity both follow directly from the principle-character, i. e. the optimization character, of fundamental rights.516 A measure that interferes with the freedom of one citizen without promoting any other goal is not optimal. Moreover, optimization requires that from two equally suitable measures the least burdensome be chosen, because only the least burdensome measure maximizes the net liberty of all affected persons.517 Balancing in the sense of Principle Theory exceeds mere value judgements that are necessitated by the interpretation of law and the classification of facts. There is a specific relation between principles that is described by the Law of Balancing: “The more intensive the interference with one principle, the more important the realization of the other principle.”518 As noted above, according to the strict optimization idea, Principle Theory requires the judge to find correct preference relations between principles. The optimal equilibrium between two principles should be found (see figure 1.1).519 However, in early writings he conceded that a unique answer cannot be found, due to normative uncertainties.520 The problem 511 512 513 514 515 516 517 518 519 520

Ibid., pp. 83 [53–4]; Alexy, supra note 494, p. 297. Alexy, supra note 7, pp. 90 [59]. Ibid., pp. 91 [60]. Alexy, supra note 494, p. 297; Alexy, supra note 7, pp. 100 [66]. Alexy, supra note 494, p. 297. Alexy, supra note 503, p. 135. Ibid., pp. 135–6. Alexy, supra note 494, p. 298; Alexy, supra note 77, p. 436. Alexy, supra note 494, p. 297. Alexy, supra note 7, pp. 149 [105].

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Satisfaction Principle 1

1.10 Proportionality and the Application of Fundamental Rights

O I M Satisfaction Principle 2

M represents the set of all possible and necessary solutions, I the set of all distributions of the goods between which a decision maker will be indifferent. O marks the optimal distributions of the goods.

Figure 1.1: Optimization of two principles or goods. is whether fundamental rights really are optimization commands or minimal standards. Some believe that interpreting fundamental rights as optimization commands leads to a legalization of politics.521 In his early writing Alexy denied that optimization involves quantification: “But these ideas [degrees of satisfaction or interference] cannot be metricated in a way which leads to an intersubjectively binding calculation of the result.”522 He pointed to the difficulties of assigning numeric values to intensities and satisfactions, which would allow for a cardinal ranking, and excluded the possibility that a cardinal or ordinal exhaustive ranking of fundamental rights could be possible.523 Later elaborations of this theory, by himself and others, however, point to another direction. Although the initial standpoint is upheld,524 the used language contravenes that standpoint. The abstract of one article says: “[T]he Weight Formula [is represented] by a scheme that works according to the rules of arithmetic.”525 The application of the Law of Balancing requires three steps: an assessment of the interference; an evaluation of the importance of the countervailing principle; and, eventually, a comparison.526 To assess the 521

For example, Böckenförde, supra note 182, pp. 188–9. Alexy, supra note 7, pp. 149 [105]: “Diese Begriffe [Grade der Erfüllung oder Nichterfüllung] entziehen sich einer Metrisierung, die zu einer intersubjektiv zwingenden Kalkulation des Ergebnisses führen könnte.”; English translation of the German original by Julian Rivers. 523 Ibid., pp. 139–42. For a detailed description of cardinal and ordinal ranking see Section 4.1.1 and Section 4.1.2. For now, suffice it to say that ordinal rankings merely reflect the ordering of goods, while cardinal rankings display the intervals between the value of goods and allow for assertions like: “Good A is twice as good as good B”, which is not possible with ordinal rankings. 524 Alexy, supra note 77, pp. 443–4. 525 Ibid., p. 433. 526 Alexy, supra note 183, p. 20; Alexy, supra note 77, p. 436. 522

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Chapter 1. Standards of Legal Reasoning interference a triadic scale is introduced with the values l, m, and s, i. e. light, moderate, and serious.527 The importance of the countervailing principle is equivalent to the “cost” to this countervailing principle that the protection of the other principle entails.528 Alexy speaks of “quantities”.529 To compare these values, one needs a common denominator, or commensurability, of the goods involved. This is acknowledged by Alexy and he contends that commensurability can be achieved on the basis of the respective constitution and once it is achieved, the resolution of the conflict is easy.530 Although quantification is, according to Alexy, not possible, he illustrates the Law of Balancing by the Weight Formula. Wi,j is the concrete weight of principle Pi , while Ii and Ij are the importance of the principles Pi and Pj respectively: Wi,j =

Ii Ij

One can assign the numeric values 1, 2, and 4 to l, m, and s respectively. The Weight Formula can be complemented by including the abstract weight of each principle (Wi and Wj ) and the epistemic certainty of the underlying premisses, Ri and Rj :531 Wi,j =

Ii · Wi · Ri Ij · Wj · Rj

An example should clarify the point: Given two equally important principles (Pi and Pj , Wi = Wj ), the concrete interference with Pi be serious, the interference with the other one be moderate, hence Ii = 4 and Ij = 2. The probability that the interference will obtain be low for principle Pi but great for Pj . This corresponds to Ri = 1 and Rj = 4. Wi,j =

W i1 · Ii · Ri 1·4·1 = 1 W i · Ij · Ri 1·2·4

The result is 21 . Therefore Pj should be preferred. Pulido has introduced even more factors to the formula.532 This shift in Principle Theory is interesting, to recapitulate: Initially, quantification is regarded as unsuitable; later, however, quantification shall illustrate the theory. Also Pulido asserts that the figures are a mere metaphor.533 And Borowski assumes that ordinal rankings are sufficient to apply the Weight Formula.534 What characterizes recent approaches in Principle 527

Ibid., p. 440. Ibid., p. 441. 529 Ibid. 530 Ibid., p. 442. 531 Ibid., p. 446. 532 Carlos Bernal Pulido, ‘The Rationality of Balancing’ 92 (2006) Archiv für Rechtsund Sozialphilosophie, p. 195, pp. 202–8. 533 Ibid., pp. 202–3. 534 Martin Borowski, Grundrechte als Prinzipien (Nomos, Baden-Baden, 2nd edn., 2007), 528

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1.10 Proportionality and the Application of Fundamental Rights Theory is that they integrate various pieces of information into one decision algorithm. According to the algorithm, the concrete weight of a principle depends on various factors and all factors must be considered within the same operation. Yet they deny that cardinal, and possibly, linear scales are required to perform this operation. If any scales are required at all, they are ordinal. The theory is also silent regarding the consistency requirements among the evaluations. Whether the assumptions of Principle Theory are justified will be discussed in Chapter 4. (d)

Principle Theory and Discretion

There are more characteristics of Principle Theory. From the stance of this study, its conception of legislative discretion is of particular interest. Principle Theory distinguishes between structural discretion and epistemic discretion. The latter comprises discretion regarding the normative premisses on the one hand and the empiric ones on the other.535 Structural discretion occurs whenever there is a stalemate situation. A stalemate situation occurs if the concrete weight of two principles is equal, i. e. if Wi,j = Wj,i . In this case the constitution does not decide the conflict and hence the decision maker can exercise discretion.536 Whenever the weights differ, the constitution commands what the prevailing principle requires. Although this seems to be a contradiction to the one right answer thesis, the theory is consistent with this thesis. The one right answer to a case can be that the constitution leaves the matter partly or entirely to the discretion of the deciding body.537 Whatever the constitution does not definitely forbid or command is permitted.538 “Structural discretion starts exactly where the definite substantive normativeness of the constitution ends.”539 A problem is apparent: Principles are defined as optimization commands that only make prima facie prescriptions in contrast to rules, which are definite in nature. Does that mean that discretion begins, once the principle character of a norm is at issue?540 Apart from structural discretion, discretion can be grounded on uncertainties as to what the constitution permits, prohibits or commands (normative epistemic discretion).541 Alexy believes that in most cases discretion is of a structural kind or granted because of empiric uncertainties.542 Some room for normative p. 83. 535 Alexy, supra note 183, pp. 22, 29–30; Alexy, supra note 77, p. 443; Borowski, supra note 534, p. 125. 536 Alexy, supra note 183, p. 22. 537 Ibid., p. 22 n. 88. 538 Ibid., p. 16. 539 Ibid.; English translation of the German original by the author. 540 Cf. Karl-Eberhard Hain, Die Grundsätze des Grundgesetzes: Eine Untersuchung zu Art. 79 Abs. 3 GG (Nomos Verl.-Ges., Baden-Baden, 1999), pp. 135–6. 541 Alexy, supra note 183, p. 27. 542 Ibid., p. 29.

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Chapter 1. Standards of Legal Reasoning epistemic discretion remains, though. To that extent Principle Theory, by allowing normative epistemic discretion, is at odds with the one right answer thesis. This in turn poses threats to the legitimacy of judicial review. Who decides whether there is a normative uncertainty and according to which criteria?

(e)

Differences to Dworkin’s Notion of Principles

The point of departure for Principle Theory is the notion of principle. The distinction between rules and principles dates back to Dworkin. Borowski understands Alexy’s Principle Theory of fundamental rights as a more detailed and elaborated version of Dworkin’s approach. 543 Yet one must note that actually Dworkin’s notion of principles is fundamentally different from Alexy’s and this difference also has a methodical impact. First, though Dworkin does distinguish neatly between rules and principles, Dworkin does not understand principles as optimization commands, with all its implications.544 Second, Dworkin distinguishes between principles and policies, where only the former are relevant in legal argumentation.545 Alexy and his fellows merge both notions.546 Third, Dworkin advocates the one right answer thesis, which is at odds with the proposition of normative epistemic discretion. Principle Theory allows some scepticism regarding the evaluation of principles and hence does not claim to provide right answers, at least not in every case. An extreme example is Pulido: “Thus, the right answer is that there is no right answer”.547 (f)

Summary

Principle Theory is a comprehensive theory of the application of fundamental rights. From a characterization of fundamental rights as principles the rules for their application are deduced. Its feature is that it can—by definition—deal with the weighing of competing interests that are so typical in fields as environmental law, where health protection and economic interests clash, a Principle Theory argument was presented on page 70. We have now found a universal formulation of such an argument, the Weight Formula. All characteristics of Principle Theory are also subject to criticism: The distinction between rules and principles, the description of the collision behaviour, the Weight Formula as a method of how rights should be applied and its attitude towards discretion.

543 544 545 546 547

Borowski, supra note 534, p. 72. Alexy, supra note 7, pp. 78 [48], n. 27. Dworkin, supra note 52, pp. 22–3. Alexy, supra note 7, pp. 99 [65–6]; Stück, supra note 77, p. 417. The Rationality of Balancing 207.

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1.10 Proportionality and the Application of Fundamental Rights

1.10.2

Framework Model of Fundamental Rights

The alternative model for the application of fundamental rights relies, as well as Principle Theory does, on a particular conception of fundamental rights. Common is that fundamental rights are not considered as principles or values, i. e. flexible norms that do not make definite prescriptions, but on the contrary as fixed legal positions that mark a dividing line between what authorities may do and what they may not do.548 By the same token, the optimization idea is rejected because fundamental rights are regarded as minimal, i. e. fixed, positions.549 Actually, the notion of ‘minimal position’ is quite misleading. It does not imply that the lowest standard of protection of rights should be chosen, i. e. ‘minimal’ does not imply minimization as opposed to maximization. Instead, ‘minimal’ should be read as “the least acceptable”. According to Principle Theory, proportionality is a means to reconcile conflicting fundamental rights. This idea is rejected, for two reasons. ( a) Though the interests of people may clash, their fundamental rights do not collide because fundamental rights are rights against official authorities. (b) It is very unlikely that a conflict as is envisaged by Principle Theory can arise. A conflict is possible only in those cases where the minimal standard of protection for both sides is not observed, which is unlikely.550 In this model, proportionality in the narrow sense is not only the last step of proportionality analysis but also the least important one. The focus lies on the first elements, including the legitimate aim test. Proportionality in the narrow sense is only necessary in rare cases, and then it is not applied by weighing but by checking whether the minimal standard is observed. 551 This scheme is summarized in figure 1.2. The notion of discretion is inherent to this model. If authorities, including the legislator, observe the minimal standards of all rights involved, then their measure will pass scrutiny, provided all other elements of proportionality are satisfied. Discretion can thus be thought of as a space that is delimited by minimal standards that are required by fundamental rights. This is shown in figure 1.3. The dashed horizontal and vertical lines mark the minimal standards, the shaded area symbolizes discretion.552

548 Böckenförde, supra note 182, p. 189; Habermas, supra note 39, pp. 315 [258–9]; Ralf Poscher, Grundrechte als Abwehrrechte: Reflexive Regelung rechtlich geordneter Freiheit (Mohr Siebeck, Tübingen, 2003), p. 82. 549 Bernhard Schlink, Abwägung im Verfassungsrecht (Duncker & Humblot, Berlin, 1976), p. 195; Bernhard Schlink, ‘Freiheit durch Eingriffsabwehr—Rekonstruktion der klassischen Grundgrechtsfunktion’ 1984 Europäische Grundrechte Zeitschrift, p. 457, p. 462. 550 Poscher, supra note 548, pp. 200–1. 551 Schlink, supra note 549, p. 462. 552 Poscher, supra note 548, p. 202.

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Chapter 1. Standards of Legal Reasoning Leg. Aim? (1: Wi Wj , 2: Ri 1)

No Unconst.

Yes No Legitmate Means?

Unconst.

Yes No

Suitable? (Ij )

Unconst.

Yes No

Necessary? (Ij , Ii )

Unconst.

Yes No Minimal position? (Ii )

Unconst.

Yes Constitutional

Each criterion of the proportionality principle maps to one or more variables of the Weight Formula. In contrast to the Weight Formula, only one criterion is considered at a time. The logical operation can be represented by comparisons. If one criterion is not satisfied, then the measure in question has to be annulled, irrespective of the other elements.

Minimal Standard P1

Figure 1.2: Proportionality according to Schlink.

k1

k2 Minimal Standard P2 Figure 1.3: Discretion in a model of minimal standards.

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1.10 Proportionality and the Application of Fundamental Rights Thus, rights shape a constitutional framework order instead of a foundation.553 In other words, rights do not provide answers for every conceivable question.554 Rather, they only regulate specific parts of social life. The concept of foundation is opposed to the framework model, because foundation fundamental rights can principally determine every issue of social life. The weak point of this conception is the determination of the minimal position. According to Alexy, balancing is necessary for its determination at least in problem cases.555 Schlink claims that the minimal position can be determined without balancing by having recourse to the principle of legitimate expectations and equal protection. The next two chapters will show whether courts apply the minimal position approach and if they do so how they find minimal positions. Another weak point is that this concept may appear to be too simple. By rejecting balancing, it could create the impression that the application of law does not involve complex value judgements. Yet this theory is only at odds with balancing in an Alexian way, i. e. the application of the Weight Formula. It does not necessarily reject the major tenets of legal reasoning and that legal reasoning may involve complex and non-deductive value judgements.

1.10.3

Summary

This section has presented two contradictory conceptions of fundamental rights, proportionality, and their application. Before we engage in a deeper discussion of both conceptions and their criticism it is feasible to find out which conceptions the courts have developed, for three reasons. First, what the courts do can be regarded as a third proposal next to the two already presented. Second, both theories also claim to provide correct descriptions of what courts do.556 If these claims are ungrounded then this impairs the credibility of these theories. Third, both theories must prove themselves to be workable. Can the cognitive demands of Principle Theory be met? How do courts determine minimal positions? Do they balance or have they deployed other means to do so? Rationalizing and questioning the case law will help to find a workable solution. To be sure, case law can only be a starting point, because the ECJ could have made an error in law by applying the law as it does. Nevertheless, it can provide a good point of departure. 553 Böckenförde, supra note 182, pp. 193–8; this notion is picked up by Zucca, supra note 69, p. 68; see also Robert Alexy, Postscript’, in: Alexy, Robert: A Theory of Constitutional Rights (Oxford University Press, Oxford, 2002), p. 388, pp. 391–4. 554 Böckenförde, supra note 182, pp. 193–8; this notion is picked up by Zucca, supra note 69, p. 68; see also Alexy, supra note 553, pp. 391–4. 555 Alexy, supra note 7, pp. 113 [75]. 556 For Principle Theory: Alexy, supra note 77, pp. 436–9, for the framework model Schlink, supra note 549, pp. 125–6.

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Chapter 1. Standards of Legal Reasoning

1.11

Summary

This chapter tried to elaborate a meta theory of legal justification. It introduced the distinction between clear cases and hard cases and argued that at least in clear cases legal justification works in a deductive scheme. Moreover, it asked whether it is a foundation of legal reasoning in hard cases or whether it should be replaced (at least partially) by another mode of justification—balancing. In order to answer this question the rest of this chapter has outlined the major tenets of legal reasoning, which are fulfilled by deductive reasoning. Because the deductive scheme does not exist for its own sake but to ensure the observance of these tenets, it is not principally excluded that these principles could also be observed by balancing. This chapter also introduced the notion of transformations or jumps (on page 16), which describes non-deductive schemes of legal reasoning. It was asked in which situations one had to jump; from where such a jump should be performed; and whether there were any methods that determined at least the rough direction. I believe that one can answer these questions. Transformations are necessary in problem cases (actually they are always necessary, but only in problem cases are they noteworthy). The point of departure for a transformation is the established body of law and legal doctrine. Coherence and consistency tests roughly determine the outcome of a transformation. Moreover, one can judge an interpretation or a newly created (or discovered) norm by its consequences, i. e. its logical implications or juridical consequences denoting the legal consequences and not the empiric ones.557 Additionally, one needs a minimal set of substantial standards. The question for the rest of this study is: Is balancing (as it is understood by Principle Theory) a form of transformation that allows for predictable jumps? Is it possible to observe the tenets of universalizablity, coherence, and consistency by means of balancing? Should balancing be a scheme of justification that is located at the same level as syllogism or should it be subordinated to the latter? How could balancing work and how should it work? Has Principle Theory delivered an adequate description of adjudicative practice? Are the alternative conceptions of balancing more workable?

557

MacCormick, supra note 42, pp. 104–5.

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Part II

The Application of Fundamental Rights and the Proportionality Principle

2 Case Law∗ 2.1

Overview

Chapter 1 introduced methods of legal reasoning, among others Principle Theory. It presented Principle Theory through examples and in its generic form along with the major tenets of the background theory. It was shown that Principle Theory claims to be a correct description of the courts’ applying fundamental rights. The purpose of this chapter is to find out whether there are indeed practical applications of Principle Theory arguments and if so, under which circumstances they occur. If it shall turn out that such arguments are not applied, then it must be asked whether courts apply minimal position arguments instead. Moreover, the Introduction presented the separation of powers problem. Finding out which balance between powers is struck is of interest, no matter which balancing conception is applied. For these purposes, this study favours a comparative approach and will discuss the case law of the ECtHR, the GFCC , and the US Supreme Court. The standards that the courts employ are not directly expressed by the respective constitutional texts; they are rather the result of the courts’ putting the texts into concrete terms. Because all courts face similar problems, a comparison seems appropriate. Of course, the legal framework and historical conditions differ, and that necessitates great caution in drawing conclusions. It does not make a comparison invaluable, though. The examples have been chosen carefully. The case law of the ECtHR is relevant because the Treaties refer to the European Convention on Human Rights (ECHR) through art. 6 § 2 TEU . In the Bosphorus (Convention)558 judgment the ECtHR stated that the Member States of the Community must not circumvent their international obligations by delegating powers to the Community. Therefore, the obligations imposed by the Convention are also indirectly relevant for the Community. Moreover, art. 52 § 3 Charter of Fundamental Rights of the European Union (CFREU) shall establish consistency between the case law of the ECJ and the ECtHR. So the Charter, once entered into force, will reinforce the relevance of the Convention. Knowledge of the case law of the latter court is therefore indispensable. The position of the US Supreme Court and the GFCC ∗ The term ‘case law’ is used independently of the findings from Section 1.9. Even if one believes that ‘case law’ is not law in the strict sense, there are no alternatives in English: Neither can the German term Rechtsprechung nor the French term jurisprudence be translated with the English ‘jurisprudence’, because that term means ‘philosophy of law’ or ‘legal system’. See Robert M. Ritter, The Oxford Style Manual (Oxford University Press, Oxford, 2003), p. 419. 558 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, (2006) 42 EHRR 1, paras. 151–6.

Chapter 2. Case Law resembles the ECJ ’s position. Both courts are deciding on the constitutionality of statutes. However, their methods and the legal framework differ very much. Germany is a member of the EU and thus the methods of fundamental rights interpretation and application are relevant (though, of course, not solely decisive [art. 6 § 1 TEU ]). The fact that the US Supreme Court is not a European institution, nor an institution of a Member State, does not exclude it from this analysis. First, the US Supreme Court is the oldest court of its kind and had some influence on the GFCC . Second, and more importantly, the Supreme Court faces the same separation of powers problems as all constitutional courts (see the Introduction). Third, the analysis focuses on methods, not concrete results; its goal is therefore not to simply transpose American (or German) constitutional law and the value judgements involved into European Law. Finally, the methods discovered will not be blindly transferred to European Law. Their justification will be subject to detailed scrutiny, lest methods be imported that do not fit into the present legal framework. At this point, a general remark regarding the choice of cases seems due. 559 As the Introduction suggests, the discussion mainly focuses on the application of economic rights. The sample is intentionally large to reflect changes and differentiations. It also covers cases where economic rights were not relevant, for two reasons: (a) The aim of the analysis is to find out whether Principle Theory is workable. To justify the workability of Principle Theory, Alexy discusses a freedom of speech case.560 Thus, these cases must be discussed here as well. (b) The result may be that the balancing model changes over subject matters. In that case, the reasons for such a shift may explain why the court prefers one model to the other. Because the Weight Formula is applied at the last step of the proportionality principle, one must first establish whether and how a court applies proportionality, or put differently: Which standards of review have evolved and what are the criteria governing their application? The analysis thus mainly aims at answering the following questions: 1. Which standards of review have evolved and what is their scope? 2. How strict the scrutiny is under a given standard, regarding the assessment of facts, predictions, and value judgements? 3. What are the criteria for applying a certain standard? 4. In particular, do the courts balance in the way described by Principle Theory and under which circumstances do they do so? If they do not so, which method is applied instead? 5. If they rather follow the minimal position approach, how is the minimal position determined?

The case law analysis will be preceded by a brief description of the legal framework and the historical conditions that have influenced the constitutions 559 560

See pages 92–93, page 134, and 140 for a detailed justification of the range of cases. Alexy, supra note 77, pp. 437–8.

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2.2 European Court of Human Rights and the case law. One must note that certain questions might not be discussed or are not posed exactly as here. The questions are intertwined, thus the division might sometimes appear arbitrary. Yet I believe that it is useful to structure the problem. The questions should thus be answered inductively. The presentation of the case law should not be understood as interpretations that could be directly deduced from the respective constitutional texts. Rather, they should be regarded as examples of material, i. e. non-deductive, justification that cannot be unveiled but by inductively constructing general principles from the practice of the courts. The judgments are regarded from the context of justification. They are understood as contributions to a communication between the parties, advocates in other disputes, and the courts themselves. As such they express which arguments are relevant and in which form they must be presented by the parties. Furthermore they express standards for the rightness of future decisions. Although there is no appellate review for the courts that will be reviewed in this chapter and the next one, an unjustified departure from the standards of prior decisions may not be accepted. Since these courts can only rely on the confidence of member states or other institutions (there is no ECHR army or GFCC Special Forces), only acceptability can guarantee obedience.561 Finally, it should be noted that this analysis should not be understood as a justification or criticism of the case law, except where indicated. This is especially true for the last part of each section where the role of the Court is discussed.

2.2 2.2.1

European Court of Human Rights Background and Context

The ECtHR is an international body that was established through art. 19 of the ECHR in 1953 to ensure compliance with its provisions. The ECHR comprises the most essential human rights, among others the right to life and freedom of speech. The Convention was prepared by the Council of Europe and was eventually adopted by its then 12 member states. Today, the Council of Europe comprises 46 members. Its aim is to achieve a greater unity between its members and to safeguard and realize the “ideas and principles which are their common heritage”, i. e. the rule of law and human rights (art. 3 of the Statute of the Council of Europe). The Council was established in 1949 and was a reaction to the systematic and severe violation of human rights during World War II.562 It 561

This paragraph is based on a discussion with Josef Falke. Christoph Grabenwarter, Europäische Menschenrechtskonvention (Beck, Munich, Wien, 2005), para. 1; Rudolf Bernhardt, ‘Human Rights and Judicial Review: The European 562

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Chapter 2. Case Law was a novelty that an international treaty obliged its member states to adhere to principles such as the rule of law and to human rights and that compliance with these rules was monitored also in respect to their own citizens.563 The protection or the violation of human rights of a state’s citizen ceased to be a purely internal affair.564 The original Convention lacked certain rights, e. g. the protection of property. Some of these rights were later added by various protocols. Having regard to the fact that there are two separate international covenants on human rights— the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)— the lacking consensus on economic rights is not surprising. Consensus on the individual complaint—today an integral part of the protection system—was also missing. The individual complaint is a very unique part of the protection system. In 1998, the system was reformed and the individual application became mandatory.565 Art. 34 prescribes that any person, nongovernmental organization, or group of individuals can submit an application to the Court. It is still possible that any of the member states may refer alleged breaches of the Convention to the Court (art. 33). A committee of three judges will determine whether the application is admissible (see art. 35 for the criteria). If an application is admissible, the Court will examine the case and undertake the necessary investigations (art. 38). If the cases raises a difficult question on the interpretation or application of the Convention, any party may refer the case to the Grand Chamber within a period of three months after the judgment of the Chamber. A panel of five judges decides on the admissibility of the request (art. 43). This system is so unique in international law because it is a completely judicial process. The current system of protection differs substantially from the old system: Contrary to the current system, the individual application required the recognition by the respective member (art. 25, 48 of the pre-1998 Convention). Most states accepted individual applications, though. The Commission examined the admissibility of the complaint (art. 31 pre-1998 Convention) and filed a report to the Committee of Ministers, a political body. According to art. 31 this body examined and decided the case. Art. 46 provided that, instead, the Court could decide the case if the Committee referred it to the Court and if the state in question accepted its jurisdiction. In contrast to the current system of protection, the old system was mainly a political process. There are differences and similarities between the ECtHR and the courts that will be examined below: The first difference is the subject of review. The Court of Human Rights’, in: Beatty, David M. (ed.): Human Rights and Judicial Review: A Comparative Perspective (Martinus Nijhoff Publishers, Dordrecht, 1994), p. 297, p. 297. 563 Clare Ovey and Robin White, The European Convention on Human Rights (Oxford University Press, Oxford, 4th edn., 2006), p. 4. 564 See Bernhardt, supra note 562, p. 298. 565 Before, the individual application was only admissible if the respective state had expressed its accord.

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2.2 European Court of Human Rights GFCC and the US Supreme Court review state law and federal law. The ECtHR examines state law only. Yet this study deals with the relationship between ‘federal’ legislation and ‘federal’566 jurisdiction. Still, the ECtHR and its case law are not irrelevant. The courts treat state law as deferentially as federal law, provided that there is no conflicting federal law. This is unsurprising: states are empowered to enact certain pieces of legislation and these statutes are enacted by democratically legitimized bodies. Especially the US Supreme Court has always stressed that this fact warrants a deferential stance. As we shall see, this is also one of the decisive rationales underlying the case law of the ECtHR. This difference is therefore negligible. Moreover the Convention has the same effect as a constitution: Law makers, be they state or federal ones, have to obey to certain rules.567 Furthermore, the decisions of the ECtHR differ in their execution from those of the GFCC and the US Supreme Court. If the GFCC or the US Supreme Court declares a statute void, further implementation will not be necessary. The decisions of the ECtHR, on the other hand, need further implementation by the member states. This difference, though, is only of a procedural nature. The substantial questions (does a statute violate the Convention Rights or not) are the same. Bernhardt pointed out that the Convention lacked a real enforcement mechanism; violations of the Convention could not be corrected and punished by the use of force.568 This is true for constitutional courts in general. Nothing but the respect for the constitutional court can prevent the respective parliament from re-enacting a law that was declared void. There are more procedural differences between the courts (the Convention does not provide for an abstract control procedure, 569 where the Grundgesetz (GG) does so). But these differences do not affect the substantial issues of proportionality analysis and hence will be neglected. Bernhardt also pointed out that the Convention was an international treaty which aggravated the enforcement difficulties.570 What appears to be a purely procedural matter does have an influence on the substantive matters. To preserve its authority, the Court might in some cases refrain from changing the legislation of a state. But cases like Dudgeon 571 show that the Court is generally willing to

566

I am well aware that—strictly speaking—the term ‘federal’ does not fit the EC , its institutions or its law because it is not a federal state. Yet in respect to the question of this study the difference between a federal state and the EC is so negligible that the usage of the this term will not jeopardize the correctness of the results but will, on the contrary, clarify the point. 567 Beatty, supra note 20, p. 2. 568 Bernhardt, supra note 562, p. 303. 569 See ibid., p. 316. 570 Ibid., p. 303. 571 Dudgeon v. United Kingdom, (1981) 3 EHRR 40.

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Chapter 2. Case Law resolve even very difficult questions.572 And usually, the decisions of the Court are implemented.573 According to Bernhardt, a special issue arises for the Court but not for national courts: “How far can or must the international court investigate the factual and legal situation on the national level?”574 Formulated this way, this is indeed a special issue for international courts. But as we shall see, deference to factual assessments made by the legislation is an issue for national constitutional courts, too. Indeed, the problem is identical and the purpose of this section is to find out whether there are common or even identical rationales to resolve the problem. A further difference between the ECtHR on the one hand and the GFCC and the US Supreme Court on the other is the composition of the Court. They are influenced by different traditions and are trained in different ways.575 In this respect the ECtHR resembles the ECJ . Bernhardt inferred from the composition of the Court that it would be impossible for the Court to develop a coherent and consistent set of rules or a doctrine.576 This section will show that this is not true, which in turn has consequences for my view on the ECJ . If the ECtHR is able to develop a rich and consistent set of rules in the field of proportionality analysis, despite its divergent composition, then it must also be possible for the ECJ as well.

2.2.2

Margin of Appreciation and Proportionality

As other courts, the ECtHR applies the proportionality principle when reviewing governmental actions. In assessing whether the states acted in accordance with this principle, the Court grants a margin of appreciation, i. e. it will (subject to certain conditions) refrain from substituting its assessments and value judgements for those of the states. The margin of appreciation and the proportionality principle are complementary concepts.577 The margin of appreciation is relevant for assessing the proportionality of a given measure.578 572

Of course there exist counter examples like Vo v. France, (2005) 40 EHRR 12. Bernhardt, supra note 562, p. 303. 574 Ibid., p. 308. 575 Cf. ibid., p. 305. 576 Ibid. 577 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, Antwerp, Oxford, New York, 2002), p. 14. 578 Gaygusuz v. Austria, (1997) 23 EHRR 364, para. 42; Open Door and Dublin Well Woman v. Ireland, (1993) 15 EHRR 244, para. 68; Open Door, (Cremona, dissenting); Prager and Oberschlick v. Austria, (1996) 21 EHRR 1, para. 36; Kokkinakis v. Greece, (1994) 17 EHRR 397, para. 47; Fredin v. Sweden, (1991) 13 EHRR 784, para. 51; Allan Jacobsson v. Sweden, (1990) 12 EHRR 56, para. 55; Mellacher and others v. Austria, (1990) 12 EHRR 391, joint dissent of Judges Cremona, Bindschedler-Robert, Gölcüklü, Bernhard and Spielmann. 573

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2.2 European Court of Human Rights The stricter the principle is applied, the narrower the margin of appreciation is and vice versa.579 Yet, these principles are distinct. The margin of appreciation relates to the rigour of review, while the proportionality principle is a review standard. However, the Court’s reasoning focuses on the margin and criteria that influence its scope. This tends to obfuscate material criteria (see Section 2.2.3), which constitute the principal interest of this study. Yet, the margin of appreciation cannot be reduced to a limitation of the scope of the proportionality principle. Sometimes, it imposes limits on states, e. g. the clause “shall not . . . in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest” (art. 1 § 2 Protocol 1) could be understood to be granting unlimited discretion to the states. Applying the margin of appreciation doctrine to this clause, though, yields a limitation of discretionary power.580 The margin of appreciation and the proportionality principle must be viewed in a broader context: The Court first determines whether a Convention Right has been interfered with. If the measure interferes with a right, the Court must consider whether this interference can be justified. This is the case if the measure is prescribed by law, pursues a legitimate end, and if it is necessary in a democratic society. The measure in turn is necessary if the relationship between the pursued aim and the measures is proportionate. ‘Necessity’ in the sense of the Convention Rights should not be confused with the ‘least restrictive means’ test that can be found in the case law of the US Supreme Court or with the necessity test of proportionality analysis under the German variant of the proportionality principle, although the least restrictive means test forms an element of the proportionality test under the Convention. In contrast to the CFREU , every Convention Right is accompanied by provisions that provide for limitations of these rights. There is no general exception rule. Still, the limitations exhibit a similar structure because they require a proportionate balance between the interests involved. The question of this section therefore boils down to this: Which aspects are covered by the margin of appreciation and which criteria influence its scope in a particular case? For the Court, this is tantamount to asking under which circumstances a measure is proportionate. Although the analysis in this chapter focuses on proportionality, the legitimate aim test will be regarded too, because it reflects some idea of proportionality. Testing the legitimacy of the pursued aim usually poses no difficulties albeit the Convention prescribes the admissible aims in detail.581 At this stage, the 579 Arai-Takahashi, supra note 577, p. 14; Ronald St. John Macdonald, ‘The Margin of Appreciation’, in: Macdonald, Ronald St. John et al. (eds.): The European System for the Protection of Human Rights (Kluwer Acad. Publ., Dordrecht, Boston, London, 1993), p. 83, p. 84. 580 Sporrong and Lönnroth v. Sweden, (1983) 5 EHRR 35, § 3 (Zekia et al., dissenting). 581 Ovey and White, supra note 563, p. 226.

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Chapter 2. Case Law Court does not only consider the legitimacy of the aim as such but also whether the alleged problem actually exists;582 but the Court usually does not weigh the public interest.583 Sometimes, the legitimacy of the aim is implicitly or explicitly assumed.584 Under the Convention, the protection of morals is a legitimate aim. In the Open Door 585 case, the majority considered that the protection of the unborn fell under the morals clause; some dissenting judges believed that it fell under the scope of art. 2 and hence drew different conclusions: The majority dismissed the plea. Judge Blayney believed that art. 2 protected the right of the unborn to be born and inferred from this provision and art. 60 that the right of the unborn could not be limited.586 This example shows that the choice of the aim may play a decisive role.587 When used by the Court, the term ‘morals’ is not identical to ‘morals’ as defined on page 10. The term is rather vague and is more equivalent to ethical, social, and political norms in the sense of this study. The Court does not seem to distinguish very strictly between “protection of the rights and freedoms of others” and the “protection of morals” (art. 8). In Dudgeon 588 , the Court pointed out that the protection of vulnerable persons amounts to one aspect of the protection of morals. This also includes the protection of the moral development of the young. 589 And in the Open Door case, the Court possibly relied on the morals clause in order to avoid the problem of whether the life of the unborn was protected under art. 2 § 1 of the Convention (with all the problems regarding abortion).590 If the Court extracts positive obligations from Convention Rights, the aim is usually not tested.591

582 Mellacher, supra note 578, para. 47 also cf. Brannigan and McBride v. United Kingdom, (1994) 17 EHRR 539, para. 47 where the Court examined whether there existed a public emergency. 583 Jacobsson, supra note 578, para. 57; Hentrich v. France, (1994) 18 EHRR 440, para. 39; Jacubowski v. Germany, (1995) 19 EHRR 64, para. 25; Fredin, supra note 578, para. 48; Traktörer Aktiebolag v. Sweden, (1991) 13 EHRR 309, para. 56. 584 Young, James and Webster v. United Kingdom, (1983) 5 EHRR 201, para. 60; Agosi v. United Kingdom, (1987) 9 EHRR 1, paras. 52–61; National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. United Kingdom, (1998) 25 EHRR 127, para. 76; Casado Coca v. Spain, (1994) 18 EHRR 1, paras. 45–6; Kokkinakis, supra note 578, paras. 42–4. 585 Supra note 578. 586 Open Door, supra note 578, (Judge Blayney, dissenting). 587 See also the dissenting opinion of Judges Pettiti et al. 588 Supra note 571, para. 47. 589 Handyside v. United Kingdom, (1979–80) 1 EHRR 737, para. 52 (at the end). 590 See Vo, supra note 572 where the Court maintained its refusal to discuss this issue. 591 Cossey v. United Kingdom, (1991) 13 EHRR 622, paras. 36–48; Guerra and others v. Italy, (1998) 26 EHRR 357, para. 58; L.C.B. v. United Kingdom, (1999) 27 EHRR 212, paras. 36–43 but cf. Cossey, para. 2.6.3 (Martens, dissenting).

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2.2 European Court of Human Rights As described above, the necessity requirement comprises the proportionality test (remember that the necessity requirement must not be confused with the least restrictive means test, see above page 89): the impugned measure must strike a fair balance between the competing interests. Whether this implies an application of the Weight Formula cannot be determined on grounds of these programmatic statements alone. It rather depends on the application of the single review steps. The term ‘necessary’ is not used in the sense of ‘desirable’ or useful.592 Proportionality assessment under the Convention differs from its EC or German counterpart insofar as it does not distinguish as precisely as the latter ones between different steps, i. e. suitability, necessity and proportionality in the narrow sense. Yet, the analysis under the Convention, as performed by the Court, does not lack accuracy; at least, it is not less precise than tests performed by the GFCC . Essentially the same rationales are put forth. The following paragraphs will present some principles that guide proportionality review. But before we proceed, we need to describe the scope of the margin of appreciation in general. Virtually all aspects are prima facie, i. e. except when a state can claim some margin of appreciation, subject to judicial review: facts,593 predictions,594 and value judgements.595 Conversely, all these aspects can fall under the scope of the margin of appreciation; there is no general rule exempting any one of these aspects from its scope.596 However, one must note that the margin usually only applies to difficult and complex facts where the finding of the facts already involves value judgements.597 Bernhardt stated that the Court resembles a national court of appeal that only had to determine the law based on the facts that the lower courts had already established. Only in exceptional cases, the Court would hear evidence.598 Yet art. 38 § 1 of the Convention covers the investigation of facts and the Court can even hear witnesses.599 Admittedly, facts are often undisputed. Still, with the Judges Gölcüklü et al., I believe that the examination of the facts is an important element of judicial review.600 592

Young et al., supra note 584, para. 63. Brannigan, supra note 582, para. 43; Open Door, supra note 578, paras. 75–7; Kokkinakis, supra note 578, para. 49; James et al., supra note 33, para. 46, subpara. 1, subpara. 2. 594 Open Door, supra note 578, para. 77; James et al., supra note 33, para. 46, subpara. 2. 595 Mathieu-Mohin and Clerfayt v. Belgium, (1988) 10 EHRR 1, para. 57; Markt Intern Verlag GmbH and Klaus Beermann v. Germany, (1990) 12 EHRR 161, paras. 33–7; Brannigan, supra note 582, para. 59; Open Door, supra note 578, para. 68. 596 For value judgements: Gaygusuz, supra note 578, paras. 42–51; Open Door, supra note 578, para. 68; for facts see Jacubowski, supra note 583, (Walsh, MacDonald and Wildhaber, dissenting). 597 For example, Brannigan, supra note 582, para. 43: existence of a public emergency. 598 Bernhardt, supra note 562, p. 314. 599 Karen Reid, A Practitioner’s Guide to the European Convention on Human Rights (Thompson, Sweet & Maxwell, London, 2nd edn., 2004), para. I–015. 600 Markt Intern, supra note 595, § II (Gölcüklü et al, dissenting). 593

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Chapter 2. Case Law Furthermore, the Court applies the proportionality principle and the margin of appreciation doctrine to measures taken by the legislature, the courts, or the government.601 Another important aspect influences the inter-play between the proportionality principle and the margin of appreciation: the burden of proof. Only where a state is obliged to assess facts and to prove the correctness of value judgements, the margin of appreciation can be applied. It is superfluous when certain states of affairs are assumed. To put it differently, there is no need for discretionary power if no assessment is necessary.602 The distribution of the onus of proof was decisive in L.C.B.603 The applicant claimed a violation of art. 2 because her father had been exposed to radiation, which, allegedly, caused her to be born with leukaemia. The Court was not convinced that early information (as the applicant suggested) would have prevented the disease and thus did not find a violation of art. 2.604 The Court assumed that it was the applicant’s obligation to prove the facts. The Court avoids assessing facts on its own605 and usually has recourse to the parties’ submissions606 (especially if the facts are not disputed607 ) or assumes a certain state of affairs.608 If a state does not perform any assessment of facts at all, the Court usually finds a violation of the Convention Rights.609 The same applies to balancing as such: A state must not overlook the need for a fair balance in a particular case and must at least try to achieve a fair balance between the competing interests involved.610 This is especially true for administrative procedures. Here the laws themselves need not take all interests into account but the administrative procedures must do so. The margin of appreciation is influenced by numerous factors. First of all, the subject matter influences the breadth of the margin of appreciation. The analysis will therefore continue with the case law under some articles of the Convention, including art. 1 Protocol 1 (right to property), art. 10 (freedom of speech) and art. 8 (right to privacy). The case law under art. 1 Protocol 1 is of particular interest because it encompasses cases in the socio-economic field, an area that is of great relevance in the legislation of the EC and hence in the case law of the ECJ . The case law under art. 10 is relevant because it shows how competing interests influence the margin of appreciation. Finally, art. 8 is 601

See the preceding footnotes that refer to cases that dealt with all branches of govern-

ment. 602 Cf. Prager and Oberschlick, supra note 578, para. 7 (Martens, Pekkanen and Makarczyk, dissenting). 603 Supra note 591. 604 L.C.B., supra note 591, paras. 37–41. 605 Markt Intern, supra note 595, para. 33 and ibid., § II (Gölcüklü et al., dissenting). 606 Brannigan, supra note 582, para. 23. 607 Guerra, supra note 591, para. 14. 608 Reid, supra note 599, para. I–054. 609 E. g. Kokkinakis, supra note 578, para. 49. 610 Sporrong and Lönnroth, supra note 580, para. 69.

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2.2 European Court of Human Rights important because it covers a wide range of difficult topics (abortion, protection of the environment, treatment of homosexuals) which are not necessarily relevant for the EC (except environmental protection) but show how the Court deals with difficult value judgements and a mixture of facts and value judgements. At the beginning of this section, it was already mentioned that a distinction must be drawn between standards relating to the rigour of review and material criteria and that the margin of appreciation relates to the former aspect (see also below in Section 2.2.3). Although these aspects must be analytically distinguished, both are decisive for the result. For example, the Weight Formula includes a variable that relates to the rigour of review (R), which is distinguished from material criteria (W, I). Proportionality and the margin of appreciation doctrine effect that the Court is always asking whether authorities have overstepped the bounds set up by the margin of appreciation.611 Although the distinction between the margin and proportionality is analytically required, it is not feasible in practice and cannot be forced on the description of the case law.612 (a)

Right to Property

Diverse issues are considered under art. 1 Protocol 1: taxation,613 rent law,614 licensing,615 nationalization,616 and expropriation (especially in connexion with town planning).617 The state acts at issue can be manifold: social redistribution laws,618 decision by taxation authorities,619 the revocation of an administrative license to sell alcohol,620 or long-term expropriation permits issued by the respective ministry.621 The Court stressed that states enjoy a wide margin of appreciation in this field.622 The margin relates to both the existence of a problem (question of fact) and the appropriateness of choice of the measures to be taken (normative question).623 611 For example, James et al., supra note 33, para. 51 and Mellacher, supra note 578, para. 53. 612 See also Ovey and White, supra note 563, pp. 233–4. 613 National & Provincial Building Society et al., supra note 584; Hentrich, supra note 583. 614 Mellacher, supra note 578; James et al., supra note 33. 615 Traktörer, supra note 583; Fredin, supra note 578. 616 Lithgow and others v. the United Kingdom, (1986) 8 EHRR 329. 617 Sporrong and Lönnroth, supra note 580; Jacobsson, supra note 578. 618 Mellacher, supra note 578 and James et al., supra note 33. 619 Hentrich, supra note 583. 620 Traktörer, supra note 583. 621 Sporrong and Lönnroth, supra note 580. 622 Mellacher, supra note 578, para. 45; National & Provincial Building Society et al., supra note 584, para. 80; see also Arai-Takahashi, supra note 577, pp. 154, 157, 161; Macdonald, supra note 579, pp. 102, 109. 623 Mellacher, supra note 578, para. 45.

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Chapter 2. Case Law The margin can be extraordinarily wide. The case of Mellacher may serve as a good example. This case dealt with the reform of the Austrian rent regulations. The statute at issue introduced a classification of flats according to certain criteria. For each class, the statute ordained a maximum rent. There were no exceptions, for example due to the location of the flat. According to the statute, tenants could apply to the courts to reduce the rent. Leopold and Maria Mellacher, the owners and landlords of several flats, had to endure substantial rent reductions: The Mellachers and the tenant originally agreed on a rent of 1,870 Austrian schillings. It was reduced to 330 Austrian schillings per month, i. e. 17.65 per cent of the original rent. The other applicants experienced reductions of a similar scale. The applicants argued that the statute violated freedom of contract because it interfered with existing contracts. Moreover, they complained about the inflexibility of the system because it did not take account of the location of the flat and the reduced rents were not sufficient to cover maintenance costs. The Court dismissed all arguments and upheld the statute in question.624 The interference with existing contracts was principally a legitimate means to achieve the aim of social redistribution. The inflexibility of the system had to be tolerated because laws of this nature had to be general and could not consider every possible exceptional case. Although the rent reductions were substantial in some cases, they were not arbitrary. From a methodical perspective, it is important to note that the Court merely asked whether the legislature overstepped its margin of appreciation, i. e. it did not consider whether the Austrian Rent Reform Act was the best possible solution or whether is tried to achieve an optimal distribution of liberty.625 The dissenters disagreed, because the rents corresponded to the relevant market conditions, it was not shown that the new rent was sufficient to cover maintenance costs and that the average tenant could not afford more than the new rent.626 In the James et al.627 case, a restructuring of the legal provisions on rent was also upheld. It concerned the abolition of the long-leasehold system in England and Wales. The long-leasehold system had two forms: Either the tenant paid a low rent for the bare premises and had to build a house, which had to be delivered to the landlord at the end of the lease period (usually 99 years), or the tenant paid a premium for the building and a rent for the bare premise. In either case, it was up to the tenant to maintain the house. The government wanted to abolish this system by allowing tenants to acquire the house for a price that was calculated based on the value of the bare site. The landlords made substantial losses and therefore submitted applications to the Court. This 624 625 626 627

Ibid., paras. 51–6. Ibid., paras. 53, 56. Ibid., (joint dissenting opinion of Judges Cremona et al.). Supra note 33.

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2.2 European Court of Human Rights legislation was upheld and the applications were dismissed. The Court examined whether the system conformed to art. 1 Protocol 1 and stated: Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. . . . Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. Furthermore, the notion of “public interest” is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment be manifestly without reasonable foundation. In other words, although the Court cannot substitute its own assessment for that of the national authorities, it is bound to review the contested measures under Article 1 of Protocol No. 1 (P1-1) and in so doing, to make an inquiry into the facts with reference to which the national authorities acted.628

Following this statement the Court acknowledged that the aim was legitimate and that the government actually pursued these aims.629 The Court further stated that [t]his [that the existing legislation would have been sufficient] amounts to reading a test of strict necessity into the Article, an interpretation which the Court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a “fair balance”. Provided the legislature remained within these bounds, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way. 630

The Court accepted that the system was general and that the cases were not dealt with individually.631 So, the Court asked whether a problem existed and whether government’s assessment in this regard was manifestly erroneous. Then it assessed whether the means chosen were suitable. It also asked whether the measure introduced arbitrary discriminations and whether a just compensation was paid.632 It neither applied the least restrictive means test nor required 628 629 630 631 632

James et al., supra note 33, para. 46 emphasis added. Ibid., para. 48. Ibid., para. 51, emphasis added. Ibid., para. 68. Ibid., para. 52, 54.

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Chapter 2. Case Law that the legislators should pursue the best possible solution; balancing the advantages and disadvantages was government’s business.633 Proportionality merely prohibits excessive individual burdens.634 Generally speaking, under art. 1 Protocol 1 the Court, accepts measures of a sweeping and intensive nature. The case of Lithgow 635 is another example. The case dealt with the nationalization of the British military industry. The owners and shareholders were awarded a compensation based on the values of their shares. The calculation method for the value was disputed, though: Which period of time should be considered and which method should be used for those shares that were not publicly registered? The nationalization legislation provided for negotiating the amount of compensation. The negotiations were not conducted by the shareholders but by a representative for all shareholders of that company. Lithgow and others were not satisfied with the negotiated compensation and submitted an application to the Court. The Court again upheld the legislation. It stressed that the valuation of industrial enterprises was quite complex and that it was legitimate to calculate the compensation “across the board”.636 If procedural safeguards provide for the continuous consideration of the interests at stake, a measure will usually stand the scrutiny.637 Solely administrative review does not suffice. The acts in question—at least administrative ones—must be reviewed by independent judges (art. 6).638 The lack of (administrative) procedures for the periodical review of long-term acts (e. g. expropriation permits) renders measures disproportionate.639 One must bear in mind, though, that inflexibility usually only affects administrative measures. Statutes aiming at the redistribution of property may be inflexible and generalizing.640 The Court’s approach in economic matters can thus be summarized as follows: The Court requires that government shall pursue legitimate aims, that the alleged problem really exists and that the measure is suitable for attaining the goal. It does not employ a strict least restrictive means test. Measures must not impose excessive burdens or introduce arbitrary discriminations. Expropriations require the payment of a compensation. The necessary assessments are covered by a margin of appreciation which is particularly wide for legislators. It is therefore very unlikely that socio-economic legislation will be annulled on grounds of a disproportionality. The Court only assesses whether government remained within these bounds; it explicitly does not require the best solution. Balancing 633

Ibid., para. 68. Ibid., para. 50; see also National & Provincial Building Society et al., supra note 584, para. 81; Hentrich, supra note 583, para. 49; Traktörer, supra note 583, para. 60. 635 Supra note 616. 636 Lithgow, supra note 616, para. 121. 637 Jacobsson, supra note 578, para. 62. 638 Ibid., para. 76; Traktörer, supra note 583, paras. 47–9; Fredin, supra note 578, para. 63. 639 Sporrong and Lönnroth, supra note 580, paras. 70, 73. 640 Mellacher, supra note 578; Lithgow, supra note 616. 634

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2.2 European Court of Human Rights advantages and disadvantages of a measure is not the Court’s business. This casts doubt on the descriptive accuracy of Principle Theory, which understands the task of reconciling fundamental rights as optimization, i. e. the search for the best solution. Which normative conclusions can be drawn from this assessment, shall be discussed later. (b)

Freedom of Speech

The decisions that deal with art. 10 differ in many respects from those dealing with art. 1 Protocol 1. First of all, the scrutiny tends to be stricter than under art. 1 Protocol 1. Furthermore, the subject of review differs: Under art. 1 Protocol 1 the Court reviews statutes and administrative decisions, whilst under art. 10, the Court usually reviews decisions by the national courts. The cases therefore lose much of their complexity because the Court has to consider singular cases only and not legislative decisions that affect the national society as a whole and that are often based on uncertain facts and predictions. Thus, in cases under art. 10 the scope of the value judgements involved is much narrower. Although review is exercised stricter than under art. 1 Protocol 1, its rigour still varies depending on the interests at stake. The following cases shall illustrate these variations. I distinguish four areas, according on the competing interest, i. e. whether the exercise of freedom of speech affects: 1. 2. 3. 4.

(i)

morals; commercial interests; the functioning of the judiciary; or other important rights, e. g. one’s reputation or religious belief.

Morals

In the case of Open Door 641 , the Court had to decide whether the government of the Republic of Ireland could restrict information on abortion and abortion facilities abroad. Injunctions were granted against two non-profit organizations that gave such information to pregnant women. The organizations did not try to persuade women to abort. Furthermore, neither the abortion abroad nor non-directive information about abortion violated statutory law.642 The case was finally submitted to the Court. The applicants challenged the injunctions as violations of art. 10. The case sheds some light on the Court’s general approach to proportionality. First, the Court had to determine whether the injunction pursued a legitimate aim. The government claimed that the injunction aimed at the prevention of crime, the protection of the rights of the unborn and the protection of morals.643 641 642 643

Supra note 578. Open Door, supra note 578, para. 59. Ibid., para. 61.

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Chapter 2. Case Law The Court only accepted the last policy goal. It did not want to determine whether the unborn child had rights and because there were not any violations of criminal law of Ireland the Court did not accept the first reason. The next step, the proportionality analysis, is also insightful. The government submitted that the right to life could not be measured, and hence not weighed.644 As it was a prerequisite for the exercise of other rights, the right of the unborn always had to prevail.645 The Court rejected this argument, principally because the Court—unlike the government—relied on the morals exception.646 When determining the content of morals, however, the Court granted a wide margin of appreciation because, in the absence of a uniform European standard, states were “in a better position than the international judge to give an opinion on the exact content of the requirements of morals as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them”.647 Despite this statement, the Court exercised its supervision rigorously and found a violation of the Convention. The Court reasoned as follows: It first noted that it was not a criminal offence to travel abroad to have an abortion, provided the abortion was legal in the other state.648 Then the Court turned to the scope of the injunction. The Court found it disproportionate because it prohibited any kind of information about abortion and had no regard to the age or health of the woman that sought advice. The measure was thus too sweeping.649 The Court also considered the activity that was interfered with and found that there was no direct link between the giving of non-directive advice and the destruction of the unborn, because it was the woman that eventually made the choice.650 Turning back to the injunction, the Court stated that the injunction and similar measures could not prevent women from having abortions abroad and was thus ineffective.651 Moreover, they posed threats to women because information was available anyway but without appropriate supervision.652 (ii)

Commercial Speech

The rationales put forth when commercial interests are involved are very similar to those under art. 1 Protocol 1. The case of Markt Intern 653 may serve as an example: Markt Intern published an article about a British mail-order firm. 644 645 646 647 648 649 650 651 652 653

Ibid., para. Ibid., para. Ibid., para. Ibid., para. Ibid., para. Ibid., para. Ibid., para. Ibid., para. Ibid., para. Supra note

67. 67. 68. 68. 72. 73. 75. 76. 77. 595.

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2.2 European Court of Human Rights The article described how a customer returned the ordered products because she was dissatisfied without the payment being refunded. The article asked the readers to report further incidents that they might have experienced with that mail-order firm. The mail-order firm launched proceedings before the German courts under the Unfair Competition Act (Gesetz gegen unlauteren Wettbewerb) to prevent any further articles of this kind. The court of first instance upheld the complaint, the Court of Appeal reversed the judgment and the German Federal Court of Justice basically affirmed the judgment of the first instance. Markt Intern called the GFCC , which dismissed the claims. The Court granted a wide margin of appreciation, stating that “[s]uch a margin of appreciation is essential in commercial matters and, in particular, in an area as complex and fluctuating as that of unfair competition. Otherwise, the European Court of Human Rights would have to undertake a re-examination of the facts and all the circumstances of each case”.654 The Court also engaged in weighing the interests at stake by stipulating standards of journalism: 655 The Court finally found no violation because the article was published prematurely and because the case of the dissatisfied customer was an isolated incident.656 The decision was heavily disputed among the judges. Some argued that the Court avoided effective supervision by refraining from examining the facts. 657 Judge De Meyer stated that the Court actually did re-examine the facts by adopting the paragraphs 34–7 of the judgment.658 The Court nevertheless stuck to this position regarding the assessment of facts in later judgments.659 (iii)

Authority of the Judges

Art. 10 expressively allows the interference with freedom of speech to protect the impartiality and authority of the judiciary. In the case of Prager and Oberschlick 660 this interest outweighed the right to freedom of speech. Mr Prager wrote an article that was published in Mr Oberschlick’s magazine. The article criticized the demeanour of judges of the Vienna Regional Criminal Court. One of the judges brought action against Mr Prager for defamation. Mr Prager was convicted. He was of the opinion that the conviction violated art. 10. The Court stressed the importance of the judiciary for the functioning of a democratic society.661 The Court upheld the conviction because the accusations

654 655 656 657 658 659

Markt Intern, supra note 595, para. 33. Ibid., paras. 34–7. Ibid., para. 36. Ibid., § II (Gölcüklü et al., dissenting). Ibid., § 2 (De Meyer, dissenting). Jacubowski, supra note 583, para. 26; see also Casado Coca, supra note 584, paras. 51,

55. 660 661

Supra note 578. Prager and Oberschlick, supra note 578, para. 34.

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Chapter 2. Case Law were excessively broad and lacked an adequate factual foundation.662 Therefore, the applicant did not comply with the ethics of journalism because the research in general was inadequate.663 Finally, the judges were not able to reply to the critique because of the obligations that their office imposed on them.664 The rationale is similar to that in the Markt Intern case. There the facts (one isolated case) were not sufficient to justify the publication at that early stage. Therefore, it was not decisive what was said, but the way in which it was said and how the article was prepared. Sunday Times 665 concerned an injunction that was granted against the Sunday Times, which wanted to publish an article that informed the readers about possible negligence of the producer of a sedative—thalidomide—for pregnant women. The tranquillizer caused the children to be born with severe deformities. The injunction was granted because the court believed that the article could disturb a pending trial against the manufacturer of the sedative and regarded it as contempt of court. Interfering with the course of justice in running proceedings was indeed a case of contempt of court. The interference was thus prescribed by law. The Court stressed that the margin of appreciation varies with the pursued aims.666 Because the functioning of the judiciary was a rather objective notion when compared to the protection of morals and therefore formed a common ground between the member states, the margin was comparatively narrow.667 The very breadth of the challenged injunction called for rigorous review.668 The Court underscored the importance of the information for the affected families and that art. 10 did not only grant the right to disseminate information but also the right to be informed.669 The Court therefore concluded that it had to be absolutely certain that spreading this information threatened the authority of the judges.670 It must be remarked that contempt of court as a part of common law was not challenged but only its application in the present case. The Court found a violation of art. 10.671 It is noteworthy from a methodical point of view that the Court rejected that it had to decide between two conflicting principles but that art. 10 was a right with exceptions.672

662 663 664 665 666 667 668 669 670 671 672

Ibid., para. 37. Ibid., para. 37. Ibid., para. 34. Sunday Times v. United Kingdom, (1979–80) 2 EHRR 245. Ibid., para. 59. Ibid., para. 59. Ibid., para. 63. Ibid., para. 66. Ibid., para. 66. Ibid., para. 67. Ibid., para. 65.

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2.2 European Court of Human Rights (iv)

Other’s Reputation

The case of Lingens 673 , set in Austria, is an example of the last group of cases. The President of the Jewish Documentation Centre said in a TV-interview that the president of the Austrian Liberal Party served in the SS during World War II. The Chancellor of the Austrian Socialist Party defended the president of the Liberal Party and referred to the Jewish Documentation Centre as “political mafia” and to its activities as “mafia methods”. Mr Lingens wrote two articles that dealt with this issue and sharply criticized the Chancellor of the Austrian Socialist Party. He was convicted of defamation of the Chancellor. Mr Lingens challenged the convictions on grounds of art. 10. The Court unanimously found that there was a violation of art. 10: The limits of acceptable criticism are accordingly wider as regards a politician as such than regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others—that is to say, of all individuals—to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighted in relation to the interests of open discussion of political issues.674

The rationale was that politicians as individuals expose themselves to public criticism in a special way: The impugned expressions are therefore to be seen against the background of a post-election political controversy; as the Vienna Regional Court noted in its judgment of 26 March 1979 (see paragraph 24 above), in this struggle each used the weapons at his disposal; and these were in no way unusual in the hard-fought tussles of politics. 675

The Court stressed the importance of freedom of speech for a democratic society.676 The exposure to the public was also mentioned as a rationale by Judge Martens in his dissenting opinion to Markt Intern 677 . (v)

Summary

In contrast to the case law under art. 1 Protocol 1, the language of the Court under art. 10 is much more reminiscent of balancing.678 Yet, one cannot find applications of the Weight Formula. Instead, the Court finds and applies standards of good practice in the field of freedom of speech. It is the context of 673 674 675 676 677 678

Lingens v. Austria, (1986) 8 EHRR 407. Ibid., para. 42. Ibid., para. 43. Ibid., para. 40. Supra note 595, para. 7. Ibid., para. 42; Markt Intern, supra note 595, para. 34.

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Chapter 2. Case Law a statement that matters: What was the tone of a statement?679 Could the opponent reply?680 Did the opponent have to expect criticism, e. g. by participating as a candidate in an election?681 Was the statement preceded by adequate research?682 According to Principle Theory, the analysis should focus on gauging the severity of the offence and juxtaposing it with the interest to publish.683 (c)

Right to Privacy and Right to Life

Art. 8 encompasses a wide range of cases. I distinguish three groups: 1. Family life (access to one’s child, etc.); 2. Treatment of homosexuals, transsexuals, and also the protection of sexual freedom; 3. Protection of health in connexion with environmental protection, e. g. protection from airport noise.

I shall omit the first group of cases because they are of little interest to EC -law. The second group is also not of direct interest for the understanding of EC -law, but the cases show how the Court deals with highly controversial and difficult value judgements. The last group is of direct interest to this study, because environmental law is a large area of EC -legislation. Cases under art. 2 are sometimes similar to art. 8 cases from the third group. These art. 2 cases will therefore be considered here, too. (i)

Treatment of Homosexuals

The case of Dudgeon 684 dealt with the Northern Irish prohibition of sodomy and “sexual indecencies” between male persons.685 In its reasoning on proportionality, the Court conceded that, generally, where interferences with fundamental rights were based on the protection of morals, the margin of appreciation was wide.686 But the Court also emphasized that the margin did not only depend on the competing interest involved (in this case the protection of morals) but also on the activity interfered with.687 Because this case involved the most intimate part of one’s private life, the scrutiny was relatively rigorous. Indeed, the margin of appreciation was extremely narrow in this case: 679

Prager and Oberschlick, supra note 578, para. 37. Ibid., para. 34. 681 Lingens, supra note 673, paras. 42–3. 682 Prager and Oberschlick, supra note 578, para. 37; Markt Intern, supra note 595, para. 36. 683 Alexy, supra note 77, pp. 437–9. 684 Supra note 571. 685 Dudgeon, supra note 571, para. 14. 686 Ibid., para. 52. 687 Ibid., para. 52. 680

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2.2 European Court of Human Rights . . . the United Kingdom Government acted carefully and in good faith; what is more, they made every effort to arrive at a balanced judgment between the differing viewpoints before reaching the conclusion that such a substantial body of opinion in Northern Ireland was opposed to a change in the law that no further action should be taken. Nevertheless, this cannot of itself be decisive as to the necessity for the interference with the applicant’s private life resulting from the measures being challenged. . . . Notwithstanding the margin of appreciation left to the national authorities, it is for the Court to make the final evaluation as to whether the reasons it has found to be relevant were sufficient in the circumstances, in particular whether the interference complained of was proportionate to the social need claimed for it.688

For almost ten years, there had not been any convictions for homosexual intercourse between consenting male adults. Hence, the Court was not convinced that the prohibition pursued a “pressing social need”.689 The Court was also influenced by the fact that many member states had already changed their legislation concerning homosexuals.690 Judge Matscher objected to the requirement of a “pressing social need”. He raised important questions concerning proportionality analysis: . . . , it is said that the adjective “necessary” implies the existence of a “pressing social need” for the interference in question . . . To my mind, however, once it has been granted that an aim is legitimate for the purposes of Article 8 § 2 (art 8-2), any measure directed towards the accomplishment of that aim is necessary if failure to take the measure would create a risk that that aim would not be achieved. It is only in this context that one can examine the necessity for a certain measure and, adding a further factor, the proportionality between the value attaching to the aim and the seriousness of the measure. Since the adjective “necessary” thus refers solely to the measures (that is, the means), it does not permit an assessment whether the aim itself is legitimate, something that the judgment appears to do when it links “necessary” with “pressing social need”.691

Judge Matscher believed that it was inadmissible to question the choice of the aims or to weigh the importance of the aim beyond the legitimate aim test.692 The case of Cossey 693 demonstrates another rationale: Mrs Cossey, a male-tofemale transsexual, wished to marry a man. She was treated as a male because her sex was solely determined on biological criteria. Therefore, she could not marry because the law prescribed that only partners of different sex could marry. The Court did not find a violation of art. 8 (nor of art. 12). Since there was no common ground between the member states in treating transsexuals, the margin of appreciation was considered to be wide.694 In light of the is and ought 688

Ibid., para. 59, emphasis added. Ibid., paras. 60, 30. 690 Ibid., para. 60. 691 Ibid., § I (Matscher, dissenting); see also his dissent in Open Door, supra note 578, para. 3(a). 692 Ibid., para. 3(a) (Matscher, dissenting). 693 Supra note 591. 694 Cossey, supra note 591, paras. 40 and 46 (for art. 12). 689

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Chapter 2. Case Law dichotomy, this reasoning, according to which the mere existence of dissent shall justify a normative statement is questionable at least. (ii)

Health and Environmental Protection

In the Powell and Rayner 695 case, the applicants challenged the fact that they had not have any legal remedies against the noise emitted by Heathrow Airport. The claim was actually based on art. 13. But the Court had to examine whether there was a violation of art. 8, because art. 13 requires that there be a remedy for a violation of Convention Rights. Therefore, a violation of art. 13 can only be found if there has been a violation of another Convention Right. The Court neither found a violation of art. 8 nor of art. 13, because the government had introduced a set of noise reduction measures; had taken due account of international standards, new technological developments, and different interests; and had consulted the people concerned.696 The Court held that legal remedies were not necessary in every case, if the government provided for noise reductions by adequate regulatory measures.697 The fact that the airport had (and still has) significant economic importance for the whole country certainly influenced the judgment, as the Court itself noted at para. 42 of the judgment. The case of L.C.B.698 was already mentioned. This case, as well as the case of Guerra 699 , are interesting because they show that the Court is willing to deduce positive obligations from the Convention rights. 700 The Court did not expressively state that the margin of appreciation was wide simply because an applicant invokes a positive obligation from a Convention right. Yet, this seems to have influenced other cases:701 In a rather recent case, Vo702 , the Court was confronted with the problem of the beginning of life. Mrs Vo lost her child against her will due to the negligence of a doctor, while she remained unhurt. Criminal proceedings launched against this doctor failed because there was no violation of French criminal law, which only protected the unborn from intentional “killing”. Therefore, Mrs Vo claimed that France violated its obligations under art. 2 to protect life. The Court actually had to face two questions: Did art. 2 protect the unborn? If so, had France met its obligations under art. 2? The Court eschewed answering the first question and denied a violation of art. 2, stating that even if art. 2 had been applicable, France would have met its obligations.703 In cases where 695 696 697 698 699 700 701 702 703

Powell and Rayner v. United Kingdom, (1990) 12 EHRR 355. Ibid., paras. 43–4. Ibid., paras. 43–4. Supra note 591. Supra note 591. See L.C.B., supra note 591, para. 36 with further references. Arai-Takahashi, supra note 577, p. 218; see below on page 112. Supra note 572. Vo, supra note 572, paras. 87–95.

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2.2 European Court of Human Rights life was not taken intentionally, the Convention did not necessarily require criminal punishment.704 And Mrs Vo had other (civil) remedies at hand.705 The decision was highly disputed with regard to both questions, and because the Court made further assessments although it did not establish whether art. 2 was not applicable. Although not located at the proportionality level of the assessment, it is noteworthy that the Court refused to provide an unambiguous interpretation of art. 2 (“everyone”) because a European consensus on this matter was lacking.706 Because of their inherent openness, the interpretation of Convention rights involves value judgements, e. g.: “Does the unborn child deserve a level of protection similar to the born child?”, this judgment is also indicative for proportionality review, which to a great extent involves value judgements. As a matter of fact, the question could have been resolved under proportionality review: One could have applied art. 2 and assigned a different weight to the life of the unborn than to the life of born people. But weighing and evaluating life opens the Pandora’s box. (d)

Generalization

I shall now try to summarize the case law and to make some generalizations.707 The generalization is directed at two aspects: Which factors influence the breadth of the margin and how does the margin relate to balancing and the Weight Formula. The margin of appreciation is strongly connected with the proportionality test, one could say that proportionality review and the margin of appreciation are two sides of the same coin. The margin of appreciation can potentially cover all aspects of a governmental decision: complex facts, predictions, and value judgements. In concrete cases the margin of appreciation is affected by three factors:708 (i) How complex is the problem that the impugned measure tries to deal with, according to the facts and above all the evaluation of these facts?709 Taxation is a field of typical complexity.710 704

Ibid., para. 90. Ibid., para. 91. 706 Ibid., para. 84. 707 In this section I will add some aspects that are derived from cases not mentioned above; appropriate references will be made, though. 708 For a very complete and detailed list on the first two points see Arai-Takahashi, supra note 577, pp. 206–30; see also Pieter van Dijk and Godefridus J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (Kluver, Deventer, 2nd edn., 1990), p. 592. See Eva Brems, ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’ 56 (1996) Zeitschrift für Ausländisches und Öffentliches Völkerrecht, p. 240 for a detailed enumeration of possible competing interests and their respective weight. 709 Casado Coca, supra note 584, para. 55; Markt Intern, supra note 595, para. 33; Lithgow, supra note 616, paras. 121–2; James et al., supra note 33, para. 46, subpara. 2; Jacubowski, supra note 583, para. 26. 710 National & Provincial Building Society et al., supra note 584, para. 80. 705

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Chapter 2. Case Law (ii) Are there any international standards addressing the problem and does the measure take into account these standards, be they formal or informal?711 (iii) Who, in the absence of such standards, is better legitimized to resolve the problem: the Court or the national government?712 (iv) The nature of the activity and interference.

(i)

Complexity

The interplay between these factors can be described as follows. The more complex a problem is, the wider the margin of appreciation is. And if international or national standards could not be referred to for guidance the Court defers to the decision of the national government because the latter is better legitimized.713 This pattern can explain why especially in the socio-economic field, the supervision of the Court tends to be very deferential. Usually, difficult problems arise where issues are intertwined and have consequences that are difficult to predict. Moreover, facts and value judgements can only hardly be distinguished. Furthermore, preferences differ from member state to member state. Contrary to making legislation, the complexity is much reduced in administrative law; hence, the rigorous review in Sporrong and Lönnroth 714 . Complexity also explains the deference in cases where morals are involved, just take a closer look on the Court’s judgement in the case of Handyside 715 : In particular, it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them.

It is appealing at first glance to defer to national authorities’ greater legitimacy. But as some judges noted in various dissenting opinions, this must not lead to a complete lack of scrutiny. In Dudgeon 716 , the Court was able to strike a fair balance between the legitimacy of the national legislation and the effective enforcement of Convention rights by reducing the complexity of value judgements. 711

Powell and Rayner, supra note 695, paras. 43, 45; Vo, supra note 572, para. 84; Sunday Times, supra note 665, para. 59; Cossey, supra note 591, para. 40, subpara. 3; ibid., para. 3 (MacDonald et al., dissenting); Open Door, supra note 578, para. 68; Dudgeon, supra note 571, para. 52. 712 Casado Coca, supra note 584, para. 55; Brannigan, supra note 582, para. 43, 59; James et al., supra note 33, para. 46; Open Door, supra note 578, (Pettiti et al., dissenting). 713 Arai-Takahashi, supra note 577, pp. 203–4, 216. 714 Supra note 580. 715 Supra note 589, para. 48, emphasis added. 716 Supra note 571.

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2.2 European Court of Human Rights The Court simply did not believe that the protection of morals was important enough because no male adult was prosecuted because of sexual intercourse with a consenting male adult. In administrative law cases, complexity can be reduced by relying on the existence of procedural safeguards.717 A similar approach was taken in Mellacher 718 and James et al., where the parliamentary debates were presented in great detail. The Court stressed that the reasons put forth by the applicants were already discussed and rejected during the parliamentary debate. Therefore, the Court felt forced to dismiss the case. The case of Lithgow 719 shows that the Court is able and willing to exercise rigorous supervision even concerning socio-economic cases. It also illustrates that too strong a supervision could easily lead to the substitution of one irrational value judgement with another one:720 Estimating the value of large enterprises that are not registered in the public stock market has little or nothing to do with the assessment of facts, too many methods are available, and too many factors influence the market value. Therefore, it is sound that the Court dismissed the applications in that case, in particular because the government was open to negotiations to determine the market values. Still, the reference to the margin of appreciation is problematic. Macdonald doubted that a common denominator among these factors could be found.721 Yet I believe that a rough direction can be discerned: The more complex the problem is and the more the measure resembles statutory law and allows the competing interests to be represented in the decision, the wider the margin of appreciation is and the more likely it is that democratically legitimate decisions will prevail. Yet, if laws lack coherence (X and Y 722 ) or are based on questionable assumptions (Dudgeon 723 ) the impugned measure will not stand scrutiny. Although the reasoning of the Court sometimes appears to be unstructured or incoherent, principles do exist. The set of principles might not yet be complete. All in all though I believe that Macdonald’s opinion is incorrect. However, I believe that the decision of the Mellacher 724 case was incorrect. The dissenters were right in claiming that the Court should have examined whether the amount the rent really had to be that low, especially because the lowered rents did not cover maintenance costs. 717 Sporrong and Lönnroth, supra note 580, paras. 70, 73; Jacobsson, supra note 578, para. 62. 718 Supra note 578. 719 Supra note 616. 720 On page 16, it was that indicated legal judgements can be rational. The following sections outlined the rationality conditions. By saying that a value judgement is “irrational” it is only said that the judgement cannot be adequately described by the standards described in those sections. 721 Macdonald, supra note 579, p. 122. 722 X and Y v. Netherlands, (1986) 8 EHRR 235. 723 Supra note 571. 724 Supra note 578.

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Chapter 2. Case Law (ii)

International Standards

The reference to international standards poses another problem. The Court frequently refers to common standards to justify the level of deference that was chosen in the case at hand. Macdonald pointed out that this might be problematic if the Court were faced with a common practice that clearly violated the Convention.725 This problem can be given a philosophical label: the distinction between is and ought. Must it be accepted that a state does not allow transsexuals to marry because there are no other states or only an insignificant minority (how is insignificance determined?) that does allow it? This is a very questionable approach. On the other hand, this fear might be exaggerated. If all members at once and unanimously ran into folly, the Court would not be of any help anyway. But carefully adopted standards that have grown over time and that were developed on an international level will hardly be capricious. Some might think that they might not be sufficient, e. g. for the protection of health. But usually, they provide a good starting point for further development. Anyway, the Court showed that it did not abandon review just because there was an international standard, e. g. Powell and Rayner 726 . Arai-Takahashi believed that it was sound practice to cling to international practice because many international courts did so as well.727 This argument, though, is either circular or does not prove anything: It is circular because it does not answer the underlying question; is it permissible to deduce oughts from facts? It is also not supportive for the adoption of single value judgements because the courts Arai-Takahashi referred to adopted general principles, not value judgements with a narrow scope. The so-called “evolutive” method of interpretation leads to the same problems: Why should new developments in the treatment of transsexuals be accepted, solely because they appear in almost all member states? Apart from the is/ought problem, this approach raises the difficult question of how strong the new development has to be.728 Proportionality analysis cannot be detached from the factual foundation of a problem. On the contrary, the outcome of the analysis will heavily depend on the factual circumstances (an activity might cause different dangers with varying degrees of intensity depending on the circumstances), therefore the “evolutive” method cannot be fully excluded from the repertoire of adjudicative methods. Changes in factual conditions certainly warrant to reconsider the proportionality of a given measure but they do not automatically lead to change of the value judgement at issue.

725 726 727 728

Macdonald, supra note 579, p. 124. Supra note 695. Arai-Takahashi, supra note 577, p. 195. Ibid., pp. 197, 200.

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2.2 European Court of Human Rights (iii)

Legitimacy

Arai-Takahashi identifies four other criteria that mainly relate to the legitimacy of the Court:729 1. special deference to national decisions in “core” areas of sovereign authority; 2. cases where the Convention text itself mandates deference, or provides only very limited standards and guidance; 3. the fourth instance doctrine and the principle of subsidiarity; and 4. deference to “primary” democratic decisions in areas where fine value judgements are involved.

The first point on the list refers to complex or important areas that have partly be outlined above, such as decisions in the socio-economic field or freedom of speech. But the emphasis lies on state sovereignty not on the subject matter. I do not believe that sovereignty alone can sufficiently explain the scope of the margin of appreciation. Sovereignty, among other criteria, defines statehood.730 But the Convention was framed just to restrict state sovereignty, indeed, the core of state sovereignty: the treatment of one state’s citizens. As cases such as Lithgow 731 , Mellacher 732 , or James et al.733 show the Court did not review national decisions deferentially because they were made by the government but because the decisions were made in a certain (parliamentary) procedure that provided for democratic accountability. The case law also shows that it is not the subject matter alone that influences the margin but also the degree of legitimacy the national institutions are endowed with, i. e. administrative decisions were closer scrutinized than parliamentary decisions, otherwise judgments like in the case of Sporrong and Lönnroth 734 cannot be explained. The second rationale is in my view related to the last one. Where the Convention does not provide relatively specific obligations (e. g. under art. 8 when positive obligations are at issue), the Court should not devise a set of obligations for the much better legitimized national institutions. The third set of rationales was already discussed above, on page 88. It refers to the refusal to review facts that were already established by the national courts, i. e. the Court does not understand itself as an additional instance but as a special supervision institution. I would like to add, though, that subsidiarity in turn refers to the greater legitimacy of the national authorities. The last item is in my view the decisive criterion in complex cases. In a democratic system, complicate and controversial problems have to be decided by accountable bodies, and the Strasbourg organs are hardly democratically 729

Ibid., p. 236. Malcom Shaw, International Law (Cambridge University Press, Cambridge, 5th edn., 2003), p. 189. 731 Supra note 616. 732 Supra note 578. 733 Supra note 33. 734 Supra note 580. 730

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Chapter 2. Case Law accountable. One might argue that this principle alone is only of little help; fundamental rights are a means to protect the minority from the majority.735 But the Court has been able to outline criteria that can help to identify capricious acts; they have been described above.736 So, if in doubt, the decisions by accountable bodies that followed an appropriate737 procedure are presumed to conform to the Convention. The principle in dubio pro libertate is only of little guidance.738 First, it simply cannot explain the rather high degree of deference granted to the national governments. And as a description, this principle is plainly wrong because the degree of discretion in the socio-economic field suggests the opposite. Second, this principle is of no help when two or more rights are competing, e. g. in those freedom of speech cases where the reputation of others is affected. (iv)

Intensity of the Interference

The factors described so far, were formal or epistemic. They abstracted from the rights at issue. In terms of Principle Theory, they do not concern the abstract weight of rights and the concrete interference or gains respectively (W, I). Some authors indeed believe that the margin is influenced by these variables.739 Arai-Takahashi believes that the margin under art. 1 Protocol 1 is relatively wide because the right is less important than other rights, e. g. freedom of speech.740 In other words, the margin depends on the abstract weight, W . I do not share this view. I rather believe that the margin depends on complexity and the legitimacy of the institutions involved and, substantially, on the nature of the interference. There are some right to property cases where the margin was rather narrow.741 These are cases where complexity could be reduced or the institutions were restrained by a procedural framework. Were legislators have to deal with complex facts, the margin is wide. 742 The assessment of complex facts necessarily blurs the dividing line between facts and value judgements.743 Besides, very often freedom of property is accompanied with political freedom and vice versa; therefore, it should not have lesser importance than political 735

Arai-Takahashi, supra note 577, p. 245; Young et al., supra note 584, para. 63. In the field of equal protection the suspect classification criterion can be mentioned, see Gaygusuz, supra note 578. Equal protection has been excluded because it is of little importance in EC -law and under the Convention. 737 The term ‘appropriate’ is of course vague. But see above for criteria that characterize an accountable procedure. 738 See Bernhardt, supra note 562, p. 306. 739 Arai-Takahashi, supra note 577, p. 215; Brems, supra note 708, pp. 264–9. 740 Arai-Takahashi, supra note 577, p. 215. 741 Sporrong and Lönnroth, supra note 580, para. 70; Jacobsson, supra note 578, para. 62; Agosi, supra note 584, para. 57; Traktörer, supra note 583, paras. 47–9. 742 Mellacher, supra note 578; Lithgow, supra note 616; James et al., supra note 33. 743 See Gerhard Bebr, Judicial Control of the European Communities (Praeger, New York, NY, 1962), p. 126, commenting on EC -law. 736

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2.2 European Court of Human Rights rights. I generally do not believe that rights can be ranked in any manner that has a striking impact on decision making.744 Brems believes that the importance of the right involved is only a rhetoric device.745 However, the intensity of the interference does influence the margin. It is determined by several factors: • Does the law provide means for changing a decision at a later time?746 • Is the measure periodically reviewed?747 • Is the decision process structured so that competing interests can be considered?748 • Are there remedies against the measure?749 • Are there safeguards against abuse?750 • Is the measure of a sweeping nature?751 • Are the consequences foreseeable?752 • Is the burden imposed on the applicant excessive?753 • Were the merits of the specific case considered?754 • Was the essence of a right affected?755

Yet the intensity of the interference is not related to the importance of the aim,756 an important difference to the Weight Formula. In some judgments the formula “they [the burdens] cannot be considered disproportionate to the requirements of the municipality’s legitimate aim of planning the area” can be found.757 If this should constitute an application of the Weight Formula, then it is a very incomplete one, because the Court does not weigh the legitimate aim, let alone relates it to the “weighed” interferences. Although, the interference is appraised it is not qualified as light, moderate, or serious, which is required by the Weight Formula. Finally, it is a negative test: the Court only establishes whether the measure is not disproportionate or “failed to strike a fair balance”.758 This is the case if burdens are excessive.759 In another case the Court stated that 744

Schlink, supra note 549, p. 141; see Chapter 4. Brems, supra note 708, p. 267. 746 Sporrong and Lönnroth, supra note 580, para. 70. 747 Ibid., para. 70. 748 Jacobsson, supra note 578, para. 62. 749 Agosi, supra note 584, para. 57; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 750 Brannigan, supra note 582, para. 61. 751 Open Door, supra note 578, paras. 73–4. 752 Hentrich, supra note 583, para. 48. 753 Arai-Takahashi, supra note 577, p. 124; Reid, supra note 599, para. I–063; National & Provincial Building Society et al., supra note 584, para. 81; Traktörer, supra note 583, para. 60; Hentrich, supra note 583, para. 49. 754 Smith and Grady v. United Kingdom, (2000) 29 EHRR 493, para. 93. 755 Mathieu-Mohin, supra note 595, para. 52. 756 Sporrong and Lönnroth, supra note 580, paras. 70–1; Jacobsson, supra note 578, paras. 61–3. 757 Ibid., para. 63; cf. Traktörer, supra note 583, paras. 60–2. 758 Ibid., para. 63. 759 Lithgow, supra note 616, para. 120; Traktörer, supra note 583, para. 60; National & 745

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Chapter 2. Case Law “in the circumstances the scope of judicial review under English law is sufficient to satisfy the requirements of the second paragraph of Article 1 (P1-1).”760 This quotation (“sufficient”, “satisfy”) is clearly incompatible with the idea of optimization, i. e. the strive for the best solution. In the same way one can interpret the following statement: “it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way.” 761 Under art. 10, the width of the margin is not described by the Weight Formula or similar approaches. Instead of depending on abstract weights and a relationship of interferences and gains, the margin in horizontal applications of art. 10 is determined by observing standards of reasonableness, e. g. proper research.762 Here, as well as under art. 1 Protocol 1, some programmatic statements might indicate the contrary, e. g. “ [i]n this case, in order to establish whether the interference was proportionate it is necessary to weigh the requirements of the protection of the reputation and the rights of others against the publication of the information in question.”763 However, when this standard is applied the Court only focuses on assessing whether standards of reasonableness were observed, in the cited case the exercise of proper research.764 Usually, it is required that reasons for the limitations of freedom of speech be reasonable and sufficient.765 (v)

Influence of Positive Obligations?

It could be further argued that the nature of the obligation (positive or negative) influences the margin.766 A possible deeper reason for a difference between positive and negative obligations is described by Alexy: The reason of the difference [between positive and negative obligations] lies deeper. It consists in the fact that refraining from each individual destructive or adverse act is a necessary condition, and only refraining from all destructive and adverse acts is a sufficient condition, for satisfying the prohibition on destruction and adverse effect and thus for satisfying the defensive right, while the satisfaction of commands to protect or support, as indeed generally for the satisfaction of entitlements, requires only the adoption of one suitable protective or supporting act. Where several protective or supporting acts are suitable, no

Provincial Building Society et al., supra note 584, para. 81; Hentrich, supra note 583, para. 49; Sporrong and Lönnroth, supra note 580, para. 73. 760 Agosi, supra note 584, para. 60, emphasis added. 761 James et al., supra note 33, para. 51, emphasis added. 762 Prager and Oberschlick, supra note 578, Markt Intern, supra note 595, Lingens, supra note 673; see above, Section 2.2.2(b)(v). 763 Markt Intern, supra note 595, para. 34; cf. Sunday Times, supra note 665, para. 67. 764 Markt Intern, supra note 595, paras. 35–7. 765 Lingens, supra note 673, para. 40; Barthold v. Germany, (1985) 7 EHRR 383, para. 55. 766 Arai-Takahashi, supra note 577, p. 218; van Dijk and van Hoof, supra note 708, p. 596.

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2.2 European Court of Human Rights single one is necessary to satisfy the command to protect or support. It is only necessary that one be adopted.767

Despite the principally wider margin for positive obligations resulting from this difference, the Court found violations of positive obligations, e. g. in the Guerra 768 and X and Y 769 cases. In X and Y the Court had to deal with the Netherlands criminal provisions of sexual offences. A mentally handicapped girl was raped but could not instigate proceedings against the delinquent because of her handicap. Neither could her parents—due to a gap in the law.770 The Court argued that the criminal provisions did not provide the victim with effective and adequate protection.771 Civil law remedies, which were available, were regarded as insufficient.772 In the Guerra case the Court dealt with complaints regarding the operation of a chemical factory. The applicants argued that Italy failed to take the necessary protective measures and to inform the public about the dangers resulting from the operation of the factory.773 All applicants lived in the proximity of the factory. The Court found a violation of art. 8 because the dangers for the applicants’ life was serious and because the Italian government failed to provide the applicants with the information necessary to asses the risk.774 The Court treated positive obligations as principally of equal importance as negative obligations.775 In certain areas the Court has refused to acknowledge a breach of positive obligations, namely in the area of marriage of transsexuals.776 But this refusal is rather due to the difficulty of the subject matter than to the fact that positive

767 Alexy, supra note 7, pp. 421 [308–9]: “Der Grund für den Unterschied [zwischen Schutz- und Abwehrrechten] liegt tiefer. Er besteht darin, daß die Unterlassung jeder einzelnen Zerstörungs- und Beeinträchtigungshandlung eine notwendige Bedingung und erst die Unterlassung aller Zerstörungs- und Beeinträchtigungshandlungen eine hinreichende Bedingung für die Erfüllung des Zerstörungs- und Beeinträchtigungsverbots und damit für die Erfüllung des Abwehrrechts ist, während zur Erfüllung von Schutz- oder Förderungsgeboten, wie ganz allgemein für die Erfüllung von Leistungsrechten, die Vornahme nur einer geeigneten Schutzoder Förderungshandlung hinreichend ist. Wenn mehrere Schutz- oder Förderungshandlungen geeignet sind, ist keine von ihnen zur Erfüllung des Schutz- oder Förderungsgebots notwendig, notwendig ist nur, daß irgendeine vorgenommen wird.”; English translation of the German original by Julian Rivers. 768 Supra note 591. 769 Supra note 722. 770 X and Y, supra note 722, paras. 7–13. 771 Ibid., paras. 29–30. 772 Ibid., para. 27. 773 Guerra, supra note 591, para. 39. 774 Ibid., para. 60. 775 Ibid., para. 58; X and Y, supra note 722, para. 23; Airey v. Ireland, (1979) 2 EHRR 305, para. 32; Marckx v. Belgium, (1979–80) 2 EHRR 330, para. 31, at p. 341. 776 Cossey, supra note 591, paras. 38–41; Rees v. United Kingdom, (1987) 9 EHRR 56 , paras. 42–6.

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Chapter 2. Case Law obligations are involved. In the case of Vo777 , the Court refused to define when life begins because of the great uncertainty regarding this question. Summarizing, it can be noted that the margin of appreciation is principally wider for positive than for negative obligations due to their structure. Apart from that, the Court treats positive and negative obligations equally and only grants an additional margin where questions are highly difficult or uncertain. (vi)

Summary

The margin is principally influenced by the complexity of the questions involved and the possibility to reduce it. Where matters are complex, the decision is left to the institution that is better legitimized. Apart from these formal criteria, the margin is also influenced by substantial factors. Whether the margin was observed mainly depends on the intensity of the interference. Regarding the right to property it is assessed in terms of the existence of procedural safeguards or the forseeability of the consequences.

2.2.3

The Margin of Appreciation—a Desirable Doctrine?

Some dispute exists about the desirability of the margin of appreciation doctrine. Even those who believe that the margin of appreciation doctrine is desirable in principle disagree on its scope. The doctrine is at least questionable because it tends to obfuscate the reasoning of the Court:778 Is the Court of the opinion that the measure is justified or only that it cannot be reviewed? If it is justified, what are the reasons supporting the measure at issue? The doctrine has been broadened such that it violates the Court’s obligation (from art. 19) to enforce the Convention.779 Furthermore, it exacerbates the incoherence of the case law780 or is even directly causing it.781 Moreover, it distracts the Court from assessing reasons on its own.782 Finally, it introduces cultural relativism, which is subject to certain objections (namely, being self-contradictory and violating the distinction between is and ought), into the Convention.783 However, many commentators approve of the idea of a margin of appreciation, albeit they disagree on its scope. Supporters argue that the doctrine addresses 777

Supra note 572, para. 82. Macdonald, supra note 579, pp. 84–5. 779 van Dijk and van Hoof, supra note 708, pp. 604–5; M.R. Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ 48 (1999) International and Comparative Law Quarterly, p. 638, p. 649. 780 Ovey and White, supra note 563, p. 233. 781 Hutchinson, supra note 779, p. 641. 782 Ibid., p. 645. 783 James A. Sweeney, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’ 54 (2005) International and Comparative Law Quarterly, p. 459, pp. 460–1. 778

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2.2 European Court of Human Rights the real problem of balancing European supervision and national sovereignty.784 The doctrine does not surrender the protection of fundamental rights to cultural relativism. Universal rights do not require a uniform implementation on the national level; rather, problems should be regulated with regard to the social conditions. 785 Ensuring cultural diversity and value pluralism has an intrinsic value.786 Thus, this doctrine reflects the respect for decisions that were made democratically by a legitimate body and that is necessary to maintain the co-operation of the member states. 787 Moreover, the doctrine is indispensable for dealing with so-called “indeterminate expressions”, i. e. those whose meaning cannot be established solely by having recourse to interpretative methods but that require “extra-juridical” value judgements.788 Still, proponents of the margin of appreciation believe that the doctrine, as it is applied now, does have its dangers. Brems summarized these in the form of three warnings:789 • The Court should not avoid the independent assessment of facts. • The doctrine is no substitute for a firm justification and hence should not be used as such. • The use of the doctrine should not hinder the development of clear lines in the case law.

These points, which relate to the scope of the margin, are disputed, though. In contrast to Brems, van Dijk and van Hoof believed that the margin should only encompass facts and not the law except where the law is heavily influenced by a certain state of facts because the government was in a better position to assess facts.790 However, this constitutes an inherent limitation of the scope of the margin: Whenever the Court is able to assess facts, the government cannot claim to have a margin of appreciation.791 However, van Dijk et al. have abandoned their view in the third edition of their book.792 We shall see that all courts that review legislative acts have some doctrine of margin of appreciation. The question is how the margin relates to judicial review: Is review from the outset limited to the enforcement of certain bounds to legislative acts? Or is review principally without any bounds such that any limitation of review requires a special justification? The Court seems to favour the first alternative. The Court only checks whether assessments are manifestly erroneous and whether some normative bounds are observed. Therefore some 784

Macdonald, supra note 579, p. 124. Sweeney, supra note 783, pp. 472–3; Brems, supra note 708, pp. 307–10. 786 Arai-Takahashi, supra note 577, pp. 248–9. 787 Brems, supra note 708, p. 297. 788 Ibid., p. 295. 789 Ibid., p. 313. 790 van Dijk and van Hoof, supra note 708, p. 585. 791 Ibid., p. 605. 792 Pieter van Dijk et al., Theory and Practice of the European Convention on Human Rights (Kluwer Law Internat., The Hague, 3rd edn., 1998), pp. 84–6. 785

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Chapter 2. Case Law of the criticism against the margin of appreciation doctrine, namely that it is unclear whether a measure is regarded as justified or not as reviewable,793 loses some of its force. If we assume that the Court departs from the stance that the legal standards only set certain bounds then the distinction between reviewability and justifiability indeed must collapse. In that case, review can only extend to those areas that are covered by the standard and only in so far is a justification required. To put it differently: If we believe that art. 1 Protocol 1 only requires that legislative acts be, among others, suitable, nondiscriminatory and provide for a reasonable amount of compensation in case of expropriation then review only extends to these issues and justification is only required regarding these aspects. Viewed from this perspective, reviewability and justifiability are located on the same level and are not expressing different things. A problem that remains is whether this approach is appropriate. From the stance of Principle Theory such an approach to judicial review must be rejected. It will be the purpose of Part III to resolve this issue.

2.2.4

Conclusion

This chapter opened by posing some analytic questions. For the ECtHR these can be answered as follows: 1. The Court has only adopted one review standard, proportionality (in connexion with the legitimate aim test). The debate among judges and between the Court and scholars does not concern the content of the review standards as such but its application, in particular the scope of discretion. 2. This discussion is conducted under the label ‘margin of appreciation’. The margin covers all aspects of a governmental act: facts, predictions, and value judgements. The scope of the margin of appreciation is not uniform but depends on certain factors: the complexity of the subject matter, the accountability of the institutions and the existence of international standards. These factors effect wide discretion where legislative measures in the socio-economic field are concerned. Administrative and adjudicative decisions are usually reviewed under a narrow margin, provided that the facts are clear. Here, the observance of procedural rules plays a role. Although the margin is flexible, it is not unpredictable because cases can be classified. 3. The next two questions concern the nature of fundamental rights and their application. The programmatic statements are contradictory: On one hand, fundamental rights are considered as rights with narrowly interpreted exceptions; on the other hand “balancing” and “weighing” are part of the language used by the Court. It is difficult, and it would seem artificial, to try to use the case law of the Court as evidence for either Principle Theory or the alternative model, because they evolved under German law. Assessing weights under Principle Theory and determining the minimal position both are means to determine whether an interference with fundamental rights is justified. To achieve this, the Court focuses on the interference and its “weight”. Criteria for this assessment were listed above on page 111. Once it is established that the criteria (where 793

Macdonald, supra note 579, pp. 84–5.

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2.3 German Federal Constitutional Court applicable) are satisfied, the means are justified. Indeed the Court itself has provided a rationalization of this concept by interpreting fundamental rights as rights with exceptions. Usually interferences are not admissible except where the criteria are observed. The Court does not make any attempt to qualify the “weight” of the competing interest or to quantify weights. Moreover, the Court does not combine weights or compares weights of the fundamental right in question with the competing interest. This is not to deny that the Court must make a value judgement in assessing the interference and that this interference could be called weighing. However, it is not weighing as Alexy has described it.

Creating an overview of the case law required much more space for the ECtHR than for the other courts because of the great uncertainty concerning the nature of margin of appreciation and its application. Criticism against the doctrine is in so far justified. The margin of appreciation obfuscates the reasoning of the Court and hence aggravates the finding of principles in the case law. Yet, the set of criteria that can be found in the case law is reasonable. And it shows that despite some allegations to the contrary, the Court follows principles that point at a rough direction. Still, its reasoning could be improved regarding transparency.

2.3 2.3.1

German Federal Constitutional Court Background

The GFCC derives all review standards from the GG, the German constitution. It was heavily influenced by the experience that was gained during the two periods preceding it: the Weimar Republic and the Nazi-Regime. One could even say that the Grundgesetz is an anti-thesis to both systems. In particular, the legal debates in the Weimar Republic had a great impact on the design of the GFCC . Two issues that are relevant for this study were heavily disputed in Weimar: (a) Were the courts empowered to review legislative acts? (b) What was the legal nature of fundamental rights and the constitution as a whole? This problem and the accompanying debate in that time must in turn be viewed in the light of the constitutional frameworks that preceded the Republic: monarchies and constitutional monarchies. (a) The scope of judicial review has been discussed since the 19th century. In that time judicial review as such was not disputed. The scope of review was contentious, though. Scrutiny that aimed at the formal aspects of legislation was unanimously accepted, as long as the proper promulgation was the sole review subject; the judge had to check whether a law existed.794 Any further scrutiny, formal and substantial, was rejected because it was thought to be incompatible 794

Anschütz, supra note 27, Art. 70, para. 5.

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Chapter 2. Case Law with the regent’s sovereignty and dignity.795 The lack of consent by Parliament or any other violation of procedural rules was viewed to be a matter between the regent and Parliament only.796 This view was not undisputed but eventually prevailed over the opposing view, according to which courts had to determine which law had to be applied in a particular case. According to the latter view, a statute that violated the constitution was void and thus not applicable.797 In the Weimar Republic the debate started again, because the constitutional framework changed. The admissibility of judicial review was intentionally left open by the framers.798 Thoma argued that, in light of the tradition and the safeguards that the Constitution provided, judicial review was unnecessary.799 These safeguards comprised the following elements: The President could deny the promulgation on ground of unconstitutionality (art. 70 Weimarer Reichsverfassung [Constitution of the Weimar Republic] (WRV)); the Reichsrat could object to this denial (art. 74 WRV ); the majority of Reichstag could request the promulgation; and it was possible to hold referenda (Volksentscheid, art. 73 WRV ). Heller believed that all branches of government were bound by statute law; it was the “highest law”. 800 He was of the opinion that the Court violated the principle of separation of powers by invalidating statutes.801 The Reichsgericht (Imperial Court) abandoned its original view and performed substantial review of statutes since 1925. 802 It justified judicial review as follows: In this regard, it must be asked whether and to which extent courts are allowed and obliged to review the validity of a correctly publicized Imperial statute. . . . The Imperial Constitution has adopted in its Art. 102 the principle stipulated in § 1 GVG803 according to which judges are independent and are only subjected to the law. The latter provision does not exclude that an Imperial statute or some of its provisions are invalidated insofar as they contradict other provisions that must be applied by the judge and that enjoy priority [over the impugned rules]. This is the case, if a statute contradicts a norm that is stipulated in the Imperial Constitution and if the requirements for an amendment of the Constitution, which are stipulated by Art. 76 [of the Consittution], are not fulfilled during its promulgation. . . . the provisions of the Imperial Constitution can only be changed by a correctly enacted amendment. Hence, they remain valid for the judge even with regard to divergent provisions of a later statute enacted without satisfying the requirements of Art. 76 and force the judge to 795

Gusy, supra note 28, pp. 25–8, 33–4, 36, 39, 41. Ibid., pp. 37, 39, 41. 797 Ibid., pp. 46–7. 798 Anschütz, supra note 27, Art. 70, para. 5. 799 Richard Thoma, ‘Das richterliche Prüfungsrecht’ 43, N. F. 4 (1922) Archiv des öffentlichen Rechts, p. 267, pp. 274–5. 800 Hermann Heller, Rechtsstaat oder Diktatur? (Mohr, Tübingen, 1930), p. 5; Gusy, supra note 28, p. 97. 801 Heller, supra note 800, p. 10. 802 Anschütz, supra note 27, Art. 70, para. 5; Heller, supra note 800, p. 9. 803 Gerichtsverfassungsgesetz: German Judicature Act. 796

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2.3 German Federal Constitutional Court refrain from an application of the contradictory provisions. Because the Imperial Constitution does not contain a provision according to which the courts are deprived of their competence to decide on the constitutionality of Imperial statues and according to which this power is transferred to another institution, the judge’s competence and the obligation to review the constitutionality of a statute must be recognized.804

Hans Kelsen acknowledged this view, because judicial review was necessary to enforce the supremacy of the constitution.805 To ensure an effective enforcement of the constitution, the legislative act should not have been reviewed by the legislature, which made the statute. 806 This control, in Kelsen’s view, did not infringe the sovereignty of Parliament, because Parliament did not have a sovereignty of its own—the legal order as a whole had sovereignty or not.807 Furthermore, the constitution determined legislation as much as law determined the administrative branch of government.808 He also defied the idea that judicial review was an intrusion into the powers of the legislators that was incompatible with the idea of separation of powers, because the invalidation of a statue was by its very nature a form of legislation.809 As the constitution had empowered courts to invalidate statutes it had also empowered the courts to participate in legislation.810 Therefore, Kelsen preferred the term ‘distribution’ (Aufteilung) to ‘separation’ (Trennung ) (of powers). 811 A constitutional court with the power 804 RGZ 111, 320, pp. 322–3: “In dieser Hinsicht erhebt sich zunächst die Frage, ob und inwieweit die Gerichte überhaupt berechtigt und verpflichtet sind, die Rechtsgültigkeit eines an sich ordnungsmäßig verkündeten Reichsgesetzes nachzuprüfen. . . . Die Reichsverfassung hat im Art. 102 den im § 1 GVG. aufgestellten Grundsatz aufgenommen, daß die Richter unabhängig und nur dem Gesetz unterworfen seien. Diese letztere Bestimmung schließt nicht aus, daß einem Reichsgesetz oder einzelnen seiner Bestimmungen vom Richter die Gültigkeit insoweit aberkannt werden kann, als sie mit anderen, vom Richter zu beachtenden Vorschriften, die ihnen vorgehen, in Widerspruch stehen. Das ist der Fall, wenn ein Gesetz einem in der Reichsverfassung aufgestellten Rechtssatz widerspricht und bei seinem Erlaß die durch Art. 76 RV. für eine Verfassungsänderung vorgeschriebenen Erfordernisse nicht vorgelegen haben. . . . die Vorschriften der Reichsverfassung können nur durch ein ordnungsmäßig zustande gekommenes verfassungsänderndes Gesetz außer Kraft gesetzt werden. Sie bleiben daher auch gegenüber abweichenden Bestimmungen eines späteren, ohne Beobachtung der Erfordernisse des Art. 76 erlassenen Reichsgesetzes für den Richter verbindlich und nötigen ihn, die widersprechenden Bestimmungen des späteren Gesetzes außer Anwendung zu lassen. Da die Reichsverfassung selbst keine Vorschrift enthält, nach der die Entscheidung über die Verfassungsmäßigkeit der Reichsgesetze den Gerichten entzogen und einer bestimmten anderen Stelle übertragen wäre, muß das Recht und die Pflicht des Richters, die Verfassungsmäßigkeit von Reichsgesetzen zu prüfen, anerkannt werden.”; English translation of the German original by the author. 805 Kelsen, supra note 32, pp. 78–9. 806 Ibid., p. 53. 807 Ibid. 808 Ibid. 809 Ibid., p. 54. 810 Ibid., p. 55. 811 Ibid.

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Chapter 2. Case Law to invalidate statues was not violating the concept of distribution of powers, but was on the contrary an acknowledgement of this principle.812 Kelsen was of the view that the invalidation of a statute was the result of the application of law and was therefore fundamentally different from framing a statue.813 This view, which also seems to underlie the reasoning of the Imperial Court, underestimates the importance of non-deductive and complex value judgements that are needed in putting abstract constitutional provisions into concrete terms.814 In sum, advocates of judicial review argued that it was necessary to ensure the supremacy of the constitution. Some could cast aside worries about violating the democracy principle, because they did not believe that democracy could really further the common good. Others believed that it was up to the Parliament to decide issues at hand and thought that the Constitution provided enough safeguards against abuses. So those who favour judicial review either show some distrust towards Parliament or do not attribute special respect to legislative decisions and they have some confidence in methods of legal reasoning. Under the GG, judicial review has been established, among others, through art. 93 § 1 no. 2, it provides: On the request of the Federal Government, a state government or one thirds of the members of the Bundestag the GFCC decides disputes or doubts about the formal or substantial conformity of federal or state law with this Fundamental Law or the conformity of state law with federal law.815

The decisions of the Court that concern the validity of statutes and general rules of international law have the same quality as statutes and have to be published in the Bundesgesetzblatt (official journal).816 (b) Two cornerstones of the WRV can be discerned: First, it did from the beginning contain a charter of fundamental rights, unlike its American counterpart.817 Their legal effects were disputed, though. At the beginning it 812

Ibid. Ibid. This view resembles the one expressed in Alexander Hamilton, ‘The Judges as Guardians of the Constitution’, in: Wright, Benjamin Fletcher (ed.): The Federalist (Harvard University Press, Cambridge, Massachusetts, 1961), p. 489, p. 493. A constitutional court had to exercise legal judgement and not political will. 814 See above in Chapter 1. 815 “Das Bundesverfassungsgericht entscheidet bei Meinungsverschiedenheiten oder Zweifeln über die förmliche und sachliche Vereinbarkeit von Bundesrecht oder Landesrecht mit diesem Grundgesetze oder die Vereinbarkeit von Landesrecht mit sonstigem Bundesrecht auf Antrag der Bundesregierung, einer Landesregierung oder eines Drittels der Mitglieder des Bundestages.”; English translation of the German original by the author. See also art. 100 § 1 and art. 93 § 1 no. 4a. 816 § 31 para. 2 Bundesverfassungsgerichtsgesetz [Federal Constitutional Court Act] (BVerfGG) in conjunction with § 13 no. 6, 6a, 12, 14, and 8a (concerning constitutional complaints affecting the validity of statutes). 817 Art. 109–65; this section contains fundamental rights and obligations. This catalogue represents the political claims of all parties that framed the constitution, hence its unusual length (see Willibal Apelt, Geschichte der Weimarer Verfassung (Beck, Munich, 2nd edn., 813

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2.3 German Federal Constitutional Court was disputed whether they had any legal effect at all.818 Later, the nature of the legal effects was contentious. Had all laws that limited or changed the rights had to observe the procedure of art. 76, i. e. the amendment procedure?819 Or could rights also be limited by simple legislative acts?820 But these problems relate to formal aspects only, they do not concern substantial limitations of legislative powers.821 Whether substantial limits existed was disputed and could never be discussed in its entirety due to the rise of the NAZI regime.822 Substantial limits could only be discerned for simple legislation: where the constitution required that certain institutions should be developed, legislators were not allowed to abolish them.823 This uncertainty urged the framers of the Grundgesetz to clarify these questions. Art. 1 § 3 specifies that all branches of government are bound by fundamental rights, additionally art. 20 § 3 provides that all branches of government are bound by the legal order established by the Grundgesetz. Moreover, art. 19 § 2 prescribes that the essence of rights may not be infringed. Especially art. 1 § 3 sets substantial limitations to the power of the legislature that the fundamental rights of the WRV lacked.824 In the Lüth 825 case, the Court stated that limitations of freedom of speech are themselves subject to limitations. This is the deeper justification for the application of the proportionality principle.

2.3.2

The Proportionality Principle

The central review standard is the proportionality principle. It is composed of four elements: End scrutiny (Legitimer Zweck) It requires that legislation (and all other government activity) shall only pursue legitimate ends.826 All those ends that are 1964), pp. 296–7, 299 and Richard Thoma, ‘Die juristische Bedeutung der grundrechtlichen Sätze der deutschen Reichsverfassung im allgemeinen’, in: Nipperdey, Hans Carl (ed.): Die Grundrechte und Grundpflichten der Reichsverfassung (Scriptor-Verl., Berlin, 1929), p. 1, pp. 8–9). 818 Ibid., pp. 3–4; Apelt, supra note 817, p. 297. 819 Thoma, supra note 817, pp. 31–3; Schmitt, in: Gerhard Anschütz and Richard Thoma, Handbuch des Deutschen Staatsrechts vol. 2 (J.C.B. Mohr, Tübingen, 1932), § 101, 600; Anschütz, supra note 27, Vorb Art. 109–65, paras. 6–7. 820 Thoma, supra note 817, pp. 32–3; Anschütz and Thoma, supra note 819, § 101, 600; Anschütz, supra note 27, Vorb Art. 109–65, paras. 6–7. 821 Maunz, in: Theodor Maunz and Günter Dürig, Grundgesetz: Art. 12–20 vol. 2 (C.H. Beck, Munich, 2003), Art. 19 Abs. II, para. 10. 822 See for an overview of the debate Thoma, supra note 817, pp. 38–46; Huber, in: Kommentar zum Grundgesetz, Art. 19 Abs. 2, para. 105. 823 Ibid., pp. 37–8. 824 Cf. Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 261, 277. 825 BVerfGE 7, 198 (Lüth), pp. 208–9. 826 Dreier, in: Grundgesetz, Vorb., para. 146; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 267; Sachs, in: Michael Sachs, Grundgesetz: Kommentar (Beck, Munich, 4th edn., 2007), Art. 20, para. 149; BVerfGE 81, 157 (Arbeitsförderungsgesetz),

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Chapter 2. Case Law either explicitly protected by the constitution827 or that are not opposing it are legitimate.828 The suitability test (Geeignetheit) It requires that measures shall further the pursued aim, the mere possibility of achieving the goal suffices.829 Necessity (Erforderlichkeit) Legislators have to choose the least onerous measure from a set of equally available ones.830 Proportionality in the narrow sense831 Roughly requires that the measure must not be out of proportion to the aims, i. e. it requires a means-end-relationship.832 Yardsticks for the operation of this criterion seem not available.833 It is the subject of this section to try to uncover standards for the application of this element.

The application of the proportionality principle differs from fundamental right to fundamental right, especially regarding the set of legitimate aims and the application of the last step of the proportionality principle. I shall therefore discuss the case law under art. 12 and, as a contrast, the dogmatic structure of art. 5 GG and in this connexion the right to privacy respectively (art. 2 § 1 in conjunction with art. 1 GG). The main difference is that under art. 12 it is mainly statutes that are subject of review, while under art. 5 it is mainly decisions by other courts that are reviewed. Moreover, cases that involve positive obligations will be discussed. (a) (i)

Art. 12 General Observations

Under art. 12 the first tier is of particular importance. In the Pharmacy 834 case, the Court stipulated the principle that the more intensive the interference with the freedom to choose and exercise an occupation was, the more important the justifying reasons had to be; the Court made a threefold distinction (DreiStufen-Theorie, three-tier-theory). It distinguished between regulations • of the exercise of an occupation; pp. 188–9. 827 E. g. art. 5 § 2 provides that freedom of speech may be limited to protect, among others, juveniles. 828 Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 276; Sachs, in: Sachs, supra note 826, Art. 20, para. 149. 829 Ibid., Art. 20, para. 150; Dreier, in: Dreier, supra note 826, Vorb., para. 147; BVerfGE 67, 154 (Überwachungsgesetz), p. 175; BVerfGE 81, 157, p. 192. 830 Sachs, in: Sachs, supra note 826, Art. 20, para. 152; Dreier, in: Dreier, supra note 826, Vorb., para. 148; BVerfGE 67, 154, p. 176. 831 Verhältnismäßigkeit im engeren Sinne. 832 Sachs, in: Sachs, supra note 826, Art. 20, para. 154; Dreier, in: Dreier, supra note 826, Vorb., para. 149; see for example BVerfGE 16, 194 (Liquorentnahme), pp. 201–3. The criterion is also referred to as appropriateness (Angemessenheit); see Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, paras. 277–8. 833 Sachs, in: Sachs, supra note 826, Art. 20, para. 155. 834 BVerfGE 7, 377 (Pharmacy).

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2.3 German Federal Constitutional Court • that prescribe subjective entry conditions, i. e. those that could be influenced by the citizen, in particular formal qualification requirements;835 and • that prescribe objective entry conditions, i. e. those that cannot be influenced by the citizen.836

Under the legitimate aim test, the Court checks whether the pursued aim was important enough and principally admissible, without regard to the concrete implementation of the measure and burdens for individuals by comparing the importance of the aim with the general intensity of exercise regulations or subjective or objective entry conditions.837 Usually, the test is rather deferential because the Court grants the legislator broad discretion for the setting of policy objectives.838 This deferential stance is criticized, because it does not take sufficient regard to the importance of this fundamental right.839 Indeed, the Court has only seldom declared policy objectives inadmissible.840 The critique cannot be dealt with at this point. Such criticism reflects Principle Theory, because it relates the importance of a fundamental right with the rigour of review. However, despite the generally deferential stance, the test can be applied rather rigorously because at least in case of objective entry conditions the Court also assesses whether the purported problem really exists, especially if objective entry conditions are at issue.841 The justification of the three-tier system is reminiscent of the Weight Formula, because the Court related the weight of the justifying reasons with the severity of the interference. Yet, there is a difference because this rationale does not reflect the complete Weight Formula. Only the abstract weights of the reasons are considered and they are compared with the severity of classes of interferences. This cannot be expressed in the language of the Weight Formula because it lacks a variable for classes of interferences; it usually only considers either abstract weights (Wi ) or concrete interferences (Ii ) but not the weight of a general class of interferences. The legitimate aim test is usually followed by a test of suitability and necessity. The suitability element is sometimes consumed by a very extensive test for the legitimacy of the pursued aims, for example in the Pharmacy case, but 835

Ibid., pp. 406–7 BVerfGE 13, 97 (Handwerksordnung), p. 106. BVerfGE 7, 377, p. 408. 837 BVerfGE 13, 97, pp. 107–12; BVerfGE 7, 377, pp. 413–31; BVerfGE 25, 1 (Mühlengesetz), pp. 13–17; BVerfGE 30, 292 (Erdölbevorratung), pp. 317–8; BVerfGE 37, 1 (Weinwirtschaftsabgabe), pp. 19–21; BVerfGE 39, 210 (Mühlenstrukturgesetz), pp. 228–30; BVerfGE 94, 372 (Apothekenwerbung), p. 391; BVerfGE 95, 173 (German Tobacco Labelling), pp. 184–5; BVerfGE 111, 10 (Ladenschluss), pp. 32–33. 838 BVerfGE 13, 97, p. 107; BVerfGE 7, 377, pp. 411–12; BVerfGE 25, 1, p. 17; BVerfGE 30, 292, p. 317; BVerfGE 37, 1, pp. 20–1; Mannssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 121; Sachs, in: Sachs, supra note 826, Art. 20, para. 151. 839 Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 149. 840 Tettinger/Mann, in: Sachs, supra note 826, Art. 12, para. 102. 841 BVerfGE 7, 377, pp. 413–31; BVerfGE 25, 1, p. 11, p. 13; BVerfGE 30, 292, pp. 317–18; BVerfGE 95, 173, pp. 184–5. 836

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Chapter 2. Case Law generally the test does have some importance of its own, for example in the German Tobacco Labelling case.842 The standard is designed rather deferentially: It suffices that the measure promotes the goal in some way. Neither need it be the best measure nor does it have to achieve the goal on its own. 843 As under all review steps, government enjoys some discretion regarding the assessment of facts. Because the criteria for granting discretion are basically the same for each review step, they will be discussed below. Usually, the necessity test attracts more attention. According to this standard, government has to choose the least onerous measure from a set of equally suitable ones.844 This test is rather inflexible. It is only if an alternative measure clearly fulfils the aims equivalently that the Court denies necessity.845 If the legislator pursues more than one aim, then alternative measures must fulfil each of these aims equally well.846 It does not suffice that other less onerous measures are available or that other measures provide certain advantages; the aims that are chosen by the legislator are the yardstick.847 The choice of the aims as such is not questioned at this step. Moreover, government enjoys a rather broad margin of discretion in assessing how burdensome and effective measures are. As long as the assessments are not evidently erroneous they are accepted. 848 This degree of discretion is always granted in the socio-economic field.849 In this regard the case law of the Court resembles the doctrine of the ECtHR.850 The Court usually identifies proportionality with some sort of balancing.851 For German constitutional law Alexy believes that the Weight Formula and the application of fundamental rights as optimizing commands describes what courts do when they balance.852 According to Principle Theory, balancing requires the integration of various variables and a comparison between the aggregated 842

But see also BVerfGE 81, 157, p. 192; BVerfGE 67, 154, p. 175; BVerfGE 30, 292, pp. 318–9; BVerfGE 25, 1, pp. 17–8. 843 BVerfGE 13, 97, p. 114, p. 116; BVerfGE 95, 173, p. 185; Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 129; Sachs, in: Sachs, supra note 826, Art. 20, para. 153. 844 See, for example, BVerfGE 30, 292, p. 316; BVerfGE 37, 1, pp. 21–2; BVerfGE 25, 1, pp. 19–20; Sachs, in: Sachs, supra note 826, Art. 20, para. 152; Dreier, in: Dreier, supra note 826, Vorb., para. 148; this standard is implicitly applied in BVerfGE 111, 10, pp. 33–4. 845 BVerfGE 25, 1, pp. 19–20; BVerfGE 30, 292, p. 319; BVerfGE 37, 1, pp. 21–2; BVerfGE 111, 10, pp. 33–6. 846 BVerfGE 30, 292, p. 319. 847 Ibid., p. 319. 848 BVerfGE 37, 1, pp. 20–1, pp. 21–2; cf. BVerfGE 25, 1, pp. 19–20; BVerfGE 30, 292, p. 319. 849 BVerfGE 25, 1, pp. 19–20; BVerfGE 30, 292, p. 319; BVerfGE 37, 1, pp. 21–2; BVerfGE 111, 10, pp. 33–6. 850 See above at page 95. 851 BVerfGE 13, 97, p. 113; BVerfGE 25, 1, p. 12; BVerfGE 30, 292, p. 315; BVerfGE 37, 1, p. 22; BVerfGE 39, 210, p. 226, pp. 234–5; BVerfGE 85, 248 (Ärztliches Werbeverbot), p. 261; BVerfGE 95, 173, p. 183; see also Dreier, in: Dreier, supra note 826, Vorb., para. 149. 852 Alexy, supra note 77, p. 437.

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2.3 German Federal Constitutional Court values.853 To conform with the Weight Formula, the argumentation must be structured as follows:854 1. The gains for the pursued goals (Ij ) must be assessed and qualified as light, moderate, serious, or in equivalent terms. 2. The severity of the interference (Ii ) must also be assessed and qualified according to the scale described in the previous point. 3. The weights thus obtained must be related (Wi,j = Ii /Ij ).

Additionally, the abstract weights (Wi , Wj ) can be taken into account ((Wi,j = (Wi · Ii )/(Wj · Ij )). This structure is at least partly reflected in programmatic statements of some judgments,855 for example: In the course of review . . . the Court has to balance the public interest and the measures that are necessary for its protection against the fundamental right of the individual to free exercise of his profession. . . . At the stage of globally balancing the intensity of the severity of the interference with the right to exercise one’s profession and the urgency of the justifying public interests, the limitation of appropriateness is still observed.856

It is questionable, however, whether the three partite structure of proportionality in the narrow sense is present when the actual assessments are made. Schlink doubts that balancing of values, like Alexy’s approach,857 properly describes the Court’s approach to balancing.858 (ii)

Examples

A few examples, shall elucidate the Court’s approach. (1)

Handwerksordnung

In the Handwerksordnung case, the Court had to decide on the constitutionality of the requirement imposed by § 1 para. 1 of the Handwerksordnung [Craftsmenship Regulation], according to which the self-employed running of a craft is confined to persons holding a master craftsmen diploma (Meisterzwang). 853

Ibid., pp. 440–8. See ibid., pp. 436–7. 855 BVerfGE 13, 97, p. 113; BVerfGE 25, 1, p. 12; BVerfGE 30, 292, p. 315; BVerfGE 37, 1, p. 22; BVerfGE 39, 210, p. 226, pp. 234–5; BVerfGE 85, 248, p. 261; BVerfGE 95, 173, p. 183; see also Dreier, in: Dreier, supra note 826, Vorb., para. 149. 856 BVerfGE 39, 210, p. 226, pp. 234–5: “Bei der . . . Nachprüfung hat das Bundesverfassungsgericht die Interessen der Allgemeinheit und die zu ihrem Schutz für erforderlich erachteten Vorkehrungen gegen den Grundrechtsanspruch des Einzelnen auf freie Betätigung in seinem Beruf abzuwägen. . . . Bei der Gesamtabwägung zwischen der Schwere der in Rede stehenden Berufsfreiheitsbeschränkung und der Dringlichkeit der sie rechtfertigenden Gemeinschaftsinteressen ist die Grenze der Zumutbarkeit noch eingehalten.”; English translation of the German original by the author. 857 Alexy, supra note 7, pp. 133 [92]. 858 See Schlink, supra note 549, pp. 78–9, 95. 854

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Chapter 2. Case Law Deciding the proportionality of this requirement, the Court first asked whether the public interest should take precedence over the right of the individual and whether the interference was excessive (p. 113). There had to be a balanced relationship between the necessities of the public interest and interferences with liberty (p. 113). These principles were put into more concrete terms: It had to be established whether the means are not evidently unsuitable and whether less onerous measures were conceivable (p. 113). Finally, the measure must not be excessive (p. 113). Only the last criterion refers to proportionality in the narrow sense. Regarding this criterion, the Court makes the following assessments: 1. The fact that some qualification was necessary to obtain the diploma could hardly be qualified as an interference because the formal statutory rule only prescribed what was required anyway (p. 115). At any rate, the weight of the interference was, compared to the importance of the goal, very low (pp. 115–16). 2. The regulation was not excessive because it defined certain types of crafts; generally, legislators were allowed to consider average cases (p. 117). 3. Requiring a formal qualification was not excessive (p. 118), because it was possible for the average craftsman to obtain this diploma (p. 119). 4. Finally, the severity of the interference was reduced because working as a self-employed craftsmen was not the only perspective and because the diploma was not required in exceptional circumstances (p. 120). The exception clause ensures that the requirement to hold a craftsman diploma could not be abused as a means to prevent competition (p. 122). In recent judgments the Court has acknowledged the importance of applying the exceptions clause generously.859

In this judgment, the Court only once related the severity of the interference with the importance of the aims, and that only as an additional argument (see the first item). Moreover, the Court’s assessments were far cruder than the triadic model of light–moderate–serious. The interference was so low that it was almost not recognizable as such (“die darin liegende Freiheitsbeschränkung für den Einzelnen kaum noch als solche fühlbar wird ”). The competing interests were classified as important. All other arguments only focused on showing that the interference was acceptable. (2)

Mühlengesetz

In the Mühlengesetz 860 case, the Court had to decide on the constitutionality of a statute that imposed a licencing regime for the erection of new mills and for increasing the capacities of established mills; the closing of mills could be assisted by public funds (pp. 1–3). In this judgment, the Court focused on end 859 BVerfG, 1 BvR 1730/02 , 5 January 2005 (Zimmerhandwerk) , para. 25; cf. BVerfG, 1 BvR 608/99, 31 October 2000 (Elektroeinzelhändler) , paras. 29–32, where the Court stressed that

the provisions of the Handwerksordnung should be narrowly interpreted to observe the requirements of art. 12. 860 Supra note 837.

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2.3 German Federal Constitutional Court scrutiny (pp. 13–17) and necessity considerations, including the suitability test (pp. 17–8). Regarding proportionality in the narrow sense, the Court made the following assessments: 1. The general prohibition of erecting new mills was practically hardly of any relevance because at that time the operation of mills was not profitable. Therefore, there was no incentive to erect new mills (p. 22). 2. Regarding the operation of established mills, the Court argued that the measure affected operators that already were able to build a foundation for their living. Restricting the exercise of their profession for a fixed and not too long a period was acceptable, especially because the effects of the measure eventually also benefited these operators (p. 22). 3. The threshold for tolerating burdens had to be generally reduced if the stability of the crops market was at stake (pp. 22–3). 4. However the Court stressed that the measure could only be upheld as long as the problem persisted (p. 23).

Again, the Court focused on the interference and assessed it in crude terms: Either the interference is negligible or acceptable because it is limited in time. Moreover, the Court argued that the threshold was generally reduced for a class of cases, an argument that cannot be expressed in terms of the Weight Formula. (3)

Erdölbevorratung

The statue at issue in the Erdölbevorratung 861 case imposed the obligation for producers and traders of oil to keep certain quantities of oil and oil products in stock (pp. 299–300). The applicants were importers that did not posses the necessary stock piling capacities (pp. 304–5). The costs caused by the measure were such that they almost completely reduced the profits (pp. 304–5). Programmatically, the Court stated that the stronger the interference was, the stronger the public interest had to be (p. 316). The Court proceeded with end scrutiny, suitability and necessity (pp. 317–23). At the last step, the Court argued that the pursued aim was of utmost importance (p. 324). The Court then assessed the severity of the interference: 1. Importers usually had to keep some quantities in stock. The regulation at issue only changed the amount of that quantity (pp. 324–5). 2. It was therefore only relevant to assess, whether the increases threatened the very existence of operators (pp. 324–5). 3. At least in a field that was typically apt to be influenced by crises, legislators were not required to provide for compensation because the operators were aware of the difficulties of the trade in oil (pp. 325–6). 4. Moreover, the costs could be passed on to purchasers (p. 326) and the stockpiling obligation could be delegated (p. 326). 5. However, legislators had to consider differences between groups of operators and had to take measures to prevent excessive burdens for certain groups (p. 327). Especially if legislators themselves had been aware of problems for a certain class of operators, they could have been obliged to provide for remedies 861

Supra note 837.

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Chapter 2. Case Law (para. 93); for example, the introduction of a transitional period or exceptions in cases of hardship (pp. 332–3).

So, the decisive criterion in this case was the prohibition of discriminatory measures. It does not rely on relating interferences and importance of goals at all. Moreover, reasons 2–3 focus on the interference alone and on establishing that they were insignificant. A qualification in the form light–moderate–serious cannot be discerned and thus an important pre-condition for applying the Weight Formula was missing. (4)

Tobacco Labelling Case

In the German Tobacco Labelling 862 case the Court had to decide on the constitutionality of the German laws on labelling of tobacco products. 863 The Court discussed at length the first steps of proportionality and end scrutiny (pp. 184–5). It dedicated two paragraphs to proportionality in the narrow sense. It argued that 1. The labelling requirement was not manifestly inappropriate (p. 187). 2. Selling and advertising tobacco products was possible, despite the measure (p. 187). 3. The measure merely informed the consumer and thus laid the foundation for the exchange of goods through supply and demand, i. e. the market process (p. 187). 4. It was admissible to oblige tobacco producers to warn consumers from dangers that the former caused by the selling of tobacco products (p. 187).

Here, the Court did not even rudimentarily related aims and interferences to establish proportionality in the narrow sense but only relied on an assessment of interferences. The interference was gauged with a reference to the causation principle and by assessing whether the provisions left a significant amount of liberty. (5)

Summary

According to Principle Theory, two themes govern the proportionality test: optimization and integration of weights by means of the Weight Formula. Both tenets cannot be based on the case law. Instead of relating aims and interferences, the Court focuses on an assessment of interferences. First, the Court does not employ scales like light–moderate–serious. At most, the scales have the form ‘important aims–insignificant interferences’. In other words, the scale is even cruder than the already rough triadic scale and it is questionable whether this is sufficient for an application of the Weight Formula. These crude assessments usually also suffice for suitability and necessity: The 862 863

Supra note 837. A partial translation of this case is presented in the Appendix.

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2.3 German Federal Constitutional Court first criterion is only not satisfied if measures are clearly unsuitable and necessity is not satisfied if other measures are clearly less onerous. Second, even this rudimentary structure is not present in all cases, 864 especially in recent judgments.865 Third, the Court does not mention the optimization ideal, at least not in these cases. What is more, it explicitly rejects the idea that legislators are obliged to find the best solution to certain problems.866 The Court moreover has stated that the principle of proportionality only sets outmost limits to the discretion of legislative powers.867 Only manifestly erroneous measures are disproportionate.868 It is very doubtful whether all measures that are not manifestly erroneous are also optimal, i. e. best. Fourth, the relevant variables are seldom integrated. The Court assess the legitimacy of the aims (Wj ), the suitability (Ij ), necessity (Ii , Ij ), and finally the acceptability of the interference ( Ii ). Only one criterion is considered at a time, this is also true for necessity. The test actually has a two-partite structure: (a) Are there less onerous measures? (b) Are these measure equally effective? Summarizing, the following proportionality criteria can be discerned: • • • • • • • •

Does the measure provide for exceptions, e. g. in case of hardship?869 Is the measure limited in time and intensity?870 Is a measure just reacting on current market failures?871 Is a measure requiring what is required anyway by the activity, e. g. certain qualifications or stockpiling capacities?872 Can burdens be passed on to consumers or delegated to others?873 Are imposed levies insignificantly low?874 Is a burden justified by the causation principle?875 Does a measure provide for transitional periods?876

Additionally, the principle of equal treatment poses some further limits. Where the law-makers themselves have recognized that a certain group among the burdened individuals is extremely burdened the legislator has to provide for some remedy.877 Though exception rules can help to ensure proportionality that 864

For example, in BVerfGE 13, 97; BVerfGE 25, 1. BVerfGE 95, 173; BVerfGE 111, 10, pp. 36–42. 866 Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1 , para. 129; Sachs, in: Sachs, supra note 826, Art. 20, para. 153;cf. BVerfGE 13, 97, paras. 44, 46; BVerfGE 95, 173, p. 185; BVerfGE 37, 1, p. 14. 867 BVerfGE 30, 292, p. 317. 868 BVerfGE 95, 173, p. 187; BVerfGE 37, 1, pp. 20–1; BVerfGE 30, 292, p. 317; cf. BVerfGE 25, 1, paras. 36, 44. 869 BVerfGE 13, 97, para. 57; BVerfGE 39, 210, pp. 235–6. 870 BVerfGE 25, 1, para. 33. 871 Ibid., para. 51. 872 BVerfGE 30, 292, pp. 324–5, cf. BVerfGE 13, 97, para. 45. 873 BVerfGE 30, 292, p. 326. 874 BVerfGE 37, 1, pp. 23–4. 875 BVerfGE 95, 173, p. 187. 876 Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 147. 877 BVerfGE 30, 292, pp. 327–8. 865

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Chapter 2. Case Law must not happen to the detriment of consistency of a statute.878 Principally, law-makers are allowed to generalize when they enact statutes.879 If legislators remain within the bounds thus described the measure at issue will pass scrutiny. In particular the Court rejected the idea that legislators have to find the best solution possible.880 (iii)

Discretion

A leading case regarding discretion in the socio-economic field is the Mitbestimmung 881 case. The case concerned the constitutionality of provisions that allowed for the co-decision of workers in the supervisory board of large enterprises. The empiric consequences were contentious. The petitioners argued that the statute would impair the proper functioning of large enterprises. The Court stated that uncertainty could neither prevent the legislator from action nor could uncertainty justify unlimited discretion.882 Instead it adopted a three tiered approach to the review of assessments and predictions:883 According to this approach, scrutiny ranged from a mere evidential review over plausibility review to extensive substantial scrutiny. 884 The choice of the tier depends on the subject matter, the importance of the rights involved, and the degree of uncertainty.885 The Court was unable to clearly describe the relationship between the intensity of review and the certain criteria. This relationship could be interpreted in terms of Principle Theory. However, that interpretation is not compelling because Principle Theory usually only considers the severity of the interference, 886 while the formula of the Court requires the consideration of more criteria. However the relation may be, fundamental rights relating to economic activities usually ensue plausibility review.887 Once the tier has been chosen the outcome is still quite open. Under plausibility review a statute may be invalidated888 or it can survive.889 To avoid confusion: These three tiers are not review standards of their own; they rather represent different approaches to the review of facts and predictions under steps two and three (under certain conditions also step four) 878 BVerfGE 111, 10, p. 46 (Dissenting Vote Papier, Jaeger, Hömig, and Hoffmann-Riem); Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 148. 879 Tettinger/Mann, in: Sachs, supra note 826, Art. 12, para. 116. 880 See BVerfGE 13, 97, paras. 44, 46; cf. BVerfGE 95, 173, p. 185; Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 129. 881 BVerfGE 50, 290 (Mitbestimmung). 882 Ibid., p. 333. 883 Ibid., p. 333. 884 Ibid., p. 333. 885 Ibid., p. 333. 886 Alexy, supra note 553, p. 418; Alexy, supra note 77, p. 446. 887 Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 281. 888 BVerfGE 7, 377. 889 For example BVerfGE 50, 290.

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2.3 German Federal Constitutional Court of the proportionality principle. I doubt whether the Court really applied different standards, the Court rather used superficially different language. In Mitbestimmung the Court required that legislative bodies should analyze the available material in a reasonable way and draw information from as many sources as possible to get, as far as possible, a complete picture.890 Although the review of fact assessments and predictions has a long tradition in the case law of the GFCC , it has not always been undisputed. In 1970 a proposal was issued whose goal was to bind the GFCC to legislators’ assessments of facts unless they were evidently wrong.891 This proposal started a great dispute and was finally rejected.892 It was understood as an attack on the GFCC as an institution.893 Today, it seems to be rather non-contentious that the Court is allowed to asses facts during the review process.894 This question must be distinguished from another problem: Are legislators obliged to asses facts? Or may the Court itself find facts to uphold a statute? Some advocate the latter position. They argue that Members of Parliament are not qualified to broadly assess facts and to consider expertise.895 Furthermore, Parliament as an institution is not capable of assessing facts and expertise. 896 The legislative procedure is not designed to find facts but to make political decisions that need to be politically acceptable and not necessarily correct from an expert’s point of view.897 Fundamental rights provide a meter for measuring legislative acts, they do not in any way determine legislative procedure,898 for example, regarding the assessment of facts. A popular citation points out this aspect quite sharply: “Legislators owe the other institutions in this state, including the constitutional courts, nothing but the statute.”899 This view is grounded on the belief that the law, as soon as it is in the books, detaches itself from the will of the respective majority and simply becomes the will of 890

para. 113. Ossenbühl, supra note 29, p. 462. 892 Ibid. 893 Ibid. 894 Brun-Otto Bryde, ‘Tatsachenfeststellungen und soziale Wirklichkeit in der Rechtsprechung des Bundesverfassungsgerichts’, in: Badura, Peter and Dreier, Horst (eds.): Festschrift 50 Jahre Bundesverfassungsgericht (Mohr Siebeck, Tübingen, 2001), p. 533, p. 540; Ossenbühl, supra note 29, p. 469; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 280. 895 Christoph Gusy, ‘Das Grundgesetz als normative Abwägungslehre?’ 1985 Zeitschrift für Rechtspolitik, p. 291, p. 297. 896 Ibid. 897 Ibid., p. 298. 898 Ibid., pp. 295, 298. 899 Willi Geiger, ‘Gegenwartsprobleme der Verfassungsgerichtsbarkeit aus deutscher Sicht’, in: Berberich, Thomas et al. (eds.): Neue Entwicklungen im öffentlichen Recht (Kohlhammer, Stuttgart, Berlin, Köln, Mainz, 1979), p. 131, p. 141: “Der Gesetzgeber schuldet den Verfassungsorganen und Organen im Staat, auch den Verfassungsgerichten, nichts als das Gesetz”, English translation of the German original by the author. 891

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Chapter 2. Case Law Parliament.900 It is feared that legislators would be constrained too much if they had to comply to strict procedural rules.901 Another citation seems appropriate to illustrate the idea behind this position: The Court has to scrutinize the law, not legislators’ motives, considerations, predictions, value judgements, accentuations, preferences and trade-offs. Reviewing the law aims at the . . . objective will of the law, not on some will of the legislators, the will of fractions and the Members’ will or whatever one might treat as the will of the legislature. This law is, independently of any influences during its emergence, the review subject. And with this objective contents it is constitutional if it complies with those provisions of the constitution that . . . are relevant.902

This passage needs some explanation. The view that is reflected in the quotation has rather deep roots in German Legal Theory, e. g. von Staff wrote in 1925: One should not forget that the law has an independent meaning of its own, one may say: a life of its own. The judge encounters this law alone, not a multi-headed stranger, who has framed it in fierce debates and with minute majority and as a compromise of various views and none of them prevailing.903

Those who oppose an obligation to assess facts believe that the law as a result can be clearly distinguished form the legislative procedure.904 Because it is the result that must be constitutional, it does not matter who found the facts, as long as there are reasons that support the law, no matter which institution brings them forth.905 Today it is still widely believed that legislators are not obliged to assess facts.906 Yet, the justification differs slightly: It is believed that 900 Klaus Schlaich, ‘Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen’ 39 (1980) Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, p. 99, p. 108. 901 Ibid., p. 109. 902 Geiger, supra note 899, p. 142: “Das Verfassungsgericht hat das Gesetz auf seine Verfassungsmäßigkeit zu prüfen, nicht die Motive, die Erwägungen, die Prognosen, die Wertungen und Akzentuierungen, die Präferenzen und Abwägungen des Gesetzgebers. Bei der Prüfung der Verfassungswidrigkeit eines Gesetzes kommt es auf . . . den objektivierten Willen des Gesetzes an, nicht auf irgendeinen Willen des Gesetzgebers, den Willen der Fraktionen und den Willen der Abgeordneten oder was man sonst für den Willen des Gesetzgebers halten mag. Und dieses Gesetz ist unabhängig von dem bei seiner Entstehung wirksamen Einflüssen der verschiedensten Art Objekt der Prüfung, und gemäß seinem objektiven Inhalt verfassungsmäßig, wenn es mit den Vorschriften der Verfassung, die als Prüfungsmaßstab einschlägig sind, vereinbar ist.”; English translation of the German original by the author. 903 Staff, in: Hans Carl Nipperdey, Die Grundrechte und Grundpflichten der Reichsverfassung: Allgemeine Bedeutung der Grundrechte und die Artikel 102–117 vol. 1 (Reimar Hobbing, Berlin, 1929), Artikel 102–107 p. 102: “Man darf weiter nicht vergessen, daß das Gesetz seine selbständige eigene Bedeutung, man möchte sagen: sein eigenes Leben hat. Ihm allein tritt der Richter gegenüber, nicht dem vielköpfigen Unbekannten, der es geschaffen hat, oft in scharfen Kämpfen und mit geringer Mehrheit als ein Kompromiß verschiedener Ansichten, von den keine ganz durchgedrungen ist.”; English translation of the German original by the author. 904 Schlaich, supra note 900, p. 110. 905 Geiger, supra note 899, p. 142. 906 Gunnar Folke Schuppert, ‘Gute Gesetzgebung’ 2003 Zeitschrift für Gesetzgebung

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2.3 German Federal Constitutional Court any set of procedural rules that constrains the legislature is inconsistent with the deeply political nature of the process of legislation.907 This view effects a loosening of review because additional facts in support of the challenged statute may be produced after the adoption of the statute during the proceedings by any party or the Court. Proponents of the opposing view argue that a set of procedural rules, including the obligation to assess facts, could improve the quality of legislation and could help to draw a line between legislation and constitutional adjudication.908 It was attempted to transpose rules that had evolved in the law of planning to legislation.909 This view, though, did not prevail.910 (iv)

Concluding Remarks

In many cases, the Court is satisfied with these criteria; the abstract weights and the concrete interferences or importances are not put into a relation and are not weighed up against each other. Still, there are some cases where the Court does balance in such a way. As an example shall serve the case of Ärztliches Werbeverbot911 . A doctor who owned a clinic was specialized for the treatment of cancer. His methods evoked some criticism in a magazine. Another magazine published an article with interviews with patients that showed the doctor in a good light; the article undoubtedly had advertisement-like effects. The professional order for medical practitioners prohibited advertisement; thus, the High Court decided that the doctor was obliged to intervene against such publications. The GFCC ruled that a global balancing of the interests at stake lead to the result that the opportunity to defend oneself against negative press articles was more important than the generally admissible and important prohibition of advertisement.912 This case did not concern the validity of a statue and was decided in the context of freedom of speech. However, where statutes in the socio-economic field are concerned, the Court does not exercise its review in such a way.

(Sonderheft), p. 1, pp. 12–13 and accompanying notes; Hans-Joachim Mengel, Gesetzgebung und Verfahren: ein Beitrag zur Empirie und Theorie des Gesetzgebungsprozesses im föderalen Verfassungsstaat (Duncker & Humblot, Berlin, 1997), p. 369. 907 Schuppert, supra note 906, pp. 12–13 and accompanying notes; Mengel, supra note 906, p. 369. 908 Gunther Schwerdtfeger, ‘Optimale Methodik der Gesetzgebung als Verfassungspflicht’, in: Stödter, Rolf Rolfodter and Thieme, Werner (eds.): Hamburg Deutschland Europa: Festschrift für Hans Peter Ipsen (Mohr, Tübingen, 1977), p. 177, p. 188. 909 Ibid., pp. 173–5. 910 See Klaus Messerschmidt, Gesetzgebungsermessen (Berlin-Verl. Spitz, Berlin, 2000), pp. 874–5. 911 Supra note 851. 912 BVerfGE 85, 248, pp. 261–2.

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Chapter 2. Case Law The three-tier-theory has over the years been loosened.913 But it is still a constituent element of dogmatics of art. 12.914 Its critics argue that interferences cannot always be placed into three neat categories.915 Moreover, it is not clear how certain policy goals can be qualified as important and some as outstandingly important.916 Furthermore, the triadic scale is inflexible and should be replaced with a continuous spectrum.917 I will not discuss the critique at this point, because it requires knowledge of decision theory to be properly answered. Summarizing, one can say that the programmatic statements still lend support to Principle Theory. However, the actual application of the standards of proportionality in the socio-economic field is devoid of many features of Principle Theory: Variables are not integrated but considered step by step; the Court abstains from qualification of weights as light, moderate, or serious; and the Court does not require that legislators find the best, i. e. the optimal, solution of a constitutional problem. (b) (i)

Freedom of Speech General Observations

The previous section dealt with art. 12 GG. The results from that section cannot be generalized without having a survey of another right. For various reasons freedom of speech (art. 5 § 1 GG) well suits as a contrast to art. 12. The most striking difference is that it concerns the application and interpretation of statute laws to a large extent. The validity of statutes is usually not at issue.918 The case dependent balancing process that is thus required raises special problems regarding predictability and legal certainty.919 Moreover, Principle Theory was derived, among others, from a freedom of speech case, the Lebach 920 case. Recently Alexy refers to the Titanic921 case to support Principle Theory. Furthermore, the GFCC made some important statements regarding the nature of fundamental rights in the case of Lüth 922 , a very early case, however. Finally, freedom of speech is particularly apt to reflect collisions of fundamental rights and this function was recognized early in Lüth. 913 Wieland, in: Dreier, supra note 826, Art. 12, para. 111; Tettinger and Mann, in: Sachs, supra note 826, Art. 12, paras. 109–12. 914 Wieland, in: Dreier, supra note 826, Art. 12, para. 116; Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 138. 915 Wieland, in: Dreier, supra note 826, Art. 12, para. 112; Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 136. 916 Tettinger and Mann, in: Sachs, supra note 826, Art. 12, para. 129. 917 Wieland, in: Dreier, supra note 826, Art. 12, para. 113. 918 Schulze-Fielitz, in: Dreier, supra note 826, Art. 5 I, II, para. 145, 177. 919 Ibid., Art. 5 I, II, para. 160; Bethge, in: Sachs, supra note 826, Art. 5, para. 147b. 920 BVerfGE 35, 202 (Lebach). 921 BVerfGE 86, 1 (Titanic). 922 Supra note 825.

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2.3 German Federal Constitutional Court Yet, this study does not raise the demand to provide a complete and exhaustive image of the dogmatics of freedom of speech in Germany. The focus lies on the justification of interferences with freedom of speech and the treatment of collisions with other fundamental rights. The questions are: Does the Court balance and what does it mean, when it speaks of ‘balancing’? The overview will show that the early judgments of the Court do support a view that is at least similar to Principle Theory, especially Lüth. Over the years, however, the Court developed a system of rules that replace balancing at least to a very large extent. Balancing is a matter for the ordinary courts but not for the GFCC . The case law of the Court has received some criticism.923 The critique concerns the separation between ordinary courts and the GFCC .924 If one only regards the programmatic statements of the Court, then the balancing idea must indeed appear to be ubiquitous. The Court stated in Lüth 925 : The judge . . . has to obey . . . the fundamental value judgements and principles of social order that he finds in the fundamental rights section of the constitution. Within this value order, that is also a ranking of values, the necessary balancing between the fundamental right of art. 5 § 1 sentence 1 GG and the rights and legal goods that limit its exercise, must be performed.926

It also stated that the constant collisions of interests and rights between individuals necessitated a permanent compensation and a balancing of competing interests according to the degree of their importance.927 Balancing lead to the general rule that contributions to an exchange of opinions that relate to a question of great public interest are usually legitimized and take precedence over competing interests.928 Those who use mass media to further their interests must endure that critique that is directed against them happens in the public, too.929 Soon the approach of the Court changed: In the Schmidt Spiegel 930 case the Court established a general rule according to which those who provoke public critique with statements that violate standards of truthfulness must 923

For example, Starck, in: von Mangoldt et al., supra note 822, Art. 5 Abs. 1, 2, para. 195,

200. 924

Ibid. Supra note 825, p. 215. 926 “Der Richter . . . hat sich . . . dabei an jene grundsätzlichen Wertentscheidungen und sozialen Ordnungsprinzipien zu halten, die er im Grundrechtsabschnitt der Verfassung findet. Innerhalb dieser Wertordnung, die zugleich eine Wertrangordnung ist, muß auch die hier erforderliche Abwägung zwischen dem Grundrecht aus Art. 5 Abs. 1 Satz 1 GG und den seine Ausübung beschränkenden Rechten und Rechtsgütern vorgenommen werden.”; English translation of the German original by the author. 927 BVerfGE 7, 198, p. 220. 928 Ibid., p. 220. 929 Ibid., pp. 228–9. 930 BVerfGE 12, 113 (Schmidt Spiegel). 925

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Chapter 2. Case Law endure fierce critique.931 The application of this rule replaced balancing. In the Blinkfüer 932 case the Court did not need to balance at all but decided that the challenged measure did not even fall under the scope of freedom of speech.933 The German newspaper publisher Springer instigated a boycott of those newspapers or tv programme magazines that contained information of programmes of the German Democratic Republic (GDR). Springer was and is one of the greatest newspaper and magazine publishing houses in Germany. Springer announced that it would not deliver to those resellers who also sold magazines that contained GDR tv programme information. The publisher of a magazine brought action against Springer and succeeded. Springer had to abstain from such instigation. Springer issued a constitutional complaint. It was dismissed because Springer backed the boycott instigation with its economic power and thus did not further the free and autonomous exchange of opinions but on the contrary hampered it. Therefore, it could not rely on freedom of speech to challenge the decision.934 In the Lebach 935 case, the Court stressed that balancing was necessitated by freedom of speech. But the Court distinguished between balancing of the abstract importance of the rights in question and the comparison of the concrete interference with these rights: The resolution of this conflict should depart from the intention of the constitution that both constitutional values are essential constituents of the liberal democratic order of the Basic Law. Therefore none of it can claim a principal precedence over the other. . . . Both constitutional values must therefore be reconciled where possible. If this is not possible, then it must be decided, considering the structure and merits of the case, which one has to stay back. . . . Restrictive effects for the claims founded on the right to personality may result from broadcasting freedom. The loss of “personality”, however, must not be out of proportion to the importance of the publication for free communication . . . . Furthermore, from this guideline ensues that the necessary balancing has to consider, on one hand, the intensity of the interference with personality caused by an emission of the kind at issue; on the other hand, the concrete interest, whose satisfaction is the aim of the emission, must be gauged. And it must be assessed whether and to what extent this interest can be satisfied without or with less interferences with the protection of personality.936 931

Ibid., pp. 129–31. BVerfGE 25, 256 (Blinkfüer). 933 Ibid., pp. 264–5. 934 Ibid., pp. 264–5. 935 Supra note 920, p. 221, p. 224. 936 BVerfGE 35, 202, pp. 225–6:“Die Lösung dieses Konflikts hat davon auszugehen, daß nach dem Willen der Verfassung beide Verfassungswerte essentielle Bestandteile der freiheitlichen demokratischen Ordnung des Grundgesetzes bilden, so daß keiner von ihnen einen grundsätzlichen Vorrang beanspruchen kann. . . . Beide Verfassungswerte müssen daher im Konfliktsfall nach Möglichkeit zum Ausgleich gebracht werden; läßt sich dies nicht erreichen, so ist unter Berücksichtigung der falltypischen Gestaltung und der besonderen Umstände des Einzelfalles zu entscheiden, welches Interesse zurückzutreten hat . . . Danach können 932

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2.3 German Federal Constitutional Court First, the Court notes that the abstract weights of these rights could be compared. Furthermore, none of the rights could take precedence over the other just because the abstract weight was greater. It then turned to a comparison of interferences and gains, which it believed to be decisive. The case concerned the publication of a documentary film about a crime in the town of Lebach that involved the murder of soldiers and the theft of weapons. The film should be published at about the same time where one of the delinquents should be freed. The film told the real names of the delinquents. The freed delinquent planned to return to his home town, where the crime was committed. The Court found that publishing the film at that time severely interfered with the rights of the delinquent.937 It further stated that generally the information interest of the public prevailed in such circumstances.938 However, in that concrete case it was not necessary to identify the delinquent.939 So balancing stops at the necessity level. A comparison of values was thus not necessary. Formally, later decisions stick to the programmatic statements of the Lebach decision by stressing the importance of balancing. 940 These commitments lose much of their importance when one regards the application of the proportionality principle. The Court rather focuses on the correct interpretation of the impugned statements941 and refers to the established body of case law, which has produced some rules that render balancing unnecessary. The interpretation is the focus of constitutional scrutiny for two reasons: First, it would create a chilling effect if someone had to fear punishments for statements that he or she newer made.942 von der Rundfunkfreiheit zwar restriktive Wirkungen auf die aus dem Persönlichkeitsrecht abgeleiteten Ansprüche ausgehen; jedoch darf die durch eine öffentliche Darstellung bewirkte Einbuße an „Personalität“ nicht außer Verhältnis zur Bedeutung der Veröffentlichung für die freie Kommunikation stehen . . . Weiter ergibt sich aus diesem Richtwert, daß die erforderliche Abwägung auf der einen Seite die Intensität des Eingriffes in den Persönlichkeitsbereich durch eine Sendung der fraglichen Art berücksichtigen muß; auf der anderen Seite ist das konkrete Interesse, dessen Befriedigung die Sendung dient und zu dienen geeignet ist, zu bewerten und zu prüfen, ob und wieweit dieses Interesse auch ohne eine Beeinträchtigung – oder eine so weitgehende Beeinträchtigung – des Persönlichkeitsschutzes befriedigt werden kann.”; English translation of the German original by the author. 937 Ibid., p. 230. 938 Ibid., pp. 231–2. 939 Ibid., pp. 237–8, pp. 242–3. 940 BVerfGE 86, 1, pp. 10–11; BVerfGE 90, 241 (Auschwitzlüge), pp. 248–9; BVerfGE 93, 266 (Soldaten sind Mörder ), p. 292, p. 293; BVerfGE 97, 391 (Missbrauchsvorwurf ), p. 401; BVerfGE 102, 347 (Benetton Werbung), pp. 362–3; BVerfG NJW 1999, 204 (Verunglimpfung des Staates), p. 205; BVerfG NJW 1999, 2358 (Greenpeace), p. 2359; BVerfG NJW 2000, 2413 (IM-Liste), p. 2414; BVerfG NJW 2000, 3413 (Berufsunwürdiges Verhalten), p. 3414; BVerfG NJW 2001, 2957 (Kaisen), p. 2958; BVerfG NJW 2002, 3767 (Bonnbons), pp. 3767–8. 941 BVerfG NJW 2002, 1187 (Produktwerbung ), p. 1189; BVerfG NJW 2001, 3613 ( Ironischer Pressekommentar), p. 3614; BVerfG NJW 2000, 3413, p. 3414; BVerfG NJW 1999, 204, pp. 205, 205–6; BVerfGE 102, 347, p. 367; BVerfGE 93, 266, p. 295, pp. 301–2; BVerfGE 86, 1, pp. 11–12. 942 BVerfGE 43, 130 (Flugblatt), p. 136; BVerfGE 86, 1, pp. 9, 12; BVerfG NJW 2001,

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Chapter 2. Case Law Second, it depends on the exact contents of a statement whether it poses any danger to the competing interest that is concerned in a given case. Someone’s honour cannot be affected if the statement in question cannot be interpreted as an insult. 943 Once it is established that the protected interest is negatively affected by the statement, the Court abstains from balancing but rather ensures that the ordinary courts considered all relevant facts and circumstances.944 However, balancing (in a Principle Theory style) is usually not necessary if • the statement is abusive criticism. In that case freedom of speech has to stay back. Abusive criticism is defined as a statement that is only aimed at the insult of the addressee and not at contributing to the substance of an issue.945 • the statement is a contribution to the exchange of opinions in a matter of public interest. The admissibility of the statement is assumed in these cases.946 • the statement is an adequate reaction to a prior statement of the other part. In public disputes everyone has the right to fight back, even with fierce means if the other part provoked such statements.947 A similar rule applies where someone deliberately entered the public scene.948 • it is a statement of true facts. These can usually be stated unless they can stigmatize the other part.949 • a statement depends on facts and if the facts are evidently wrong. Such statements cannot usefully contribute to public discourse and are not protected.950

In recent decisions, the Court usually eschews balancing in the fashion of Principle Theory and merely checks whether ordinary courts considered all relevant circumstances.951 (ii)

An Example: The Titanic Case

A paradigmatic case shall again illustrate the approach of the Court. In a recent paper Alexy discusses the Titanic case as a typical example for balancing in terms of Principle Theory.952 It is therefore feasible to discuss it here as well to see whether Alexy’s assessments are accurate. 3613, p. 3614; BVerfGE 93, 266, p. 295. 943 BVerfG NJW 2002, 3767, p. 3768; BVerfG NJW 2002, 1187, pp. 1188–9; BVerfG NJW 2001, 3403 (Therapeutische Äquivalenz), p. 3404; BVerfG NJW 2001, 2957, p. 2958; BVerfG NJW 2000, 3413, p. 3414. 944 BVerfGE 97, 391, p. 407; BVerfG NJW 1999, 204, p. 206; BVerfG NJW 1999, 2358, p. 2359; BVerfG NJW 2000, 3413, pp. 3415, 3416; BVerfG NJW 2001, 3613, p. 3615. 945 Cf. BVerfGE 86, 1, p. 10; BVerfGE 90, 241, pp. 248–9; BVerfGE 93, 266, p. 294; BVerfG NJW 2001, 3613, p. 3614. 946 BVerfGE 90, 241, pp. 248–9; BVerfGE 93, 266, pp. 292–3, pp. 294–5. 947 BVerfGE 12, 113, p. 128, p. 130, p. 131; BVerfGE 54, 129 (Kunstkritik), p. 138; cf. BVerfGE 86, 1, pp. 13–14; BVerfGE 93, 266, pp. 292–3. 948 BVerfG NJW 1999, 2358, p. 2359; cf. BVerfGE 61, 1 (Wahlkampf ), pp. 11–12. 949 BVerfGE 97, 391, p. 404. 950 BVerfGE 54, 208 (Böll), pp. 219–20. 951 BVerfGE 97, 391, p. 407; BVerfG NJW 1999, 204, p. 206; BVerfG NJW 1999, 2358, p. 2359; BVerfG NJW 2000, 3413, pp. 3415, 3516; BVerfG NJW 2001, 3613, p. 3616. 952 On Balancing and Subsumption. A Structural Comparison.

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2.3 German Federal Constitutional Court The judgment dealt with this case: A satiric magazine—Titanic—published a top-list of citizens together with a description of their special properties, for example, Weizecker (the President of the Federal Republic at that time) was described as a “born citizen”. One person, a reserve officer, was described as a “born murderer”. This officer was handicapped and was therefore excluded from the periodic trainings of reserve officers. He still tried all he could to participate in these trainings. This was reported by the Bild, a notorious newspaper/magazine. Titanic found that so remarkable that it decided to satirize the incident. The officer wrote a letter to the magazine and sought for damages. The letter and the magazine’s answer were published in a later issue. In this reply the magazine rejected claims for damages and in that course called the office “cripple”. For these two insults—“cripple” and “born murderer”—the officer brought action to the court. The court discharged the claim and it ruled that the magazine had to pay damages for both statements. Against this judgment the magazine raised a constitutional complaint, which was partially successful: the obligation to pay damages for the “born murderer” statement were unconstitutional. According to Principle Theory, the case had to be reconstructed in the following way:953 The Court determined the weight of the interferences and set them in a relation to each other. The obligation to pay damages was a lasting, i. e. severe, interference with freedom of speech, while the “born murderer” statement only had a moderate or light impact on personality rights. Hence the balance was tipped in favour of freedom of speech. The “cripple” statement involves a different balance. It constituted a serious breach with the personality rights. The weight was high enough to justify the lasting interference with freedom of speech. Though the judgment can be rationalized in this way it does not properly describe how the Court found that decision. According to Principle Theory, it is important what was said and how severe a potential insult is. Yet, the judgment favours a different approach: the Court establishes whether the “born murderer” statement was part of public exchange of opinion. For this purpose, it tested whether the statement constituted an instance of abusive criticism (pp. 11–12). Abusive criticism is not protected according to the case law of the Court, while other statements, even if they are fierce, are protected.954 Because the Court did not classify this statement as some form of abusive criticism it found that it was protected under art. 5 GG (p. 12). Hence, it decided the obligation to pay damages unconstitutional. It is noteworthy that the severity of a statement as such is no indication for its being abusive criticism. Abusive criticism is defined as only being directed at insulting the addressee instead of contributing to the substance of the debate.955 953

See Alexy, supra note 77, pp. 437–8. BVerfGE 90, 241, pp. 248–9; BVerfGE 93, 266, pp. 292–3, pp. 294–5. 955 BVerfGE 86, 1, p. 10; BVerfGE 90, 241, pp. 248–9; BVerfGE 93, 266, p. 294; BVerfG NJW 2001, 3613, p. 3614. 954

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Chapter 2. Case Law The decisive rationale for the “cripple” statement was not its severity but its context. According to a general rule even fierce criticism can be justified if it contributes to public exchange of opinion and if the fierce statement was evoked by the addressee.956 Titanic tried to rely on this exception but the Court did not follow. The “cripple” statement produced in response to a private letter that was moreover written in a level-headed language (pp. 13–14). So there was no reason for Titanic to reply in such a severe manner (pp. 13–14). The rationalization by Principle Theory ignores these case law standards and thus misses the justification of the Court. The Court did not weigh up the severity of the statements. It only checked whether they served the goal of public exchange of ideas and whether they were justified as responses to unlawful statements of the addressee. In other words, it was not important what was said and how severe offending statements are but how they were said and in which context. It may be that these rules are the result of a balancing process. But in this case the decision does not directly rely on balancing but at most indirectly. (iii)

Conclusion

At least nowadays balancing plays no role in the Court’s freedom of speech case law. Instead, the Court relies on a few rather easy to apply rules. Whether these rules can only be derived by means of balancing cannot be established at this point. This issue will be discussed in Chapter 6. (c)

Positive Obligations

There is another group of cases that gives insight to the Court’s approach to balancing and discretion: cases involving positive obligations. They are important because positive obligations can often serve as a justification of economic rights. As examples shall serve cases under art. 2, i. e. the protection of life and health including environmental protection and protection of the life of the unborn. Principle Theory requires that under positive obligations legislators shall choose one of those measures that accommodate all principles involved, for example: 957 If there are four measures that further a principle ( P1 ) and if the first two of these measures were more effective than the other two, then one of the first measures would have to be chosen. However, if one had to take account of a second, competing principle and if the last two measures were better for this principle, then one would have to balance these two principles and choose either among the first or the last two measures. Examples will show that some

956 BVerfGE 12, 113, p. 128, p. 130, p. 131; BVerfGE 54, 129, para. 27; cf. BVerfGE 86, 1, pp. 13–14; BVerfGE 93, 266, pp. 292–3. 957 See Alexy, supra note 7, pp. 422–3 [310].

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2.3 German Federal Constitutional Court decisions of the Court can indeed be characterized in this way but that some cannot and that therefore this theory is not fully accurate. In environmental law, this theory has no footing at all. Here, the Court explicitly rejects any form of optimization. The Court’s attitude is best expressed in the Fluglärm 958 case. The decision dealt with constitutional complaints against the German Air Traffic Act (Luftverkehrsgesetz). It was argued that the statute did not provide sufficient safeguards against aircraft noise and it was requested that the legislators should improve the situation. The Court dismissed the complaint and stated: This result [the constitutional complaint was dismissed] does not mean that the results in the area of noise reduction are satisfactory . . . [ 959 ] The result is rather based on the circumstance that the Court . . . can only intervene if the legislator has evidently violated his obligations.960

The Court stuck to this position in later decisions. Legislators will fail to meet the evident violation test if they have employed clearly unsuitable, i. e. insufficient, measures or if they remained completely inactive.961 This approach moreover corresponds to its approach towards measures in the socio-economic field: legislators need not employ the best measures to address some harm Measures that somehow further the aim are sufficient (see above). The Abortion I 962 decision is a different matter. With this decision the Court invalidated a law that allowed abortions within a period of 12 weeks from the beginning of pregnancy. Of interest are above all the review standards that are used by the Court. In developing the review standard the Court does employ balancing language: The Court stated that the obligation to protect was the more serious, the more important the endangered right was (p. 42). The right of the mother was not guaranteed without limits (pp. 42–3). Abortion obstructs the reconciliation of rights of the mother on one hand and the right of the child on the other because abortion irreversibly destructs the unborn life (pp. 43–4). Therefore the right to life takes precedence. The Court discussed at length the abstract importance of the right to life (pp. 36–42). All in all this reasoning fits well into the Weight Formula: The abstract weight of the right to life and the weight of the concrete interference with the right to life are high. Together they 958

BVerfGE 56, 54 (Fluglärm). Before, the Court described the rise in traffic and noise pollution and that the regulations did not properly address this issue. 960 Ibid., p. 80: “Dieses Prüfungsergebnis bedeutet nicht, daß auf dem Gebiet der Fluglärmbekämpfung bereits befriedigende Verhältnisse erreicht und alle denkbaren Schutzmaßnahmen schon verwirklicht worden sind . . . Das Ergebnis beruht vielmehr darauf, daß das Bundesverfassungsgericht . . . erst dann eingreifen kann, wenn der Gesetzgeber die genannte Pflicht evident verletzt hat.”; English translation of the German original by the author. 961 BVerfG NJW 1996, 651 (Ground Near Ozone), p. 651; BVerfG NJW 1996, 651 (Speed Limits), p. 651. 962 BVerfGE 39, 1 (Abortion I ). 959

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Chapter 2. Case Law outweigh the less important rights of the mother, which are not that severely impaired. The second abortion decision963 , however departs from a different starting point. In that decision it stated that the protection of the right to life was not absolute. On the other hand it decided that it was not sufficient to employ any kind of suitable measure that somehow aims at the protection of the unborn life (pp. 253–4). In this regard the decision can be distinguished from environmental law cases. Still, the Court focused on minimal positions that should be observed (pp. 254–5): ‘If the prohibition of insufficient means not be violated, the implementation of the protection must conform to minimal requirements.’964 Moreover, the Court stressed that the legislators still enjoyed some margin of discretion, despite these demanding minimal standards (pp. 262– 3). By stressing minimal standards for the protection of the unborn life, the Court abandons the balancing language of the first abortion decision. 965 Still, these decision do not differ effectively because the “minimal” standard is actually quite demanding. Summarizing, one can say that balancing does play a role in positive obligation cases. However, there are also cases where it does not play a role. In the first abortion case it definitely played a role. What might distinguish this case from cases where it was not relevant is that here the balance was so clearly tipped in favour of the unborn life. The cases also show that the balancing method alone does not determine the outcome of a case. In environmental law cases and in the Abortion II , the Court rather applied a minimal position test. Still, the review in the Abortion II case turned out to be stricter than in environmental law cases. This is an apparent inconsistency, which cannot resolved at this point, however.

2.3.3

The Court’s Role and its Methods

The Court’s role is usually characterized as an influential one. The weight of the GFCC in the political system of Germany is grounded on factors that have not been discussed so far. A shift in the theoretical understanding of fundamental rights has been identified as the main reason for its increasing influence. Originally, fundamental rights were understood as negative rights of individuals against the state.966 It is a characteristic of this view that individual 963

BVerfGE 88, 203 (Abortion II ). “Soll das Untermaßverbot nicht verletzt werden, muß die Ausgestaltung des Schutzes durch die Rechtsordnung Mindestanforderungen entsprechen.”; English translation of the German original by the author. 965 See Hain, supra note 540, p. 117, n. 164. 966 Georg Jellinek, System der subjektiven öffentlichen Rechte (Wiss. Buch-Ges., Darmstadt, 1963), p. 98; Böckenförde, supra note 182, p. 188; Ernst Forsthoff, ‘Zur heutigen Situation der Verfassungslehre’, in: Barion, Hans (ed.): Epirrhosis: Festgabe für Carl Schmitt (Duncker & Humblot, Berlin, 2nd edn., 2002), p. 185, p. 186. 964

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2.3 German Federal Constitutional Court rights do not clash, they only apply to the relationship between an individual and the state.967 After World War II this view changed, namely in the Lüth 968 case. In that judgment, the Court stated that fundamental rights established a value order that had a direct influence to all areas of the legal order; fundamental rights were not merely negative rights of individuals (subjektive Abwehrrechte).969 This shift, i. e. the extension of the scope of fundamental rights to the whole legal order, was a starting point for fundamental changes to the Court’s role.970 The change initiated the developments that increased its importance: The Lüth 971 judgment laid the ground for the application of fundamental rights to private law, i. e. to relationships between individuals (Drittwirkung).972 If one is willing to accept that fundamental rights establish a (objective) value order, one is also forced to accept positive obligations (Schutzpflichten).973 The horizontal application of fundamental rights entailed balancing in the shape of the proportionality principle.974 It also implied the constitutionalization of the legal order.975 Any legal conflict could be reconstructed as a clash of fundamental rights with two consequences: Such a collision had to be resolved by means of balancing and the case could be referred to the GFCC . Balancing combined with the view that fundamental rights expressed a value order turned the potential power of the Court into real competences. According to critics, balancing is an open process and leaves considerable discretion to the Court.976 The new understanding of fundamental rights as an objective value order (perhaps with an optimization requirement) implies that fundamental rights already contain the solution of the conflict so that legislators merely have to put the fundamental decisions of that value order into concrete terms.977 Some view the application of the proportionality test to statutes as an usurpation of competences by the Court.978 967

Jellinek, supra note 966, p. 98; Böckenförde, supra note 182, p. 188. Supra note 825. 969 BVerfGE 7, 198, p. 205, p. 215. 970 Böckenförde, supra note 182, pp. 159–61; Werner Heun, Funktionell-rechtliche Schranken der Verfassungsgerichtsbarkeit (Nomos, Baden-Baden, 1992), pp. 9–10. 971 Supra note 825. 972 Böckenförde, supra note 182, p. 170. 973 Ibid., pp. 172–5; Sachs, in: Sachs, supra note 826, vor Art. 1, para. 31, 35; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 194; von Münch, in: Ingo von Münch and Philip Kunig, Grundgesetz-Kommentar vol. 1 (C.H. Beck, Munich, 5th edn., 2000), Vorb. Art. 1–19, para. 22; Dreier, in: Dreier, supra note 826, Vorb., para. 102; Denninger, in: Axel Azzola, Kommentar zum Grundgesetz für die Bundesrepublik Deutschland vol. 1 (Luchterhand, Neuwied, 1989), vor Art. 1, para. 33. 974 Böckenförde, supra note 182, p. 183; Heun, supra note 970, p. 10. 975 Poscher, supra note 548, p. 83; Böckenförde, supra note 182, p. 189. 976 Ibid., p. 184. 977 Ibid., p. 189; Poscher, supra note 548, p. 83. 978 Rinken, in: Axel Azzola, Kommentar zum Grundgesetz für die Bundesrepublik Deutschland vol. 2 (Luchterhand, Neuwied, 1989), vor Art. 93, para. 109; Rainer Exkertz, ‘Die Kompetenz des Bundesverfassungsgerichts und die Eigentheit des Politischen’ 17 (1978)Der 968

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Chapter 2. Case Law As an analysis, these views are not fully correct. Giving up the view that fundamental rights are only applicable to the state-individual relationship and interpreting conflicts of individuals did widen the scope of fundamental rights. Such an extension accordingly increases the opportunities for the Court to decide cases on a constitutional foundation. However, this does not necessarily imply a narrowing of legislative discretion. It depends on the application of the proportionality principle and the presupposed conception of balancing how strong the powers of the Court actually are. The proposition that vague standards (proportionality principle) broaden the discretion of the Court is true. It is too early, however, to decide whether proportionality understood as balancing and optimization really is vague and thus leaves no discretion to legislators.979 There are basically three approaches that address the problem of increased powers of the Court. I shall omit approaches that rely on judicial self-restraint or a distinction between law and politics because they are widely rejected.980 One suggestion is to rely on functional criteria to define the powers of the Court. The starting point is to acknowledge that methods of interpretation are insufficient to limit the powers of the Court.981 The importance of balancing as an open method, which does not lead to unique results,982 has exacerbated the methodical inadequacy. The functional approach is based on the idea of separation of powers but refines that concept.983 According to this idea the structure of the Court has to be analyzed; competences can be inferred from the structure of the Court.984 The rigour of constitutional review is a function of the competences of the Court.985 According to this concept, one has to distinguish between norms as directives for legislators or the executive branch (Handlungsnorm) and norms as review standards (Kontrollnorm).986 Only where the constitution provides review standards the Court can exercise review.987 Legal decisions have to be justified by a recourse to a constitutional norm.988 The fundamental criterion, however, is that the body that is able to decide a question ought to decide it.989 Böckenförde does not believe that this approach can limit the powers of the Court: If fundamental rights are objective norms that bind all branches of government then the Court has to enforce them Staat, p. 183, pp. 189–90. 979 See Section 5.3.2(c). 980 Rinken, in: Azzola, supra note 978, vor Art. 93, paras. 87–92; Böckenförde, supra note 182, p. 191. 981 Rinken, in: Azzola, supra note 978, vor Art. 93, para. 95. 982 Alexy, supra note 7, pp. 149 [105]. 983 Rinken, in: Azzola, supra note 978, vor Art. 93, para. 85; Heun, supra note 970, p. 12. 984 Ibid., p. 13; Rinken, in: Azzola, supra note 978, vor Art. 93, para. 99. 985 Ibid., vor Art. 93, para. 107. 986 Ibid., vor Art. 93, para. 108. 987 Ibid. 988 Ibid. 989 Ibid., vor Art. 93, para. 99.

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2.3 German Federal Constitutional Court and this constitutional obligation cannot be diminished with a reference to alleged functional limitations.990 Besides, I find this approach contradictory. It presupposes an indeterminacy in the constitution that cannot be alleviated by methods of legal reasoning. But the criteria that it presents can only be understood as constitutional standards that must be justified with a recourse to constitutional norms. According to this approach its own justification is impossible, though, because the constitution is too vague and methods cannot help to put the constitution into concrete terms.991 The other approach tackles the problem from a methodical point of view. Its conceptual point of departure is that the shift from the classic to the modern construction of fundamental rights gave rise to the uncertainties. Consequently, proponents of this approach try to abandon some or all elements of the modern understanding of fundamental rights. The most radical proponent of this view is Böckenförde who advocates to revoke these developments completely and to return to the classical interpretation of fundamental rights.992 There are also moderate variants of this approach: Poscher and Schlink propose an interpretation of fundamental rights in the classical way but they do adapt it to modern problems.993 Positive obligations are reconstructed as negative rights and as far as this reconstruction is possible positive obligations are accepted.994 The application of fundamental rights in private law is not principally excluded.995 What both authors do reject is the weighing and balancing of competing fundamental rights,996 i. e. they reject the idea that fundamental rights form a value order and all implications of that proposition. The feasibility of this approach for the German law cannot be judged in a study that is concerned with the ECJ . First, the initial problem does not exist in European law. The ECJ has never spoken of fundamental rights as an objective value order. Neither is it suspected of being too rigorous in reviewing legislative acts. Yet, these question remain of some interest because they concern fundamental aspects of the application of the proportionality principle. Therefore they will be discussed below, in an EC context.

2.3.4

Conclusion

1. The GFCC applies the proportionality principle as the sole review standard. Differentiations like the three-tier-model are special applications of proportion990

Böckenförde, supra note 182, p. 192. To the same conclusion comes Matthias Jestaedt, Grundrechtsentfaltung im Gesetz: Studien zur Interdependenz von Grundrechtsdogmatik und Rechtsgewinnungstheorie (Mohr Siebeck, Tübingen, 1999), p. 177. 992 Böckenförde, supra note 182, pp. 192–9. 993 Schlink, supra note 549, pp. 465–8; Poscher, supra note 548, pp. 198–202, 388–96. 994 Ibid., pp. 388–90, 395–7. 995 Ibid., pp. 88–9. 996 Ibid., pp. 198–202; Schlink, supra note 549, pp. 463–5. 991

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Chapter 2. Case Law ality but not review standards of their own. This is evidenced by the loosening of the three-tier-model over the years. 2. As under in the case law of the ECtHR the proportionality principle principally covers all aspects of governmental decisions, i. e. facts, predictions, and valuejudgements. The rigour of review varies according to criteria that the Court has set out in the Mitbestimmung 997 case, namely the complexity of an issue and the right involved. Although this approach to discretion is flexible, it is not arbitrary. Its results resemble very much those of the ECtHR under the margin of appreciation doctrine. Legislative measures in the socio-economic field enjoy broad discretion. Administrative and adjudicative decisions are rigorously reviewed especially if freedom of speech is involved. 3. Here, as well as with the case law of the ECtHR one must distinguish programmatic statements from the actual exercise of review. Especially recent decisions deviate from programmatic statements that require “balancing” and “weighing”. This is true for fields such as freedom of speech and art. 12, where balancing was developed in the first place. A transformation took place. The first decisions on art. 5 and art. 12 were full of balancing language and the decisions themselves partly conformed to that pattern, e. g. the Lebach 998 case. Later, decisions are more thoroughly structured by different sub-principles of proportionality. The two cornerstones of balancing as envisaged by Principle Theory are the combination of weights and their direct comparison. While earlier decisions could be interpreted this way, especially the Lebach case, later decisions in the economic and field and freedom of speech cases are at odds with this conception. Of course the Court engages in an assessment of the severity of an interference, which could be readily called weighing. The difference is that weights are not combined and the concrete weight of a fundamental right is not compared to the concrete weight of the competing interest but with a minimal standard. The rationales that define the minimal position are similar to those that have been developed by the ECtHR. Balancing plays no role in environmental law cases where the positive obligation to protect life and health is at stake.

2.4 2.4.1

US Supreme Court Marbury v. Madison and Judicial Review under the Constitution

As described above, this section will begin with a brief analysis of the legal and historical background of judicial review and the application of rights. The Constitution was ratified in 1788.999 The Confederation, the predecessor of the United States, lacked federal judicial power; that proved to be a great disadvantage because conflicts between the Confederation States were resolved by means of power not law.1000 Therefore art. III of the Constitution has 997

Supra note 881. Supra note 920. 999 Erwin Chemerinsky, Constitutional Law: Principles and Policies (Aspen Law & Business, New York, 2nd edn., 2002), p. 11. 1000 Ibid., p. 9. 998

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2.4 US Supreme Court established a federal Supreme Court that has jurisdiction “in all cases arising under this constitution”. Originally and in contrast to most of the recent constitutions, the Constitution lacked a charter of fundamental rights. It was added in 1791 and contained, among others, freedom of speech. Later, the 14th Amendment was added, which guarantees equal protection and due process. An entire Federalist Paper (No. 84)1001 is dedicated to the justification of the lack of a Bill of Rights. Only a few reasons will be enumerated:1002 The original Constitution already contained several “fundamental rights”, mainly related to criminal prosecution. (page 532–3) A Bill of Rights was regarded as the result of an agreement between a King and his people. Because the People itself ordained and established the Constitution there was no need for a Bill of Rights. (page 534) A Bill of Rights would be dangerous because it would provide a pretext of usurping certain powers, for example: Why should the Constitution grant liberty of press if it does not grant the power to regulate it? (page 535) Furthermore, it would be difficult to interpret its provisions, so difficult that the prescription of certain liberties would be futile. (page 535) The Constitution itself was the best protector of public security. (page 536) Yet the states insisted on a Bill of Rights. And finally it was added to the Constitution. One must note though that some rights were missing in the original Bill of Rights: Most notably all freedoms related to economic activities but also equality before the law (which was added later), especially gender equality; also the right to life has never been included. In contrast to the German GG, the CFREU and the ECHR, the Bill of Rights does not define legal limits for the exercise of the rights granted. Yet, it is acknowledged that the government can restrict their exercise.1003 We now come to the role of the judiciary. Although the Constitution establishes the Supreme Court and defines its jurisdiction, many details had remained unregulated. One problematic issue was addressed by the Court in the Marbury 1004 case: judicial review. The Constitution did not explicitly empower the Court to decide on the constitutionality of statutes. The constitution lacks provisions like art. 231 TEC or art. 93 no. 1 GG.1005 The Federalist Papers provide some guidance. Paper No. 78 addresses the issue: The starting point is that a constitution is superior to statutory law. Therefore statutory law that does not comply with the constitution must be void. (page 492) Because the 1001

The Federalist is a collection of essays that were written to persuade the people of New York to ratify the constitution. The papers cover all aspects of the constitution. Today, the Court recognizes the Federalist Papers as evidence for the framers’ intent, see ibid., p. 11. 1002 Page numbers refer to the Fletcher Wright Edition of the Federalist. 1003 Cf. Boerne v. Flores, 521 U.S. 507 (1997), p. 539. 1004 Supra note 26. 1005 Art. 93 GG: “On the request of the Federal Government, a state government or one third of the members of the Bundestag the Federal Constitutional Court decides disputes or doubts about the formal or substantial conformity of federal or state law with this Fundamental Law or the conformity of state law with federal law.”

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Chapter 2. Case Law Constitution is law it is the duty of the courts to determine its meaning and to decide which one should be applicable if there were a conflict. ( page 492) It is just a matter of applying the law not of making political judgements. (page 492– 3) Therefore the courts are not superior to the legislature and they cannot substitute their political judgements with those of the legislature. (page 492–3) Of course this issue was contentious. And it is still today. The idea of judicial review, let alone judicial supremacy, was unknown or at least uncommon before the revolution.1006 Judicial review was later justified by the circumstance that judges, as well as other citizens, were bound by the constitution and could not apply unconstitutional law.1007 The judiciary, however, was not the only candidate for a review body: Some suggested Congress should decide on the constitutionality of statutes.1008 The issue reached the Court in the Marbury 1009 case. Chief Justice Marshall, who delivered the opinion of the Court, argued that the Constitution was superior to statutory law. To make this superiority effective the Court could not apply law that was deemed to violate the Constitution: Or, in other words, though it [an act of the legislature] be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory [that the Constitution is a superior, paramount law, unchangeable by ordinary means]; and would seem, at first view, an absurdity too gross to be insisted on.1010

This decision established judicial review. Today, it is disputed whether judicial review as such should be abolished1011 or whether only the Court should not have a final say on a statue’s constitutionality.1012 According to the latter alternative, judicial review is admissible but the Court’s judgment may be changed by the legislature (not the pouvoir constituant). The main objection against judicial supremacy is that it is anti-democratic.1013 On this background, it can be regarded as quite typical for the American discourse that usually not the interpretation of the Court as such is questioned but the supremacy of its interpretation over that one of Congress.1014 For example: 1006

Kramer, supra note 26, pp. 207-8; Sullivan and Gunther, supra note 26, p. 13. Kramer, supra note 26, pp. 208–9, 211. 1008 Sullivan and Gunther, supra note 26, p. 13; cf. Kramer, supra note 26, p. 208. 1009 Supra note 26. 1010 Marbury, supra note 26, p. 177. 1011 Tushnet, supra note 38 1012 Robert Justin Lipkin, ‘Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution’ 28 (2006) Cardozo Law Review, p. 1055 1013 Tushnet, supra note 38; Lipkin, supra note 1012, pp. 1065–71; Frank I. Michelman, ‘Judicial Review: Blessing or Curse? Or Both? A Symposium in Commemoration of the Bicentennial of Marbury v. Madison, Living with Judical Supremacy’ 38 (2003) Wake Forest Law Review, p. 579, p. 583. 1014 Cornelius Simons, Grundrechte und Gestaltungsspielraum (Duncker & Humblot, Berlin, 1999), pp. 38–9. 1007

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2.4 US Supreme Court the substitution of one nonrational judgement for another [can] be labelled neither wrong nor right. The problem with Roe[1015 ] is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court’s business.1016

The fact that the constitution does not explicitly prescribe judicial review and that judicial review is viewed by some as anti-democratic must be borne in mind through the rest of this analysis. We will come back to this point later in Section 2.4.3. It is noteworthy that the quotation assumes that judgments like in the Roe 1017 case are non-rational, i. e. the anti-democratic thrust against judicial review is accompanied by scepticism. This raises the problem whether the rejection of judicial review depends on a sceptic stance, i. e. must judicial review be accepted if scepticism turns out to be unfounded.

2.4.2 (a)

Between ‘Mere Rationality’ and ‘Strict Scrutiny’

Standards of Review

The Court distinguishes several standards of review that can be applied to acts of the legislature. Some of these standards effect rigorous review of legislative acts, while some only allow for lenient scrutiny. ‘Mere rationality’ is located at the lower end of the rigour-spectrum, ‘strict scrutiny’ at its upper end. In between there are many shades.1018 These intermediate standards are relatively young, though. Still in 1972 Gerald Gunther asserted: “Some situations evoked the aggressive ‘new’ equal protection, with scrutiny that was ‘strict’ in theory and fatal in fact; in other contexts, the deferential ‘old’ equal protection reigned, with minimal scrutiny in theory and virtually none in fact.”1019 Gunther alluded to the fact that usually the very choice of the standard determined the outcome; only few statutes passed strict scrutiny, while almost every statute passed mere rationality review.1020 This subsection will discuss which criteria determine the choice between the standards. That requires a characterization of those review standards. Both standards share common review steps: The pursued end is scrutinized and then the 1015

Roe v. Wade, 410 U.S. 113, 99 (1973). John Hart Ely, ‘The Wages of Crying Wolf: A Comment on Roe v. Wade’ 82 (1973) Yale Law Journal, p. 920 1017 Supra note 1015. 1018 R. Randall Kelso, ‘Standards of Review under the Equal Protection Clause and Related Constitutional Doctrines Protecting Individual Rights: The “Base Plus Six” Model and Modern Supreme Court Practice’ 4 (2002) University of Pennsylvania Journal of Consitutional Law, p. 225, pp. 230–236; Jeffrey M. Shaman, ‘Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny’ 45 (1984) Ohio State Law Journal, p. 161, p. 166. 1019 Gunther, ‘Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection’ 86 (1972) Harvard Law Review, p. 1, p. 8. 1020 Chemerinsky, supra note 999, pp. 518, 520; see also Shaman, supra note 1018, p. 173. 1016

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Chapter 2. Case Law relationship between the end and the means.1021 A necessity test is not always required by the Court;1022 sometimes it is even explicitly rejected.1023 The last step of the proportionality principle, which is so characteristic for German constitutional law and that can also be found in the case law of the ECtHR, is not a regular element of review standards. Whether balancing plays a role in American constitutional law and how important that role is will be discussed below. (b)

Rigour of Review

The standards differ in how compelling the interest pursued by the government must be. Under ‘mere rationality’ a “legitimate state interest” suffices.1024 On the other hand, the strict scrutiny standard requires “compelling state interests”, e. g. protecting the life of the unborn.1025 Intermediate standards of review require “important state interests”.1026 While the first step only involves legal judgement, the next two steps additionally require assessments of the facts. At this point the review standards start to differ enormously. The ‘relationship’ element requires that the means shall somehow further the end.1027 This point can only be considered if the Court itself assesses facts or if it relies on the assessments of the legislators. Under ‘mere rationality’ review the Court has recourse to the latter option and grants almost unlimited deference in respect to assessments of facts. This entails two consequences: (a) The Court presumes those facts that are necessary to uphold a statute under attack and (b) the Court does not asses facts to check the validity of assessments. It sometimes even makes assumptions about facts to uphold statutes.1028 Since 1939 this is always true for socio-economic matters.1029 The between time 1905 and 1939 is remembered as the Lochner Era. Beginning with the Lochner 1030 case the Court struck down many statutes in the socio-economic field, for example working hour restrictions. The Court 1021

Cf. Kelso, supra note 1018, p. 230; Roe, supra note 1015, p. 155. Williamson, supra note 33, p. 487. 1023 Skrupa, supra note 30, p. 730. 1024 Minnesota v. Clover Leaf Creamery Company, 289 N.W.2d 79 (1979), p. 82; San Antonio Independent School District v. Rodiriguez, 411 U.S. 1 (1973), p. 40; Sullivan and Gunther, supra note 26, p. 604. 1025 Roe, supra note 1015, p. 155. 1026 Kelso, supra note 1018, p. 234; Sullivan and Gunther, supra note 26, p. 604; for example Plyler v. Dole, 457 U.S. 202 (1982), p. 224. 1027 Clover Leaf, supra note 1024, p. 82. 1028 Williamson, supra note 33, p. 487; Dandridge v. Williams, 397 U.S. 471 (1970), p. 485. 1029 Railway Express Agency v. People of the State of New York, 33 U.S. 106 (1949), p. 109; Williamson, supra note 33, p. 487; United States v. Carolene Products Co., 304 U.S. 144 (1938), pp. 152, 154; Dandridge, supra note 1028, pp. 485–6. 1030 Supra note 30. 1022

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2.4 US Supreme Court eventually abandoned this practice in 1939. Under strict scrutiny facts are assessed by the Court and assessments of legislators are challenged, too.1031 Intermediate standards of review require a “substantial relationship”. Here, too, the government bears the burden of proof.1032 The great latitude under ‘mere rationality’ review that is granted in respect to facts was challenged by Justice Marshall.1033 He argued that under ‘mere rationality’ the Court actually avoids considering the justification of the statute.1034 In his dissenting opinion in the Dandridge case, Justice Marshall did examine the factual foundation of the statute’s justification.1035 He opted for the invalidation of the statute in question. The last element, which is not applied under all standards of review, is the necessity test. It requires both, an assessment of facts (what alternatives are available?) and legal judgement (are other alternatives less burdensome?). Under ‘mere rationality’, sometimes called the rational basis standard, this criterion is explicitly not considered.1036 The Court generally refrains from requiring legislators to find the best solutions for a given problem: We do not decide today that the Maryland regulation is wise, that it best fulfils the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. . . . But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.1037

One can also read “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”1038 or: “For protection against abuses by legislatures the people must resort to the polls, not to the courts.”1039 Under strict scrutiny, the Court does the opposite and examines whether a statute is necessary to achieve pursued goals.1040 Under intermediate scrutiny, this element is only sometimes applied.1041 Even at this point one can recognize that the three Courts share the same attitude towards the review of legislation in the socio-economic field.1042 The standards also differ in the distribution of the burden of proof. Under strict scrutiny, the government bears the onus of proof—under rational basis the 1031

Roe, supra note 1015, pp. 149–51. Chemerinsky, supra note 999, p. 519. 1033 Dandridge, supra note 1028, p. 508 (Marshall, dissenting). 1034 Ibid., p. 519 (Marshall, dissenting). 1035 Ibid., p. 527 (Marshall, dissenting). 1036 Skrupa, supra note 30, p. 730; Williamson, supra note 33, p. 487; Railway Express, supra note 1029, p. 109. 1037 Dandridge, supra note 1028. 1038 Skrupa, supra note 30, p. 730. 1039 Williamson, supra note 33, p. 488. 1040 Roe, supra note 1015, pp. 149–52. 1041 Chemerinsky, supra note 999, p. 519; Kelso, supra note 1018, p. 234. 1042 Cf. page 95 and Section 2.3.2(a). 1032

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Chapter 2. Case Law citizen.1043 The burden of proof encompasses the facts as well as reasons that justify a statute.1044 In other words, under ‘mere rationality’ a law is presumed to be constitutional.1045 There is another factor that determines the degree of discretion, the socalled ‘political question’-doctrine. The idea is that questions that are political in nature should not be decided by the courts.1046 Since the Baker 1047 case only a few cases involved political questions.1048 Today only Congressional seating decision, foreign affairs, and impeachment proceedings are regarded as political questions.1049 Therefore, the political question doctrine only plays an insignificant role and hence can be neglected for the rest of this study. (c)

The Choice between the Standards

It was mentioned above that the choice of the standard usually determines the outcome of a case. Accordingly, the criteria that govern the choice of a standard have to be examined. It is above all the subject matter that determines which standard is chosen. In the area of socio-economic legislation, in equal protection cases as well as in cases arising under the (substantial) due process clause1050 the ‘mere rationality’ standard is applied.1051 Strict scrutiny is applied when the right to privacy is involved (e. g. abortion or family relations).1052 In the area of equal protection it is applied when the Court deems classifications to be suspect (e. g. race, nationality, or origin) or when certain1053 fundamental rights are involved (e. g. interstate travel or right to vote).1054 The intermediate standard(s) are used in cases of gender discrimination, commercial speech, speech in public forums, discrimination of non-marital children, etc.1055 Determining the importance of the involved right or deciding whether a classification is suspect is crucial for deciding the case and is often disputed between the courts, for example, in the Rodriguez 1056 case. It was heavily disputed whether education was a fundamental right. This approach was criticized by Justice Harlan on several 1043

Rodriguez, supra note 1024, p. 16. Ibid., p. 16. 1045 Ibid., p. 60 (Steward, concurring). 1046 Sullivan and Gunther, supra note 26, p. 30. 1047 Baker v. Carr, 369 U.S. 186 (1962). 1048 Sullivan and Gunther, supra note 26, p. 37. 1049 Ibid., pp. 37–8. 1050 During the Lochner Era (see above n. 2.4.2(b)) the due process clause of the XIV. Amendment was used to strike down laws. 1051 See above n. 1029. 1052 Roe, supra note 1015; Griswold v. Conneticut, 381 U.S. 479, 85 (1962). 1053 Adam Winkler, ‘Fundamentally Wrong about Fundamental Rights’ 23 (2006) Constitutional Commentary, p. 227 1054 Chemerinsky, supra note 999, p. 520. 1055 Ibid., p. 519. 1056 Supra note 1024, pp. 15–16. 1044

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2.4 US Supreme Court grounds in his dissenting opinion in the Shapiro1057 case: He believes that only race is a suspect criterion because of American history.1058 If government action infringes the exercise of a right protected under the Constitution then this right can be invoked.1059 He also disapproves of finding “new” fundamental rights. There are so many important state interests that the Court would act like a super-legislature if it added new items to the catalogue of fundamental rights.1060 Furthermore, it is unnecessary to apply the equal protection clause in cases where acknowledged fundamental rights are involved because they can be dealt with under the due process clause.1061 The spectrum of review standards started with the so-called “two-tier” approach; there was only strict scrutiny and the rational basis standard. The intermediate standard evolved later. And even more intermediate steps followed.1062 Intermediate steps are contrived by mixing requirements, e. g. by requiring only legitimate interests (mere rationality) and really enquiring the rational relationship.1063 Today further diversification of review standards is criticized because it leads to uncertainty.1064 The Court has never explicitly abandoned the two or three tiers respectively. Instead of introducing distinguished steps between the extremes of the spectrum, some judges suggested to replace the spectrum with a gliding scale. Justice Marshall in his dissenting opinion to Rodriguez 1065 argued for such a gliding scale approach. He doubted that cases could be put into “two neat categories which dictate the appropriate standard of review”.1066 He tried to show that the Court has for a long time applied more than two standards of review, according to the interests involved.1067 The talk of two tiers was from his point of view mere obfuscation.1068 He did not believe that the distinction between fundamental and non-fundamental rights was convincing.1069 Instead he suggested to increase scrutiny along with the growing importance of the 1057

Shapiro v. Thompson, 394 U.S. 618 (1969). Ibid., p. 659 (Harlan, dissenting). 1059 Ibid., p. 659 (Harlan, dissenting). 1060 Ibid., p. 661 (Harlan, dissenting). 1061 Ibid., p. 662 (Harlan, dissenting). 1062 Kelso, supra note 1018, pp. 230–6; Shaman, supra note 1018, pp. 165–6. 1063 Ibid., p. 167; Kelso, supra note 1018, pp. 231–2. 1064 Ibid., pp. 239–40. 1065 Supra note 1024. 1066 Rodriguez, supra note 1024, p. 98 (Marshall, dissenting) and Dandridge, supra note 1028, pp. 519–21 (Marshall, dissenting). 1067 Rodriguez, supra note 1024, pp. 99, 104, 109 (Marshall, dissenting); cf. Craig v. Boren, 429 U.S. 190 (1976), p. 212 (Stevens, concurring). 1068 Rodriguez, supra note 1024, p. 110 (Marshall, dissenting); cf. Craig, supra note 1067, p. 212 (Stevens, concurring). 1069 Rodriguez, supra note 1024, p. 99 (Marshall, dissenting); see also John F. Jr. Basiak, ‘Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights’ 16 (2005) University of Florida Journal of Law and Public Policy, p. 401, pp. 432–3 who argues that the Court acts inconsistently in finding fundamental rights. 1058

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Chapter 2. Case Law interests at stake.1070 In particular he defied to apply the rational basis test in the field of social welfare because the interests at stake there were not able to represent themselves adequately (in contrast to business interests).1071 A commentator added that the system of fixed tiers diverted attention from the real issues of the case to abstract considerations (which tier?, fundamental right or not? etc.).1072 It also furthered inconsistency in making value judgements.1073 The dispute among those who advocate a gliding scale approach and the proponents of the tier model sheds some light on the role of balancing arguments. Principle Theory requires that the decision of a case depends on a relation between the importance of the rights at stake and the interference with these rights. It is difficult to find a place for such arguments because the tier model lacks a test of proportionality in the narrow sense. Moreover the tier model only requires the weighing of the aim pursued: Is it generally important enough to justify the interference with certain rights. Translated to the language of the Weight Formula the choice of the standard is determined by Wi /Wj . (d)

Balancing and Proportionality

The Court usually does not require statutes to be proportionate in the narrow sense of the term. This element of the entire proportionality test is not part of either ‘mere rationality’ or ‘strict scrutiny’. Occasionally though, the Court required measures to be “roughly proportionate”.1074 The adoption of this requirement was strongly objected by the dissenting judges in City of Tigard, because this test was unnecessary and inconsistent with established case law, and was too reminiscent of the Lochner Era (see above page 150).1075 In another case the Court required that measures should be “appropriate”: “[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one”.1076 This approach finds criticism not only in the Court but also from commentators because this development might lead to uncertainty.1077 Yet, this requirement can be classified as an instance of the least restrictive means test, i. e. it does not speak in favour of balancing. Shaman believes that the Court has to balance anyway and that the rigid tier system is not fine grained enough.1078 1070 Rodriguez, supra note 1024, pp. 102–3 (Marshall, dissenting) and Dandridge, supra note 1028, p. 521 (Marshall, dissenting). 1071 Ibid., p. 520 (Marshall, dissenting). 1072 Shaman, supra note 1018, p. 174. 1073 Ibid., p. 176. 1074 Dolan v. City of Tigard, 512 U.S. 374 (1994), p. 391 (the case dealt with administrative measures) and Boerne, supra note 1003, p. 520. 1075 City of Tigard, supra note 1074, p. 403 (Stevens, dissenting); ibid., pp. 411–12 (Stouter, dissenting). 1076 Boerne, supra note 1003, pp. 530, 532. 1077 See Kelso, supra note 1018, pp. 245–6. 1078 Shaman, supra note 1018, pp. 174–5.

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2.4 US Supreme Court Though balancing usually has no place in due process and equal protection cases regarding economic regulations it is not alien to American constitutional law. Yet there is a difference between the US Supreme Court and the European courts. The GFCC and the ECtHR have quite a uniform approach to balancing. For both courts, balancing is the last step of a multipronged test, where balancing is preceded by tests for the admissibility of the aim, the suitability of the means, and their necessity. This structure is applied rather consistently within each jurisdiction. Such an established framework for balancing is missing in the case law of the US Supreme Court. Therefore one cannot clearly say how the Court balances. Some elements of proportionality can be discerned, like the legitimacy of the pursued goals or necessity. But a well-established four tier structure as exhibited by the case law of the GFCC and the ECtHR does not exist. In the Garner 1079 case balancing was employed in an European style. The decision dealt with the admissibility of deadly force as a means to capture an escaping burglar. A test for suitability1080 and necessity1081 was followed by balancing the weight of the interference with the rights of the affected citizen on one hand and the interest of the state in the enforcement of law on the other.1082 In that case the death of the citizen was not outweighed by the minor threat that he posed to society because he only committed burglary and was not violent. In other cases balancing solely comprises a comparison of the interests at stake and their abstract weights, for example in the Montoya 1083 case where the reasoning of the Court is best captured as an application of the Weight Formula. A Colombian woman was suspected to carry cocaine in her bowels. She was arrested for more than 24 hours and was denied a toilet. To prove the suspicion, officials forced her to use a waste basket for relief. The officials deemed this procedure necessary because she refused an x-ray examination. The interest of the detainee was considered minor because she refused to co-operate with the officials and the humiliating circumstances were caused by hers refusing an x-ray examination.1084 On the other hand, the state interests at the border were generally increased.1085 Therefore such a measure was justified by a reasonable suspicion1086 and did not require a warrant by a neutral body. But in these cases, balancing was used to scrutinize acts of the police and not legislative acts. A pattern that helps to predict the applicable standard does not exist. The Court does not seem to have a consistent line in cases that involve captures and

1079 1080 1081 1082 1083 1084 1085 1086

Tennessee v. Cleamtee Garner, etc. et al, 471 U.S. 1 (1985). Ibid., p. 11. Ibid., p. 12. Ibid., p. 15. United States v. Rosa Elivra Montoya de Hernandez, 473 U.S. 531 (1985). Ibid., p. 543. Ibid., pp. 537–8, 540. Ibid., p. 541.

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Chapter 2. Case Law seizures (Fourth and Fourteenth Amendment).1087 And in cases that involve procedural rights in criminal or administrative proceedings it is unclear whether balancing is directed at the circumstances of the case at hand1088 or whether balancing should be general in nature considering only typical cases.1089 Decisions that are grounded on such a balancing method evoke criticism for several reasons. The critique is aimed at the method and the results. The very outcome of the Montoya 1090 case was considered as deeply illiberal.1091 Balancing is used to erode the firm limits that the Constitution has set for the exercise of official authority. Also the method as such is questioned, among others because it leads to legal uncertainty. The methodical problems that are related to balancing will be discussed below as well as the objection that balancing erodes established limits of official powers.1092 (e)

Summary

To summarize: The first criterion is the class of rights or interests involved. Their importance determines the choice of the standard. This step is crucial because the review standard determines which aims are permissible and how strong the relationship between the ends and the means must be. The distribution of the burden of proof also depends on the review standard. Although the Supreme Court does not apply a criterion that resembles proportionality in the narrow sense the Court does weigh interests because the importance of the rights must be determined and the weight of the competing interests must be determined, too, to allow a comparison. But this does not constitute a full-fledged application of the Weight Formula. The Court rather applies fragments of this formula, namely: Wi /Wj . Confining review to the rational basis test is rooted in some form of Naturalism according to which only the fact side of value judgements is rational or objective.1093

1087 New Jersey v. T.L.O., 469 U.S. 325 (1985); Garner, supra note 1079; Montoya, supra note 1083. 1088 Abby Gail Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18 (1981), pp. 31–2 and Lassiter, p. 49 (Blackmun , dissenting). 1089 F. David Mathews, Secretary of Health, Education and Welfare v. George H. Eldridge, 424 U.S. 319 (1976), p. 349 where the procedural requirements for the termination of disability benefits were considered generally and Lassiter, supra note 1088, p. 49 (Blackmun , dissenting). 1090 Supra note 1083. 1091 Montoya, supra note 1083, p. 560 (Brennan , dissenting). 1092 These problems are discussed by Aleinikoff, supra note 489 and Lawrence H. Tribe, ‘Constitutional Calculus: Equal Justice or Economic Efficiency?’ 98 (1985) Harvard Law Review, p. 592 1093 See Section 1.4.3.

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2.4 US Supreme Court .

2.4.3

The Role of the US Supreme Court

Above I mentioned that the role of the Court is debated: Are the interpretations of the Court superior to those of Congress? Does the Court have the final word in saying what the constitution is? The debate is aligned in a triangle with democracy and constitutionalism. The very existence of the constitution provides a strong argument in favour of judicial review with judicial supremacy.1094 But because judges are not as accountable as members of Congress judicial review and supremacy are quite suspect from a democratic point of view.1095 This intricate problem is even aggravated by the fact that judicial review is not prescribed by the Constitution and that judges are appointed for life-tenure. Attempts to abolish judicial supremacy1096 would seem asinine in Germany or the EC , simply because judicial review is explicitly stipulated by the GG and the TEC .1097 Although the American debate could never occur in present Europe, at least not in this form, it still provides interesting arguments for positioning the ECJ in the European system of checks and balances. The arguments derived from the democracy principle are also relevant for determining the standard of review, e. g. “For protection against abuses by legislatures the people must resort to the polls, not to the courts.” the Court stated in the Williamson 1098 case to justify deferential review. The attack against judicial review and supremacy principally tries to show that the Court is not accountable to the people and that therefore judicial supremacy deviates from the idea of a republican or democratic government.1099 Furthermore, all branches of government are bound by the constitution. Therefore it is not only the duty of the Court to interpret the Constitution but of all branches. Nothing in the Constitution stipulates that the judgment of Court ought to prevail.1100 And the claim of judicial supremacy has been contested throughout American history. 1101 Those who reject the idea of judicial supremacy believe that constitutional law need not necessarily be enforceable by courts;1102 the Constitution would still be law even if it were not enforced 1094

Hamilton, supra note 813, pp. 492–3. Lipkin, supra note 1012, p. 1055; Tushnet, supra note 38; Kramer, supra note 26, pp. 221–2; cf. Michelman, supra note 1013, pp. 583–4 and Lawrence H. Tribe, American Constitutional Law (Foundation Press, Mineola, New York, 2nd edn., 1988), § 3–6. 1096 E. g. Lipkin, supra note 1012, pp. 1058–9. 1097 In Germany it was proposed to abandon the abstract control procedure, Rinken, in: Azzola, supra note 978, vor Art. 93 , para. 132. 1098 Supra note 33, p. 488. 1099 Lipkin, supra note 1012, pp. 1067–9; Kramer, supra note 26, pp. 208–10; cf. Tribe, supra note 1095, § 3–6. 1100 Ibid., § 3–2; Lipkin, supra note 1012, p. 1071. 1101 Mark A. Graber, ‘Popular Constitutionalism, Judicial Supremacy, and the Complete Lincoln-Douglas Debates’ 81 (2006) Chicago-Kent Law Review, p. 923 1102 Cf. Tribe, supra note 1095, § 3–4, p. 37. 1095

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Chapter 2. Case Law by courts. 1103 The idea of fundamental rights that should not be infringed by the majority is acknowledged as an element of democracy, where ‘democracy’ is understood as a system where the people hold the ultimate power.1104 Judicial review is therefore rejected on grounds of accountability considerations. The amendment procedure is thought to be inadequate to alleviate the accountability problem.1105 Because judges cannot be removed from their office, which moreover is life-tenured, judicial review is incompatible with the idea of a republican government. The incompatibility would remain even if the people deliberately decided for judicial review.1106 The Court cannot be understood as a mere agent of the constitution because its meaning can never be fully ascertained.1107 Therefore the Court will inevitably end up as a super-legislature.1108 So this position is founded on some form of jurisprudential scepticism: Because the Constitution does not provide clear standards, it is not for the Court to make the final decision.1109 The idea of judicial supremacy is also defended. It is argued that those who describe judicial review and supremacy rest on an idealized image of the political process.1110 First the political process itself diverts form the ideal,1111 one just has to think of the influence of lobbyists and those factions that do not have an effective lobby. The appointment of judges is also a political process, the judiciary has not been completely detached from the political process. 1112 Furthermore, the idea that all decisions must be based on consent is ungrounded because it leaves unclear whose consent on which matters counts; besides, the Constitution does not say that it is the direct consent by the people that matters.1113 Some more reasons could be added, and opponents of judicial review are aware of them: Judicial review ensures the protection of minorities; a constitution requires an institution that exclusively determines its meaning and without such an institution the distinction between ordinary and constitutional law would be blurred.1114 I believe these arguments are persuasive. The opponents of judicial review and supremacy are unable to answer how a majority will be able to protect 1103

Lipkin, supra note 1012, pp. 1072, 1075; Tribe, supra note 1095, § 3–3, p. 27. Lipkin, supra note 1012, pp. 1063–5. 1105 Ibid., pp. 1105, 1059 (note 17); Antonin Scalia, ‘Federal Constitutional Guarantees of Individual Rights in the United States of America’, in: Beatty, David M. (ed.): Human Rights and Judicial Review: A Comparative Perspective (Martinus Nijhoff Publishers, Dordrecht, 1994), p. 57, p. 59. 1106 Lipkin, supra note 1012, p. 1103. 1107 Ibid., p. 1102. 1108 Ibid., p. 1106. 1109 E. g. Kramer, supra note 26, p. 221 or Lipkin, supra note 1012, pp. 1112–13. 1110 Tribe, supra note 1095, § 3–6, p. 63–5. 1111 Ibid. 1112 Ibid. 1113 Ibid., § 3–6, p. 66. 1114 Cf. Lipkin, supra note 1012, p. 1076. 1104

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2.4 US Supreme Court minorities’ rights without an independent institution that guards these rights. Furthermore, a constitution without an institution that enforces it in a definitive manner is superfluous. Without supremacy the Court ceases to decide “cases arising under this Constitution” (art. III). If Congress decides cases, then the supremacy of the Constitution will vanish. Moreover, the opponents fail to explain why the majority should always be right. This explanation they owe to potential minorities. As far as the critique against judicial supremacy is founded on some form of scepticism it must be rejected because it was shown in Section 1.4 that is in itself an unconvincing position and that objectivity in law is indeed possible. As persuasive or non-persuasive these reasons may be in the context of the Constitution, they are hardly convincing under the TEC . (a) The debate in the United States is only possible in that form because judicial review is not explicitly prescribed by the Constitution. This is the fundamental difference to EC -law. Art. 220 obliges the Court to enforce the law, i. e. the proportionality principle (art. 5 TEC ) and fundamental rights (art. 6 TEU ). Although neither the TEC nor the TEU enumerate the rights, there is little doubt about their existence, because the Member States have promulgated the European Charter of Fundamental Rights (although their meaning might be disputed). Although this document is not legally binding, it does reflect the state of the current case law. Moreover, art. 6 TEU refers to the ECHR. Art. 231 § 1 TEC explicitly empowers the Court to annul Community acts, including regulations and directives. (b) Furthermore, one can hardly rely on accountability considerations to justify a deferential stance of the Court. For the Communities suffer from a legitimacy deficit, it would be quite cynical to advice the people to “have resort to the polls”. The European Parliament has neither the right to issue initiatives nor can its decisions resist the Council’s unanimous or super-majority veto. The people are not able to influence the outcome of European decisions through national elections. As long as this is the case this argument in favour of judicial restraint remains unconvincing. However, this does not necessarily imply that European supervision must be strengthened. It is not only accountability considerations that should determine the rigour of review but also methodical ones. (c) For the TEC is much more detailed than the Constitution of the United States the sceptical argument looses even more of its force. EC legislators are much more restrained than national legislators in setting policy objectives. This tighter legal framework must naturally restrict legislators once scepticism concerning the interpretation of rules and objectivity in laws in general is rejected.

2.4.4

Conclusion

1. The review of the US Supreme Court differs from the ECtHR and the GFCC in some important aspects. The most significant difference is the lack of the proportionality principle and the uniform application of its sub-principles, e. g. necessity. The US Supreme Court has developed a range of review standards.

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Chapter 2. Case Law They differ in two respects from each other: They comprise more sub-principles the more rigorous the standards are and the ‘margin of appreciation’ of government decreases the more rigorous the standard is. This is an important difference to the European Courts that have been discussed. The standard is applied with varying rigour but its content is not affected. By establishing an array of review standards the Court rejects a gliding scale approach and the idea of balancing is much more debated. This is also reflected in the language of the Court and dissenting judges. 2. Principally, review can cover all aspects of a governmental act. Whether review is carried out effectively depends on the choice of the standard which in turn depends on the rights affected. In the socio-economic field (equal protection and due process) the rational basis standards is applied with virtually no effective scrutiny. Strict scrutiny (e. g. the Roe 1115 case) on the other hand covers all aspects and effects a rigorous review. 3. Although the Court does not apply proportionality in the narrow sense the Court sometimes does balance in the way Alexy has described it. These cases were highly disputed and one cannot say that balancing is an established element of the doctrine that is deployed by the Court. On the other hand, the Court does not seem to endorse an approach as it was advocated by Schlink for German law. The Court usually only employs the first steps of the proportionality principle and even necessity is not always applied. In the case of Roe the Court did not have recourse to balancing, the application of the necessity test sufficed.

2.5

Summary

At the beginning of this chapter five questions were posed (see page 83). The analysis revealed resemblances and differences between the courts. On an overall account the ECtHR and GFCC resemble each other very much, while there are some fundamental differences between these courts on one hand and the US Supreme Court on the other. Both the former courts apply the proportionality principle as the sole standard of review. The GFCC has developed some differentiations for certain areas (Dreitstufenlehre, three-tier-model under art. 12) but they are still only emanations from the proportionality principle and do not constitute independent review standards. The proportionality principle also exhibits the same structure in both the jurisdictions: suitability, necessity, and proportionality in the narrow sense. Moreover, both courts assess the legitimacy of the aim before they engage in a proportionality appraisal. In this respect the US Supreme Court differs from these courts. During its history, the US Supreme Court developed a range of review standards, e. g. mere rationality and strict scrutiny. These differ in structure from each other. Also the treatment of facts varies from standard to standard. Despite these methodical differences all three courts have rejected a uniform rigour of review. Instead, the strictness varies according to certain factors. This 1115

Supra note 1015.

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2.5 Summary differentiation is best illustrated by the US Supreme Court and its tier model of judicial review. For legislative acts in the socio-economic sphere, which are of particular interest for this study, one can discern a common ground between these courts, although their jurisprudence stems from different traditions and despite the divergent methodical approaches: All courts formally require the suitability of the measure and they let a simple relationship suffice, i. e. the measure neither needs to be the best available nor the most effective. Taken alone, this already is a quite lenient standard of review. The US Supreme Court further weakens this standard by allocating the burden of proof in favour of government. It is presumed that a problem exists and that the measure at hand contributes to its being alleviated. The GFCC and the ECtHR are not that forgiving. Although they acknowledge that legislative bodies have discretion in regulating socio-economic matters, they do not simply defer to legislators’ assessments but require some indication for the existence of the problem and the suitability of the means. Although both the courts apply the necessity test to socio-economic legislation, this test is largely ineffective, for two reasons: On one hand, the courts acknowledge discretion regarding the assessments of facts. On the other, the standard requires that alternative means be equally suitable. This is a requirement that is hard to satisfy because legislators are free to set policy objectives and equality of the means must be established for each and every objective. Therefore it actually makes no difference that the US Supreme Court does not apply this criterion at all. The same is not quite true for the last element of proportionality analysis. Here the GFCC and the ECtHR apply standards of reasonableness that are partly covered by the Equal Protection Clause of the Constitution of the USA. Still, the force of this test is limited if socio-economic legislation is reviewed because even severe losses for isolated individuals do not affect the proportionality of the whole measure. On the other hand the GFCC has acknowledged that losses for a defined group of individuals are relevant if they constitute an unjustified discrimination. The rigour of review and the choice of the standard of review mainly depend on the following factors: the complexity of the subject matter, the institutional setting, and the existence of international standards. If the assessment of suitability and necessity of a measure involves complex facts, which is almost always true for socio-economic legislation, then all courts defer to the assessments of legislators, although there might be some limits of discretion, especially if international standards regarding the evaluation of risks exist. However, usually legislators enjoy much broader discretion than administrative bodies. Especially in the law of planning, procedural restraints constitute additional standards of review. And usually the facts are less intricate in administrative and adjudicate procedures. This might also explain why review is quite rigorous in freedom of speech cases. Usually judgments in single cases and not legislative acts are reviewed. Finally, the analysis should elucidate how balancing, i. e. the last step of the proportionality principle, works. How are weights assessed and how are they 161

Chapter 2. Case Law operated with? Is Principle Theory an adequate description of what courts do? Or is a minimal position model more suitable as a description? The case law proves to be quite equivocal, at least at first glance. The main features of balancing, at least according to Principle Theory, is the qualification of weights, for example as light–moderate–serious, and their combination. Here one has to distinguish programmatic statements and the actual exercise of review. Older German decisions do indeed support Principle Theory. In recent decisions of the GFCC the actual exercise of review does not support Principle Theory because neither qualifications of weights nor their combination can be deduced from that practice, although balancing language remains in programmatic statements. The case law of the US Supreme Court is less fruitful in this regard because balancing is only seldom applied in the review of socio-economic legislation. In those instances where it is applied it evokes quite severe criticism. The case law of the ECtHR with its margin of appreciation doctrine obstructs Principle Theory. Review is at the outset directed at ensuring that certain bounds are not overstepped and not at finding optimal results. All courts share the view that legislators need not strive for the best solution of socio-economic matters. Only if certain bounds are overstepped the courts will intervene. The courts therefore do not ensure optimal results but prevent—so to speak—the worst outcomes. The comparison will prove itself valuable for two reasons. First, the ECJ is often criticized as being too lenient. Now we have some background against which we can compare the standards of review that the ECJ has employed. Especially the case law of the ECtHR is important in this respect because the international obligations of the Members States require that the Community shall observe an equal standard of human rights protection. 1116 Moreover, we have distilled an alternative to Principle Theory from the case law of the courts reviewed. It roughly corresponds to the minimal position model but extends it because it clarifies how a minimal position could be found.

1116

Bosphorus (Convention), supra note 558, paras. 151–6.

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3 Proportionality and Fundamental Rights in the Case Law of the ECJ This chapter will provide an in-depth analysis of the case law of the ECJ . It corresponds to the analysis in the previous chapter and aims at answering the following questions: • Which steps does the proportionality principle comprise? In which contexts are they applied? What are the criteria for omitting steps?1117 • How strictly are the elements applied and what criteria govern the rigour of review? In particular, how does the Court deal with (uncertain) facts and value judgements? • Does the Court employ Principle Theory arguments? If so, under which circumstances are they applied?

The legal framework that governs proportionality review has already been briefly outlined above in the Introduction. The Treaty contains provisions that structure the application of the proportionality principle, for example art. 174. Yet such provisions beg the question how the relevant aspects shall be combined, i. e. methodical guidelines cannot be drawn from these provisions alone. For the Treaty does not provide abstract methodical rules, I shall commence directly with the case law of the Court. As noted in the Introduction, the proportionality principle comprises three elements. Although the legitimate end test does not, according to the case law of the ECJ , formally constitute a part of the principle, it is closely connected with it. The Court does not apply the principle consistently; sometimes elements are omitted or tested in different contexts. I shall discuss each element separately to see whether a pattern exists. Thus, the following analysis shares the inductive nature of the preceding chapter. In contrast to the ECtHR and the GFCC , the ECJ generally applies the proportionality principle as an independent principle, i. e. it is not completely incorporated in the fundamental rights appraisal, but serves as a separate test for the lawfulness of Community acts.

1117

I presuppose that criteria that govern the choice do exist.

Chapter 3. Case Law of the ECJ

3.1

Legitimate Aims

The legitimacy of the pursued aims can be determined on two grounds: First, art. 2 and 3 TEC provide some guidance by listing those aims that may be pursued by the Community institutions. However, there are numerous aims and each of them is termed broadly, so that one can hardly imagine an objective not falling under one of the goals listed in those articles. A rare example for an aim that is inadmissible under art. 2 and 3 is presented in the case of Jippes 1118 : The applicant in the main proceedings challenged the prohibition of vaccination against the mouth and foot disease. She claimed that the Commission had not sufficiently regarded animal welfare. The Court ruled that animal welfare as such was not defined as an objective in art. 2 or 3 TEC . Yet the Court acknowledged that animal welfare was instrumental to agricultural policy and hence engaged in proportionality analysis. 1119 Thus, the positive enumeration of certain objectives does not effectively restrict the set of permissible aims. Second, it is not sufficient that an objective falls under the scope of art. 2 or art. 3 TEC because Community institutions are bound by the principle of attributed powers (art. 5 § 1 TEC ), i. e. the Community can pursue certain aims only if and insofar as the Treaty provides for a legal basis. The operation of this requirement shall be described in more detail.

3.1.1

Legal Bases

The operation of the legal basis requirement can be illustrated with a reference to art. 95 TEC and the Tobacco Advertisement 1120 judgment. Protection of health is an acknowledged principle of EC -law (art. 3 p) but according to art. 95 it cannot be pursued alone but must be accompanied by the aim of removing obstacles to trade. Therefore, it would be illegitimate to pursue the aim of health protection alone.1121 According to the Court, it does not suffice to merely allege that there are obstacles to trade. 1122 Moreover, the Court requires that the measures actually contribute to removing obstacles to trade.1123 (a)

Application

If performed, the legal basis test is carried out with great rigour. The legal basis is usually thoroughly construed in order to determine whether the pursued aim falls under its scope.1124 Typically, parties allege that the Community pursues 1118

Case C–189/01, H. Jippes v. Minister van Landbouw, Natuurbeheer en Visserij [2003] ECR I–8055, paras. 71–3. 1119 Ibid., paras. 77–8. 1120 Supra note 23. 1121 Tobacco Advertisement, supra note 23, para. 85. 1122 Tobacco Labelling, supra note 2, paras. 69–73. 1123 Ibid., paras. 69–73. 1124 Bananas, supra note 11, paras. 48–9; Tobacco Labelling, supra note 2, paras. 60–2;

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3.1 Legitimate Aims inadmissible objectives under the veil of permissible ones. 1125 Here, the Court does not solely rely on the explanatory memorandum but tries to find out which aims are objectively, and not just purportedly, pursued.1126 If these (i. e. the objectively pursued) aims are not covered by a legal basis they are illegitimate and the respective measure is declared void.1127 Yet, the Court diminishes the bite of this test by allowing the Community to pursue other objectives along with the admissible one. As regards measures under art. 95, the Court will not intervene as long as an obstacle to trade does exist, the Community aims at its removal, and chooses an appropriate measure.1128 Hence, appropriateness is not only assessed in connexion with the proportionality principle. The Court always tests whether the alleged problem really exists, for example obstacles to trade under art. 95. 1129 To find out whether an obstacle to trade really exists and whether the measure is likely to contribute to its removal, the Court relies on submissions of third-parties, international standards, and existing Member State legislation.1130 (b)

Limitations

Yet, the legitimate basis test can rarely restrict the Community’s scope of action. One reason has already been mentioned: Under art. 95, Community institutions are allowed to pursue other goals along with the objective of removing barriers to trade between Member States. The other goal may even be the decisive incentive for action. There are further limitations of the legal basis test: First, the aims are open and can be interpreted dynamically.1131 The effect of this test is further diminished by the wide discretion that the Community has in defining its objectives within the legal framework.1132 Second, the Community authorities are temporarily allowed to disregard one objective for the benefit of

Worker’s Health, supra note 23, paras. 11–17; Schräder, supra note 2, paras. 7–11; Tobacco Advertisement, supra note 23, paras. 76–84. 1125 Tobacco Labelling, supra note 2, para. 43; Tobacco Advertisement, supra note 23, paras. 32–5; Schräder, supra note 2, paras. 7–8; Worker’s Health, supra note 23, para. 13. 1126 Fedesa, supra note 2, para. 25 (reference is made to the applicants’ submissions), Case C–233/94, Federal Republic of Germany v. European Parliament and Council of the European Union [1997] ECR I–2405, paras. 12–21 (henceforth cited: Deposits). 1127 Tobacco Advertisement, supra note 23, para. 85. 1128 Tobacco Labelling, supra note 2, paras. 62, 75; Swedish Match, supra note 11, paras. 28–31 and ibid., para. 73 (Geelhoed AG); Tobacco Advertisement, supra note 23, para. 88. 1129 Tobacco Labelling, supra note 2, para. 64; ABNA, supra note 18, paras. 55–8; Swedish Match, supra note 11, paras. 37–41 and 53–4. 1130 Tobacco Labelling, supra note 2, paras. 69–73. 1131 Emmerich-Fritsche, supra note 5, p. 87. 1132 Joined Cases 197–200, 243, 245 and 247/80, Ludwigshafener Walzmühle Erling KG v. Council and Commission of the European Communities [1981] ECR I–3211, para. 37.

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Chapter 3. Case Law of the ECJ another one.1133 Thus, it is not required that all aims listed in a legal basis be pursued simultaneously.

3.1.2

Fundamental Rights

Fundamental rights could further limit the set of admissible aims. When applying fundamental rights the Court requires that the institutions shall pursue “objectives of general interest” which implies that there are some objectives that do not fulfil this criterion.1134 Some authors criticize that the Court has failed to put this formula into concrete terms:1135 Which aims are covered by this formula and which value do they have?1136 Should fundamental rights have a predominant position among these aims?1137 According to some, it is important to identify the rank of the respective aim (and its admissibility), otherwise weighing up fundamental rights against these objectives would be impossible.1138 Whether and how this formula can be put into more concrete terms cannot be discussed here. This problem will be dealt with in Chapter 6. Taking into account human rights instruments, which is required by art. 6 TEU , does not elucidate the ‘general interest’ requirement. First, many limitation clauses from the ECHR are rather broad, e. g. art. 8 § 2, which allows for limitations of the right to privacy, enumerates the following goals: national security, public safety or the economic well-being of the country, . . . the prevention of disorder or crime, . . . the protection of health or morals, or . . . the protection of the rights and freedoms of others.1139

Yet, this set is rather large and the terms so broad that a real limitation can hardly be expected as the case law of the ECtHR has shown.1140 Second, the text of art. 1 Protocol 1 to the Convention (the right to property) does not put the public interest into more concrete terms at all. It merely states that it “shall not . . . in any way impair the right of a state to enforce such 1133 Case 209/83, Ferriera Valsabbia SPA v. Commission [1984] ECR 3089, § 7 (p. 1045) (Capotori AG). 1134 Case C–22/94, The Irish Farmers Association and others v. Minister for Agriculture, Food and Forestry, Ireland and Attorney General [1997] ECR I–1809, para. 27; Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. 1135 Edgar Stieglitz, Allgemeine Lehren im Grundrechtsverständnis nach der EMRK und der Grundrechtsjudikatur des EuGH: Zur Nutzbarmachung konventionsrechtlicher Grundrechtsdogmatik im Bereich der Gemeinschaftsgrundrechte (Nomos Verl.-Ges., Baden-Baden, 1st edn., 2002), pp. 129–30; Storr, supra note 5, p. 562; Bühler, supra note 5, p. 103; Pauly, supra note 8, pp. 257–8. 1136 Storr, supra note 5, p. 562. 1137 Armin von Bogdandy, Europäisches Verfassungsrecht (Springer, Berlin, Heidelberg, 2002), p. 169. 1138 Storr, supra note 5, p. 562. 1139 The exception clauses of art. 9, 10, and 11 are termed similarly. 1140 See page 89.

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3.1 Legitimate Aims laws as it deems necessary to control the use of property in accordance with the general interest.” Third, the CFREU will not change this situation because it only has a general exception clause (art. 52 § 2) and refers to the Convention (art. 52 § 3). Thus, fundamental rights cannot, according to the case law as it is, limit the set of legitimate aims, at least in the socio-economic field, which is the principal subject of this study.1141

3.1.3

International Treaties

Bühler suggests that international treaties could limit the set of legitimate aims.1142 Indeed, art. 300 § 7 TEC provides, among others, that international treaties bind Community institutions. For instance, the General Agreement on Tariffs and Trade (GATT) prohibits quantitative restrictions on imports, such as imposed by the Council Regulation (EEC) 404/931143 on the common organization of the banana market.1144 There are exceptions to this prohibition that are set out in art. XX. Only specific aims may be pursued through a measure and the measure must not amount to a disguised protective measure. Yet, the World Trade Organization (WTO) agreements, according to the case law of the Court, cannot restrict the Community institutions because the rules it sets out are subject to negotiations and the direct application of these rules would put the EC at a disadvantage.1145 However, this need not apply to other agreements, although the GATT and related agreements are certainly the most important ones. For example, art. 119 of the United Nations Convention on the Law of the Sea (UNCLOS) could—if not limit—influence the weight of certain aims by giving precedence to the preservation of fish stocks.

3.1.4

Summary

To summarize: The legitimate aim test is only performed if that plea is raised by a party. Although it reflects the principle of attributed powers (art. 5 § 1 TEC ) and is in principle rigorously carried out by the Court, its force is nevertheless limited due to the following factors: • The relevant treaty provisions are too broad and the institutions enjoy a broad discretion in their application.

1141

By the way, the same is true with German Constitutional Law in mind: neither art. 12 nor art. 14 explicitly limit the set of permissible aims and theGFCC has only rarely declared aims inadmissible (see BVerfGE 7, 377); see Tettinger/Mann, in: Sachs, supra note 826, Art. 12, para. 102. 1142 Bühler, supra note 5, pp. 103–4. 1143 [1993] OJ L47/1–11. 1144 Art. XI GATT and Ibid. 1145 Bananas, supra note 11, paras. 105–10; Tobacco Labelling, supra note 2, para. 154.

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Chapter 3. Case Law of the ECJ • The limitation clauses of fundamental rights provisions contain a very broad set of permissible aims, if they prescribe any at all. • The most influential international treaties, the WTO agreements, are not directly applicable.

3.2

Suitability

The Court does not consider the legitimate aim test to be an integral part of the proportionality principle. But suitability, or appropriateness, is a part of this principle. The Court has repeatedly stated that in order to establish whether a provision of Community law complies with that principle [i. e. proportionality], it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it.1146

Despite its very close connexion with the proportionality principle, suitability is also found under the legal basis test.1147 To fall under the legal basis the Court requires that measures be likely to contribute to the pursuit of the objective.1148 Within the legal basis test, this element is applied strictly. The Court does not only rely on the statements by the Council and the Commission, but also takes into account experiences in Member States1149 and even shifts the burden of proof to the Community institutions.1150 But if applied on its own, the rigour varies. It ranges from the simple assumption that a measure is appropriate,1151 over brief but correct analyses,1152 to extensive scrutiny.1153 Sometimes the reasoning of the Court is so brief that the opinion of the Advocate General is needed to understand it.1154 Because of the wide discretion granted 1146 Worker’s Health, supra note 23, para. 57, emphasis added; see also Schräder, supra note 2, para. 23. 1147 Worker’s Health, supra note 23, para. 37, ABNA, supra note 18, paras. 59, 60. 1148 Ibid., para. 60; Tobacco Labelling, supra note 2, para. 81; Swedish Match, supra note 11, paras. 28–31 and ibid., para. 73 (Geelhoed AG); Tobacco Advertisement, supra note 23, para. 88. 1149 ABNA, supra note 18, para. 59. 1150 Worker’s Health, supra note 23, para. 37. 1151 Schräder, supra note 2, para. 23, Bananas, supra note 11, para. 95. 1152 Irish Farmers, supra note 1134, para. 31; Winzersekt, supra note 2, para. 25; Hauer, supra note 2, para. 27; Handelsgesellschaft, supra note 3, para. 7; Fedesa, supra note 2, para. 15; Fattoria, supra note 2, para. 57; Joined Cases C–90/90 and C–91/90, Jean Neu and others v. Secrétaire d’Etat à l’Agriculture et à la Viticulture [1991] ECR I–3617, para. 14 in that case the disproportionality did not lead to the annulment of the provisions at issue, rather they had to be interpreted such that they conformed to fundamental rights. 1153 SAM Schifffahrt, supra note 34, paras. 21–41; Worker’s Health, supra note 23, para. 37. 1154 Case 138/78, Hans-Markus Stölting v. Hauptzollamt (Principal Customs Office) Hamburg-Jonas [1979] ECR 713, p. 728 (Mayras AG).

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3.3 Necessity to legislators, suitability outside the legal basis test is usually not an effective review standard.1155 In the case of Worker’s Health 1156 , the directive at issue was found to be partly unsuitable. Although this judgment was made in connexion with the legal basis test, it is substantially relating to the suitability of the directive. The reason why the Court paid so much attention to this point and declared the directive void in that respect might be the limited scope of the provision at issue and hence the Court’s intervention: The provision at issue did not deal with the restructuring of a market or highly political and complex decisions, but with a question that could be easily isolated from the rest of the directive, namely whether the choice of Sunday as a day of rest contributed specially to workers’ health. Consequently, the Court only had to declare a single provision void and not the whole directive. In many cases, legislators have to deal with complex problems and the assessment of facts may be difficult. In this context the precautionary principle provides guidance. In the Pfizer 1157 case some third parties alleged that the Commission had to consult scientific experts if it did not possess sufficient knowledge, otherwise the measure could not be suitable.1158 Because problems of this kind are also of importance for the next step of proportionality analysis they will be discussed in a separate section (see Section 3.5.3).

3.3

Necessity

Necessity rests on the previous requirement of suitability: “[W]hen there is a choice between several appropriate measures, recourse must be had to the least onerous[.]”1159 In contrast to suitability, the necessity requirement is not always examined by the Court. Sometimes the Court does not even include it in the definition of proportionality.1160 If the parties do not contest necessity, the Court does not pay attention to this element.1161 Even when parties explicitly refer to this criterion, the Court does not necessarily examine it. 1162 However, that does not mean that the claim is not considered at all. In Schräder the applicant claimed that the measure was not necessary.1163 But actually, the 1155

Emmerich-Fritsche, supra note 5, p. 210. Supra note 23, para. 37. 1157 Case T–13/99, Pfizer Animal Health v. Council of the European Union [2002] ECR II–3305, para. 249. 1158 The parties referred to necessity and appropriateness. Since necessity requires the consideration of facts the same argumentation is equally valid for the suitability step. 1159 Fattoria, supra note 2, para. 55. 1160 For example in Bananas, supra note 11, para. 90; Irish Farmers, supra note 1134, para. 31; Winzersekt, supra note 2, para. 21. 1161 Fattoria, supra note 2, para. 58. 1162 Schräder, supra note 2, para. 22. 1163 Ibid., para. 20. 1156

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Chapter 3. Case Law of the ECJ claim, as it was put forth by the applicant, concerned suitability and not so much necessity, and the Court did discuss suitability. If the Court applies the necessity test, the rigour of scrutiny varies. It can be very strict, leading to the (partial) annulment of the measure at issue,1164 or the Court virtually refrains from the application of this element by referring to the legislators’ discretion, e. g. in the field of agricultural policy.1165 Generally, necessity is thought to be a more effective means of control than suitability. 1166 Despite its being relatively effective, the current application of the necessity test is criticized: 1. The Court concentrates on the most effective measure and not on the least onerous one.1167 Thus the necessity test is equated with economic efficiency, a principle that contradicts necessity. 2. Sometimes, it would be less onerous to leave large discretion to Member States for the implementation of EC -law. However, the Court usually denies this and favours quite detailed measures.1168 3. The Court relies on the explanatory memorandum only and does not assess facts on its own.1169 4. When the Court confines itself to the first step of proportionality review, it violates its obligation from art. 220 TEC ,1170 especially if it restricts it to the manifest error test.1171

The first point must be rejected. It is a central element of the necessity test that the equivalence of the alternative measures must be proved. It does not suffice to allege (and prove) that there are less severe measures.1172 By rejecting the plea that less onerous measures were not chosen if their equivalence is not proved, the Court is not violating the proportionality principle but, on the contrary, obeying it. It is under the last element (proportionality in the narrow sense) that legislators may be forced to have recourse to less burdensome and less effective measures—not necessity.1173 1164

ABNA, supra note 18. Bananas, supra note 11; see Takis Tridimas, The General Principles of EU Law (Oxford University Press, Oxford, 2nd edn., 2006), p. 146. 1166 Emmerich-Fritsche, supra note 5, p. 212 Case 114/76, Bela-Mühle Josef Bergmann KG v. Grows-Farm GmbH und Co. KG [1977] ECR I–1211, para. 7. 1167 Emmerich-Fritsche, supra note 5, pp. 237–8, with reference to Case 116/82, Commission v. Germany [1986] ECR 2519, para. 29 (henceforth cited: Re Quality of Wines) and Bananas, supra note 11, para. 82 et passim. 1168 Emmerich-Fritsche, supra note 5, p. 238, Case 299/84, Neumann v. Balm [1985] ECR 3663, para. 25. 1169 Emmerich-Fritsche, supra note 5, p. 237, with reference to Hauer, supra note 2, para. 26, Case C–319/90, Otto Pressler Weingut-Weingrosskellerei GmbH & Co. KG v. Federal Republic of Germany [1992] ECR I–203, para. 14, Case C–365/92, Henrik Schumacher v. Bezirksregierung Hannover [1993] ECR I–6071, para. 27. 1170 Emmerich-Fritsche, supra note 5, p. 239. 1171 Tridimas, supra note 1165, p. 146. 1172 See Deposits, supra note 1126, para. 119 (Léger AG); ABNA, supra note 18, para. 108 (Tizzano AG). 1173 Schlink, supra note 549, p. 190. 1165

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3.3 Necessity The second objection rests on this rationale: Leaving discretion to the Member States ensures that a measure cannot be disproportionate in the narrow sense because it is then the Members States’ measure that will be disproportionate. But in those cases where the Court rejects the alternative of leaving more discretion to Member States, it does so because this alternative is not regarded as equally effective.1174 Therefore this criticism can be challenged on the same grounds as the previous one. Besides, this critique blurs the dividing line between the principle of proportionality and the subsidiarity principle.1175 Art. 5 § 2 TEC prescribes that as much discretion as possible must be left to Member States. But even this provision requires that the Community shall act “if and insofar as the objectives of the proposed action . . . be better achieved by the Community.” Point three of the critique does not properly describe the case law of the Court. Of course, the Court has recourse to the explanatory memorandum to determine the objectives of the measure.1176 The case of Pressler 1177 , which was put forth by Emmerich-Fritsche, is a particularly bad example because in para. 16 the Court engaged in an assessment of the facts and found the measure being unnecessary. Although it must be conceded that the Court indeed had recourse to the explanatory memorandum (para. 14), the decision did not solely rest on the consideration of the recitals. The case of Schumacher 1178 is similar. It concerned a regulation that provided for the payment of premiums for the slaughter of beef. To prevent fraud, it also established a system of sanctions. In this case the Court did consider the explanatory memorandum (para. 27). Yet the measure was not upheld by a reference to the memorandum alone. In paras. 28–30 the Court described that the measure laid down a differentiated system of penalties for wrong declarations: it ranged from a loss of the complete premium in case of deliberately false declarations, reductions of the premium where the difference between the declared and actual number of animals was insignificant or where the difference can be ascribed to natural circumstances. The Court concluded that the loss of the whole premium was necessary in the prescribed cases in order to effectively prevent fraud. The last criticism is correct insofar as it aims at cases where necessity is not assessed at all. Necessity has been established as an element of proportionality and the Treaty, e. g. art. 5 § 3 TEC , explicitly names this element. Therefore a failure to mention and apply it is tantamount to a violation of art. 220 TEC . However, one must note that due to its workload, the Court should be allowed to confine its analysis to the contentious issues.

1174

Neumann, supra note 1168, paras. 24–5. See Worker’s Health, supra note 23, paras. 54–5. 1176 Hauer, supra note 2, para. 26 the passage that was quoted by Emmerich-Fritsche was not referring to the effectiveness but the objectives. 1177 Supra note 1169. 1178 Supra note 1169. 1175

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Chapter 3. Case Law of the ECJ It is not only the explicit non-application of necessity but also the large amount of discretion in the guise of the manifest error test that is the aim of the critique. To decide whether this criticism is justified one must have a closer look at the merits of the relevant cases. I shall present one case where necessity was loosely applied and one case where it was strictly applied. Let us take the Bananas 1179 case as an example for a loose application of the necessity requirement: First, the Court highlighted the broad discretion in the field of agricultural policy (para. 89). The Court stated that it would only intervene and substitute its assessment for that of the legislators if there was a manifest error concerning the suitability of the measure (para. 94). Because the applicant failed to show such a manifest error, the Court did not find a violation of the proportionality principle (para. 95). The Court did not only grant extremely wide discretion (“manifest error”), but shifted the burden of proof to the applicants. The crucial flaw in the application of the necessity test, however, is neither the broad and forgiving standard of review (manifest error) nor the distribution of the onus of proof. Actually, the principle was not applied at all because a measure would have only be found unnecessary if it had been manifestly inappropriate, i. e. unsuitable; the less restrictive means test, which forms the essence of necessity, was completely missing. As a matter of fact, in the Bananas judgment the Court identifies the proportionality principle with the appropriateness test.1180 So, it confined review to a ‘mere rationality’ test as it is applied by the US Supreme Court.1181 Yet the case of Stoelting, to which the Court ultimately referred,1182 did not justify this limitation to the first element of proportionality review because in this judgment the last step, proportionality in the narrow sense, was applied, too.1183 The judgment is methodically wrong. The Court should have applied the necessity test and, if need were, the proportionality test in the narrow sense. Nevertheless, its conclusions cannot be questioned: Even if the necessity test had been applied, the directive would have hardly been annulled because the Court would have granted wide discretion in the choice of the measures. Moreover, the case must be viewed in context with two related judgments: the judgment on interim measures in the same case1184 and the later case of T. Port 1185 . In both 1179

Supra note 11. Bananas, supra note 11, para. 90, with a reference to Fedesa, supra note 2, para. 14, which in turn refers to Schräder, supra note 2, para. 21, which refers to Case 179/84, Piercarlo Bozzetti v. SPA Invernizzi and Ministero del Tesoro [1985] ECR 2301, which finally refers to Stoelting, supra note 1154. 1181 See above in Section 2.4.2. 1182 The Bananas judgment refers to Fedesa, supra note 2, para. 14, which in turn refers to Schräder, supra note 2, para. 21, which refers to Bozetti, supra note 1180, which finally refers to Stoelting, supra note 1154. 1183 Ibid., para. 7. 1184 Case C–280/93 R, Federal Republic of Germany v. Council of the European Communities [1993] ECR I–3676. 1185 Case C–68/95, T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und 1180

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3.4 Proportionality in the Narrow Sense judgments the Court found that the contested regulation was proportionate because it left sufficient room for Member States to alleviate hardship in exceptional cases. The regulation could therefore be regarded as proportionate. Looking at other cases the force of the criticism can be further reduced. Regarding its methodological errors, the Bananas 1186 judgment is an exception. This case can be contrasted with the case of ABNA1187 : The applicants in that case were producers of feedstuffs. A directive obliged them to disclose, on the request of a customer, the complete recipe of the respective feedstuffs to the customer. In any case, the complete recipe had to be submitted to the competent national authorities. The directive aimed at easing the detection of contaminated feedstuffs and was enacted in the aftermath of the bovine spongiform encephalopathy (BSE) crisis. The applicants challenged the obligation to disclose the recipe to consumers because this could violate their intellectual property rights: consumers could use the recipe as a model for their own compositions. The Court declared the provision that imposed the obligation void, because it was not necessary to pursue the aim. It was sufficient that the competent authorities were equipped with the information.1188 A reason for the stricter application of the proportionality principle in the ABNA case might be the nature of the policy area. Here, as well as in the Worker’s Health 1189 case discussed above, the Court did not have to make assessments in a complex policy area such as the re-organization of the banana market. Rather the suitability and necessity for the pursuit of a single and specific aim (the tracking of contaminated feedstuffs) had to be appraised. Because the case was rather simple, the scrutiny of the Court was strict.

3.4

Proportionality in the Narrow Sense

Just as the necessity element, which was just described, the last element of the proportionality principle is not applied uniformly. In some cases the Court does not even include it in the definition of the proportionality principle.1190 Yet that does not mean that it is not assessed at all in those cases. Although the Court generally applies proportionality independently of fundamental rights, the last element is very often shifted to the fundamental rights appraisal:

Ernährung [1996] ECR I–6065. 1186 Supra note 11. 1187 Supra note 18. 1188 ABNA, supra note 18, paras. 80–4. 1189 Supra note 23. 1190 For example, not included in Tobacco Labelling, supra note 2, para. 122 or Deposits, supra note 1126, para. 54 but included in Fattoria, supra note 2, para. 55.

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Chapter 3. Case Law of the ECJ Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organization of the markets, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights.1191

Because of this close relationship to fundamental rights, this section will also discuss the justification of interferences with fundamental rights. Some authors describe this last step as the central element of the proportionality principle.1192 Others deny its existence as an independent review standard,1193 but claim that it is included in the necessity test. As Chalmers et al. correctly note, it is indeed irrelevant whether there are three or two analytically distinct steps.1194 However, distinguishing necessity and proportionality in the narrow sense does have certain advantages: First, the Court itself makes this distinction. Second, and more importantly, the distinction reveals that the Court does not always perform what constitutes the essence of the last element of proportionality review: posing limits to official power beyond mere necessity, either by weighing interests or by securing a minimal position. This, however, is not merely an analytical question but a question that may decide a case and that has an important impact on the effectiveness of fundamental rights protection. By amalgamating these two elements one can be tempted to overlook this aspect and the difference between them. The necessity test does not require, by its very definition, weighing at all, indeed it excludes weighing. Weighing, with all the problems it entails, is part of the last step only.1195 And the difficulties with weighing explain why the last element is applied in such an irregular manner. The same is true if one departs from a minimal position stance: the minimal position poses an additional restraint on official power, i. e. a measure may be necessary, but nevertheless violating a minimal position.

3.4.1

Definition of Review Standards

The analysis in Chapter 2 distinguished between the abstract review standards, which are expounded in programmatic statements, and their actual application. Regarding the last element of the proportionality step, we found some disparity between the exposition of the review standards and their application. The 1191 Irish Farmers, supra note 1134, para. 27 emphasis added; Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22; see also Pfizer, supra note 1157, para. 452. 1192 Uwe Kischel, ‘Die Kontrolle der Verhältnismäßigkeit durch den Europäischen Gerichtshof’ 2000 Europarecht, p. 380, p. 381 and Storr, supra note 5, p. 567. 1193 Damian Chalmers et al., European Union Law (Cambridge University Press, Cambridge, 2006), p. 449 with reference to Tridimas, supra note 1165, pp. 91, 93. 1194 Chalmers et al., supra note 1193, p. 449. 1195 See above, at n. 1172.

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3.4 Proportionality in the Narrow Sense analysis in this chapter will accordingly follow the approach of Chapter 2 and will differentiate between the Court’s spelling out the standard of review and its applying the standard. In the Court’s programmatic statements, one can find two formulations of proportionality in the narrow sense: I [A]nd the disadvantages caused must not be disproportionate to the aims pursued.1196

II [the] exercise [of rights] may be restricted, provided that those restrictions . . . do not constitute a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.1197

The first standard (“disproportionate to the aims pursued”) expresses that disproportionality in the narrow sense is not only determined by the severity of the interference alone but also depends on the pursued aim. Therefore, an interference that is not disproportionate for the pursuit of one aim may be disproportionate if another aim is pursued. This formulation is reminiscent of the Weight Formula. However, the Court usually does not explicate which feature of the competing aim should be related to the interference. Yet we can presume that it is the importance of the aim. And the explication of the review standard in the Affish decision supports this interpretation. Although this standard resembles Principle Theory and the Weight Formula, it is not identical to it, at least not in this form. It relates the severity of the interference (Ii ) with the importance of the competing aim (Wj ). To be a complete representation of the Weight Formula, the concrete gain for the aim (Ij ) and the abstract weight of the right (Wi ) must be considered, too. Moreover, one should note that this standard expresses a negative criterion. It does not require that a measure be proportionate, but that it not be disproportionate. At least at first glance, this appears to be incompatible with Principle Theory because it requires the optimal relationship between pursued aims and rights, which is a positive requirement. Whether a not-disproportionate-standard can nevertheless be compatible with Principle Theory, will be discussed in Section 5.2.3(b). The second standard follows a very different approach. It focuses on the interference with the right and requires that it not be intolerable, i. e. it should not impair the substance of the right. According to this standard, which is nearly always applied in connexion with fundamental rights appraisal, one does not have to relate the importance of (and perhaps the concrete interference with) the aim with the right (and its abstract weight). It suffices to assess whether the interference is intolerable. From the point of view of Principle Theory, this 1196 Fattoria, supra note 2, para. 55; Schräder, supra note 2, para. 21; Fedesa, supra note 2, para. 13; BSE, supra note 2, para. 97. 1197 Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. This standard is also implicitly applied in Duff, supra note 16, para. 30.

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Chapter 3. Case Law of the ECJ standard is too lenient because the Court may only intervene if interferences are not only substantial, but absolutely intolerable: “The importance of the objectives pursued may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain traders.”1198 Both standards are identical regarding the role they attribute to individual interests. While some scholars argue that proportionality analysis should always take into account the interests of individuals,1199 the Court does not require that the individual situation of every conceivable particular group be taken into account: Besides, the claim rests on a confusion between the decision on the introduction of minimal prices and the consequences that ensued from their application. Therefore, it must be stressed that the question whether the decision is, with regard to general principles that concern human rights, lawful cannot depend on the adverse effects that it may possibly (or allegedly) have on some competitors.1200

In their actual exercise both standards do not differ substantially. Although the first standard requires the relation of the importance of the aim with the interference with the right at issue, the Court usually abstains from applying this element of the standard, as the following analysis of several decisions will show.

3.4.2

The Application of the Standards

The standards that were described above usually do not lead to different results because the initial definition of the disproportionality standard is amended by the following formula: However, as far as judicial review of those conditions is concerned, it must be stated that in matters relating to the common agricultural policy the Community legislature has a discretion which corresponds to the political responsibilities which Articles 40 and 43 of the EC Treaty place upon it . . . Thus, in examining whether such a discretionary power has been lawfully exercised, judicial review must be confined to determining whether it is vitiated by a manifest error or misuse of powers or whether the authority in question clearly exceeded the bounds of its discretion.1201 1198

Affish, supra note 2, para. 42. Emmerich-Fritsche, supra note 5, pp. 213, 153, 221–4, 238; Bühler, supra note 5, pp. 204–5. 1200 Valsabbia, supra note 1133, § 7 (p. 1047) and § 11 (p. 1054) (Capotori AG) (emphasis added); restating this point Case 84/87, Marcel Erpelding v. Secrétaire d’État à l’Agriculture et à la Viticulture [1988] ECR 2647, para. 16 (Darmon AG) and Joined Cases 26 and 86/79, Forges de Thy-Marcinelle et Monceau SA v. Commission of the European Communities [1980] ECR 1083, para. 6; Case 5/73, Balkan-Import-Export GmbH v. Hauptzollamt Berlin-Packhof [1973] ECR I–1091, para. 3. 1201 Fattoria, supra note 2, para. 56, emphasis added; Affish, supra note 2, para. 62, n. 43 (Cosmas AG); a similar standard is applied in: Bananas, supra note 11, paras. 89–90; Schräder, supra note 2, para. 22; Winzersekt, supra note 2, para. 21; ABNA, supra note 18, 1199

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3.4 Proportionality in the Narrow Sense Therefore, the test is tantamount to assessing whether authorities have overstepped their margin of discretion. When making this assessment, the Court usually focuses only on the interference, even if the first standard is applied: In the Fattoria 1202 case, the Court applied the first standard and upheld the challenged directive. The directive established a regime for the support of tobacco growers. A premium had to be paid for certain quantities. Italy decided to allocate quantities not to producers directly but to processors. To manage the allocation of tobacco quantities, the directive prescribed that processors had to issue cultivation certificates. They were only allowed to conclude contracts with those producers that could show a certificate. The obligation to issue the certificate was challenged as disproportionate (para. 26). The Court rejected the claims because the advantages outweighed the burdens that the system imposed on processors (para. 59). It mainly required the compilation of accounting data and contractual documents—data that the processors already had at their disposal (para. 61). Moreover, the directive provided for indirect compensation through the revenues that processors received for the issue of a certificate (para. 60). Thus the burden was regarded as minimal. The severity of the burden was not—at least not explicitly—weighed against the importance of the aim, namely to prepare the definite allocation of quantities and to prevent fraud (para. 37, 39). The reasoning in the Schräder 1203 case is based on the second standard (para. 15). The case concerned a levy that had to be paid by processors and then passed on to the producers. Because it was eventually passed on to the producers, it was regarded as a minor inconvenience, having special regard to the category of enterprises concerned (para. 18). In the Handelsgesellschaft 1204 case the Court had to consider the proportionality of a system of deposits. Exporters had to obtain licences for the export of goods. To ensure the use of the licence, traders were obliged to make a deposit. Traders were liable to forfeit their deposit if they did not meet the conditions of the licence, e. g. if the goods were not exported at all. The amount of the deposit was challenged as disproportionate. However, the Court did not consider the amount of the deposit as such because there existed provisions that protected traders of its forfeiture (para. 15). Instead, it considered the administrative costs that the deposit imposed and found that these costs were not disproportionate because the burdens were not excessive (para. 16). It did para. 69; Fedesa, supra note 2, para. 14. Cf. Case C-289/97, Eridania v. Azienda Agricola San Luca di Rumagnoli Viannj [2000] ECR I–5409, para. 49; Case 138/79, SA Roquette Frères v. Council of the European Communities [1980] ECR 3333, para. 25; Case C–405/92, Établissements Armand Mondiet SA v. Armement Islais SARL [1993] ECR I–6133, para. 32 (henceforth cited: Mondiet); Case C-451/05, SA Roquette Frères v. Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité [2007] ECR I–1993, para. 72. 1202 Supra note 2. 1203 Supra note 2. 1204 Supra note 3.

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Chapter 3. Case Law of the ECJ not weigh the importance of the aim pursued. The Court did not explicitly choose one of the standards. The case of Fedesa 1205 concerned the prohibition of hormones in livestock farming. The applicants argued that the prohibition entailed substantial financial losses and hence was disproportionate (para. 12). The Court rejected this claim very briefly, holding that the directive aimed at the protection of health and the importance of this objective justified even substantial financial losses (para. 17). This argumentation conforms to the first standard described above. In the case of Irish Farmers 1206 , the Court acknowledged the proportionality of the measure at issue. The case concerned the reduction of milk quotas. Initially, milk quotas had been temporarily reduced. A compensation was paid, though. Some years later the reduction was made permanent without granting any further compensation. This was challenged as disproportionate. The Court applied the second standard and rejected this claim because a compensation had been granted before; the reduction was not substantial; and the reduction was compensated through a rise of retail prices (para. 29, 31). The Winzersekt 1207 case concerned a regulation that prohibited the use of the label “méthode champenoise” for those sparkling wines that were not entitled to the registered designation of Champagne. In this judgment the Court applied the second form of the proportionality test and did not find a violation of that standard because of the existence of transition periods and the possibility to use other labels than the prohibited one (para. 22, 28). In a very similar way the Court decided in the Tobacco Labelling 1208 case regarding the prohibition of descriptors that amounted to the prohibition of the use of certain trade marks (“Mild Seven”, para. 152). In that case the Court also applied the ‘very substance’ standard and upheld the measure, because it provided for transitional periods and the operators could use other descriptors than the prohibited ones (paras. 152–3). In the cases Affish 1209 and Pfizer 1210 the Court, or the CFI respectively, assumed that the protection of health enjoyed priority over the prevention of economic losses and accordingly dismissed the pleas that measures were disproportionate because they imposed great financial burdens.1211 While in the Affish case the Court focused on the importance of the aim and virtually abstained from further balancing, the CFI combined the proportionality test with a cost/benefit analysis in the Pfizer case. Pfizer (the applicant) alleged that the prohibition of virginiamycin—the antibiotic that Pfizer produced 1205 1206 1207 1208 1209 1210 1211

Supra note 2. Supra note 1134. Supra note 2. Supra note 2. Supra note 2, para. 42. Supra note 1157, para. 461. See also Fedesa, supra note 2, para. 17.

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3.4 Proportionality in the Narrow Sense and that was used as an additive in feedstuffs—ensued significant costs for farmers.1212 The CFI dismissed that plea for the following reasons: 1. Health protection takes precedence over economic considerations. (para. 456, 471) 2. Using antibiotics as growth promoters is not essential; there are alternatives to that practice. (para. 459, 472) 3. The measure was of a provisional nature. (para. 460) 4. A transitional period was provided. (para. 460) 5. Farmers could continue to use other antibiotics, because the Commission did not impose a general ban on antibiotics, but only prohibited a specific one. (para. 473)

So, the CFI focused on the severity of the interference, in its programmatic statements and in the actual application of the standard. The argument that related to the importance of the aim was not alone decisive. In the decisions discussed so far, the application of the proportionality principle has not led to the annulment of the contested measures. In the BelaMühle 1213 case, though, the Court found the measure to be disproportionate. The case concerned a regulation that imposed the obligation to buy a certain amount of an animal feed product at a price that was three times the price of an equivalent product. The Court found the price to be disproportionate and accordingly annulled the regulation (para. 7). It was found disproportionate because it amounted to a discriminatory distribution of financial burdens (para. 7). The Court did not uncover the standard. I could only find one group of cases where the Court applied an argument that corresponded to the Weight Formula and annulled the measure on this ground: deposit cases, e. g. Man Sugar 1214 .1215 The Court had to decide on the proportionality of a system of deposits, ensuring the obligation to sell or export goods. In this case, the applicants challenged that the whole deposit was forfeited because only a minor obligation of the export licence was not fulfilled, namely to export in time. The Court, applying the first standard,1216 accepted this argument.1217 What is so remarkable is that the Court related the burden (the forfeiture of the entire deposit) with the pursued aim (ensuring the fulfilment of the obligations). It moreover assessed importances or weights: forfeiture of the entire deposit because of an infringement that was significantly less severe than the non-fulfilment of a primary obligation. This is an application of the Weight Formula. If the right to recover the deposit is called Pi and if the 1212

Pfizer, supra note 1157, para. 467. Supra note 1166. 1214 Case 181/84, The Queen, ex parte E. D. & F. Man (Sugar) Ltd v. Intervention Board for Agricultural Produce (IBAP) [1985] ECR 2889 (henceforth cited: Man Sugar). 1215 See also Case 66/82, Fromançais SA v. Fonds d’orientation et de régularisation des marchés agricoles (FORMA) [1983] ECR 395; Case 122/78, SA Buitoni v. Fonds d’orientation et de régularisation des marchés agricoles [1979] ECR 677. 1216 Cf. Fromançais SA, supra note 1215, para. 8; Buitoni, supra note 1215, para. 20. 1217 Man Sugar, supra note 1214, para. 29. 1213

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Chapter 3. Case Law of the ECJ aim of ensuring compliance with the licence is called Pj then the Court found that the interference with Pi (Ii ) was greater than the gains for Pj (Ij ), or in words of the Weight Formula: (Ii /Ij ) > 1. One must note, though, that this form of reasoning is not the rule but the exception in the Court’s case law. In the cases that have just been presented but also in numerous other cases, the Court has applied a range of criteria to determine the proportionality of a give measure, i. e. whether the burdens imposed by a measure are acceptable. Unless declared otherwise, these criteria were developed under the second standard, which is applied in connexion with fundamental rights appriasal. In other words the first standard is always deployed where proportionality is applied as an indepenent review standard. The following list summarizes these criteria:1218 • If certain practices are prohibited, e. g. the use of labels, can the affected persons have recourse to adequate replacements?1219 • Is a transitional period provided?1220 • Is the measure of a temporary nature?1221 • Does a measure leave discretion to the Member States (to prevent infringements of fundamental rights)?1222 • Does a measure leave discretion to Community institutions to cope with extreme burdens?1223 • Is it merely an administrative burden that is imposed on economic operators?1224 • Is the measure periodically reviewed and/or allows for the adoption to changes?1225 • Is it likely that the burden, having regard to the category of operators and costs, is small?1226 • If a measure establishes a “new” obligation, have most of the affected competitors already voluntarily adopted that obligation, so that it does not really bring an actual change?1227 • Does a measure, while imposing burdens on operators, simply return costs that these operators had caused in the first place?1228 1218

Decisions that are marked with an uppercase roman numeral employ the first standard. Tobacco Labelling, supra note 2, para. 150; Winzersekt, supra note 2, para. 28. 1220 Tobacco Labelling, supra note 2, para. 152; Winzersekt, supra note 2, para. 28. 1221 BSE, supra note 2, para. 101 (I ); Hauer, supra note 2, para. 29. 1222 Duff, supra note 16, para. 29; Erpelding, supra note 1200, paras. 28, 21 here proportionality was assessed in connexion with equal treatment. 1223 Bananas—Interim Measures, supra note 1184, paras. 41–7; T. Port, supra note 1185, paras. 27, 38. The Court claimed in para. 39 of the last mentioned judgment that it could review whether the Commission complied with the obligations that art. 30 imposed. Such an obligation flows from fundamental rights of traders. 1224 Schräder, supra note 2, para. 18 (I ), Zuckerfabrik Soest, supra note 2, para. 76, Fattoria, supra note 2, para. 61 (I ). 1225 Swedish Match, supra note 11, para. 92 (Geelhoed AG); BSE, supra note 2, para. 101; Bananas—Interim Measures, supra note 1184, para. 45; T. Port, supra note 1185, para. 28. 1226 Schräder, supra note 2, para. 18 (I ), SAM Schifffahrt, supra note 34, para. 74. 1227 Deposits, supra note 1126, para. 83. The Court did not uncover the standard but merely established whether the burden was excessive. 1228 Zuckerfabrik Soest, supra note 2, para. 146 (Lenz AG). The AG did not define the 1219

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3.4 Proportionality in the Narrow Sense • Does a measure provide rules in case of force majeure?1229 • When excessive costs are challenged, does the measure that creates costs also provides those that are negatively affected with direct or indirect compensation?1230 • Can a measure be interpreted in a way that conforms to fundamental rights?1231 • Does a Community measure correspond to regulations that already exist in all Member States where it is possible to exercise the regulated activity? For example, restrictions of planting vines exist in all wine producing Member States, so the Community is in principle allowed to pick up these regulations.1232 • Does a measure allow for the consideration of merits of a specific case?1233 • Does a measure impose a sanction for the breach of a secondary obligation that is as severe as a sanction for the breach of a primary obligation?1234

3.4.3

Evaluation

The analysis revealed the following characteristics of the doctrine: In contrast to other elements of the proportionality principle, this element is nearly always assessed in connexion with fundamental rights. The Court has developed two variations of this test: one test that considers interferences in relation to the aim and one that only focuses on the severity of the interference. The former, which is applied under the isolated proportionality test, favours Principle Theory, while the latter, which is always applied in connexion with fundamental rights appraisal, is incompatible with Principle Theory. Just as in the case law of the ECtHR and the GFCC , there is some disparity between the programmatic statements of the Court and the application of the review standard. This divergence effects that the application of both standards does not effectively differ. According to both standards, the Court’s review is limited to ensuring that the bounds of discretion are not overstepped. This is tantamount to verifying that interferences are not excessive; they are usually not related to the aim. Even if the Court relates aims and interferences, as in the deposit cases, the test differs from the Weight Formula, because the Court confines itself to establishing whether there is penalties are excessive.1235 This limitation is not provided by the Weight Formula. As a result, although its programmatic statements suggest an application of Principle Theory, the Court only rarely applies it. Critics of the Court share this assessment. The core of the critique is that the Court fails to weigh interests properly. Moreover, they add that the Court does standard but merely claimed that the measure was not disproportionate. 1229 Case 64/74, Adolf Reich v. Hauptzollamt Landau [1975] ECR 261, p. 268. 1230 Fattoria, supra note 2, para. 62. 1231 Neu, supra note 1152, paras. 12–14, Reich, supra note 1229, p. 269. 1232 Hauer, supra note 2, para. 21. 1233 Man Sugar, supra note 1214, para. 30 (I ). 1234 Ibid., para. 29 (I ); Fromançais SA, supra note 1215, para. 8 (I ); Buitoni, supra note 1215, para. 20 (I ). 1235 Ibid., para. 20; Man Sugar, supra note 1214, para. 29.

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Chapter 3. Case Law of the ECJ not pay sufficient weight to individual interests.1236 In reply to the criticism, I first refer to the list above. The criteria do take account of individual interests. Moreover, the Community institutions must be able to adopt measures of social redistribution. If individuals could block these attempts, social redistribution would be impossible and proportionality would be tantamount to the Pareto1237 or Kaldor-Hicks1238 optimum, which in turn is an expression of economic efficiency that critics of the current case law try to avoid.1239 Regarding the relevance of individual interests and balancing in general, the position of the Court is very similar to the approach of the ECtHR and the GFCC .1240 The ECtHR and the GFCC usually do not balance in the way that is envisaged by Principle Theory. Instead the ECtHR ensures that authorities do not overstep their margin of appreciation. The GFCC has developed a set of rules that resembles those devolped by the ECtHR. One may wonder whether the art. 52 § 3 CFREU , which aims at establishing consistency between the case law of the ECJ and the ECtHR, will lead to any changes in the case law of the ECJ . At least with regard to the field of socio-economic legislation this question must be answered in the negative. The margin of appreciation is roughly as wide as the discretion that EC legislators enjoy. Therefore the CFREU is unlikely to change the current case law of the ECJ . This assessment changes the position of the critics of the Court. Because the ECJ conforms to the standard of the Convention (and also the German standard, which is of course only relevant from the stance of German constitutional law) critics must either argue that the Convention standard is also insufficient or that the Community institutions must provide a higher (however ‘higher’ should be defined) level of protection than the Convention. Part III will therefore deal with the following problems: (a) Why do the courts refuse to apply the Weight Formula? (b) On this ground we can consider whether the approach of the Court should be accepted or rejected. This amounts to asking whether Principle Theory should be rejected or accepted. (c) If it were rejected, an alternative proposal would have to be developed.

1236

Emmerich-Fritsche, supra note 5, p. 224; Bühler, supra note 5, p. 205. The Pareto principle is a social choice mechanism that comprises this rule: An option (A) should be preferred to an other option (B) if it improves the situation of at least one member of society without impairing on the position of any other member, or, A  B if for all i: Ai % Bi and i = 1, 2, 3, . . . 1238 The Kaldor-Hicks optimum is a variant of the Pareto optimum. The optimum can be established even if the utility of one person is diminished, provided that that individual can be compensated. 1239 Emmerich-Fritsche, supra note 5, p. 65. 1240 For the relevance of individual interests see the above discussion of German law at page 129 and the analysis of the Mellacher, supra note 578 and Lithgow, supra note 616 cases on page 93 and page 96. 1237

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3.5 The Role of Facts

3.5

The Role of Facts

This section will deal with the role of facts in proceedings before the ECJ . This involves a brief definition of ‘facts’, some general observations about their role, the burden of proof, and, finally, the precautionary principle.

3.5.1

Definitions

The notion of facts can be defined from the point of view of philosophy (epistemology) or law, and procedural law in particular. In law and philosophy facts are distinguished from value judgements. Semantically statements about facts express an ‘is’; in legal writings facts are defined as objects of perception.1241 Thus they can be observed and one can prove their being either right or wrong.1242 In both respects, value judgements differ from facts: Semantically they express an ‘ought’ or an evaluation, for instance ‘good’. Moreover, they cannot be observed and thus have different validity conditions. This difference is reflected in law, because in many respects, procedural law distinguishes between facts and the interpretation of law (value judgement). Inferences from facts are regarded as facts as well, if they can be drawn by laymen.1243 However, the general principles from which the inference is deduced are not facts.1244 In common law there seems to be some uncertainty as to the subsumption of facts under a legal standard.1245 Usually it is regarded as a question of fact and thus in jury trials this act is the province of the jury.1246 For the purpose of this study, the application of a legal standard is not a matter of fact finding but a value judgement. Some authors rightly point out that the finding of truth might be subject to errors, cognitive defects or deficits.1247 But these difficulties do not render fact finding impossible in every case.1248 The definition of ‘fact’ is so important because only facts can be proved in the sense of procedural law. Value judgements cannot be proved in this sense. That is to say that only statements relating to facts must be supported 1241 Hodge M. Malek, Phipson on Evidence (Sweet & Maxwell, London, 16th edn., 2005), para. 1-36; Ian H. Dennis, The Law of Evidence (Sweet & Maxwell, London, 2nd edn., 2004), pp. 93–4, 98; Othmar Jauernig and Friedrich Lent, Zivilprozessrecht: Ein Studienbuch (Beck, Munich, 29th edn., 2007), § 49 VI; Eberhard Schilken, Zivilprozessrecht (Heymann, Köln, 5th edn., 2006), para. 475. 1242 Malek, supra note 1241, para. 1-36; Dennis, supra note 1241, pp. 93–4; Jauernig and Lent, supra note 1241, § 49 VI; Schilken, supra note 1241, para. 475. 1243 Malek, supra note 1241, para. 1-36. 1244 Jauernig and Lent, supra note 1241, § 49 VI; Schilken, supra note 1241, para. 477. 1245 Dennis, supra note 1241, p. 94. 1246 Malek, supra note 1241, para. 1-43. 1247 Alex Stein, Foundations of Evidence Law (Oxford University Press, Oxford, 2005), pp. 60–63; Dennis, supra note 1241, pp. 98–100. 1248 Stein, supra note 1247, p. 63.

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Chapter 3. Case Law of the ECJ by evidence, and only for questions of facts, the distribution of the burden of proof is relevant. This is not an expression of a sceptical view regarding value judgements. ‘Prove’ in this sense is defined as establishing a fact by adducing evidence. Value judgements cannot be proved but only demonstrated as right or wrong, by adducing good arguments.1249 For example, the question whether a burden imposed on citizens is excessive cannot be proved because it is not a question of fact. Facts, however, play a great role in the suitability and necessity tests: Does a measure contribute to the achieved aim? How large are the burdens imposed by such a measure? Facts are also the foundation of proportionality assessment: To find out whether a burden is excessive one must know how heavy the burden is and which burdens are imposed. The distinction between (uncertain) facts and value judgements can be found in the case law of the Court. Here, the distinction between facts and value judgements has an impact on substantive law, namely the breadth of discretion. An example is the case of Pfizer 1250 , where the CFI distinguishes between the determination of the acceptable risk (para. 167, value judgement) and the assessment of the facts (para. 168, facts), although it acknowledges that assessments might be complex and therefore warrant some discretion (paras. 168–9).1251 In an earlier case, the opinion of Roemer AG also reflects this distinction: Only the actual area of discretion, to which the balancing and evaluation of the various decisive criteria belong, is not subject to legal review. It can be submitted to judicial review only by means of a complaint of misuse of powers, so that the Court cannot substitute its own reasons for the reasons why the Executive considered its decisions to be appropriate. There appears to me to be no doubt that the facts upon which a discretionary decision is based are subject to judicial review. In this connexion we do not only have to think of the existence of the conditions for action laid down in a provision but also of the whole background of facts which determine and characterise discretionary decisions.1252

Maybe because value judgements cannot be proved to be true or false respectively, the Court usually refrains from their review and limits itself to find “manifest errors” and excesses of discretion.1253 The following quotation supports this approach: 1249

See page 23 for a brief introduction of the ‘truth’ criterion for value judgements. Supra note 1157. 1251 See also the very early judgement Case 6/54, supra note 1, para. 114 and Valsabbia, supra note 1133, (p. 1040–1) (Capotori AG); Case C–4/96, Northern Ireland Fish Producers’ Organisation Ltd (NIFPO) and Northern Ireland Fishermen’s Federation v. Department of Agriculture for Northern Ireland [1998] ECR I–681, para. 42 (henceforth cited: NIFPO); Mondiet, supra note 1201, para. 32; Fedesa, supra note 2, paras. 8–9; Case C–179/95, Kingdom of Spain v. Council of the European Union [1999] ECR I–6475, para. 29 (henceforth cited: Spain). 1252 Case 34/62, Germany v. Commission [1963] ECR 291 (German Edition), p. 335 § A.II (Roemer AG), emphasis added. 1253 See Roquette Frères, supra note 1201, para. 25 and n. 1201 for a comprehensive list 1250

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3.5 The Role of Facts In the nature of things, evaluations of facts and assessments of what is an apposite solution, particularly in complex economic matters, do not always produce answers that can be described objectively as being right or wrong; the more complex the basic facts, the more likely it is that a number of equally acceptable interpretations can be identified. In such circumstances, the Court cannot always say that a decision making body was wrong to adopt one rather than another. To do so is not to review the decision made, a judicial function, but to remake it, which is, in principle, an executive or administrative function.1254

Where the Court grants discretion due to uncertainty, this discretion is subject to certain limitations.1255 In the agricultural policy, the limits are very loose, because the Court only applies the manifest error test.1256 In early cases, however, it was made clear that the review of plain facts is not subject to discretion at all.1257 Although the Court follows the distinction between facts and value judgements, the line is very often blurred. Where EC legislators regulate markets, it is doubtful whether the assessment of facts and their appraisal can be neatly distinguished.1258 Where facts are uncertain and a risk assessment is necessary, this risk assessment is in itself a value judgement. This point is crucial: Plain facts are seldom disputed. It is their weight and importance that is challenged. In the Bananas 1259 case for example, it was disputed on which year the import quota should be based. The amount of imports in those years were facts and as such not disputed. But it was disputed which years allowed a better prediction of future consumption.1260 This is a value judgement and therefore falls under the discretion of the competent authorities. For this reason the importance of the is-ought-distinction should not be overestimated. As an analytical rule it is inviolable. However, practically it is difficult to apply or only of limited use because not the facts as such, but their evaluations are important.

3.5.2

Burden of Proof

The term ‘burden of proof’ describes the duty which lies on a party, either to establish a case or to establish the facts upon a particular issue.1261 If a party of references. 1254 K. P. E. Lasok, European Court of Justice: Practice and Procedure (Butterworths, London, 2nd edn., 1994), p. 361. 1255 See, for example, Pfizer, supra note 1157, para. 168. 1256 See Roquette Frères, supra note 1201, para. 25 and n. 1201 for a comprehensive list of references. 1257 Bebr, supra note 743, pp. 125–6. 1258 Ibid., p. 126; see Valsabbia, supra note 1133, § 4 (p. 1040–1) (Capotori AG); cf. Chalmers et al., supra note 1193, p. 490. 1259 Supra note 11. 1260 Bananas, supra note 11, paras. 57–8. 1261 Malek, supra note 1241, para. 6-01; for German law see Jauernig and Lent, supra note 1241, § 50 III.

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Chapter 3. Case Law of the ECJ cannot discharge this burden, the case will be decided against that party.1262 Such a rule is necessary if the evidence is inconclusive.1263 Without it, unclear cases could not be decided at all.1264 This term must be distinguished from the ‘standard of proof’, the degree to which the proof must be established.1265 The burden of proof comprises two categories: the persuasive burden (also referred to as the ‘legal burden’, the ‘probative burden’, the ‘ultimate burden’, ‘fixed burden of proof’ or the ‘risk of non-persuasion’, or Beweislast in German Law) and the evidential burden, also known as the burden of adducing evidence (or Darlegungslast and Behauptungslast in German law).1266 The evidential burden forces the party that bears it to make a prima facie case, i. e. the adduced evidence alone must be sufficient to raise an issue for the court to consider.1267 The corresponding German term is Schlüssigkeit (conclusiveness).1268 The persuasive burden is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. A party who fails to discharge a persuasive burden placed on him to the requisite standard of proof will lose on the issue in question.1269

To determine whether the persuasive burden has been discharged, the judge must look at all evidence.1270 The party that bears the persuasive burden usually bears the evidential burden, too.1271 The persuasive burden is fixed at the beginning of a trial, the evidential burden, though, can shift.1272 The persuasive burden rests on the party that substantially asserts the affirmative of the issue1273 and depends on substantive law.1274 This rule is also adopted because a negative proposition is more difficult to establish than an affirmative.1275 So far, the rules in civil law and common law procedures have been described. The meaning of terms such as burden of proof remains the same in different areas of law. But the distribution of the burden may follow different rules 1262 Malek, supra note 1241, para. 6-06; cf. Geiger, in: Erich Eyermann et al., Verwaltungsgerichtsordnung (C.H. Beck, Munich, 12th edn., 2006), § 86, para. 2a. 1263 Malek, supra note 1241, para. 6-07; Schilken, supra note 1241, para. 502. 1264 Jauernig and Lent, supra note 1241, § 50 III. 1265 Cf. ibid., § 49 V 2; Dennis, supra note 1241, p. 370. 1266 Malek, supra note 1241, para. 6-02; Dennis, supra note 1241, p. 371; Jauernig and Lent, supra note 1241, § 50 I. 1267 Dennis, supra note 1241, p. 373; Malek, supra note 1241, para. 6-02. 1268 Schilken, supra note 1241, para. 465; Jauernig and Lent, supra note 1241, § 25 V 1. 1269 Malek, supra note 1241, para. 6-02. 1270 Dennis, supra note 1241, p. 373. 1271 Malek, supra note 1241, para. 6-03; Jauernig and Lent, supra note 1241, § 50 IV 1 b. 1272 Malek, supra note 1241, para. 6-03. 1273 Ibid., para. 6-06; Jauernig and Lent, supra note 1241, § 50 IV 1. 1274 Lasok, supra note 1254, p. 346; Jauernig and Lent, supra note 1241, § 50 IV 1; Ferdinand O. Kopp and Wolf-Rüdiger Schenke, Verwaltungsgerichtsordnung: Kommentar (Beck, Munich, 15th edn., 2007), § 108 paras. 11–12. 1275 Malek, supra note 1241, para. 6-06.

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3.5 The Role of Facts in different areas. However, proceedings before the ECJ do not fall into this category and it is doubtful whether the concept of burden of proof is applicable: [I]n public law cases . . . the Court plainly has the power to order measures of enquiry of its own motion. This accords with the principle that in proceedings of this nature there is strictly speaking no individual burden of proof but rather an obligation, in fact on both parties, to co-operate effectively to discover the facts.1276

In German civil law, whenever a procedure is inquisitorial in nature, there is no evidential burden, but a legal burden remains.1277 ‘Inquisitorial’ means that the Court conducts investigations.1278 In German administrative law, a legal burden exists, but all parties are obliged to adduce evidence.1279 The procedure before German administrative courts is inquisitorial.1280 Is the procedure before the Court inquisitorial? Is there a burden of proof? The Rules of Procedure for the European Court of Justice (RP) and the Statute of the Court confer to the Court the power to conduct investigations on its own incentive, namely art. 24 and 25 of the Statute, and art. 47 § 1 and 94 § 2 RP. Though art. 38 § 1 (e) and art. 40 § 1 (d) RP require the parties to adduce evidence, these provisions are not an expression of an accusatorial nature of the proceedings because they only apply during the pleading stage.1281 The proceedings exhibit a double nature: On a first stage, they are accusatorial in nature; on a second stage, they are inquisitorial.1282 All parties have an obligation to produce evidence.1283 Coupled with the investigative powers of the Court, this effects that the Court will not decide against a party because it has failed to discharge its burden of proof.1284 These principles hold for contentious proceedings. In non-contentious proceedings there may exceptionally be a legal burden of proof, allocated by a substantive provision of law.1285 Although the Court seems to be unwilling to decide on the basis of the burden of proof, 1286 there is still need for a rule in cases where the evidence is inconclusive. In connexion with preliminary rulings it is sometimes stated that facts are irrelevant because the domestic courts alone have to deal with the application of the 1276

Case 18/70, Anne Duraffour v. Council of the European Communities [1971] ECR 515, p. 533 (Roemer AG). 1277 Jauernig and Lent, supra note 1241, § 50 III 1. 1278 Achim André, ‘Evidence Before the European Court of Justice, with Special Reference to the Grundig/Consten Decision’ 5 (1967) Common Market Law Review, p. 35, p. 38. 1279 Friedhelm Hufen, Verwaltungsprozessrecht (Beck, Munich, 6th edn., 2005), § 37, para. 17; Geiger, in: Eyermann et al., supra note 1262, § 86, para. 2a. 1280 Hufen, supra note 1279, § 35, para. 21; Geiger, in: Eyermann et al., supra note 1262, § 86, para. 2. 1281 Lasok, supra note 1254, p. 421; André, supra note 1278, p. 41. 1282 Ibid.; Lasok, supra note 1254, pp. 422–3. 1283 Ibid., p. 422; André, supra note 1278, p. 45. 1284 Lasok, supra note 1254, p. 423. 1285 Ibid., pp. 346, 421. 1286 Ibid., p. 422.

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Chapter 3. Case Law of the ECJ respective rules and thus with the assessment of facts.1287 That, however, is not absolutely correct, because the Court does have to take legislative facts into account when the validity of EC rules is at issue. In American law a lenient review standard is coupled with a distribution of the burden of proof—the persuasive burden—in favour of the government.1288 Can the same be said for those cases where the Community institutions are granted broad discretion? This issue cannot be overestimated. The allocation of the burden of demonstration is one of the decisive factors for the outcome of a case.1289 Cases like the Bananas 1290 case are an illustrative example. Lenient review standards coupled with an unfavourable allocation of the burden of demonstration amount to a double obstacle to the protection of fundamental rights.1291 Because the proportionality principle comprises distinct sub-principles, the question must be answered separately for each principle. (a)

Legitimate Aim

Though the question whether a pursued aim is legitimate does not depend on a certain state of affairs, the question which aims were actually pursued is a question of fact. Therefore, there must be a legal burden in this regard. Because the objectives are usually set out in the explanatory memorandum, there is no need to have recourse to the burden of proof. Sometimes, however, it is claimed that, actually, the institutions pursued other aims than officially stated.1292 The burden lies on the party that raises this claim, because it is difficult to prove that certain aims were not pursued.1293 In preliminary rulings, this is tantamount to a presumption that Community institutions only pursue the officially stated aims, which are usually legitimate. Usually, there should be no need to decide on the basis of the burden of proof: The Treaty provisions are so broad that the problems in this area amount to a question of interpretation of the relevant Treaty provisions.1294 In other words, the problem of which aims were actually pursued (question of fact) can be transformed to the problem of whether the allegedly pursued aims are covered by the applicable legal basis (interpretative problem). This distribution of the legal burden is not an insurmountable hurdle as the case of Tobacco Advertisement shows. In this case the applicants were 1287

Bengoetxea, supra note 53, p. 132. See page 150. 1289 The (admittedly untechnical) term ‘burden of demonstration’ comprises the persuasive burden, the evidential burden, and the allocation of argumentative (normative) burdens of persuasion. 1290 Supra note 11. 1291 See the practice of the Supreme Court in Section 2.4.2. 1292 For example Tobacco Advertisement, supra note 23, paras. 32–5; Tobacco Labelling, supra note 2, para. 43; Fedesa, supra note 2, para. 22; Worker’s Health, supra note 23, para. 26. 1293 Fedesa, supra note 2, para. 25. 1294 Walzmühle, supra note 1132, para. 37; Valsabbia, supra note 1133, § 7 (p. 1045) (Capotori AG); Fedesa, supra note 2, para. 23; Bananas, supra note 11, paras. 47–51. 1288

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3.5 The Role of Facts able to show that the measure did not aim at the removal of obstacles to trade (as officially stated) but at health protection only.1295 (b)

Suitability

According to the rule that only affirmative propositions should be proved, at the next step of the proportionality principle the burden of proof should rest on the Community. In the Worker’s Health 1296 case the Court decided this way and declared a provision void, because the Commission failed to prove that Sunday as a rest day contributed specially to the aim of health protection. The Court usually explains why a measure is appropriate,1297 which supports the proposition that suitability must be affirmed and that the Community bears the burden of proof. Were it otherwise, there would not be any need for the Court to mention evidence that supports the measure. Instead, the Court would have to discuss why the measure was not suitable. At this stage, the distribution of the legal burden is coupled with a very lenient standard. Even if evidence that calls the appropriateness into question is adduced, the Court stresses the broad discretion and that it is sufficient that the measure at issue contributes to a goal.1298 However, in the Bananas1299 case, the burden of proof was allocated to the applicants. The Court stated that the applicants had not shown that the Council had adopted measures which had been manifestly inappropriate or that it had carried out a manifestly erroneous assessment of the information available to it at the time when the regulation had been adopted. Rather, the Court should have relied on the evidence in favour of the measure. This exceptional distribution might have been due to the fact that appropriateness was assessed together with necessity. Another explanation is that the Court applied a very lenient standard under which the assessment was open to criticism only if it appeared manifestly incorrect in light of the information available to the Court at the time of the adoption of the rules in question. Because a manifest error must be shown, it seems appropriate to allocate the legal burden to the party that alleges such an error. However, the method in the Bananas decision is not consistent with the approach in the Tobacco Labelling case, where a lenient standard was applied, too. In that case the Court affirmed the appropriateness.1300 The same is true 1295

Tobacco Advertisement, supra note 23, paras. 105, 114. Supra note 23. 1297 Tobacco Labelling, supra note 2, para. 129; Fattoria, supra note 2, para. 57; Fedesa, supra note 2, para. 15; Handelsgesellschaft, supra note 3, paras. 6–8; Hauer, supra note 2, paras. 25–7; Schräder, supra note 2, paras. 21–3; Case 59/83, SA Biovilac NV v. European Economic Community [1984] ECR 4057, para. 17; Bozetti, supra note 1180, paras. 30–1 (suitability under art. 40 TEC ); Affish, supra note 2, paras. 30–7 (concerning a decision). 1298 For example, Schräder, supra note 2, para. 23. 1299 Supra note 11, para. 95. 1300 Tobacco Labelling, supra note 2, para. 129. 1296

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Chapter 3. Case Law of the ECJ for other cases cited in this paragraph.1301 Summarizing, one can say that the legal burden must be allocated to the Community, even under a lenient review standard. I would even say: In particular under a lenient review standard, the rigour of review should not be additionally diminished by allocating the legal burden in favour of the Community. One must be aware, though, that usually not plain facts but predictions about causal relations are disputed. Which standard of proof is applicable in a given case is a question of substantive law and is independent of the respective levels of the proportionality test. The most important rule in this connexion is the precautionary principle, which will be discussed below. (c)

Necessity

Under the necessity element, the legal burden rests on those parties that challenge it.1302 Were it otherwise, the Community would have to prove a negative proposition, namely that there are no other equally suitable measures that impose a smaller burden. Usually, the claim of a violation of this element is—according to the obligation to co-operate to find the truth—accompanied by proposals for less onerous measures. If these proposals do not convince the Court, the claim is dismissed.1303 This element is only tested if it is disputed. In the Fattoria 1304 case, for example, necessity was not discussed because it was not contested. One might argue that the Community institutions should, contrary to the general rule, bear the legal burden, because it has better access to the necessary information. However, this proposal would not entail a real change, because the Community institutions have to co-operate and thus have to produce evidence anyway.1305 (d)

Proportionality in the Narrow Sense

The appraisal of the last element does not necessarily depend on facts. It is principally a value judgement about the legal acceptability of burdens.1306 Still, facts are relevant: To what degree can the measure contribute to the achievement of the goals? How heavy are the burdens? Which alternatives does a citizen have in light of these burdens? How probable are adverse effects?1307 Proportionality includes a positive and a negative proposition: it is stated that the measure 1301 Fattoria, supra note 2, para. 57; Fedesa, supra note 2, para. 15; Handelsgesellschaft, supra note 3, paras. 6–8; Hauer, supra note 2, paras. 26–7; Schräder, supra note 2, para. 23. 1302 Tobacco Labelling, supra note 2, paras. 130, 139; Fedesa, supra note 2, paras. 15–16; Handelsgesellschaft, supra note 3, paras. 9–11. 1303 Ibid., paras. 9–11; SAM Schifffahrt, supra note 34, para. 68. 1304 Supra note 2, para. 58. 1305 See, for example, ibid., para. 68. 1306 Cf. Alexy, supra note 7, pp. 100 [67]. 1307 Strictly speaking, finding a probability is a value judgement. But it in turn depends on facts and it can be verified whether the predicted outcome will finally occur.

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3.5 The Role of Facts stays within the limits of discretion and it is stated that the institutions have not overstepped their margin of discretion. However, the Court is confined to finding excesses of discretion. In nearly every case there is a large set of proportionate measures. To avoid a substitution of one value judgement for another the Court must limit itself to finding a specific error, e. g. the lack of transitional periods. Because the errors imply that something is missing, e. g. there is no transitional period, it is reasonable to allocate the legal burden to the Community. Again, one must note that, usually, a case is not decided on the basis of the legal burden because the evidence suffices.1308 The distribution of the burden of proof depends on the approach to balancing. The Court seems to favour a rule oriented approach, i. e. the last step of the proportionality principle is put into concrete terms by defining rules. For example, if a measure provides transitional periods, then it is proportionate. The Community must adduce evidence that supports this rule. But it is for the applicant to allege a violation of a rule and to name the respective rules. These rules apparently resemble conditional preference rules as defined by Principle Theory.1309 Whether the whole approach of the Court matches Principle Theory will be discussed later.

3.5.3

The Precautionary Principle—Dealing with Uncertainty

So far, the distribution of the burden of proof has been discussed. I shall now come to an example for a rule on the standard of proof, the precautionary principle. Let me first describe the scope of the precautionary principle. The case of Pfizer 1310 —decided by the CFI —is instructive, although it deals with a commission regulation, i. e. it is governed by secondary legislation. In that decision, the scope of the precautionary principle is defined as follows: [W]here there is scientific uncertainty as to the existence or extent of risks to human health, the Community institutions may, by reason of the precautionary principle, take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. . . . However, it is also clear from the case law . . . that a preventive measure cannot properly be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified.1311

1308 Tobacco Labelling, supra note 2, paras. 150, 152; Fattoria, supra note 2, paras. 59–63; Fedesa, supra note 2, para. 17; Handelsgesellschaft, supra note 3, paras. 15–16; Hauer, supra note 2, para. 29; Schräder, supra note 2, para. 18; Irish Farmers, supra note 1134, paras. 27–9; Bela-Mühle, supra note 1166, para. 7. 1309 See above on page 71. 1310 Supra note 1157. 1311 Pfizer, supra note 1157, paras. 139 and 144.

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Chapter 3. Case Law of the ECJ The precautionary principle has also been acknowledged by the ECJ .1312 The principle is not only accepted in the field of health protection but also in environmental law, art. 174 § 2 TEC . The Court has implicitly referred to the precautionary principle in Mondiet 1313 : [i]t follows from the very wording of that provision that the measures for the conservation of fishery resources need not be completely consistent with the scientific advice and the absence of such advice or the fact that it is inconclusive cannot prevent the Council from adopting such measures as it deems necessary for achieving the objectives of the common fisheries policy.1314

However, the precautionary principle only allows the institutions to act, as this excerpt shows (see the emphasis); it does not oblige them to do so because the Court only stipulated that the Council cannot be prevented from acting in the absence of unambiguous data. The following quotation supports this view:1315 Besides, although Community measures that impose conditions on the access to waters and resources are, according to art. 4 § 1 of regulation 3760/92, based on the available biological, socio-economic and technical expert opinions, the lack thereof or their lack of persuasive force cannot prevent the Council to adopt measures that it deems necessary to achieve the goals of the common fisheries policy . . . In contrast to the submissions of the Spanish Government, the Council is not only entitled to adopt more stringent conversation measures, but may—with all due diligence—grant a wider access to fishery resources.1316

However, in the WWF 1317 case the applicants have founded their claim (the total allowable catch (TAC) for certain fish stocks should be set to zero) on the precautionary principle. I do not believe that the precautionary principle alone can justify this claim. If this principle were coupled with the principle of sustainable development, though, a justification would be possible. In its order of 2. June 2008 the CFI did not deal with these substantial problems because it dismissed the application as inadmissible.1318

1312

Case C–157/96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National Farmers’ Union [1998] ECR I–2211, paras. 62–3; BSE, supra note 2, para. 99; Case C–236/01, Monsanto Agricoltura Italia SpA and Others v. Presidenza del Consiglio dei Ministri and Others [2003] ECR I–8105, para. 111; see also Swedish Match, supra note 11, para. 98 (Geelhoed AG). 1313 Supra note 1201. 1314 Mondiet, supra note 1201, para. 31 (emphasis added); see additionally the references in Pfizer, supra note 1157, para. 115. 1315 See also Felix Ekardt and Davor Šušnjar, ‘Tatsachen und Tatsachenunsicherheiten im nationalen, europäischen und internationalen Umweltrecht: Zugleich zur Sein-Sollen-Scheidung im Recht’ 93 (2007) Jahrbuch für Umwelt und Technikrecht, p. 277, p. 306. 1316 Spain, supra note 1251, para. 32. 1317 Case T–91/07, WWF-UK Ltd (Godalming, United Kingdom) v. Council of the European Union [2008] . 1318 Ibid., para. 90; the case is currently under appeal as C-355/08, available at .

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3.5 The Role of Facts One issue should be clarified at the outset: the precautionary principle does not shift the burden of proof in any way but, if it has any procedural effect at all, lowers the standard of proof. The general rule is that the Court must be convinced, convincing proof or complete proof is required.1319 Applying the precautionary principle causes incomplete scientific evidence to suffice; still, this incomplete evidence must be adduced and it must meet certain requirements. One could even go a step further and deny that it has any procedural effects at all but that it is a rule of substantive law, as the wording of the principle suggests: action may be taken even if a hazard has only partially been verified. The Court must thus be completely convinced of the existence of partial scientific evidence for a hazard. Before being allowed to base a measure on the precautionary principle, the competent authority must define the acceptable risk and must take into account, among others, the severity of the impact and the reversibility of those effects.1320 In this regard, the institutions enjoy broad discretion.1321 In administrative procedures, the assessment must comply with standards of excellence, independence, and transparency.1322 However, it does not seem that the Court applies these criteria of scientific quality to EC legislation. In Safety Hi-Tech 1323 the Court stressed the discretion of legislators. In fisheries law, in particular in the determination of the TAC , the Council is not strictly bound by a scientific evaluation, but may take into account socio-economic and other political aspects.1324 And outside the field of environmental law or health protection the principle does not apply at all; the Court stated that “[l]egislative action by the Community, particularly in the field of social policy, cannot be limited exclusively to circumstances where the justification for such action is scientifically demonstrated.”1325 Chalmers et al. put it a bit differently by citing Pfizer: Although the judgement pays lip-service to the discretion enjoyed by policymakers, it also ties their hands. In areas characterised by scientific complexity, they must consult scientific bodies, which are marked by “excellence, independence and transparency”. Whilst the legislature is free not to follow their advice, it can only depart from it, if it provides scientific evidence of equivalent authority as a justification for doing so.1326

Although the Council did not really depart from the scientific advice in Spain or Worker’s Health, the Court stressed that the Council was not strictly bound by 1319 1320 1321 1322 1323 1324 1325 1326

Lasok, supra note 1254, p. 429. Pfizer, supra note 1157, para. 153. Ibid., para. 168. Ibid., para. 172. Case C–284/95, Safety Hi-Tech Srl v. S. & T. Srl [1998] ECR I–4301, paras. 43–52. Spain, supra note 1251, para. 32. Worker’s Health, supra note 23, para. 39, emphasis added. Chalmers et al., supra note 1193, p. 486.

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Chapter 3. Case Law of the ECJ scientific advice.1327 Anyway, the conclusions from Pfizer cannot be transposed to the legislature in general, because the Council acted within the framework of directive No. 70/542/EEC. The regulation was based on art. 11 § 3 and art. 3a(e) of that directive. Where the Council measures are based directly on the Treaty, procedural rules can only apply where they are provided by the Treaty. In Germany there had been a similar discussion in the 1970ies when one author proposed that certain rules established in the law of planning should also apply to legislators.1328 This idea was strongly rejected and still is today, for the reasons just outlined.1329 That is not to say that some rules might not apply to the Council; but they must be founded on the TEC or general principles of EC -law. This view is supported by the case law of the Court. For instance, the CFI explicitly rejected the proposition that the right to be heard should apply to legislative procedures.1330 Yet the Treaty does not impose a uniform concept for dealing with scientific advice. Art. 33 TEC usually grants very broad discretion,1331 but art. 95 stipulates that the Commission and the Council are bound by scientific expert advice. While the discretion under art. 95 is still considerable, one commentator is of the opinion that the consideration of scientific expert advice does not fall under the scope of discretion.1332 The case law in the field of custom duties can illustrate the possibilities and limits of judicial review. The Court ruled that in this field, the Commission was bound by scientific advice (see regulation 2784/79).1333 However, the experts had to have experience in the field,1334 and the applicant had to be given the right to a fair hearing. 1335 According to Jacobs AG, the Court should not evade the evaluation of technical questions; if necessary, expert advice could be called.1336 Still, the AG pointed out in para. 15 of that opinion that the Court was not the appropriate forum to discuss the technical equivalence of 1327 But cf. Case C–3/00, Kingdom of Denmark v. Commission of the European Communities [2003] ECR I–2643, para. 114 where the Commission was held to be strictly bound by scientific advice. 1328 Schwerdtfeger, supra note 908 1329 Geiger, supra note 899, p. 142; Schuppert, supra note 906, p. 10; Gusy, supra note 895, p. 298; Messerschmidt, supra note 910, pp. 922 and 874. 1330 Pfizer, supra note 1157, para. 487; cf. Case T–521/93, Atlanta AG et al. v. European Community [1996] ECR II–1707, paras. 70–1; Case C–104/97 P, Atlanta AG et al. v. European Community [1999] ECR I–6983, paras. 35–7. 1331 See n. 1201. 1332 Leible, in: Rudolf Streinz, EUV/EGV: Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (C.H. Beck, Munich, 2003), Art. 95 EGV, para. 58. 1333 Case C–269/90, Technische Universität München v. Hauptzollamt München-Mitte [1991] ECR I–5469, para. 20. 1334 Ibid., para. 22. 1335 Ibid., para. 25. 1336 Ibid., para. 13.

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3.5 The Role of Facts scientific devices but that this question was the province of scientific experts. He suggested that the Court should limit itself to reviewing the procedure and to finding manifest substantive errors (para. 16). This limitation, however, was only justifiable if four conditions were met (para. 16): • • • •

The The The The

procedure was in accordance with the relevant legislation. experts had to be impartial and independent (para. 34). experts had had regard to all relevant information. decision was reasoned such that some form of judicial review is possible.

It is noteworthy that the formula of manifest errors is broadening review in this context: an invalidation of the Community act is possible even if the conditions just outlined are met. The AG opted for an invalidation of the Commission decision because none of the requirements was met (para. 39, 47). The Court followed his opinion (para. 29). In Tetra Laval 1337 the Court stated that [w]hilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. Such a review is all the more necessary in the case of a prospective analysis required when examining a planned merger with conglomerate effect.

These examples show the crucial point: Special procedural constraints on decision making bodies only apply if they are provided by written Community rules and the bodies do not generally enjoy extraordinary discretion (e. g. because of their greater legitimacy). Both conditions are not met in case of Community legislation, especially in the field of agricultural policy. Where problems are not very complex, this does not jeopardize the protection of fundamental rights. This, however, need not always be the case.

3.5.4

Summary

The Court’s view regarding (uncertain) facts can thus be summarized as follows: Generally, facts and their correct assessment are subject to judicial review.1338 Yet, where the relation between facts is complex, the Court grants discretionary power to the competent Community authorities.1339 The Commission is usually bound by scientific advice. The Council (and the Commission when making 1337

Case C–13/03 P, Commission v. Tetra Laval BV et al. [2005] ECR I–1113, para. 39. The reasoning in Spain, supra note 1251, para. 27 does alter this conclusion because it refers to complex situations, see NIFPO, supra note 1251, para. 42; Case C–122/94, Commission of the European Communities v. Council of the European Union [1996 ] ECR I–881, para. 18; Roquette Frères, supra note 1201, para. 25. 1339 See n. 1201. 1338

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Chapter 3. Case Law of the ECJ legislative proposals) is not strictly bound by scientific advice, depending on the context.1340 In socio-economic legislation there need not be scientific proof for the assessments of the Council and predictions regarding the future development of facts. However, in this field at least some explanation is necessary. Where the marketing of products is regulated, recourse may be had to the precautionary principle. The precautionary principle allows legislators to act even if dangers are not fully scientifically proven; but it does not allow to act on unfounded hypothesis only. Where active measures have to be taken for the preservation of the environment, legislators discharge their obligations if they rely on international agreements and/or standards, in these cases—although the TEC obliges the Community to take active measures—the Court is very reluctant to engage in a detailed scrutiny. In other words, the Pfizer 1341 criteria are not applied. The importance of scientific evidence increases, the more specific the cases are. Directives and regulations must of course take account of new scientific developments. However, as much as legislation is of an abstract and general nature, so is the scientific advice in this regard. Legislative facts are usually more complex because they concern the overall situation. Summarized differently, the rigour of scrutiny is a function of the legitimacy of the decision maker, the complexity of the matter, and the mode of action required (active or passive). Legislators that face complex situations and that have more than one option available enjoy the broadest discretion possible on all levels of a decision: Which aims shall be pursued? Is there a need for action? Which measures are suitable? Which interest, among a set of competing interests, is most important? Where value judgements are concerned, the discretion is naturally broad. Because the relation between facts and their evaluation is at issue, the review of facts is practically toothless. However, the precautionary principle does impose some limits on legislators in this respect. And even in the socio-economic field legislators are not completely free to depart from scientific advice. In contrast, the Commission, when deciding a single case on ground of specific provisions is, strictly bound (even where facts are at issue) because the Commission is bound by scientific evidence.

3.6

Conclusion

1. The proportionality principle in EC -law basically comprises the same elements as in the law of the Convention and the GG, namely suitability, necessity, and proportionality in the narrow sense. Additionally, the legitimacy of the policy goals is always scrutinized. However, the context of its application differs fundamentally. The GFCC and the ECtHR both apply it as an element of the justification of interferences with fundamental rights because proportionality cannot be invoked independently. According to German law, individuals can 1340 1341

Spain, supra note 1251; Mondiet, supra note 1201. Supra note 1157.

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3.6 Conclusion only claim subjective, i. e. individual, rights but not objective principles of law like proportionality. Therefore one always has to have recourse to a fundamental right in order to challenge a violation of the principle of attributed powers or of the pursuit of legitimate aims. The same applies to the Convention. One must invoke a Convention Right and neither proportionality nor national power conferring rules are such rights. EC -law does not impose such restrictions. Any principle of EC -law may be invoked in proceedings, a recourse to fundamental rights is not necessary to rely on principles of, for instance, subsidiarity or attributed powers. Thus the proportionality principle is not entirely applied in connexion with fundamental rights. (a) Legitimate aims can be tested under the power conferring rules of the Treaty alone because fundamental rights do not (either explicitly or implicitly) effectively limit the set of admissible aims. (b) Suitability and necessity only concern the relationship between the pursued aim and the chosen means but not the relationship between either the means or the aim on one hand and the interference on the other. Therefore it is irrelevant which fundamental right is involved. Although the rigour of judicial review varies, it does not necessarily vary with the fundamental right at issue but, among others, with the subject matter. (c) Only proportionality in the narrow sense requires an appraisal of fundamental rights because here the relationship between the chosen means and the rights of the individual are at issue. Therefore only this step is assessed in connexion with fundamental rights. Steps of the proportionality principle are omitted if they are either not disputed or not relevant for the decision. If an aim was illegitimately pursued, then the corresponding measure will be void, no matter how suitable or necessary it might be. 2. Regarding the assessment of facts, the approach of the Court is very similar to those of the US Supreme Court, GFCC , and the ECtHR. These courts grant broad discretion in complex matters from the socio-economic field. Where issues are complex, the Court reviews Community acts deferentially where they are either relatively simple or are governed by a set of procedural rules, review tends to be strict. 3. The Court employs two approaches to balancing: There are some cases where the Court does balance to review measures beyond necessity, for example the security forfeiture cases. These administrative law cases can be contrasted to cases that concerned legislative acts. Here, the Court usually concentrates on the concrete weight of the interferences alone. They are not compared to the concrete importance of the competing aim. Therefore the Court does not balance in the way that is envisaged by Principle Theory. Although the interference is estimated, it is compared to some abstract legal standard, instead of the competing aim. 4. Before comparing the role of the Court with the role of the other Courts, one has to realize the characteristics of Community acts. They are to a large extent directives, which require further measures by the Member States. Usually they leave some discretion to the legislators of the Member States or its administrative bodies. So far as they leave discretion, the rigour of review is reduced from the outset because it is very likely that a measure can be applied in a proportionate way. Moreover, Community acts deal with the regulation of markets, subsidies, or with other economic issues. Because the Community lacks

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Chapter 3. Case Law of the ECJ police power, except in competition law proceedings, a large area of possible infringements of fundamental rights is inaccessible to the Community. Against this background, the role of the ECJ resembles those of the other courts. Legislative acts in the socio-economic field are only leniently reviewed due to complexity of the matter and the redistributive character of such measures. The question thus is whether this stance is justified from a methodical point of view and having regard to the legitimacy deficit of the Community and the nature of fundamental rights. The next part will deal with these problems.

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Part III

Theoretical Treatment of Balancing

4 Balancing and Decision Theory Overview Section 1.10 introduced the Principle Theory of fundamental rights, with the balancing of principles at its heart. Balancing in the sense of Principle Theory is required at the last step of the proportionality principle. Principle Theory roughly understands principles as optimization commands, i. e. it requires the maximization or realization as far as possible of what fundamental rights require. Furthermore, it requires the integration of various data (e. g. the abstract weight and the interference with a right) through the Weight Formula. However, Principle Theory makes certain assumptions regarding the mechanism of balancing. For one thing its proponents believe that ordinal or even lexical rankings are sufficient for the maximization or optimization of principles. 1342 This point is essential, because some believe that balancing in the Principle Theory style requires a cardinal and precise ordering of preferences or constitutional goods according to a common denominator. 1343 Two criticisms ensue from this view. The first is that humans cannot cope with the cognitive demands of such a procedure.1344 Moreover, critics argue that an objective yardstick for comparing the interferences and the weights of different rights does not exist. 1345 Such a position must be distinguished from a general scepticism in morals and legal reasoning. Instead of denying the rationality of legal reasoning in general, these critics only question the rationality of the balancing procedure that is envisaged by Principle Theory. These questions shall be considered from the point of view of a discipline that has more than any other explored the idea of maximization and information integration: economic theory in the guise of utility theory. Moreover, recent findings of psychological research shall be considered. The recourse to economic theory should not be regarded as a rejection of the domain specificity of rationality that was advocated above on pages 23–25. Indeed, proponents of 1342 Alexy, supra note 77, p. 443; Borowski, supra note 534, p. 83; see page 205–206 for a definition of ‘ordinal’ and ‘lexicographically’. 1343 Hillgruber, in: VDStRL, ‘61. Treffen der VDtSRL: Erster Beratungsgegenstand: Verfassungsrecht und einfaches Recht—Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit’ 61 (2002) Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, p. 154, 175; Scherzberg, in: VVDStRL 61, 173; Engel, in: VVDStRL 61, 190; cf. Tribe, supra note 1092, p. 596; cf. Habermas, supra note 39, pp. 315 [258–9] who also believes that balancing of principles exceeds human cognitive capabilities. 1344 Steiger, in: VDStRL, supra note 1343, 158. 1345 Hillgruber, in: VDStRL, supra note 1343, 175; Scherzberg, in: VDStRL, supra note 1343, 173.

Chapter 4. Balancing and Decision Theory economic theory believe that the idea of a maximizing and calculating man is universal and applicable in all areas of social sciences and related disciplines.1346 Some interdisciplinarily working scholars even believe that the economic notion of efficiency is identical to the legal notion of proportionality.1347 Others might even argue that the conception of proportionality that is enunciated by Principle Theory is identical to Utilitarianism, which in turn is the foundation of the economic idea of maximization.1348 The purpose of this chapter is not to identify Principle Theory with economic theory. The purpose is, and this cannot be stressed enough at this early point, to elucidate which assumptions one must make if he or she believes that maximization and information integration shall govern decision making. Economic theory, decision theory, and utility theory have been chosen because those concepts are analyzed best in these disciplines. The result may be that Principle Theory shares some defects of economic concepts; still, this should not be confused with an identification of both kinds of concepts. Instead, it should be understood as the uncovering of hidden assumptions and deficiencies that Principle Theory must address if it shall not crumble. In this respect, this part of the study picks up the trail of Schlink. He compared the weighing conception of Häberle, who also advocated a balancing approach, with utility theory.1349 His thrust against balancing approaches is that (a) a yardstick to achieve commensurability of goods is indeed necessary but (b) not available, especially for the generation of cardinal scales. Principle Theory acknowledges that cardinal scales cannot be objectively created but denies that the Weight Formula requires such scales.1350 This chapter will show that the latter claim cannot be upheld and will supplement Schlink’s findings by considering the cognitive requirements of balancing from a psychological point of view, which will provide an alternative approach to adjudicative decision making. A further clarification is needed: The model of the economic man can be understood descriptively and normatively, i. e. as a description of what people will do and as requirements as to what people ought to do. Moreover, even in the latter sense, this concept is only in a very narrow sense normative, because the preferences of the decision maker are not questioned but treated as givens (except for some consistency requirements that will be discussed below, on page 205). Thus, utility theory can only determine what shall be done given 1346

Horst Eidenmüller, Effizienz als Rechtsprinzip (Mohr Siebeck, Tübingen, 3rd edn., 2005), p. 31; Erik Gawel, ‘Ökonomische Effizienzforderungen und ihre juristische Rezeption’, in: Gawel, Erik (ed.): Effizienz im Umweltrecht (Nomos, Baden-Baden, 2001), p. 9, pp. 11–12. 1347 See ibid., pp. 17, 38. 1348 See Eidenmüller, supra note 1346, pp. 177–234 for a description of the relationship between utilitarianism and the notion of economic efficiency. 1349 Schlink, supra note 549, pp. 127–91. 1350 Alexy, supra note 7, pp. 140–2 [97–9]; Borowski, supra note 534, p. 83.

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Overview that the agent pursues a certain aim. In this respect however, Principle Theory does not differ from economic theory: Once commensurability is created by point of view and scale the question of how the third step of balancing [i. e. the comparison of intensities and weights] can be carried out proves to be simple.1351

The Weight Formula, is not concerned with how the weights can be determined exactly but how the combination of weights and intensities can be carried out. It thus shares the instrumental character of economic theory. Apart from this ‘normative’ aspect, Principle Theory also claims to be a correct description of what judges do when deciding fundamental rights cases.1352 Though it is not ultimately decisive what courts do, because they can make mistakes, it does have some impact on the convincing force of a theory if the allegedly correct descriptions prove to be wrong. If this were true, then it would moreover raise the question why judges do not behave as Principle Theory expects. The answers to these questions might have an impact on the ‘normative’ side as well. This affects Principle Theory in particular because Alexy asserts that “ . . . one who rejects principle theory must reject the principle of proportionality, too”.1353 The connexion between the normative and the positive side also warrants the examination of the positive claims of economic theory: Are people really constantly maximizing and calculating? The validity of this assumption is relevant because Principle Theory naturally chooses the maximization ideal as a point of departure but fails to give a justification for this choice.1354 Both central tenets of economic and Principle Theory—maximization (optimization) and integration (summing and weighing)—will prove to be far from obvious. This chapter will proceed by further explicating the notion of maximization and summing by presenting utility theory (which should not be confused with Utilitarianism!). Then some doubt will be cast on the notion of maximization (optimization) and summation by presenting the criticism of Simon and the recent research in fast and frugal reasoning.1355 On the foundation of this 1351

Alexy, supra note 77, p. 442. See the comments on BVerfGE 86, 1 and BVerfGE 95, 173 by Alexy, supra note 77, pp. 437–39. 1353 Alexy, supra note 494, p. 297; VDStRL, supra note 1343, p. 217. 1354 Hain, supra note 540, pp. 116–17; see Jan-Reinard Sieckmann, ‘Autonome Abwägung’ 90 (2004) Archiv für Rechts- und Sozialphilosophie, p. 66, p. 73, n. 21 for a very curious attempt. 1355 Herbert A. Simon, ‘A Behavioral Model of Rational Choice’, in: Simon, Herbert A. (ed.): Models of Man: Social and Rational: Mathematical Essays on Rational Human Behavior in a Social Setting (John Wiley & Sons, Inc, New York, London, Sidney, 1966), p. 241; Eduard Brandstätter et al., ‘The Priority Heurisitc: Making Choices Without Trade-Offs’ 113 (2006) Psychological Review, p. 409; Gerd Gigerenzer and Daniel G. Goldstein, ‘Reasoning the Fast and Frugal Way: Models of Bounded Rationality’ 103 (1996) Psychological Review, p. 650; Jörg Rieskamp et al., ‘Bounded Rationality’, in: Altman, Morris (ed.): Handbook of Contemporary Behavioral Economics: Foundations and Developments (M.E. Sharpe, Armonk NY, 2006), p. 218 1352

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Chapter 4. Balancing and Decision Theory alternative conception of rationality I shall present a competing model of adjudicative decision making that does not require either maximization or summation and that better describes adjudicative decision making than Principle Theory. This concept will be directly built on the findings from the two previous chapters and will provide some rationalization for the case law. The next two chapters will then turn to the truly normative question of which approach should be preferred, independently of its descriptive force.

4.1

Instrumental Rationality and Utility Theory

The central concept of instrumental rationality or economic decision theory is the notion of utility. For now utility can be understood as the rank that some option has in the agent’s order of preferences.1356 The decision rule is to choose the option that has the highest index in the scale or the highest utility.1357 This rule is sufficient if the outcomes of acts are certain. If only probabilities for outcomes are known or if the agent has no knowledge at all (uncertainty), then the utility function, which reflects the preference ordering, cannot alone be decisive. Rather, it must be combined with the empiric information.1358 Utility theory is concerned with the decision of individuals, welfare economics is concerned with establishing a utility function for societies. Once it is obtained, it can be utilized in the same way as an individual agent’s utility function. A very good illustration are the cost benefit analyses that are performed in the course of Impact Assessment (IA) by the Commission.1359 Whether a social choice function can be constructed and used within constitutional law will be discussed below.1360

4.1.1

Utility

Imagine this decision problem: An agent may choose between two certain options, A1 and A2 . The former yields a pay-off of EUR 1,000 while the latter yields EUR 800. Given that the agent is only interested in money pay-offs, the 1356 Duncan R. Luce and Howard Raiffa, ‘Utility Theory’, in: Moser, Paul K. (ed.): Rationality in Action (Cambridge University Press, Cambridge, 1999), p. 19, p. 21; Gérard Gaefgen, Theorie der wirtschaftlichen Entscheidung (Mohr, Tübingen, 3rd edn., 1974), pp. 140– 2. 1357 Luce and Raiffa, supra note 1356, p. 21. 1358 Paul K. Moser, ‘Rationality in Action: General Introduction’, in: Moser, Paul K. (ed.): Rationality in Action (Cambridge University Press, Cambridge, 1999), p. 1, p. 2; Gaefgen, supra note 1356, pp. 135–7. 1359 See European Commission, Impact Assessment Guidelines SEC(2005) 791, , 17 June 2008 1360 See Section 4.2.2.

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4.1 Instrumental Rationality and Utility Theory choice is clear. He or she will prefer A1 to A2 (for short: A1  A2 1361 ) and will therefore choose the first option. However, usually decision problems prove to be far more complex because preferences are not solely determined by money pay-offs. Just imagine that in the present example A2 will additionally yield greater gains in popularity of the agent.1362 In this case the popularity gains must be amalgamated with the money pay-offs. The phenomenon that utility is not solely determined by one variable but by multiple factors is especially true for problems that politicians must face,1363 and hence judges in the review stage of a measure. Utility integrates all these aspects and thus serves as a common denominator. On the social level this raises the question of commensurability, especially in cost benefit analyses.1364 On the individual level these problems do not arise: Preferences can be established by presenting the agent with pairs of options sequentially. The order of preferences thus reflected is also the agent’s utility function.1365 So, a utility function can be described as an expression of an agent’s preferences between at least two options that is bound to the decision maker. It is difficult to communicate because a common denominator between two agents cannot be found.1366 Accordingly, a utility function yields an index for each option available. If the decision rule is to maximize the index (and this is, indeed, the founding principle of economic theory1367 ), then the choice can be predicted according to the respective utility function. This requires that the utility function should fulfil certain consistency requirements: First, it must be complete. If this is not the case, then one cannot predict the choice for some alternatives. Second, the utility function must be consistent, or transitive: If A1 is preferred to A2 and A2 is preferred to A3 , then A1 must be preferred to A3 , or for short: A1  A2 and A2  A3 ⇒ A1  A3 .1368 A scale that fulfils this requirement is called ordinal because it simply reflects the ordering of the agent’s preferences and nothing more. That means that the only valid mathematical operation that can be performed with the indices is comparison, but not addition or multiplication.1369 Having an ordinal scale, it is 1361 Note that ‘’ should not be confused with ‘>’. The latter is used to compare quantities, e. g. 1, 000 > 800, while the former can be used express preferences regarding any property. One can reasonably say “green  blue” but not “green > blue”. 1362 These examples were taken from Günther Menges, Grundmodelle wirtschaftlicher Entscheidungen (Westdeutscher Verlag, Köln und Opladen, 1969), § 6.1. 1363 European Commission, supra note 1359, pp. 29–32. 1364 Andrea Renda, Impact Assessment in the EU. The State of the Art and the Art of the State (Centre for European Policy Studies, Brussels, 2006), pp. 85–8. 1365 Luce and Raiffa, supra note 1356, p. 21. 1366 Menges, supra note 1362, § 7.3, § 6.1; Luce and Raiffa, supra note 1356, pp. 22, 35–6. 1367 John von Neumann and Oskar Morgenstern, Theory of Games and Economic Behavior (Princeton University Press, Princeton, 1990), § 2.1.1; Luce and Raiffa, supra note 1356, p. 21. 1368 Ibid., pp. 21–2. 1369 von Neumann and Morgenstern, supra note 1367, § 3.1.2; Menges, supra note 1362,

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Chapter 4. Balancing and Decision Theory wrong to state that the option with index 2 is twice as good as the option with index 4 or vice versa because any sequence of numbers that differ in magnitude will yield admissible indices. Hence the index pairs π (3.14159) and 3.14 or 1 and 0 are equivalent to 4 and 2.1370 These indices are not numeric though they appear to be so.1371 For decision problems under certainty this is not a problem. The only operation that is necessary to come to a decision is the comparison of the respective indices. The same could be true in constitutional law if one only had to compare intensities of interferences. Here a mere ordinal scale that reflects that one intensity of interference is larger than another is sufficient. We shall later see that only truly numerical scales allow for calculations and what constitutes such scales. One can also order items nominally.1372 A nominal scale has named categories and each option is associated with such a category, e. g. ‘yes’, ‘no’.1373 Such scales do not allow for mathematical operations. Nominal scales cannot be utilized in a maximization scheme.1374 Moreover, nominal scales can be inconclusive: If the decision rule requires that a good option shall be chosen and if there is more than one alternative that fulfils this requirement, then one needs a further rule that singles out one alternative as the final choice.1375 Lexicographic scales are constructed by applying a set of criteria sequentially. If a criterion discriminates between two alternatives, then examination is stopped, otherwise the next criterion is applied.1376 A typical example is the ordering of words in a dictionary. The words are compared letter by letter. As soon as one letter from a word comes before the corresponding letter of the other word, the former will appear first, no matter how the other letters compare. Rawls defines the lexicographic order of liberty over distribute justice: If some option further liberty better than another, then that option has to be preferred, the influence on distributive justice is not considered.1377

4.1.2

Cardinal Scales

The notion of ordinal scales can be contrasted with cardinal scales. This distinction is as trivial as it is essential. An example shall clarify the difference between the two kinds of scales and the possibilities they offer. Temperature scales serve as a good example. The following items are ordered according to their temperature, the last item being the hottest: § 6.2; Luce and Raiffa, supra note 1356, p. 22. 1370 Ibid.; Menges, supra note 1362, § 6.2. 1371 von Neumann and Morgenstern, supra note 1367, § 3.1.2. 1372 Gaefgen, supra note 1356, pp. 144–5. 1373 Ibid. 1374 Ibid. 1375 Simon, supra note 1355, pp. 252–3. 1376 Brandstätter et al., supra note 1355, p. 411; Gaefgen, supra note 1356, pp. 154–5. 1377 John Rawls, A Theory of Justice (Oxford University Press, Oxford, 1983), § 2.11.

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4.1 Instrumental Rationality and Utility Theory 100◦ C boiling water

212◦ F boiling water

85◦ C boiling milk

185◦ F boiling milk

60◦ C coagulating egg white

140◦ F coagulating egg white 98.6◦ F human body

◦

37 C human body 32◦ F freezing water 0◦ C freezing water

0◦ F Danzig in winter 1708/09

Figure 4.1: Temperatures in ◦ C (left) and ◦ F (right).

1. 2. 3. 4. 5.

freezing water; human body; coagulating egg white; boiling milk; boiling water.

This scale reflects nothing but the rank. One cannot say that boiling water is five times as hot as freezing water or that the temperature difference between the human body and freezing water is as great as the difference between boiling milk and boiling water. One can only compare the temperature (T ) of the items, e. g. T (human body) > T (freezing water). We cannot quantify the difference between the items. Intervals between the items can be compared if one assigns numbers to the top and bottom items. Figure 4.1 shows the items on temperature scales. The left one shows the temperatures in Celsius: One can say that the difference between the temperature of coagulating egg white and of freezing water is 1.6 times the difference between the temperature of the human body and of freezing water ((60 − 0)/(37 − 0) ≈ 1.6). However one cannot say the temperature of coagulating egg white is 1.6 the temperature of the human body because the fixed points are arbitrarily set. If the bottom reference point were not the temperature of freezing water but of Danzig in the winter of 1708/1709 and if the top reference point were given the number 212, the scale would look like the right one in figure 4.1. This scale displays the same temperatures in the Fahrenheit scale. The relation between the intervals is the same ((140 − 32)/(98.6 − 32) ≈ 1.6). However, the relation between the absolute values is 1.4 (140/98.6) instead of 1.6. So, one cannot compare temperatures directly. 207

Chapter 4. Balancing and Decision Theory Scales that allow for assertions like “Interval Ii –Ij is x times the interval Ii –Ij+n ” are called interval scales.1378 A scale that had a fixed lower point is a relational scale: If the lower point of the Fahrenheit scale were 0 instead of 32 one could relate the absolute values and say 60/100 = (140 − 32)/(212 − 32) = 108/180 = 0.6. For decision theory this distinction between cardinal scales, which allow for calculations, and ordinal scales, which do not allow for calculations, is so important because the combination of utility and probability requires calculations and hence cardinal scales.1379 From the point of legal reasoning the distinction is important because it is commonly denied that cardinal scales of constitutional values or intensities of interferences can be established.1380

4.1.3

Combination of Utility with other Variables

The properties of nominal and ordinal scales render these scales useless in cases where integration is required. If a decision maker has the choice between two games that yield prices A1 . . . Ai with probabilities p1 . . . pi and if the utility (ui ) of an alternative corresponds to U (Ai ) then the subjective expected utility (SEU) of the game can be calculated as follows (where i = 1, 2, 3, . . . n and Pn p = 1): i i SEU =

n X

pi · ui

i

Table 4.1 illustrates the SEU formula. Each row represents one lottery, A1 and A2 . To compare the utility of each lottery, their SEUs have to be determined. The utility in the first state must be multiplied with the probability of its occurring. Then the utility in the second state must be combined with the probability of its occurring. The values are summed up. The same is done for the second row: SEU (A1 ) = 80 · 0.8 + 0 · 0.2 SEU (A2 ) = 0 · 0.8 + 90 · 0.2

= =

0.64 0.18

The SEU for the first alternative is larger. Accordingly, it will be chosen. A cardinal scale is required because a calculus does not make sense with ordinal scales. Cardinal scales do not only fulfil the criteria of ordinal scales but moreover reflect the intervals between the elements of the scale and allow for mathematical operations.1381 To illustrate that cardinal scales are required I 1378

Gaefgen, supra note 1356, pp. 156–7. Moser, supra note 1358, p. 4; Gaefgen, supra note 1356, p. 159. 1380 Alexy, supra note 7, pp. 141–2 [97]; Schlink, supra note 549, pp. 131–4; Borowski, supra note 534, p. 83. 1381 von Neumann and Morgenstern, supra note 1367, § 3.1.2; Luce and Raiffa, supra 1379

208

4.1 Instrumental Rationality and Utility Theory States of the World

Acts

A1 A2

State 1 (S1 ), p = 0.8

State 2 (S2 ), p = 0.2

80 0

0 90

Table 4.1: Illustration of the SEU formula.

shall alter the values for utility and probability without changing the preferential order. The initial values were: 90, 80, 0, and 0. An arbitrarily chosen sequence that reflects the same ordinal ranking is: 99, 1, 0, and 0. Everything else being equal the calculuses are as follows (the old values are displayed in small italic numbers above the new ones): 80

0.64

SEU (A1 ) = 1 · 0.8 + 0 · 0.2 = 0.16 90

0.18

SEU (A2 ) = 0 · 0.8 + 99 · 0.2 = 19.8

The results are reversed although the ordinal ranking was preserved. This example shows that a mere ordinal scale is insufficient for integration algorithms. The SEU formula can also be used to describe decision problems that are faced by legislators. The regulation of the marketing of genetically modified organisms (GMOs) shall be considered as an example. There are two options: Either marketing is allowed or prohibited. Moreover there are two states of the world, namely that the use of GMOs can have adverse effects or that it will only have positive effects. The probability that adverse effects will occur be 0.65, the probability for the occurrence of positive effects be 0.35. There are four possible outcomes: 1. In case of marketing without adverse effects, one could save money and avoid the use of pesticides. This would be the best outcome (u = 1). 2. If adverse effects occurred in case of allowing marketing, we would suffer a loss of biodiversity and some health problems. This would be the worst situation (u = 0). 3. If we prohibited marketing without negative effects occurring, we would have to use pesticides and we would spent money unnecessarily. But this situation is not as bad as the previous scenario, hence u = 0.25. 4. In case of prohibiting marketing and adverse effects occurring, we would still have the disadvantages of pesticides but we would avoid other disadvantages, u = 0.5.

note 1356, p. 22; Eidenmüller, supra note 1346, p. 26; Gaefgen, supra note 1356, pp. 158–9.

209

Chapter 4. Balancing and Decision Theory States of the world

Acts

Allow marketing (A1 ) Prohibit marketing (A2 )

No adverse effects (p = 0.35)

Adverse effects (p = 0.65)

Save money, no pesticides (u = 1) Pesticides (u = 0.25)

Loss of Biodiversity (u = 0) Health problems, pesticides (u = 0.5)

Table 4.2: A GMO-marketing problem.

Table 4.2 summarizes the problem of the marketing of GMO. The table does not claim to capture all aspects with the proper weights, it merely serves as an illustration. The SEU calculus yields the following results: SEU (Allow) = 1 · 0.35 + 0 · 0.65 = 0.35 SEU (Prohibit) = 0.25 · 0.35 + 0.5 · 0.65 = 0.415 Accordingly, one should choose the prohibit option. A change of utilities for the prohibit option (u(A2 |S1 ) = 0.15, u(A2 |S2 ) = 0.4) that preserves the ordinal ranking would lead to a reverse result: SEU (Allow) = 1 · 0.35 + 0 · 0.65 = 0.35 0.25

0.5

0.415

SEU (Prohibit) = 0.15 · 0.35 + 0.4 · 0.65 = 0.3125

The ordinal ranking of 1, 0.4, 0.15, and 0 is identical to 1, 0.5, 0.25, and 0. Policy makers and legal writers usually do not present the problem in this way. Instead of describing it as a lottery with different possible states of the world and thus different outcomes, they concentrate on one likely state of the world and focus on the detailed analysis of distinct fields of impacts.1382 For each option it is asked how severe the impacts or positive effects for economic activities, health, and environmental protection are. Probabilities are not explicitly considered but are included in the impact rating.1383 Each impact category can be further broken down. For example, one could assess impacts for certain groups of people or certain aspects of environment. 1384 An example is given in table 4.4, which is intentionally kept simple.1385 The three categories are not broken down to 1382 European Commission, supra note 1359, tables 1, 2 and 3, pages 29–31; Schlink, supra note 549, p. 140; Alexy, supra note 7, pp. 141 [98]. 1383 European Commission, supra note 1359, p. 33; Schlink, supra note 549, p. 140. 1384 European Commission, supra note 1359, pp. 30–2. 1385 It resembles the tables in Schlink, supra note 549, pp. 136–7 and Alexy, supra note 7, pp. 141 [98].

210

4.2 Utility Theory and the Weight Formula distinct constitutional rights. The decision rule is to choose the option that yields the highest index. The table cells show the rating ( I) of positive effects. Table 4.3 displays a generalized form of such a decision problem. Utility is calculated by multiplying the abstract weight (Wi ) with the concrete impact rating (Ii ) for each column, then the results are summarized for each row (R): U (R) =

n X

Wi · Ii , for i = 1, 2, 3, . . . n

i

The underlying structure is the same as for the SEU calculus: Combine variables and maximize! Again, a slight change in impact ratings for the prohibit option, which again preserves the ordinal ranking, leads to a different result, see table 4.5.

4.2

Utility Theory and the Weight Formula—Connexions and Differences

The SEU formula resembles the Weight Formula, which requires (a) that the intensity of the interference be combined with the abstract weight (which may be ignored in many but not all cases) and the certainty of the empiric premisses and (b) that the aggregated value be related to the corresponding combination of the gains, or for short: (Wi · Ii · Ri )/(Wj · Ij · Rj ).1386 Combination is required because the optimum result should be obtained. Thus, the Weight Formula requires an ordering of the interferences, abstract weights, and reliability of empiric data, such as: The intensity of interference with principle Pi is greater than the intensity of interference with principle Pj or: Ii > Ij . Also a scale must be created for fundamental rights, because usually a preference is assumed for life (Pi ) over other fundamental rights (Pj ) or: Wi > Wj .1387 Because the protection of life and health collides very often with other principles (just consider the numerous instances of environmental protection regulations or vast areas of consumer protection, recently the cases of lead contaminated toys), the precedence of the former cannot be neglected. The main thesis of this section is that Principle Theory moreover requires cardinal scales. It will show why this is so, why this is problematic, and how cardinal scaling could be abandoned. It will be argued that cardinal scaling cannot be eschewed without changing major tenets of Principle Theory.

1386 1387

Ri roughly corresponds to the probability of the occurrence of the interference. Alexy, supra note 77, p. 440.

211

Chapter 4. Balancing and Decision Theory

Possible Impacts

Acts A1 A2 .. . An U (An ) =

Po i

W1

W2

···

Wm

I1,1 I2,1 .. . In,1

I1,2 I2,2 .. . In,2

··· ··· .. . ···

I1,m I2,m .. . In,m

Wi · In,i for o = 1, 2, 3, . . . m

Table 4.3: A generalized form of policy choices.

Possible Impacts

Actions

Allow marketing (1.525) Prohibit marketing (1.585)

Economic Development (W = 0.8)

Health Protection (W = 1)

Environmental Protection (W = 0.9)

I=1

I = 0.5

I = 0.25

I = 0.25

I = 0.75

I = 0.75

1 · 0.8 + 0.5 · 1 + 0.25 · 0.9 = 0.8 + 0.5 + 0.225 = 1.525 0.25 · 0.8 + 0.75 · 1 + 0.75 · 0.9 = 0.2 + 0.75 + 0.675 = 1.585

Table 4.4: The GMO problem form a legal perspective.

Possible Impacts

Actions Economic Development (W = 0.8)

Health Protection (W = 1)

Environmental Protection (W = 0.9)

Allow marketing (1.525)

I=1

I = 0.5

I = 0.25

Prohibit marketing

I = 0.1

I = 0.6

0.75

0.75

I = 0.6

1.585

(1.22 ) 1 · 0.8 + 0.5 · 1 + 0.25 · 0.9 = 0.8 + 0.5 + 0.225 = 1.525 0.75

0.75

1.585

0.1 · 0.8 + 0.6 · 1 + 0.6 · 0.9 = 0.2 + 0.75 + 0.675 = 1.22

Table 4.5: The same problem as in table 4.4 with different ratings.

212

4.2 Utility Theory and the Weight Formula

4.2.1 (a) (i)

Why the Weight Formula Requires Cardinal Scales

Combination and Comparison The Example

As well as the SEU formula, the Weight Formula requires cardinal scales. Because the Weight Formula serves as a rationalization of the Law of Balancing, balancing according to Principle Theory, also requires cardinal scales. The GMO problem shall again serve as an example. Because the Weight Formula usually only considers two fundamental rights at one time, we shall only consider the right to life and health on one hand and the right to choose an occupation and to engage in work on the other. Let us assume the following set of ordinal preferences: 1. The right to life and health is more important than the right to choose an occupation and to engage in work. 2. The concrete interference with the right to choose an occupation and to engage in work is greater than the concrete interference with the right to life. 3. The dangers for the right to life are more certain than for the other right.

In terms of the Weight Formula, this can be expressed by the following pairs. For clarity’s sake, the letters i and j are replaced by the labels ‘Work’ and ‘Life’ for the rest of this discussion. 1. WLif e > WW ork 2. IW ork > ILif e 3. RLif e > RW ork

Alexy would represent this ranking with the numerical triplet 1–2–4, representing light, moderate, and serious interferences or corresponding adjectives. Because ordinal indices need not be numbers but any items that can be compared,1388 I shall also use letters: WLif e > WW ork IW ork > ILif e RLif e > RW ork

a>b α>β E>F

(4 > 2) (4 > 2) (2 > 1)

If one replaces the variables of the Weight Formula with the corresponding letters, one arrives at: WW ork,Lif e =

1388

Luce and Raiffa, supra note 1356, p. 22.

213

b·α·F a·β·E

Chapter 4. Balancing and Decision Theory This equation cannot be solved because we do not know, for instance, how many as correspond to one α. We cannot know by definition, because otherwise we would have a cardinal scale. According to Alexy his rough scale, which is represented by the numbers 1, 2 and 4, is sufficient to solve the weight equation: WW ork,Lif e =

(ii)

2·4·1 8 = = 0.5 4·2·2 16

Why the Triplet 1–2–4 is a Cardinal Scale—by Examples

If the scale 1–2–4 really were ordinal in nature, any triplet that fulfils a < b < c would be equivalent, e. g. 0.7, 0.8, 0.9. Moreover, we do not have to assume the same indices for each category, so for the abstract weights (W ), we could assume the latter scale and for impacts (I) we could assume 0.25, 0.5 and 0.75. For the reliability of empiric data we can set the indices 0.95, 1 and 1.5 (the corresponding letters from above are included in this figure): Alexy 2

W 0.8 b

I

0.5 β

R 1E

4

0.9 a

0.75 α

1.5

1

0.7

0.25

0.95 F

If these values are inserted into the Weight Formula, we will obtain this equation: WW ork,Lif e =

b·α·F 0.8 · 0.75 · 0.95 0.55 = = ≈ 1.1 a·β·E 0.9 · 0.5 · 1 0.45

So again, the same ordinal ranking yields different results if different indices are set. However, Alexy would object to this scaling. First, there only may be three or nine steps. Second, because each variable has the same influence on the final outcome, they must be scaled in the same way.1389 Therefore, one could indeed choose indices different from 1, 2 and 4 but for each category they had to be identical; for example, instead of 1, 2 and 4 one could choose 3, 3.14 and 3.141592. Moreover, the indices correspond to each other. Assume this equation (the abstract weights are ignored for simplicity): Wi,j = 1389

Ii · Ri 4·2 4·2 8 = = = =1 Ij · Rj 2·4 2·4 8

Alexy, supra note 77, p. 446.

214

4.2 Utility Theory and the Weight Formula Basically, the Weight Formula presupposes that the impact rating can be directly compensated by a reliability rating. This is illustrated if the above equation is written a bit differently: In a first step one can cross out the impact rating for the right to choose an occupation and to engage in work and the reliability rating for the right to life. In the next step the remaining values can be crossed out. WW ork,Lif e =

IW ork · RW ork /1 · 2 4 1 · 2/1 1·1 = =1 = = 1 1 ILif e · RLif e 1·1 2 · /4 /2 · 1

Once, the numbers are set, it does not matter whether they represent impacts or the reliability of empiric data. The following equations are actually identical: WW ork,Lif e =

IW ork · RW ork 4·2 = ILif e · RLif e 2·4

IW ork · RW ork 2·4 = ILif e · RLif e 4·2 So, the Weight Formula does not only require commensurability between different goods, like health and economic development. It also assumes that interferences and reliability ratings or abstract weights and interferences can be directly compensated and are commensurable. Actually, the three categories are therefore aligned on a single scale: WW ork,Lif e =

WLif e , IW ork

WLif e

IW ork

WW ork , ILif e , RLif e instead of

WW ork

ILif e

RW ork

RLif e

RW ork

Translated to plain English, the Weight Formula requires that there be a common denominator for the reliability of empiric data, the measuring of impacts, and the abstract weight of constitutional principles. It must be reasonable to say: “The abstract weight of the right to life is greater than the reliability of empiric data for the interference with the right to choose an occupation and to engage in work.” Even more, we have seen that such calculations require a cardinal scale. To clarify the problem: We do not only have to say that the right to life is x times more important than the right to choose an occupation and to engage in work. We also have to say that one unit of the abstract weight of the right to life corresponds to x units of the reliability of empiric data for the impact on the right to choose an occupation and to engage in work. 215

Chapter 4. Balancing and Decision Theory (iii)

Why the Triplet 1–2–4 is a Cardinal Scale—the Exponential Growth of 1–2–4

Alexy’s triadic scale 1–2–4 is no arbitrary choice. The indices grow exponentially: 20 , 21 , 22 . The difference between 1 and 2 is smaller than between 2 and 4. In the double triadic scale this is even more obvious: 1390 a moderate interference is rated 32 (= 25 ) while a very serious interference is rated 256 (= 28 ). Alexy chooses these indices because they reflect that “the power of rights increases overproportionally with increasing intensity of interference”. 1391 The very fact that this aspect is reflected in the choice of indices shows that Alexy requires a cardinal scale and not merely an ordinal one because the differences in intervals between going from the least serious to the medium impact and from going from the moderate impact to the most serious impact are reflected. The cardinal nature of these indices can be illustrated by indifference curves and indeed Alexy utilizes them to illustrate the point: Indifference curves illustrate the substitution rate of goods or the distribution of goods that people rate as equal. For example, having 50 units of good 1 and 50 units of good 2 is equal to having 45 units of good 1 and 65 units of good 2 or 30 units of good 1 and 70 units of good 2. Figure 4.2 shows two curves that illustrate possible distributions. Both curves show the same tendency. The less we have of good (principle) 1, the more we need of good (principle) 2 to compensate for that loss. Yet these curves differ fundamentally because their curvatures differ. The left curve is linear; a loss of one unit of good 1 can always be compensated by some fixed amount of good 2. The right curve is non-linear. The substitution rate is disproportionate: The less we have of good 1, the more we need an ever increasing quantity of good 2 and the rate at which the quantity of good 2 must be increased exceeds the rate at which the quantity of good 1 diminishes. So, mere knowledge of the tendency of substitution rates of principles (goods), which could be represented by ordinal scales, does not suffice because we need precise knowledge of the substitution rate and hence the intervals between utility rankings.1392 Alexy requires indifference curves that reflect the disproportionate substitution rates.1393 He relies on the disproportionate growth of compensation or substitution rates to explain why at some point certain infringements of rights cannot be justified anymore. 1394 Whether this explanation is convincing need not be examined here.1395 What matters is that Principle Theory requires that

1390 1391 1392 1393 1394 1395

Ibid., p. 445. Ibid., p. 446. See Rawls, supra note 1377, § 2.13—The Difference Principle, near figure 5. Alexy, supra note 7, pp. 147–9 [103–4]. Ibid., pp. 139–40 [96–8]. See Section 5.3.1(c).

216

I

Fulfilment Principle 1

Fulfilment Principle 1

4.2 Utility Theory and the Weight Formula

Fulfilment Principle 2

I Fulfilment Principle 2

Figure 4.2: Two indifference curves. ratings of abstract weights, impacts, and reliability should reflect a disproportionate substitution rate, an effect that can only be described with cardinal scales. (b)

The Theoretical Possibility of Commensurability

Game theory has provided a method for the creation of a scale as required by Principle Theory.1396 Suppose there are three options that have to be rated: A1 , A2 , and A3 . The preference ranking is A1 % A2 % A3 , i. e. A1 is rated best while A3 is the least preferred alternative. We can set the values 1 and 0 respectively for these alternatives. The utility for the second alternative can be determined by presenting a decision maker with a gamble that is composed of two options or lotteries: The first option will certainly yield outcome A2 (the ‘certain option’). The second option is a lottery that either yields A1 or A3 ; the probability for obtaining A1 is p and for obtaining A3 1 − p (the ‘lottery option’). The more certain it is that A1 will obtain, the more likely it is that the agent will choose the lottery option. Conversely, the more certain it is that A3 will obtain, the more likely it is that the agent will prefer the certain option. If we assume that there is a distinct probability value that marks the indifference between the certain option and the lottery option, then this probability value is the utility of the certain option. If we set this probability to 2/3, then the agent will be indifferent between obtaining A2 for certain and a lottery that yields A1 with a probability of 2/3 and A3 with a probability of 1 − 2/3. Hence, the utility is 2/3. 1396 See Luce and Raiffa, supra note 1356, pp. 24–33 for the rest of this paragraph. The approach is based on von Neumann and Morgenstern, supra note 1367

217

Chapter 4. Balancing and Decision Theory This scheme can be transposed to the variables of the Weight Formula. Again the abstract weights are ignored for simplicity. Imagine three different impacts on principle Pi that differ in severity: Ii1 , Ii2 , and Ii3 . Ii3 is the severest impact, Ii1 the lightest. Now a decision maker is confronted with this game: Either obtain Ii2 for certain or obtain a lottery that yields Ii1 with probability p and Ii3 with probability 1 − p. The rating (utility) of Ii1 be 1 and of Ii3 0. If the decision maker is indifferent between having Ii2 for certain and a lottery that yields Ii1 with probability 2/3, then the rating (utility) of Ii2 will correspond to this probability value. The same procedure can be can be applied to principle Pj . This method can be applied to arbitrarily complex games.1397 It shows that it is theoretically possible to compare probabilities with impact ratings. Moreover, one could create commensurability of the interferences for different fundamental rights, e. g. by presenting a decision maker with a lottery: Either obtain the full enjoyment of principle Pi or the full enjoyment of principle Pj with probability p. Again there must be a probability value at which the decision maker will be indifferent. One could repeat this procedure until commensurability between all variables is achieved. However, even if commensurability can be achieved according to this theoretically demanding scheme, a problem remains: If we assume that the triplet a, b, c is equivalent to 4, 2, 1, and if we substitute these values for the variables in the Weight Formula, then the following equation would obtain (for our GMO example): WW ork,Lif e =

b·a·c a·b·b

Even if this equation could be resolved in the following way: WW ork,Lif e =

b·a·c b·a·c /b1 · /a1 · c c = = 1 = 1 a·b·b b·a·b b /b · a/ · b

we could not resolve it any further because we do not know how many cs correspond to one b. What is worse, even the attempt to resolve the equation in the just presented way would be inadmissible! Because the triplet a, b, c represents an ordinal ranking, the only admissible mathematical operations are comparisons but neither addition nor multiplication. For this reason, the very substitution of this triplet into the Weight Formula and the crossing out of values denies the fundamental rules about ordinal scales found above.

1397

See Luce and Raiffa, supra note 1356, pp. 26–33.

218

4.2 Utility Theory and the Weight Formula

4.2.2

Why Cardinal Scales Are Problematic

The problem with cardinal scales is that their creation is methodically too demanding. Balancing sceptics like Schlink and enthusiasts like Alexy both reject the idea that cardinal scales of constitutional values or impact ratings are possible. 1398 Schlink presented three proposals to arrive at cardinal scales and showed their deficiency:1399 (a) One could try to attempt to deduce a scale from the provisions of criminal law, i. e. from the amount of penalties imposed. However, in constitutional law, such a scale does not exist. I would add that EC -law lacks criminal law altogether such that this attempt has no foundation in European law. (b) One could deduce the rating for some value by measuring its connexion with a supposed highest value; the more a value can be regarded as an expression of a highest value, the more important it is. Clear yardsticks for such an approach are also missing.1400 (c) The last alternative consists in deriving an ordering of constitutional values from the corresponding ordering of preferences of individuals in a given society.1401 The problem can be approached from two starting points: (i) One could first analyze from a moral point of view whether it is admissible at all to base social choice on individual preferences, and if so whether all preferences are relevant or whether some might be excluded. A critic to this approach would argue that it is a violation of Hume’s law to base social choice on individual preferences; therefore, the approach is inadmissible from the outset.1402 (ii) The second starting point for criticism is a formal and methodical one: Is it possible to describe the shift from individual to collective choices in a formally correct way? Given that this is theoretically possible, a critic might argue that it is actually impossible to determine individual preferences in a way which is suitable for being used in such a formal procedure.1403 Because the Weight Formula requires cardinal scales, we shall only consider methods that yield such scales. In particular, the inappropriateness of the Pareto criterion will not be discussed because it can at best provide an ordinal ranking of preferences.1404 1398 Schlink, supra note 549, pp. 134–5; Alexy, supra note 7, pp. 142 [99]; Borowski, supra note 534, p. 83. 1399 Schlink, supra note 549, pp. 134–5. 1400 See also MacCormick, supra note 42, p. 116. 1401 Kenneth J. Arrow, Social Choice and Individual Values (Yale University Press, New Haven and London, 2nd edn., 1970), p. 2; A. Sen, Collective Choice and Social Welfare (Holden-Day, Inc., San Francisco, 1970), pp. 2–5. 1402 Felix Ekardt, ‘Verengungen der Nachhaltigkeits- und Umweltschutzdebatte auf die instrumentelle Vernunft—am Beispiel der Wirtschaftswissenschaften. Zugleich eine implizite Kritik politologisch-soziologischer Basistheoreme’ 27 (2004) Zeitschrift für Umweltpolitik & Umweltrecht, p. 531, p. 541. 1403 Eidenmüller, supra note 1346, pp. 117–64; Ekardt, supra note 1402, p. 541. 1404 See Sen, supra note 1401, pp. 21–7 for a concise description of the problems entailed

219

Chapter 4. Balancing and Decision Theory I shall concentrate on the second starting point of critique. The Hume’s law objection is only convincing, if no normative assumption for the support of this approach could be adduced and ultimately justified. Even if it is possible to prove that no such reason can be found, it clearly exceeds the scope of this chapter, which is concerned with methodical issues. Moreover, the intricate philosophical issues involved in this problem largely exceed the scope of this study. Some critique from a legal point of view will be presented in Section 5.3, but it does not claim to be exhaustive. The problem can thus be formulated this way: Is there any meaningful way to determine cardinal individual preferences and is it formally possible to aggregate these scales into a function that represents the cardinal preference ordering of society. The short answer to the problem is: Although it is theoretically possible to determine cardinal individual scales, they do not allow for their being aggregated, even in theory. Above, in Section 4.2.1(b), the theoretical possibility of arriving at individual cardinal scales has been presented. The scales, however, can be transformed linearly: The scale 1, 0.5, 0 is absolutely equivalent to 100, 150, 0.1405 In order to compare individual scales, the lower and upper points must be fixed. In other words, a relationship between what person a rates worst/best and person b rates worst/best must be established. This procedure is a value-judgement and it is very doubtful, whether it can be made in any rational way.1406 The Kaldor/Hicks-criterion could be such a method. It is an extension of the Pareto criterion: According to the Pareto rule, a state S1 has to be preferred to another State S2 if at least one member of society is better off in S1 than in S2 and none is worse off.1407 According to the Kaldor/Hicks criterion, S1 should be preferred to S2 even if some are worse off in S2 , provided that it is possible to compensate for the losses of those who are worse off.1408 (As well as the Pareto rule, the Kaldor/Hicks criterion only yields an ordinal social scale. It is nevertheless discussed, for two reasons: First, even the modest claim of finding an ordinal social utility function meets considerable difficulties. Second, the problems related with the determination of the compensation shed a light on the difficulties of aggregating individual cardinal scales.) This method requires interpersonal comparisons of utility. 1409 Determining the amount of compensation is a value judgement and it cannot be inferred from individual willingness to pay without certain fallacies: The willingness to pay for a desired good is limited by the income one has to spend, while by this choice mechanism (the main objection is that it requires unanimity); see also the classic Arrow, supra note 1401 who is mainly concerned with ways of generating non-cardinal utility functions (p. 11 of that book). 1405 Ibid., p. 10; Sen, supra note 1401, p. 91; Luce and Raiffa, supra note 1356, pp. 32–3. 1406 Arrow, supra note 1401, p. 11; Sen, supra note 1401, p. 99. 1407 See, instead of many other references, ibid., p. 21. 1408 See, instead of many other references, Arrow, supra note 1401, p. 38. 1409 Gaefgen, supra note 1356, pp. 424–5.

220

4.2 Utility Theory and the Weight Formula the price that one demands is in no way limited by income.1410 Moreover, prices are distorted by endowment effects, i. e. the same good is rated higher if it is already in possession.1411 In short: The price largely depends on the current distribution of goods.1412 Furthermore, some aspects of a state or a good cannot be metricated.1413 Other aspects, like the interests of future generations, are not at all represented in current markets.1414 Furthermore, the cost-effectiveness must be calculated not with regard to single markets but to society as a whole.1415 These difficulties render finding cardinal distribution of values impossible. Therefore, this approach would have to be rejected, even if it were acknowledged in principle that social choice should depend on individual preferences. Conclusion: Since there is no way to come to cardinal scales of social (≈ constitutional) values, a constitutional theory of balancing must be designed so that it can work without them.1416

4.2.3

Possible Objections

Alexy’s first objection would be that the calculus only serves as an illustration of a decision already made.1417 It is only a rationalization that merely describes how the decision maker arrived at the decision, the values are not given in advance but are deduced from the decision. A good illustration should usually capture the characteristics of its object. The characteristics that have been elucidated by the illustration are: (a) Maximize (i. e. optimize)! (b) Find the optimum by integrating various factors into one single value. (c) The result of this mental process depends on the exact weight of these variables. Small changes can lead to reverse results even if the ordinal ranking is preserved through the change. Finding the optimum depends on how severe the interference exactly is in relation to the gain for the competing principle and on the accurate estimation of the reliability of empiric data and on the precise evaluation of the abstract weights. Formulated in natural language the formula runs as follows: 1410

Eidenmüller, supra note 1346, p. 118. Ibid., pp. 125–33 referring to research of Kahnemann and Tversky. 1412 Ibid., p. 139. 1413 Ibid., p. 145. 1414 Ekardt, supra note 1402, p. 542; Eidenmüller, supra note 1346, pp. 150–5. 1415 Ibid., p. 161. 1416 Ekkehard Hofmann, Abwägung im Recht: Chancen und Grenzen numerischer Verfahren im öffentlichen Recht (Mohr Siebeck, Tübingen, 2007) has recently argued that numerical methods should deserve more attention. He departs form the idea that the maximization of utility should be the ideal (p. 488, 545, 544). His analysis showed that numerical methods are rarely used in practice (p. 101, 530). He neither discusses why numerical methods are not used, nor which difficulties one must meet to create and operate cardinal scales (cf. Fischer-Lescano, supra note 168, p. 172). 1417 Alexy, supra note 7, pp. 142 [99]; Alexy, supra note 77, pp. 443–4. 1411

221

Chapter 4. Balancing and Decision Theory Rule 1 The greater the degree of non-satisfaction of, or detriment to, one right or principle, the greater must be the importance of satisfying the other.1418 Rule 2 The more heavily an interference with a constitutional right weighs, the greater must be the certainty of its underlying premisses.1419

Moreover, the abstract weights influence the balance if they differ.1420 So balancing depends on three variables for each principle. Moreover, one must rate the interference, the reliability of empiric data, and the abstract weight.1421 Finally, these values must be combined and related to each other. Nothing more or less was extracted from the Weight Formula as an illustration of the application of Principle Theory. The only difference between the Weight Formula and its natural language equivalent is that the former allows for the elucidation of all its requirements.1422 The crucial point is that we need a precise proposition of how the variables should be rated and that this rating must be cardinal in nature. Either the formulations of the Weight Formula are unfitting or Principle Theory indeed requires cardinal scales. One can imagine five methodical simplifications to eschew cardinal scaling. But at least the first two of these approaches change balancing such that it differs fundamentally from the Law of Balancing that is envisaged by Principle Theory. (a) The most obvious alternative is to abandon cardinal scaling altogether and to rely on ordinal scales.1423 This approach does not conform to the Law of Balancing because it requires the integration of the three variables. It has been shown that merely ordinal scales do not suffice for such an operation because integration depends on exact quantification. This was also shown by Schlink for the weighing conception of Häberle.1424 In that case one is forced to rely on one criterion only, the abstract weight. This is tantamount to a “tyranny of values”: If one relied only on the abstract weight, then even slightest interferences with the most important value could justify grossest violations of the competing value. 1425 Besides, this decision rule is inconclusive in many cases, if one assumes (as Principle Theory does) that most constitutional rights and principles are of equal value.1426 Because the replacement of cardinal with ordinal scales obstructs integration and the reflexion of varying substitution rates of principles it is incompatible with the Law of Balancing. Finally, the Law of Balancing and the Weight Formula rely on more than one variable. 1418

Ibid., p. 436. Ibid., p. 446. 1420 Ibid., p. 440. 1421 Ibid., p. 437. 1422 See Schlink, supra note 549, p. 134 for a corresponding assertion about Häberle’s balancing model. 1423 Ibid., pp. 135–8. 1424 Ibid. 1425 Ibid., p. 138. 1426 Cf. Alexy, supra note 77, p. 440. 1419

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4.2 Utility Theory and the Weight Formula (b) Another simplification would be to regard all principles as generally being of equal weight and to rely on concrete weights only.1427 This approach entails two problems: First, it is also incompatible with Principle Theory and the Law of Balancing because it assumes that abstract weights differ at least in some cases.1428 Second, it will not remove the difficulties with quantification. It is only shifted to concrete weights: These must still be cardinally scaled to be combined with reliability of empiric data.1429 (c) Moreover, one could argue that the formal correctness and the precision that is required by the Weight Formula is not required in its actual applications.1430 The triadic scale that has been proposed by Alexy will be sufficient in most cases. Schlink argued that formal correctness need not be achieved in all cases, but that it must be possible to arrive at if need were.1431 In contentious cases it must be possible to show that a decision was found in a formally correct way. I would add that although a triadic scale can indeed simplify the procedure of balancing, one must remember that it is still a cardinal scale. Assigning the values 1, 2, and 4 to light, moderate, and serious interferences implies saying that the difference between a serious and a moderate interference is twice the difference between a light and a moderate interference. It must express this difference, because Principle Theory relies on varying substitution rates. Although it is undoubtedly easier to handle than a scale over a continuum from, for example, 0 to 1, the fundamental objection against cardinal scales is not addressed. Besides, it is regarded as insufficient in many contexts. In the case law of the US Supreme Court a shift could be recognized from initially two standards of review to a set of more than three standards.1432 In German law the three-tier-model in the context of freedom of occupation has been loosened.1433 This shows that such a scale is usually insufficient in balancing. (d) The Weight Formula could be interpreted as a tallying procedure. Tallying algorithms share some properties of the Weight Formula. Tallying works by testing two or more alternatives against two or more standards. A score (tally) is maintained for each alternative. The score of one alternative is incereased if it fulfils the given standard. Once all standards have been applied, one has to choose the alternative that has scored highest.1434 Take the example from page 213. A tallying algorithm that resembles the Weight Formula would require the following rules: • Is the abstract weight greater? • Is the interference greater? 1427 1428 1429 1430 1431 1432 1433 1434

Schlink, supra note 549, pp. 138–41. Alexy, supra note 77, p. 440. Schlink, supra note 549, p. 141; Alexy, supra note 7, pp. 142 [99]. Cf. Schlink, supra note 549, pp. 141–2. Ibid., p. 142. See above, in Section 2.4.2. See above, in Section 2.3.2(a)(iv). See Gigerenzer and Goldstein, supra note 1355, p. 657.

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Chapter 4. Balancing and Decision Theory • Is the reliability of the empriric premisses greater?

The possible values are −1, 0, +1, which represent ‘No, equal, yes’. Note that it does not matter in which order the reasons are processed, because we process all before the final decision is made. The tally would look like this: Variable

Principle W ork Lif e

Total

W

I

R

−1 +1

+1 −1

−1 +1

−1 +1

Accordingly, the right to life should be preferred, because the score for this principle is higher than for the other one. This algorithm allows for compensation and thus shares an important property of the Weight Formula because a negative score in one category can be ‘outweighed’ by a positive one in another category. As such, it seems to prevent the “tyranny of values”. However, tallying does not capture an important idea of the Weight Formula and Balancing: The substitution rates increase with a varying rate. Alexy has chosen the indices 1–2– 4 because they reflect this property. But tallying disregards the exact quantities. A very small difference between abstract weights is treated the same way as a very large difference. What matters is the sign of the difference (negative or positive) and not its amount. If, for example, the net gains for IW ork were considerably larger than the surplus of importance for WLif e then this fact had to be ignored because only one reason at a time is examined and once it has been examined only the result (‘yes’,‘no’ or ‘equal’) matters but not the details. (e) Finally, the optimization ideal could be dropped. Integration and, hence cardinal scales, are necessary because the optimization ideal is pursued. Once the ideal is dropped simpler scales suffice, e. g. nominal scales.1435 However, this attempt is also incompatible with the Law of Balancing because the optimization of principles lies at the very heart of Principle Theory. So, all possible interpretations of the Weight Formula that do not require cardinal scales cannot capture Principle Theory adequately. Therefore it must be maintained that the Weight Formula and the Law of Balancing require cardinal scales

4.2.4

Summary

Principle Theory contradicts itself because it requires the integration of three variables and their optimization (abstract weight, intensities, and probability) and in the same breath denies that cardinal ordering of abstract weights and intensities is possible and necessary. The alleged merely metaphorical character 1435

Simon, supra note 1355, p. 250; Gaefgen, supra note 1356, pp. 144–5.

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4.2 Utility Theory and the Weight Formula of the calculus is actually a constituent of the theory. So, Schlink’s verdict about Häberle’s weighing theory also fits Alexy’s Principle Theory: The evaluation operation that was used to reconstruct Häberle’s weighing conception is methodically too costly and yet cannot give up the methodical expenses.1436

This section argued that the Law of Balancing requires cardinal scales, otherwise one of its main characteristics, integration, would be impossible. Moreover, it has been argued that cardinal scales are methodically too demanding and that in this point there is a consensus among balancing enthusiasts and balancing sceptics. Therefore, Principle Theory suffers from a methodical contradiction because it requires cardinal scales while it denies that cardinal scales can be reasonably created for any variable that must be considered in the Weight Formula. It is important to stress what has not been argued. Although the possibility of cardinal scales of constitutional values and impacts on fundamental rights was denied, it was not objected to their being scaled ordinally. At this point one must distinguish among balancing sceptics. Extreme sceptics deny the rationality of cardinal rankings and of any comparisons between constitutional values and impacts on fundamental rights.1437 Such an extreme view, however, is not necessitated by the mere rejection of cardinal scales. One can reject that cardinal scaling of impacts is possible but maintain that these can be compared without contradiction. In other words, one can say that interference Ii is greater than Ij but refuse to quantify the difference. The position of this study is that mere comparisons are possible, necessary, and sufficient for the application of fundamental rights and balancing. As such, balancing, understood as a comparison of interferences and weights, is necessary. But the scheme differs fundamentally from the Law of Balancing, i. e. we must abandon the Weight Formula and language that is reminscent thereof and pursue an altogether different methodical approach. Before the adjudicative variant of that approach can be presented its origin from decision theory will be presented and contrasted with the SEU formula and related algorithms.

1436 Schlink, supra note 549, p. 141: “Die Bewertungsoperation, in der Häberles Abwägungskonzept rekonstruiert wurde, ist methodisch zu aufwendig und kann auf den methodischen Aufwand doch nicht verzichten.”; English translation of the German original by the author. 1437 Ibid.

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Chapter 4. Balancing and Decision Theory

4.3 4.3.1

An Alternative Vision of Individual Choice Overview

The previous section criticized Principle Theory because it requires cardinal scaling of constitutional values, the impacts on these, and the reliability of empiric data regarding these impacts. It was moreover shown that there is consensus that cardinal scaling is not possible with these items. It also showed that Principle Theory and the Weight Formula resemble economic decision theory and the SEU formula. It closed by stating that balancing as envisaged by Principle Theory is methodically impossible without a self-contradiction. But it did not offer an alternative. Economic decision theory and Principle Theory can both be criticized even if it is conceded that cardinal scaling is possible in principle. This critique aims at the cognitive demands of mathematical models: The decision maker must have a complete, transitive, cardinal, and linear ordering of preferences; complete knowledge regarding the range of possible outcomes and the respective probabilities; and, in addition to these already demanding cognitive capabilities, a substantial amount of computational power.1438 Because Principle Theory shares with economic decision theory the concepts of maximization and integration, the critique also applies to Principle Theory. It is now widely held that humans violate the standards of rationality that are set by economic theory all the time and that economic theory does not provide an adequate description of human behaviour. 1439 Simon doubted that humans are capable to perform the computations needed for even the simplest algorithms (bounded rationality).1440 The classical view has been to regard this as an exhibition of human imperfection and not to question the standards of rationality.1441 Simon, however, did not only doubt that economic theory provided a correct description of human behaviour. He also questioned the (normative) standards of rationality.1442 Simon and recent research in psychology offer a constructive 1438

See Simon, supra note 1355, p. 241. Ibid., p. 243; Matthew Rabin, ‘Psychology and Economics’ 1998 Journal of Economic Literature, p. 11; Brandstätter et al., supra note 1355, pp. 409–10; Rieskamp et al., supra note 1355, pp. 219–21; Eidenmüller, supra note 1346, pp. 38–9. 1440 Simon, supra note 1355, pp. 243, 246. 1441 Rieskamp et al., supra note 1355, p. 219; see, for example the debate between Kahnemann and Tversky and Gigerenzer: The former present deviations from probability theory as violations of a norm, (Daniel Kahnemann and Amos Tversky, ‘On the Reality of Cognitive Illusions’ 103 (1996) Psychological Review, p. 582) while the latter tries to reconstruct from human behaviour which norms are applied instead. (Gerd Gigerenzer, ‘On Narrow Norms and Vague Heuristics: A Reply to Kahnemann and Tversky (1996)’ 103 (1996) Psychological Review, p. 592) 1442 Simon, supra note 1355 1439

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4.3 An Alternative Vision of Individual Choice alternative to the balancing approach that can serve as a starting point for an alternative to the legal balancing approach, while some believe that there cannot be any sensible alternative to balancing and maximization.1443 This study focuses on and relies on a research programme that is indebted to Simon’s idea of bounded rationality, although there are other schools that acknowledge bounded rationality. These are ignored, for three reasons: 1. They still cling to the maximizing man paradigm. 2. They only show dissatisfying or tentative attempts to fit evidence. 3. They stick to Bayesian probability interpretation.

(1 ) Although some theoreticians do try to include elements of bounded rationality,1444 the notion of maximization is still the centre of gravity in economic theory.1445 Connected with this aspect is the introduction of unrealistic assumptions like independence of irrelevant alternatives or transitivity.1446 (2 ) This leads us to the second problem: The discrepancy between evidence and the models. It is widely acknowledged that economic models do not necessarily represent reality.1447 Sometimes this is presented as a virtue.1448 Rubinstein openly concedes that there is an unwillingness to respond to evidence and that economic models should be based on a more psychological understanding of processes of thought.1449 The existing attempts to reconcile reality and economic models are not very elaborated, compared to psychological models.1450 The main problem is that elements of bounded rationality cannot be included in a

1443 Gawel, supra note 1346, p. 12; Alexy, supra note 494, p. 297; Sieckmann, supra note 1354, p. 73, n. 21. 1444 For example, Ariel Rubinstein, ‘New Directions in Economic Theory—Bounded Rationality’ 7 (1990) Revista Espanola De Economie, p. 3, p. 14. 1445 Ibid., pp. 9, 10; Ariel Rubinstein, Discussion of ‘Behavioral Economics”, in: Rubinstein, Ariel: Adavnces in Economic Theory (Cambridge University Press, Cambridge, 2006), p. 246, p. 247 (discussing behavioral economics); Shlomo Benartzi and Richard H. Thaler, ‘Heuristics and Biases in Retirement Savings Behavior’ 21 (2007) Journal of Economic Perspectives, p. 81, pp. 96–9; cf. Ariel Rubinstein, “Economics and Psychology’?: The Case of Hyperbolic Discounting’ 44 (2003) International Economic Review, p. 1207, p. 1215; Ariel Rubinstein, ‘Instinctive and Cognitive Reasoning: A Study of Response Times’ 117 (2007) Economic Journal, p. 1243, pp. 1243–4; Ariel Rubinstein and Yuval Salant, ‘A Model of Choice from Lists’ 1 (2006) Theoretical Economics, p. 3, pp. 4, 8. 1446 Ibid., p. 9. 1447 Matthew Rabin and Richard H. Thaler, ‘Anomalies: Risk Aversion’ 15 (2001) Journal of Economic Perspectives, p. 219, p. 220; Jon Elster, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (Cambridge Univ. Press, Cambridge, 2007), p. 215; Benartzi and Thaler, supra note 1445, pp. 82, 87–8, 90. 1448 Ariel Rubinstein, Modeling Bounded Rationality (MIT Press, Cambridge, Mass., 3rd edn., 2002), p. 191; Ariel Rubinstein, ‘Dilemmas of An Economic Theorist’ 74 (2006) Econometrica, p. 865, pp. 881–2. 1449 Ibid., pp. 873–4. 1450 Rubinstein, supra note 1448, p. 28, where a heuristic is presented with the last decision step missing.

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Chapter 4. Balancing and Decision Theory maximization scheme because the idea behind bounded rationality is simplification of thought processes and not the blowing up of already complex formulae with even more complexity. (3 ) Many theoreticians rely on a Bayesian interpretation of probability, i. e. they allow the assignment of probability values to single events and they apply the same axioms and rules to subjective probabilities and probabilities interpreted as frequencies. Probabilities as frequencies are statements about repeated events. Thus, for a Bayesian the following games are identical: “A coin is flipped once. You can either gain 200 or lose 100” (A). The game A is repeated 100 times (B).1451 Yet according to classical statistics, probabilities do not allow for reasonable statements about single events.1452 Many so-called fallacies disappear, once experiments are formulated with this difference in mind.1453 These aspects together hinder the development of a decision theory that abandons maximization (a judicial decision theory cannot rely on maximization) and that tries to explain actual behaviour (justification of judgments). The following should be noted: The research programme that picked up Simon’s trail was first directed at the process of inferential choices and later to preferential choices, with similar results. As such it provides a foundation for the prediction and description of human behaviour. This study aims at the elaboration of a normative theory for the application of fundamental rights. As such, descriptive theories may not have a direct impact on it because of the distinction between is and ought. Still, descriptive knowledge should not be neglected altogether. It must be possible for judges with their work load and their limited capacities (regarding availability of expert advice etc.) to apply this model so that predictable and hence objective results obtain. If it turns out that SEU and the Weight Formula are too complex for practical use then it is unsuitable from a normative point of view, for two reasons: (a) Norms should not demand the impossible (ultra posse nemo obligatur). If no one is able to fulfil a norm, then it does not make any sense. (b) A legal theory for the application of fundamental rights must, like any other theory, satisfy the core tenets of legal reasoning: coherence, consistency, universalizability, and defeasibility (see Chapter 1). This affects the theory in two ways. (i) A normative theory that does not fit the legal order (and the case law) is either unacceptable or needs a justification that establishes coherence and consistency, e. g. by abandoning certain established parts. A theory that does not fit with current doctrine requires extra justification for this discrepancy, while a theory that fits is easier to justify. (ii) A theory that is complex and difficult to apply is apt to lead to unpredictable results, and thus is likely to 1451

Rabin and Thaler, supra note 1447, pp. 223, 227. Gerd Gigerenzer, Adaptive Thinking: Rationality in the Real World (Oxford Univ. Press, Oxford, 2002), pp. 247, 250, 252. 1453 Ibid. 1452

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4.3 An Alternative Vision of Individual Choice violate the requirements of coherence and consistency. Principle Theory violates both prongs of the second criterion. The rest of this section will merely show that simpler algorithms than the Weight Formula and SEU exist, which nevertheless provide predictable and thus objective results. The following passages can thus show nothing more than that there are alternative decision making processes that fit the adjudicative role much better and that are much easier to apply. Whether these algorithms should be applied cannot be answered solely on that ground. But because Principle Theory purports that it can describe decisions correctly and that it is the only way to do so properly,1454 proving the opposite will have some impact on the plausibility of its normative justification. Finally, a rejection of Principle Theory should present some constructive alternative to the Weight Formula.

4.3.2

Satisficing—General Characteristics

The major characteristic of the alternative model of individual choice is the rejection of the central theme of economic decision theory: maximization. The thrust is directed at the descriptive and prescriptive claims of economic decision theory. It was Simon who first stated that people neither behave as if they were maximizers nor that it would be feasible if they did.1455 Instead people “satisfice”, they strive for the achievement of an aspiration level only.1456 They only look for an outcome that satisfies the standard or that is sufficient, hence the hybrid word ‘satisfice’. A chess player, for example, is only looking for a good move, i. e. a move that improves his situation; he or she is not looking for the “best” move.1457 Once the optimization ideal is dropped, certain methodical simplifications appear. We have seen above, that optimization requires the integration and weighing of information, which in turn requires cardinal scales. Abandoning optimization renders integration and hence cardinal scaling superfluous. First, instead of integrating information, categories may be tested separately and one after another for satisfaction, in particular where values lack a common denominator. An outcome is then satisfactory if it is satisfactory regarding all categories. And it is satisfactory if it meets the aspiration level. 1458 Figure 4.3 illustrates such a decomposed function of values. Each axis represents the amount of a good. The dashed lines mark the satisfactory amount. The shaded area marks the 1454

Alexy, supra note 77, pp. 437–9; Alexy, supra note 494, p. 297. Simon, supra note 1355, pp. 243, 246. 1456 Herbert A. Simon, ‘Rational Choice and the Structure of Environment’, in: Simon, Herbert A. (ed.): Models of Man: Social and Rational; Mathematical Essays on Rational Human Behaviour in a Social Setting (John Wiley & Sons, Inc, New York, London, Sidney, 1966), p. 261, p. 261. 1457 Simon, supra note 1355, p. 250. 1458 Ibid., pp. 250–2. 1455

229

Satisfaction Good 1

Chapter 4. Balancing and Decision Theory

k1

k2 Satisfaction Good 2

Each axis represents the amount of a good. The dashed lines mark the satisfactory amount. The shaded area marks the satisfactory combinations.

Figure 4.3: A Vector Utility Function satisfactory combinations. So weighing is still necessary but not the integration or summation of weights.1459 Second, because we only need simple comparisons in order to check for the achievement of the aspiration level, we do not need cardinal scales, which principally require a continuum of values and reflect the intervals between alternatives. Instead, a two or three valued function suffices, the values may either represent satisfaction and non-satisfaction or win, draw, and loose.1460 Although the idea of a three valued function of satisfaction resembles the triadic scale that was proposed by Alexy, the differences should be noted. The triadic scale is a cardinal scale because the intervals 1–2–4 reflect the exponential growth of interferences with rights or the decreasing utility of the fulfilment of some other goal. It is moreover a scale that integrates abstract weights, impact ratings and the reliability of empiric data. Figure 4.4 illustrates the difference between these scales. U represents a cardinal scale of utility.1461 It increases along with the growth of some quantity—with a varying rate. It has a continuous set of values that reflects the intervals. The graph T on the other only has two values, representing satisfaction or non-satisfaction. The rating +1 does not tell us how satisfactory alternatives are. All satisfactory outcomes are treated equal in this respect. The same is true for non-satisfactory results (−1). Classical utility theory, as well as Principle Theory, requires that all circumstances be taken into account.1462 The fast and frugal approach, however, tries to limit the amount of information so that not all circumstances need to be 1459 1460 1461 1462

Brandstätter et al., supra note 1355, p. 410. Simon, supra note 1355, pp. 246–7; Brandstätter et al., supra note 1355, p. 409. This graph resembles figure 1 in Simon, supra note 1355, p. 247. For Principle Theory see Alexy, supra note 494, p. 299.

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4.3 An Alternative Vision of Individual Choice

Utility

U T

1 0

−1 Quantity of a Good

U represents a cardinal function of utility of some good, it increases with a varying rate. T represents a two valued graph of satisfaction or non-satisfaction.

Figure 4.4: Utility functions over a continuum and with three values States of the world

Acts A1 A2

S1

S2

100 (p = 0.11) 500 (p = 0.1)

0 (p = 0.89) 0 (p = 0.9)

Table 4.6: The priority heuristic is illustrated with this gamble. Note that the probabilities for the occurrence of S1 and S2 differ slightly.

considered.1463 This limitation is a by-product of the satisficing ideal: Once the agent has found a satisficing solution, he or she cannot improve his or her situation and thus there is no need to gather further information. Again, the chess player can serve as an example, he is looking for a good move only, i. e. one that clearly leads into a win situation. Once that move is found, the chess player will stop examination of other alternatives.1464

4.3.3

Priority Heuristic

The characteristics of an alternative to balancing are best described with an example, the priority heuristic. The priority heuristic shall be illustrated with the decision problem that is summarized in table 4.6. The SEU formula requires that all reasons, the gains and the probabilities, be considered in one step and integrated by multiplication and summation. The priority heuristic does not follow the integration ideal. 1463 1464

Simon, supra note 1355, pp. 248–50. The example is taken from Ibid., p. 250.

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Chapter 4. Balancing and Decision Theory There are two classes of heuristics: lexicographical rules and tallying. Lexicographical rules examine reasons in a specific order and base their decision on one reason only. Examination of reasons is stopped once a reason discriminates between two alternatives.1465 Tallying examines at least two reasons and decides after all reasons have been examined on grounds of a running score (tally). The score of an outcome is increased if a reason speaks in its favour, otherwise it is left untouched.1466 The decision rule is to choose the outcome that is supported by more reasons. In this case all reasons are considered to be of equal weight.1467 The priority heuristic is a lexicographic rule, i. e. it examines reasons in a specific order, stops examination if a reason speaks in favour of an outcome, and decides on grounds of this reason only. The priority is reflected in the order of examination: the most important reason comes first. To describe the algorithm completely, one needs to know which reasons are considered; in which order they are examined; and what causes the decision maker to stop the examination of reasons.1468 The priority heuristic considers the following reasons separately and in this order: minimum gain, probability of minimum gain, and maximum gain.1469 The priority heuristic is tailored for two-outcome games (although it can be extended to cover multiple outcome games). In such a game there are only three reasons: minimum gains, maximum gains, and probabilities for each gain.1470 Brandstätter et al. have founded this algorithm on empiric data that suggests that people 1. do not treat reasons equally but assign priorities.1471 Hence the priority heuristic examines reasons in a specific order and bases the decision on the first (i. e. most important) reason that discriminates between options. 2. generally assign greater importance to outcomes than to probabilities.1472 Therefore the outcomes are always examined prior to their corresponding probabilities. 3. are generally risk averse and therefore try to avoid the worst outcome.1473 Therefore the minimum gain is examined first.

In two-outcome games the probability of the maximum gain can be neglected because it corresponds to the probability of the minimum gain. If there are more than two outcomes, these probabilities must also be considered.1474 For

1465 1466 1467 1468 1469 1470 1471 1472 1473 1474

Brandstätter et al., supra note 1355, p. 411. Gigerenzer and Goldstein, supra note 1355, p. 657. Ibid. Brandstätter et al., supra note 1355, p. 411. Ibid., p. 412. Ibid. Ibid., p. 411. Ibid., p. 412. Ibid. Ibid., pp. 413–4.

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4.3 An Alternative Vision of Individual Choice many situations Brandstätter et al. can provide evidence that support these rules.1475 The descriptive force of the heuristic is not without limitations though, i. e. under certain circumstances the heuristic does not accurately predict the choice. The limitations will be will be described in more detail on page 233. Because a lexicographic rule tries to limit the amount of reasons that must be examined and bases the decision on one reason only, there must be a rule that indicates that sufficient information is available. For the priority heuristic this amounts to asking which difference between gains and probabilities is large enough. The required difference is called aspiration level by Brandstätter et al.1476 The aspiration level is dynamic and depends on the maximum gain, i. e. the higher the maximum gain, the greater the difference between gains must be.1477 Brandstätter et al. propose that the difference should be 1/10 of the maximum gain or 1/10 of the probability scale.1478 In the game from table 4.6 the aspiration level would be 50 ( 500 · 1/10). Research has shown that people round up to so-called prominent numbers, i. e. powers of 10, their doubles and halves (i. e. 1, 2, 5, 10, 20, 50, 100, 200, . . . ).1479 If the maximum gain were 490, then the aspiration level would nevertheless be 50 because 49 (490 · 1/10) is rounded up the next prominent number, which is 50 (102 · 1/2). Finally, a decision rule is needed. The rule is to choose the game with the more attractive gain or probability, where ‘attractive’ refers to the highest gain or the lowest probability for the minimum gain respectively.1480 If no criterion discriminates, one has to guess. In this example, A2 would be chosen: The minimum gains do not differ (by more than 50). Therefore we have to examine their probabilities. They differ, but the difference of 0.01 is smaller than the aspiration level of 0.1. Therefore one has to examine maximum gains. These differ by more than 50 and hence A2 is chosen because the gain is greater. The priority heuristic can predict peoples’ choices more correctly than algorithms that are based on weighing and summing and is by the way much faster.1481 It can explain many phenomena that seem to be violations of rationality if SEU or related algorithms serve as a yardstick. Although the priority heuristic can explain many phenomena, it fails under certain conditions. First, it assumes that decision makers are risk averse, which is reflected in the ranking of reasons.1482 Second, the aspiration level is some source of individual difference. Moreover, the priority heuristic fails if the difference 1475 1476 1477 1478 1479 1480 1481 1482

The Priority Heurisitc: Making Choices Without Trade-Offs 412. Ibid., p. 412. Ibid. Ibid., p. 413. Ibid. Ibid. Ibid., pp. 414–25. Ibid., p. 425.

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Chapter 4. Balancing and Decision Theory between expected values is too large.1483 Where the SEU calculus reveals that the expected utility of an outcome is at least twice as large as for another outcome, then this outcome will be chosen no matter what the priority heuristic may predict. Finally, the priority heuristic depends on the presentation of the problem (artificial subdivision or merging of alternatives).1484

4.3.4

Characteristics Summarized

The priority heuristic does not require cardinal and scalar (i. e. different categories are fused according to a common denominator) utility functions. It merely requires that outcomes can be compared. The aspiration level (1/10 rounded up to prominent numbers) is not indicating that a cardinal scale is needed. It merely takes regard to the limitation of numerical judgements of human beings. Therefore ordinal scaling is sufficient. Information is processed sequentially, only one reason at a time is considered. Thus it can operate on incommensurable factors. Besides, no computations are needed because no integration takes place. Therefore these algorithms do not allow for compensation, the low probability for one gain cannot be outweighed by the amount of that gain.1485 Finally, it does not take all information into account. If a reason discriminates then a decision can be based solely on that criterion. There are limitations of this algorithms, because research has shown that were computations are possible (because the outcomes are rather clear), people do balance and integrate information. The priority heuristic only served as an example that should clarify how satisficing algorithms can work. It does not fit legal decision making, but neither does the SEU calculus. But it serves well to show that (a ) alternatives to the optimization ideal exist and (b) how and under which conditions they work. The task of the next section is to show whether a legal decision making mode that exhibits these characteristics exists and under which conditions it is applied. These issues are located on a factual or descriptive level. As such they are not normative considerations. Its concern is to examine whether and under which circumstances courts are or could be operating in a satisficing manner. Whether courts should work in this way will be discussed in the next chapter.

1483 1484 1485

Ibid., pp. 425–6. Ibid., p. 426. Gigerenzer and Goldstein, supra note 1355, p. 662.

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4.4 Heuristics and Legal Reasoning

4.4 4.4.1

Heuristics and Legal Reasoning Connexions

The previous section presented the priority heuristic as an alternative to an optimization model but it also revealed that the heuristic as such is not suitable for adjudicative decision making. This section therefore aims at the formulation of an algorithm that suits adjudicative decision making and that can be characterized as a satisficing algorithm. To recapitulate: There must not be integration or compensation and cardinal scaling is not needed. Only one criterion at a time is considered. Examination is stopped according to a stopping rule. Ordinal or nominal scaling is allowed and sufficient.1486 The Weight Formula considers the following factors: The severity of an impact on principle Pi , the gains for principle Pj , and the reliability of empiric data regarding both, i. e. Ri and Rj . Optionally, their abstract weights (Wi , Wj ) are considered if they differ. The Weight Formula allows for compensation, i. e. the low abstract weight of Pi may be compensated by the great impact that a measure has on this principle. Because the courts do not only consider these elements at proportionality in the narrow sense,1487 the proportionality principle as a whole, including the legitimate aim test, will be taken as a starting point. The framework structure of proportionality can be described as a lexicographic rule because four reasons are examined: 1. 2. 3. 4.

Is the aim legitimate? Are the means suitable? Are the means necessary? Is the measure proportionate in the narrow sense?

They are examined in that order and only one reason is decisive. If the aim is illegitimate, then examination is stopped and the measure is declared disproportionate for that reason only. It does not matter whether the measure is suitable or necessary if it is found that the aim is illegitimate. The ECJ does not apply the legitimate aim test in connexion with the appraisal of fundamental rights or proportionality. Instead, it is assessed under the legal basis standard. Still, the test is usually applied before the other tests and the illegitimacy of the aim suffices to annul the measure.1488 Moreover, there are only two possible values as an answer, yes or no. The aim is either legitimate or not, the measure 1486

See Gaefgen, supra note 1356, pp. 144–5 for the suitability of nominal scales. In context of the three-tier-model of art. 12 GG the GFCC considers abstract weights at the legitimacy step: BVerfGE 13, 97, pp. 107–12; BVerfGE 7, 377, pp. 413–31; BVerfGE 25, 1, pp. 13–17; BVerfGE 30, 292, pp. 317–8; BVerfGE 37, 1, pp. 19–21; BVerfGE 39, 210, pp. 228–9; BVerfGE 94, 372, p. 391; BVerfGE 95, 173, pp. 184–5; BVerfGE 111, 10, pp. 122–3. 1488 Bananas, supra note 11, paras. 48–9; Tobacco Labelling, supra note 2, paras. 60–2; Worker’s Health, supra note 23, paras. 11–17; Schräder, supra note 2, paras. 7–11; Tobacco Advertisement, supra note 23, paras. 76–84. 1487

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Chapter 4. Balancing and Decision Theory either imposes proportionate burdens or does not do so. It does not matter how legitimate an aim is or how excessive a burden is. Simple categorizations suffice. But we must examine the elements of the proportionality principle in detail because it might turn out that some steps are only ordinal or nominal on the surface but require balancing if looked at closer. (a) At the first step, courts focus on the aims as such (Pj ). Four aspects are of interest in this regard: (i) Is the aim as such admissible?1489 (ii) Is it important enough to justify an interference with Pi ?1490 (iii) Does a problem regarding Pj actually exist?1491 (iv) Is the aim actually pursued, or does the measure actually pursue other, inadmissible, aims?1492 The first sub-step can be performed by ordinary means of subsumption and interpretation by asking whether the aim is listed in art. 3 TEC and the applicable legal basis, e. g. art. 95 TEC , or whether some unwritten limitations exist. There is nothing special about this step. Sub-step (ii), however, indeed requires weighing. Wi and Wj must be compared in some cases where courts introduce tiers, e. g. the three-tier-model under art. 12 GG and the tiers developed by the US Supreme Court. This criterion is not relevant for the ECJ . Wj must be at least as great as Wi . Because these weights are not combined with other values, we only need ordinal scales. It suffices to say that Wj is at least as important as Wi . Neither the GFCC nor the US Supreme Court have ever quantified the difference. Although the GFCC has introduced nominal scales (reasonable grounds [vernünftige Gründe des Gemeinwohls], important grounds [wichtige Gründe des Gemeinwohls], overwhelmingly important grounds [überragend wichtige Gründe des Gemeinwohls]) these do not imply a cardinal ranking because the GFCC did not quantify the intervals.1493 The nominal scaling does not correspond to the balancing law (“The greater the degree of non-satisfaction of, or detriment to, one right or principle, the greater must be the importance of satisfying the other.”1494 ) because the GFCC compares abstract weights. It is asked whether a certain aim can justify an interference with the right to choose an occupation in general: “The more severe a class of interferences is the more important the competing 1489 Bananas, supra note 11, paras. 48–9; Tobacco Labelling, supra note 2, paras. 60–2; Worker’s Health, supra note 23, paras. 11–17; Schräder, supra note 2, paras. 7–11; Tobacco Advertisement, supra note 23, paras. 76–84. 1490 See page 122. 1491 Tobacco Labelling, supra note 2, para. 64; ABNA, supra note 18, paras. 55–8; Swedish Match, supra note 11, paras. 37–41 and 53–4; BVerfGE 7, 377, pp. 413–31; BVerfGE 30, 292, pp. 317-8; BVerfGE 95, 173, pp. 184–5; BVerfGE 25, 1, p. 13; James et al., supra note 33, para. 46. 1492 See the observation submitted to the ECJ in Tobacco Labelling, supra note 2, para. 43; Tobacco Advertisement, supra note 23, paras. 32–5; Schräder, supra note 2, paras. 7–8; and Worker’s Health, supra note 23, para. 13; James et al., supra note 33, para. 48. 1493 BVerfGE 7, 377, pp. 406–7 BVerfGE 13, 97, p. 106. 1494 Alexy, supra note 77, p. 436.

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4.4 Heuristics and Legal Reasoning aims must be in general.” Any way, at this step only abstract categories not concrete ones are compared (Wi S Wj ). Because they are not integrated with concrete interferences, ordinal scales suffice. Sub-step (iii) and (iv) involve questions of fact: Is it established that a threat to the competing aim exists? Is the aim really pursued or not? Here only two answers are possible: yes or no. The problem need not be qualified as serious or anything alike. All in all neither step of the legitimate aim test requires the integration of values. Only one reason must be considered at each sub-step. Value judgements and even weighing on ordinal scales are necessary, however. (b) Suitability exhibits an even simpler structure. It is merely asked whether the measure yields any gains for the competing aim, Ij > 0. Especially in the socio-economic field the courts stress that a measure need not be the best to achieve the goal,1495 it is sufficient if it can in some way contribute to the achievement or furthering of the goal. 1496 No other values are considered here and again a simple yes or no suffices. (c) The structure of the necessity test is more complex than the structure of the last principle. The measure at issue must be the least onerous one for principle Pi from a set of suitable measures.1497 Here only Ii is considered under the condition that Ij remains constant. The existence of contributions (Ij ) have already be examined at the prior step. Here, only variances with Ii are of concern. The step actually comprises two sub-steps: (i) Are there less onerous measures? (ii) Does Ij remain constant?1498 It is a characteristic of this step that variances with Ij cannot be outweighed by variances with Ii . The necessity test thus exhibits a heuristic structure because no integration and no compensation takes place and because ordinal scaling suffices. It is irrelevant in which order the reasons are processed. (d) Principle Theory focuses on the last step of the proportionality principle and asserts that this step involves balancing, i. e. weighing and integration of various values, which is summarized by the Weight Formula: Wi,j =

Wi · Ii · Ri Wj · Ij · Rj

1495 Safety Hi-Tech, supra note 1323, para. 49; James et al., supra note 33, para. 51; BVerfGE 13, 97, paras. 44, 46. 1496 ABNA, supra note 18, para. 60; Tobacco Labelling, supra note 2, para. 81; Swedish Match, supra note 11, paras. 28–31 and ibid., para. 73 (Geelhoed AG); Tobacco Advertisement, supra note 23, para. 88. 1497 ABNA, supra note 18, para. 108 (Tizzano AG); Deposits, supra note 1126, para. 119 (Léger AG). 1498 Worker’s Health, supra note 23, para. 66; Deposits, supra note 1126, para. 119 (Léger AG); BVerfGE 25, 1, pp. 19–20; BVerfGE 30, 292, p. 319; BVerfGE 37, 1, pp. 21–2; BVerfGE 111, 10, pp. 33–6.

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Chapter 4. Balancing and Decision Theory The case law analysis has shown that usually courts do not balance. Before considering when they balance and when they do not do so ( iii), it should be examined (i) what the courts do instead and (ii) whether the Weight Formula really captures what courts do in those rare cases where they balance. (i) The core of the Weight Formula is relating concrete impacts, i. e. Ii /Ij . Courts usually do not decide on grounds of such a relation. They rather focus on the interference with Pi . The severity of the interference is evaluated by employing nominal classifications, for example:1499 Is a transition period provided?1500 Does a regulation or directive allows for the consideration of hardship?1501 Is compensation paid?1502 Once it is established that one of these criteria (as far as they are applicable) is not satisfied, examination can be stopped and the importance of the competing aim plays no role. The test is thus not Ii S Ij but Ii S minimal position, where the minimal position is defined by these nominal tests. Actually a more precise formulation is that each aspect of interferences is tested against a minimal standard: Iia S minimal positiona , for all a = 1, 2, 3, . . . This reformulation is necessary because the interference function is not scalar, i. e. categories of interferences are not integrated. This is an essential characteristic of this approach to balancing. Principle Theory must provide a means to find scalar measures for interferences. Moreover, the integration of categories (in the Principle Theory scheme) implies that interferences can be outweighed. (ii) There are some cases where the Court does balance in a Principle Theory fashion. For example in the case of Man Sugar 1503 , it was applied where penalty-like burdens were imposed for the non-fulfilment of administrative obligations.1504 In such cases the relationship between the burden and the severity of the non-compliance with obligations must not be significantly out of proportion. One must recognize how crude the balancing is: Forfeiture of the entire security compared to a significantly less serious failure than the non-fulfilment of the primary obligation, which the security should ensure in the first place.1505 One must further note the context of distribution of powers: Balancing is not applied to a legislative measure but an administrative one. Moreover, this has little to do with optimization. It is not required that there 1499

See pages 111, 129, and 180 for a comprehensive list of criteria and a discussion of

cases. 1500

Tobacco Labelling, supra note 2, para. 152; Winzersekt, supra note 2, para. 28; Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 147. 1501 Reich, supra note 1229, p. 268; BVerfGE 13, 97, para. 57 BVerfGE 39, 210, pp. 325–6; Bananas—Interim Measures, supra note 1184, paras. 41–7; T. Port, supra note 1185, paras. 27, 38. 1502 Fattoria, supra note 2, para. 62; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 1503 Supra note 1214. 1504 See also Fromançais SA, supra note 1215 and Buitoni, supra note 1215. 1505 Man Sugar, supra note 1214, para. 29.

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4.4 Heuristics and Legal Reasoning be some optimal relationship between the amount of security forfeited and the severity of the breach of obligation. Only gross disproportionalities are avoided. Finally, balancing is limited to two categories: amount of security forfeited and severity of the breach of obligation. (iii) So balancing requires an administrative penalty-like measure or a concrete rule that shall be applied in administrative proceedings that provides for such a measure, two narrow categories that can be compared, and a clear disproportion between these categories.1506 This squares well with the research regarding the priority heuristic: People do balance if expected values differ significantly. But they do not do so if matters prove to be more intricate. This corresponds to the Court’s balancing approach: If assessments can be made on a rough scale, then interferences and gains are compared. One aspect has been ignored so far, R. This variable refers to the reliability of empiric data. The corresponding balancing law runs: “The more heavily an interference with a constitutional right weighs, the greater must be the certainty of its underlying premisses.” This rule has not been considered so far, because it is not a rule of substantial law. It merely describes the standard of proof. Where only a low degree of certainty is required, errors or implausibilities regarding the assessment of facts will not prevent the Court from being persuaded that the requirements of proportionality are fulfilled. Formulated differently, the Court must be convinced that the assessments are correct and it will be convinced if no blatant errors occur. On the other end of the scale, the standard prescribes that the Court will only be convinced if the assessments are free from the slightest error. Being a standard of proof, R is a matter of procedural law.1507 Even if one accepts the Weigh Formula in principle, one must reject its integration with the material weighing rule. That this variable is not confined to proportionality in the narrow sense is revealed by the circumstance that the convincing force of assessments plays a role at every step of the proportionality principle. The analysis of the case law has shown that there are three criteria that influence the rigour of review:1508 The complexity of an issue, the activity interfered with, and the existence of standards that could provide some objectivity. Moreover, the institutional framework influences the rigour. Because there at least four factors that influence R, the empiric balancing law is at least incomplete. Moreover, the standard can be found by a heuristic. Discretion is not admissible where interferences are low but where facts are complex.1509 The reasons 1506

See also BVerfGE 16, 194, pp. 201–3. See, for example, Malek, supra note 1241, paras. 6-01, 6-49, 6-53 and Jauernig and Lent, supra note 1241, § 59 V. 1508 See Section 2.2.2(d) for a discussion of the case law of the ECtHR and page 195 for a discussion of the case law of the ECJ . 1509 Germany, supra note 1252, p. 335 (German Edition) § A.II (Roemer AG); Lasok, supra note 1254, p. 361; James et al., supra note 33, para. 46. 1507

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Chapter 4. Balancing and Decision Theory are examined, with a priority to the activity and the institutional framework: in contrast to the legislature, administrative bodies are usually constrained through procedural rules, e. g. regarding participation and the hearing of expert advice. Therefore, they only enjoy discretion insofar as these procedural rules are observed.1510 These factors also show that it is wrong that the reliability requirements could be “outweighed” by, say, the importance of the competing interest. If the nature of the involved right and the great interference with that right warrant a high degree of reliability regarding the potential gains for the competing right, then this standard should not be compromised by the importance of the competing interest or the potential gains, because this would be circular. It would be circular because we try to assess the potential benefits for the competing aim and before we do so we must define to which degree we must be convinced that the alleged gains will obtain.

4.4.2

Characteristics of the Heuristics Approach Summarized

The purpose of this section was to develop a decision algorithm that fulfils the following requirements: For the sake of methodical simplification it should drop the maximization and hence the integration ideal. Still, this algorithm should allow for the consideration of more than one reason. Because we have seen that cardinal scales exceed human cognitive capabilities and methods of legal reasoning this algorithm should not rely on such scales. However, the necessity of value judgements should not be denied; hence, this method must leave room for ordinal and nominal categorizations. Having recourse to recent research in decision theory, we were able to find an algorithm that satisfies all these requirements. Lexicographic decision procedures are principally suitable for our purposes. First, they do not integrate information because only one criterion is discussed at one time. Because these algorithms do not allow for compensation we do not need cardinal scales of the goods that are compared. Simple greater-or-equal comparisons and nominal categorizations suffice to apply the elements of such a decision procedure. As such, there is enough room for value judgements. We took the priority heuristic as an example and were able to reconstruct the proportionality principle as a lexicographic decision procedure: The elements of proportionality are discussed one at a time, the non-fulfilment of one criterion cannot be compensated with the fulfilment of another one and it is sufficient to scale interests and ‘principles’ in an ordinal way, i. e. we do not need quantification. We found out that this reconstruction fits the practice of the courts pretty well. Yet, we also became aware of limitations of this approach: There are some cases, where balancing is required and performed by the courts. The conditions 1510

See the discussion of TU München, supra note 1333 on page 194.

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4.5 Summary resemble those under which people do not apply the priority heuristic: Where there is a clear disproportion between the aim and the burden, balancing captures what courts do. Many objections against a lexicographic reconstruction of proportionality could be raised. Especially the lack of compensation seems to be at odds with proportionality, balancing, and weighing. These questions are of a normative nature, though. This section only tried to show that there is a better description of what courts do than Principle Theory and the Weight Formula. This description is less demanding, easier to apply, and more transparent. Whether this approach should be applied will be discussed in the next chapters. From a normative standpoint it could turn out that the Weight Formula is the right thing to do, despite its high cognitive demands. It is moreover important to stress what the heuristic approach does not imply. Although it was born by the rejection of cardinal scaling, integration, and optimization it does not give up weighing and the associated value judgements completely. It only reduces their complexity by requiring ordinal scales only and by abandoning optimization and integration. Because it still requires the assessment of weights by means of comparison, it must be contrasted to the approach of Schlink, who even rejects comparisons at the proportionality stage.1511 According to his approach, proportionality should only consider the first steps and the last step is confined to a minimal position test, which shall capture clear violations of the essence of fundamental rights. The Weight Formula allows for much more demanding and flexible value judgements. This approach lies in between. It shares the structure of the minimal position stance of Schlink. However, it is more ready than Schlink to accept that the determination of the minimal position is far from being a trivial value judgement. However, it has nothing in common with the Weight Formula. Although this concept allows for comparisons and non-trivial value judgements, it claims that all these problems can be solved in the classic framework of legal reasoning, where deductive and non-deductive arguments play a role.

4.5

Summary

The purpose of this chapter was to uncover the cognitive assumptions of Principle Theory and the Weight Formula and to determine whether these are sound. Critics claim that the Weight Formula is too demanding and that yardsticks to weigh principles are not available. Critics believe that the application of the Law of Balancing requires cardinal scales. This is why the Law of Balancing exceeds human capabilities. Proponents of Principle Theory denied this and claimed that simpler scales sufficed. 1511

Schlink, supra note 549, p. 141.

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Chapter 4. Balancing and Decision Theory The discussion of decision theory showed that the claim of Principle Theory is wrong and that the critics are right: The Law of Balancing presupposes cardinal scales of the goods that have to be weighed. Therefore Principle Theory suffers from an eminent self-contradiction: On one hand it denies that cardinal scaling is possible, on the other hand it relies on cardinal scales. One property of the Law of Balancing is characteristic: The optimization ideal. This requirement necessitates integration, which in turn calls for cardinal scales. So, ultimately the optimization ideal is the root of the cognitive problems. Inspired by the ‘satisficing’ conception of Simon and the priority heuristic, this chapter showed that there are decision procedures that do not rely on optimization (maximization), but which are still rational. Indeed, abandoning the maximization ideal effects enormous methodical simplifications, which increase transparency and hence rationality. These procedures are the anti-thesis of the Law of Balancing: They require satisficing instead of optimization; examination of one reason at a time instead of integration; do not allow for compensation, in contrast to the Law of Balancing; and are content with ordinal scales. Looking back at the case law of the reviewed courts, this algorithm proved to be a good description of what courts do, with some exceptions, though. In some special cases parts of the Law of Balancing provide a much better rationalization of the case law. Still, these findings suffice to shake Principle Theory, which claims that it alone can provide a correct description of proportionality and that those who reject Principle Theory must necessarily reject proportionality. Both conceptions try to achieve the same aim: Decide in situations where numerous reasons, which favour different solutions, have to be considered. According to both, such a process should rely on value judgements that escape quantification. The purpose of this chapter was to present a theory that can fulfil this claim and to show that Principle Theory is at odds with it. As such it worked on a descriptive level. Together with the last two chapters it tried to answer whether the courts really balance in a Principle Theory style and when they do so. And it tried to show which preconditions must be fulfilled in case one is willing to optimize. But it did not show that the Treaty, fundamental rights, or any other source of law prohibit or require optimization. Moreover, it could be contested—irrespective of methodical differences, however fundamental they may be—that courts or other official authorities have the competence to decide social disputes by having recourse to fundamental rights. Critics argue that disputes should essentially be resolved by society and its “sub-systems” alone.1512 Thus, the problem is not to determine the border line between the judiciary and the legislature but between authority and society.1513 Discussing these problems is the object of the next chapter. 1512 1513

Ladeur, supra note 168, pp. 32–3, 41; Fischer-Lescano, supra note 168, pp. 174–5. Ladeur, supra note 168, pp. 33–4.

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4.5 Summary Although this chapter worked on a descriptive level it did suggest some form of balancing scepticism. This scepticism should not be confused with scepticism towards legal reasoning in general but only towards special forms of balancing, namely those that require cardinal scales (including economic analysis of law).

243

5 Balancing—A Legal Perspective The object of the previous chapter was a discussion of the necessary premisses of balancing in general and Principle Theory in particular, where Principle Theory served as an example for value theories in general. As a matter of fact, that chapter already presented some criticism against Principle Theory. That criticism was of an internal nature—internal because the basic normative assumptions of Principle Theory have not been questioned from a prescriptive stance, namely the optimization ideal. Also the implications for the separation of powers, the enforcement of fundamental rights, and legal reasoning and dogmatics were not considered. The previous chapter merely showed which cognitive and methodical problems must be faced if Principle Theory should be applied. Now, Principle Theory will be discussed externally. The external criticism can be grouped into three categories: (a) methodical consequences, (b) the implications for the separation of powers, and (c) the enforcement and nature fundamental rights.1514 This critique will serve as the last pillar of an alternative vision of adjudicative choice, which will be elaborated and tested in the next chapter. Discussing Principle Theory further is important for three reasons: First, the standards that a theory of balancing should meet are nowhere described abstractly; they must be distilled from the current discussion. Principle Theory is undoubtedly one of the most clearly formulated and most heatedly debated conceptions of balancing. Therefore, standards to judge a theory of balancing can be most easily derived from a discussion of Principle Theory. Besides, understanding why Principle Theory is able or unable to meet the standards thus extracted allows the theory developed in this study to avoid the problems of Principle Theory. Second, despite some apparent fundamental differences between Principle Theory and the position purported in this study, similarities do exist. At least two resemblances can be discerned: (a) Based on the case-law of the courts discussed so far, the balancing conception of this study can operate with positive obligations. Judicial enforcement of positive obligations is viewed by some as a major threat to liberty1515 and is one of the major objections against Principle Theory. (b) An ubiquitous assumption of this study and Principle Theory is that it is principally the competence of courts to apply fundamental rights and thus to contribute to the solution of social disputes; however, it must be observed 1514

A similar classification is made by Habermas, supra note 39, p. 293. Böckenförde, supra note 182, p. 188; Ladeur, supra note 168, pp. 36–7; cf. Maus, supra note 97, pp. 847–8; Fischer-Lescano, supra note 168, p. 169. 1515

Chapter 5. Balancing—A Legal Perspective that the judiciary does not become a super-legislature.1516 This assumption is profoundly challenged by post-modern scholars, who argue that the problem is not whether a court or a legislature should decide an issue but whether evaluations and knowledge persistent in social sub-systems should be derogated by official decisions (be they judicial or legislative).1517 Three, due to distinction between is and ought, objections based on empirical findings, e. g. descriptive or explanatory arguments that were presented up to now, must be distinguished from normative ones. Saying that courts seem (un)able to apply a certain balancing conception is different from saying that they should (not) apply it, irrespective of their ability.

5.1

Methodical Objections

Principle Theory rests on the distinction between principles and rules and on a particular definition of ‘principle’: Principles correspond to values and can be fulfilled gradually, i. e. they do not make definite prescriptions, while rules can only be either fulfilled or not and thus have definite content.1518 This understanding of principles and rules entails certain methodical consequences, which will be discussed in this section. The methodical objections can be broken up into the following categories: It could be argued that Principle Theory 1. introduces a way of thinking that is incompatible with legal reasoning as such.1519 2. requires cardinal scaling but that constitutions do not provide yardsticks to generate such scales.1520 Coupled with the first prong of the critique, this one means that Principle Theory introduces arbitrary and subjective value judgements into legal reasoning because it dissolves structures of legal reasoning that provide objectivity and introduces a form of reasoning that cannot be objective.1521 3. erodes dogmatic structures.1522

Proponents of Principle Theory reject all claims. First, balancing is a necessary addition to the deductive model of legal reasoning (i. e. subsumption) and cannot be avoided at least in hard cases.1523 As such, balancing is part of the practice 1516

See pages 6–7; 83; Section 2.2.3; Section 2.3.3; and Section 2.4.3. Ladeur, supra note 168, pp. 32–3, 41; Fischer-Lescano, supra note 168, pp. 174–5. 1518 Alexy, supra note 7, pp. 75–7 [47–8]. 1519 Habermas, supra note 39, pp. 311–7 [255–61]. 1520 Schlink, supra note 549, p. 153; Habermas, supra note 39, pp. 315–6 [259]; Scherzberg, in: VDStRL, supra note 1343, 173; Hillgruber, in: VDStRL, supra note 1343, 175; Engel, in: VDStRL, supra note 1343, 190–1; Tribe, supra note 1092, pp. 598, 606; Aleinikoff, supra note 489, p. 973. 1521 Habermas, supra note 39, pp. 316-7 [260]; Schlink, supra note 549, p. 462. 1522 Poscher, supra note 548, pp. 74–5, 81. 1523 Alexy, supra note 77, pp. 435–6; Alexy, supra note 7, pp. 111 [75]; Stück, supra note 77, p. 405; Pulido, supra note 532, p. 195. 1517

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5.1 Methodical Objections of courts.1524 The second claim is rejected with recourse to some examples. It is generally held that the necessary evaluations can be made objectively.1525 And it is denied that cardinal scaling is required.1526 The third objection is addressed by acknowledging the existence of formal principles, which preserve dogmatic structures.1527 The first aspect is also the most important one because all subsequent objections depend on it. If balancing is compatible with legal reasoning in the syllogistic model and if it does not change it substantially, then it cannot pose any threat to objectivity in legal reasoning. In that case, it is unlikely that it could erode established dogmatic structures. Objectivity is so important because judgments draw their legitimacy from their objectivity and rational justification.1528 Irrationality questions legitimacy as the arguments of American Realists and Maus have shown.1529

5.1.1

Principle Theory and the Structure of Legal Reasoning

The first critical tack is best described by Habermas.1530 The definition of principles as optimization commands and the association of principles with values effects a fundamental change of legal reasoning. Legal reasoning is based on norms and norms can be contrasted with values. Values and rights differ in three respects: Structure Rights have a deontological structure, because they oblige their addressees generally to act in a certain way. Values are teological, because they express the preference among goods. Fulfilment Rights as norms can only be fulfilled or not, i. e. they have a binary structure. Values, however, allow for gradual acquiescence, because we can accept certain preference relations to a lesser or greater extent. Validity Rights (norms) claim absolute, i. e. unconditional and universal, validity. Norms claim to be equally good for all of us, while preference relations between values are only valid in relation to certain values and a social context. Changing the set of competing values alters the preference relation. Values are local and particular.

The last aspect is of particular importance, because it means that norms must be universalizable, i. e. they necessarily generalize. Rights do not allow for their being integrated in cost/benefit analysis, because their validity is unconditional. It is not weight of norms that matters, but their fitting the rest of the legal 1524

Cf. Alexy, supra note 503, pp. 435–6 for the GFCC . Alexy, supra note 77, pp. 437–8; Pulido, supra note 532, pp. 198–9. 1526 Borowski, supra note 534, p. 83; Alexy, supra note 7, pp. 142–3 [99–100]; Alexy, supra note 77, pp. 443–4. 1527 Alexy, supra note 7, pp. 89 [58]. 1528 Alexy, supra note 50, p. 24. 1529 See Tushnet, supra note 38; Maus, supra note 38, p. 306, and Section 1.4. 1530 See Habermas, supra note 39, pp. 311–7 [255–61] for the rest of this paragraph. 1525

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Chapter 5. Balancing—A Legal Perspective system. Though values do play a role in legal reasoning, norms and coherence with the legal system are the final arbiter. This characterization of legal reasoning squares with the findings from Chapter 1, where a meta theory of legal justification was elaborated. Legal reasoning is centred around the application of universal norms. Every legal decision must be based on their (syllogistic) application. Where such norms are missing, i. e. in problem cases, legal reasoning proceeds in two steps: First, a norm must be found. Then this norm is applied to that case and all subsequent similar cases. The requirement of fit, i. e. consistency and coherence as two complementary principles, plays an important role. Interpretations of the legal system must fit and norms that are newly created must fit. The same is true for the change of established rules. Due to the defeasible nature of legal reasoning, such a change may always occur. However, the change must be universally applicable and must fit. The syllogistic framework structure in no way excludes non-deductive reasoning, so called material justification. On the contrary, such a justification is always necessary. It includes arguments from analogy, coherence or the judging of consequences, which are non-deductive arguments. As such, critics of balancing must not be confused with sceptics. It is not denied that non-deductive value judgements are objective in general but that a particular way of reasoning—balancing as described by Principle Theory—cannot fulfil the objectivity requirements of legal reasoning. The question is: does balancing introduce a fundamental change to this way of reasoning? In chapter 1 and 4 the characteristics of Principle Theory have been discussed. The discussion revealed that • principles can be fulfilled to a greater or lesser degree and that they correspond to values.1531 • the Weight Formula requires the assignment of weights. Because weights are combined, simple comparisons such as ‘greater or equal to’, which can be coded in a binary way, do not suffice. Instead, cardinal scales are required.1532 • the Weight Formula considers concrete interferences and gains, Ii and Ij . As such, its principal focus is the concrete case. • Principle Theory uses a wide notion of principles. Hence, fundamental rights have to compete with any interest whatsoever (this is a methodical and a normative problem).1533

Moreover, the introduction to Principle Theory in Section 1.10 showed that balancing can be used to find concrete norms, i. e. balancing is not confined to material justification of new universal norms.1534 It can be employed to solve a case directly without recourse to anything but abstract principles and the circumstances of each case. Although balancing results in preference rules, these are of a very concrete nature. 1535 This is also revealed by the way proponents 1531 1532 1533 1534 1535

Alexy, supra note 7, pp. 76 [47–8], pp. 133 [92]. Section 4.2.1. Ibid., pp. 99 [65–6]; Stück, supra note 77, p. 417. Alexy, supra note 7, pp. 91 [59–60]; Borowski, supra note 534, p. 89. Klaus Günther, Der Sinn für Angemessenheit: Anwendungsdiskurse in Moral und

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5.1 Methodical Objections of Principle Theory discuss cases. The analysis does not explicate the ratio decidendi but presents the judgment as the direct result of balancing interests.1536 So Principle Theory changes legal reasoning by dropping universalizability, because universalizability is achieved through the application of norms that abstract from the particulars of a case. The tenet of universalizability is central, although it alone cannot guarantee objectivity. However, if it is dropped, all other tenets must be abandoned as well.1537 The defeasible nature of legal reasoning is mainly realized through the application and change of norms. 1538 It is norms that shape the focus of legal discourse. We cannot judge whether a decision coheres and is consistent without norms as a conveyor between the very abstract (fundamental tenets) and the very particular (a case and the corresponding decision). A decision is right if a valid norm was applied; and norms are valid if they cohere and are consistent. Moreover, balancing is deprived of the structure that norms provide. Norms determine what is relevant in a case and they do so in a universal and predictable way.1539 Balancing, however, does not contain stopping rules for the collection of information. Principally, everything is relevant and there are no general rules that exclude certain interests.1540 Proponents of Principle Theory would object because this critique ignores that Principle Theory advocates a rule/principle model, where rules that could provide stopping marks are considered.1541 The objection only refutes the critique insofar as the rule aspect of fundamental rights is touched. Insofar as fundamental rights operate as principles this objection cannot refute the critique. The last aspect, the lack of a stopping rule, will be discussed later in connexion with the dissolution of dogmatic structures (below Section 5.1.3). The other problem, the violation of universalizability, could be addressed in two ways. First, Principle Theory could be confined to the justification of norms. Such a justification is necessarily universal. Second, where universal yardsticks for cardinal scaling of individual interests and concrete interferences exist, universalizability is considered. Both approaches only work, however, if and insofar as universal standards for the generation of cardinal scales exist.

5.1.2

Cardinal Scales and Objectivity

So, the second prong of the critique—the impossibility of generating cardinal scales objectively—is crucial. If scales could be generated universally and objecRecht (Suhrkamp, Frankfurt am Main, 1st edn., 1988), p. 271. 1536 See the discussion of the BVerfGE 86, 1 and BVerfGE 95, 173 case in Alexy, supra note 77, pp. 437–41. 1537 See above, page 43. 1538 See above, page 45. 1539 MacCormick, supra note 42, p. 34. 1540 Poscher, supra note 548, p. 81. 1541 Alexy, supra note 7, pp. 117–25 [80–6].

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Chapter 5. Balancing—A Legal Perspective tively, the overall critique would become void. Alexy gives two rather recent examples that shall prove that courts do balance and that objective standards do exist, the Titanic 1542 case and the German Tobacco Labelling 1543 case.1544 The reasoning in both cases shall show that rational categorizations of interferences in the form light–moderate–serious, which are required by Principle Theory, are possible. A closer look at these cases reveals that they do not support Alexy’s findings. The German Tobacco Labelling 1545 case does not rely on scaling of interferences at all:1546 (a)

Legitimacy

According to current medical expertise it is confirmed that smoking causes cancer as well as heart and vescular diseases and thus entails lethal diseases and also endangers the health of non-smoking fellows . . . [(pp. 184–5)] bb) A warning of these health risks belongs to the legitimate objectives of the state . . . Hence, this official form of information serves the goal of protection of the public from health risks . . . [(p. 185)]

The legitimacy of the aim of health protection is recognized, as well as the existence of a problem for health. But the risk is not qualified. (b)

Suitability

cc) The legislator was allowed to assume the suitability of the measures for the protection of public health . . . The warnings are suited to prevent the consumer at least from a reckless consumption of tobacco . . . [(p. 185)] Also the concrete implementation of the warnings satisfies the requirements of suitability. The assertion concerning the causal relation between smoking and cancer as well as other diseases and the health risks of others conforms to the results of scientific research. It does not say that smoking is the sole cause, on the other hand it does not express that non-smokers are protected from any risk of cancer or other diseases. Rather the warnings refer, according to common understanding of the notion “causing”, to a typical and generalizable causal relation between smoking and harms to health. They make aware of the fact that a major health risk vanishes by stopping smoking. [(pp. 185–6)]

At the suitability step, the Court merely acknowledges suitability but does not qualify it in any way, e. g. as “particularly suitable” or “best measure available”.

1542

Supra note 921. Supra note 837. 1544 Alexy, supra note 77, pp. 437–41. 1545 Supra note 837. 1546 References were omitted from the quotations, as well as the details. The full text can be found in the appendix, together with the corresponding German wording. The text was translated by myself. 1543

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5.1 Methodical Objections (c)

Necessity

dd) The warning is also necessary. A less burdensome opportunity for the protection from the health risk is neither asserted nor discernible . . . [(p. 186)] These provisions for the labelling and packaging of cancerous substances or compositions go beyond the labelling obligation of § 3 of the Tobacco Regulation, regarding the extent and the sharpness of the warnings . . . [(p. 186)] By the way, as a measure that—along with official health information—could be suitable for the reduction of tobacco consumption one could think of an advertisement ban. Also conditions for the distribution (for example, a ban on slot machine distribution and sale to juveniles). Compared with these alternatives the challenged measure appears to be the less onerous one . . . [(pp. 186–7)]

The necessity test involves comparisons (there are even more severe measures conceivable), but these are not further qualified as light, moderate, or serious. It is rather a matter of simple comparisons (equally suitable, less onerous). (d)

Proportionality in the narrow sense

ee) The obligation to label [the packages] with warnings obviously does not reach the border of appropriateness. The interference in the exercise of occupation still allows the advertising and operation side occupation of the tobacco industry and merely supplies the consumer with a knowledge base for his decision to buy. The chosen measure—the merely lingual interference through warnings—is a policy option that does not affect the exchange of goods through demand and supply and that simply makes the demander aware of a consideration that, according to current medical knowledge, anyone should be aware of. [(p. 187)] ff) Also the claiming of private organizational and financial resources for the official duty of health policy conforms to art. 12 § 1 GG . . . The obligation to label with warnings is justified by the special responsibility that producers of and traders in tobacco products have for the protection from the risks of a tobacco consumption that is initiated by these enterprises. [(p. 187)]

At the last step, the GFCC employs two heuristics, the causation principle and autonomous and equal deliberation of consumers. In the Titanic 1547 case, the GFCC does not weigh the severity of the offences. The criterion was not what was said, but in which context it was said. Was the statement an element of public exchange of opinions? The first statement (“born murderer”) was such a statement, but not the second one (“cripple”). The underlying rule was that statements of potentially insulting character are usually protected if they serve the exchange of public opinions. In a second step, exceptions are tested: If statements are abusive criticism they will not be protected and convictions for such statements will be proportionate. 1548 If statements are a reaction against prior attacks, then these are justified even if

1547 1548

Supra note 921. BVerfGE 86, 1, p. 12.

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Chapter 5. Balancing—A Legal Perspective they are fierce in nature. 1549 Instead, the Court applied a set of rules—heuristics—that structured the problem in a universal way.1550 So, these examples do not speak in favour of Principle Theory. The Man Sugar 1551 case could serve as an example. Balancing was indeed decisive in that case. But balancing only was decisive because the categorization could be made in rather crude a way: The forfeiture of the entire security because of a minor violation of administrative obligations was regarded as disproportionate.1552 The analysis of case law from four jurisdictions has shown that fundamental rights can be applied without balancing in the way that is described by Principle Theory. The answers to the first steps can be expressed in a binary way and proportionality in the narrow sense can be structured in this way by the principles of equal treatment, legitimate expectations, and the causation principle, to name just a few. In conjunction with the principles of coherence, consistency, and universalizability and judging by consequences more concrete rules can be devised. This form of non-deductive reasoning could be called balancing and weighing, and indeed, weighing (on ordinal and nominal scales!) is necessary. But this form of balancing can be contrasted to Principle Theory in all essential characteristics: ordinal and nominal ranking instead of cardinal scales; binary instead of gradual categorizations; step-by-step (lexicographic) consideration of aspects instead of their integration; and application and generation of universalizable norms instead of the reconciliation of values. Even in the rare cases were a comparison of interferences takes place (i. e. Man Sugar) balancing does not work as it is described by Principle Theory.1553 So, proponents of Principle Theory fail to show that the categorizations, which are necessarily cardinal, can be made objectively. This is not an expression of hyper-rationality1554 or general moral scepticism. The stance purported in this study is not that evaluations are subjective in general and that legal reasoning in constitutional law can live without complex non-deductive value judgements. In Chapter 1 the opposite was stated. Criteria that ensure the rationality and objectivity of legal reasoning were given there. The thrust is only directed against the cardinal scaling and integration of values. This point must be restated: It was shown in the previous chapter that the application of the Weight Formula requires a special kind of value judgement. It is not sufficient to rate interferences as larger or smaller than gains for another principle or to say that one principle is generally more important than others. Principle Theory requires that one be able to say: “Interference Ii is x times 1549 1550 1551 1552 1553 1554

Ibid., pp. 13–14. See the detailed discussion in Section 2.3.2(b). Supra note 1214. See the discussion in Section 3.4.2 and Section 4.4.1. See Section 4.4.1. Pulido, supra note 532, p. 197.

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5.1 Methodical Objections greater than gain Ij .”, i. e. it requires cardinal scales. Critics argue that this special form of value judgement cannot be rationally made by means of legal reasoning. By introducing cardinal scales and integration into legal reasoning, Principle Theory adds (unnecessary) complexity to legal reasoning without providing means to reduce or manage it. The setting of preferences is indeed necessary, but the right setting is not the adjudicative process but political decision making with its own procedures and rules.1555 This view squares with the conception of objectivity that was elaborated in Chapter 1. According to that view, rationality is domain specific; standards of rationality may vary from one activity to another. What can be rationally described in one discipline can be inexpressible by the means of another one. The problem is thus not whether balancing can be rational or objective in general but whether there is a form of balancing that conforms to standards of legal reasoning. Balancing sceptics argue that only the first two (three) steps of the proportionality principle and some accompanying principles, like the legitimate expectations test, can fulfil these requirements.1556 This is the position of this study.

5.1.3

Balancing and Dogmatic Structures

The last element of the critique is that Principle Theory is likely to erode established principles of dogmatics. It is caused by the “all is relevant” problem.1557 Principle Theory encounters this problem, because it uses a wide notion of principles. Unlike Dworkin, who distinguished between policies and legal principles,1558 Principle Theory does not exclude policies.1559 Principally, fundamental rights have to compete with any conceivable value. This problem is aggravated because Principle Theory does not provide for a stopping rule, i. e. all potentially relevant interests have to be taken into account. But this is virtually impossible to achieve.1560 Legal discourse is based on norms and their deductive application and this framework usually serves as a filter. Legal standards are actually characterized as excluding certain particulars of a case. 1561 Principle Theory could lead to a dissolution of dogmatic structures by including principally admissible interests that are excluded by certain norms. For example, in some class of cases negligence or fault may play a role, in other cases the mere causation of a damage may suffice. Yet, usually Principle Theory is likely to respect the bounds that are set by rules. It is more likely that Principle 1555

Schlink, supra note 549, pp. 190, 219. For example Schlink, supra note 549, p. 462. 1557 Cf. Aleinikoff, supra note 489, p. 977; Poscher, supra note 548, pp. 75–6; Habermas, supra note 39, pp. 315 [258–9]. 1558 Dworkin, supra note 52, pp. 22–3. 1559 Alexy, supra note 7, pp. 99 [66]; Stück, supra note 77, p. 417. 1560 Aleinikoff, supra note 489, pp. 977–8. 1561 See Section 1.6.4. 1556

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Chapter 5. Balancing—A Legal Perspective Theory leads to the dissolution of dogmatic structures where clear rules do not exist. Also the view that principles may be reasons for concrete actions instead of only being reasons for rules1562 contributes to Principle Theory dissolving dogmatic structures. However, even outside the realm of established rules, Principle Theory need not have this consequence. The conformity with established case law and the deference to legislative decisions could be embodied in the Weight Formula as a formal principle.1563 According to Principle Theory, principles that ensure legal certainty must be considered as principles within the Weight Formula.1564 Above, the tenets of coherence, consistency, and universalizablity were introduced as criteria that form a meta theory of legal justification. They are standards against which modes of justification can be tested and they provide formal standards for the evaluation of substantive norms. For example, the norm that quotas for the production of certain goods cannot be changed without a transitional period or compensation (or a similar measure that ensures legitimate expectations) can be tested against these standards. Is it consistent with other norms? Does it fit the law? Are the legal consequences acceptable in light of these standards? Principle Theory does not consider these aspects in a separate cognitive step but simultaneously with substantive principles of law. There are two objections against this approach. By defining these tenets as formal principles in the sense of Principle Theory, which entails their being integrated into the Weight Formula, one equates them with material considerations. As such, they necessarily lose their role as standards. If the requirement of coherence can be outweighed by the great importance of some material principle, e. g. security, then these tenets cannot serve as standards any more. The tenets of legal reasoning are rules. For consistency and universalizability this is obvious: Because consistency requires the absence of contradictions, it can only either be fulfilled or not. Universalizability also excludes graduation; either a norm is universally applicable or not. There can be exceptions to universal norms, but these exceptions must in turn be universal, too. Although coherence is not a clear-cut criterion, its observance is not subject to balancing either. Contending that a norm does not cohere with the legal order and holding in a next step that this incoherence does not matter because coherence is outweighed by the great importance of a certain principle, devalues these tenets. They do not allow for qualifications. To preserve their function, they have to be considered separately from material considerations. By equating tenets of legal reasoning and material considerations Principle Theory in its current shape is likely to erode dogmatic structures because incorporation compromises these tenets. There is also a logical problem. Considering formal and material principles at the same cognitive step, starts a self-recursive process. Formal principles 1562 1563 1564

Alexy, supra note 7, pp. 91 [59–60]. Ibid., pp. 89 [58]; Sieckmann, supra note 499, pp. 147–8. Ibid., p. 152.

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5.2 Separation of Powers structure material balancing: Do we have to balance? What shall be included in our calculus? When do we stop examination? At least some of these principles cannot be outweighed. For example, the balancing ideal and the optimization ideal are both not subject to balancing, from the stance of Principle Theory; an optimization command is, after all, a rule.1565 So, we do not decide by balancing that we balance. Some of the major tenets also structure balancing: Universalizability, for example, requires that particulars of a case, i. e. circumstances that do not allow for generalizations, be ignored. What happens if this tenet is treated as a formal principle? Its claim will only succeed if its weight is sufficiently high, i. e. we have to balance it. But according to which standards? Because we are assessing the “value” of universalizablity, it cannot serve as a standard, at least not directly. One could try to distinguish first-order and second-order balancing. In the second-order balancing the standards for first-order balancing are determined. But this kicks off an infinite process because we also have to determine standards for the second-order balancing process. This proves that some standards may not be subjected to balancing and that thus Principle Theory fails to meet these standards by doing exactly so.

5.2

Separation of Powers

Principle Theory can be criticized for its leaving little or no discretion to political bodies. The right balance between powers of government is discussed in all states where judicial review is exercised. The first problem is whether the critique has any bite in the Community context because one could contend that the democratic deficit of the EC warrants stricter review than in a nationstate. After this preliminary question has been dealt with, the impacts on the separation of powers can be analyzed. Does Principle Theory really have these adverse effects or does it provide successful strategies that address this problem? Once the magnitude of the impact has been assessed, this section will deal with its justification. Finally, some aspects regarding the assessment of facts will be discussed.

5.2.1

The Relevance of the ‘Separation Between Powers’ Problem

This study departs form the idea that fundamental rights should be applied by courts. In doing so, the courts have to observe that they do not become superlegislators. The problem is thus: Should a court decide an issue or the legislature? Some post-modern legal thinkers argue that the problem is ill-defined. Instead of asking which institution (be it national, international, or supranational) 1565

Ibid., pp. 64–5.

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Chapter 5. Balancing—A Legal Perspective should decide, lawyers should ask whether centralized institutions (states or supranational entities) or social sub-systems should decide.1566 Proponents of this view usually attack value interpretations of fundamental rights (including Principle Theory).1567 However, the principal objection is not so much directed against a particular method of applying fundamental rights.1568 Instead, it challenges the circumstance that this application is “blind” for the preferences and knowledge present in social sub-systems and for the decision being made authoritatively and centralized.1569 The methodical element of the critique will not be further discussed, for two reasons: First, it mainly claims that Principle Theory must fail because cardinal scaling of fundamental rights is not possible.1570 This claim has already been dealt with. Second, the methodical critique is founded on a form of methodical scepticism that denies rationality of material justification as it was described in Chapter 1.1571 As such it is unfounded because it simply ignores the possibilities of non-deductive rationality. Materially, the critique is aimed at the authoritative and independent decision of official bodies (be it a court or a legislature), at least at a first glance. At a second glance, however, it is not so much the problem that courts decide but which contents their judgments have. This is apparent once the constructive proposal put forth by the critics is presented: Based on the idea that solutions of social conflicts cannot be expressed in a universal language1572 the critics argue that it is largely up to the disputing parts of society to solve their conflict.1573 The legal system should merely moderate these conflicts.1574 Social self-regulation shall be the arbiter.1575 1566

Ladeur, supra note 168, pp. 32–3, 41; Fischer-Lescano, supra note 168, pp. 174–5. Ladeur, supra note 168, p. 15; Fischer-Lescano, supra note 168; Christensen and Fischer-Lescano, supra note 153, pp. 220, 287. 1568 See ibid., pp. 336–7. 1569 Ladeur and Augsberg, supra note 63, pp. 165, 174; Ladeur, supra note 168, pp. 16–17, 27, 33–6, 41, 52, 61, 76; Fischer-Lescano, supra note 168, p. 175; Christensen and FischerLescano, supra note 153, pp. 204–5. 1570 Ladeur, supra note 168, p. 12; Fischer-Lescano, supra note 168, p. 173. 1571 Christensen and Fischer-Lescano, supra note 153, pp. 218, 222–2, 225, 240, 241; Ladeur and Augsberg, supra note 63, pp. 146, 147, 150, 151–2, 157, 176. These thinkers are heavily influenced by Derrida (Force of Law: The “Mystical Foundation of Authority”, p. 961, 963, 965), in particular: “The instant of decision is madness.” (p. 967) and: “it [the decision as a performative act] no longer responds to the demands of theoretical rationality” (p. 969) . 1572 Christensen and Fischer-Lescano, supra note 153, pp. 200–4, the same applies to Ladeur, supra note 168, p. 52, see Matthias Kronenberger, ‘Theorien der radikalen Fragmentierung’, in: Buckel, Sonja et al. (eds.): Neue Theorien des Rechts (Lucius & Lucius, Stuttgart, 2009), p. 229, p. 244; in this respect, these authors are influenced by Lyotard, supra note 170, pp. 9, 10. 1573 Christensen and Fischer-Lescano, supra note 153, p. 300. 1574 Ibid. 1575 Ladeur, supra note 168, pp. 33, 41, 52, 61, 76; Ladeur and Augsberg, supra note 63, pp. 165–6, 174. 1567

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5.2 Separation of Powers The critique thus expressed is only convincing, though, if the presented alternative really does not require authoritative, judicial decisions (including all requirements, e. g. a common language to litigate the dispute). Eventually, the critics cannot live without these elements of a law state; on the contrary, their proposal requires it: It is acknowledged that self-regulation may sometimes call for an authoritative intervention.1576 Moreover, it is legal norms that should protect social groups from ursurpations of other groups, so-called incompatibility norms.1577 Therefore, this proposal does require that such norms be created (if need be), interpreted, applied, and enforced. In other words, they require type two norms and thus authoritative structures.1578 Substantially, this approach cannot evade universal and authoritative judgments. The claims that all norms should respect the existing social preferences 1579 and that sub-systems should be forced to listen to each other1580 are universal claims of justice, which is particularly apparent for the second claim. That claim involves that people are able to understand each other (which is at odds with Lyotard’s notion of différend) and, having regard to the findings of discourse theory, this process of communication can only work if certain normative requirements are met. Thus, these approaches require what they deny, namely a universal language to frame problems and norms of justice.1581 Naturally, authoritative and centralized judicial decisions are required as much as by any modern and workable legal system.1582 Because incompatibility norms must be created or put into concrete terms and because it is legislators that go before with stipulating norms (at least in most of the democratic societies and certainly in the EC ), including those that regulate incompatibilities between social sub-systems, it is of course a problem whose conflict resolution or moderating norms are superior: those of the legislator or those of the constitutional court. So, what bothers the critics is not so much that courts (and legislatures) decide conflicts between fundamental rights in an authoritative way. Instead, they disagree with the substantive decisions of courts, regarding the importance of positive obligations to protect and other issues (importance of economic freedom). Therefore, the balance between powers problem remains relevant, even from a post-modern point of view.

1576

Ibid., p. 168; Christensen and Fischer-Lescano, supra note 153, pp. 326–7. Ibid., p. 303. 1578 Hart, supra note 39, pp. 91–9. 1579 Ladeur, supra note 168, p. 52. 1580 Christensen and Fischer-Lescano, supra note 153, pp. 204–5. 1581 Ladeur, supra note 168, p. 52; Ladeur and Augsberg, supra note 63, pp. 151–2; Christensen and Fischer-Lescano, supra note 153, pp. 200–5, 221. 1582 Hart, supra note 39, pp. 91–9; Habermas, supra note 39, pp. 147 [115]. 1577

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Chapter 5. Balancing—A Legal Perspective

5.2.2

The Role of Separation of Powers Arguments in Light of the Democracy Deficit

In the context of national constitutional law, judicial review or its extent is challenged for its adverse effects on the power of democratically elected bodies.1583 Balancing in particular is targeted by this critique for its alleged inclination to subjective, i. e. arbitrary, judgments.1584 In EC context, the Court is usually not criticized for too activist a position, but for applying standards too leniently.1585 Because of the democratic deficit, judicial review of Community acts is accepted as a necessary step to increase the legitimacy of the Community. 1586 The democratic deficit comprises the following elements: EC institutions are not directly accountable to the people. A European people that could endow the Community with legitimacy does not exist because of cultural and lingual heterogeneity.1587 Moreover, the national executive institutions form the more important part of the legislative on the European level. And in some policy areas, majority decisions further diminish accountability.1588 This fundamental difference, i. e. the democratic deficit, could be treated in two ways: (a) The democratic deficit should be considered in each balancing process, i. e. the democratic deficit requires a change from the dogmatics of fundamental rights in a national context to European dogmatic structures.1589 In terms of Principle Theory: In general, the principle of legislative discretion weighs less than the accountability principle; therefore, all things being equal, the balance is tipped against Community legislators and in favour of a more rigorous review. Although stated in terms of Principle Theory, this argument in no way depends on it. Reformulated in terms of the theory advocated in this study, one would say that the legitimacy criterion could not be claimed by Community legislators (see Section 2.2.2(d)(iii)). According to this view, it is therefore a defect that art. 6 TEU refers to the ECHR and the traditions of the Member States because the fundamental rights of the Member States and the Convention are 1583 Böckenförde, supra note 182, pp. 190–1, 194; Tushnet, supra note 38, pp. 14, 31, 154; Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Thompson, Toronto, 1989), pp. 454, 458. 1584 Tushnet, supra note 38, p. 133; Forsthoff, supra note 966, pp. 189–90; Böckenförde, supra note 182, pp. 184, 189–91; Maus, supra note 38, p. 306; Maus, supra note 97, p. 849. 1585 For example, Tridimas, supra note 1165, p. 146; Bühler, supra note 5, p. 205; Emmerich-Fritsche, supra note 5, pp. 405–7. 1586 Ibid., p. 101; Tridimas, supra note 1165, p. 302. 1587 Pauly, supra note 8, p. 242. 1588 Ibid., p. 256. 1589 Ibid., pp. 243–4; Olaf Müller-Michaels, Grundrechtlicher Eigentumsschutz in der Europäischen Union: Das Eigentumsgrundrecht in der Rechtsordnung der EU, in der EMRK und in den Verfassungen Deutschlands, Italiens und Irlands (Duncker & Humblot, Berlin, 1997), p. 52.

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5.2 Separation of Powers embedded in a democratically legitimate system; the reference in the Treaty is defective because it ignores the difference in accountability.1590 Scrutiny can be heightened by reducing the margin of appreciation regarding the assessment of facts1591 and regarding the balancing process in general.1592 Increased scrutiny of assessments of facts requires that assessments should only be accepted as far as they concern really complex matters. 1593 The Court is too lightly deferring to the institutions.1594 Regarding balancing, two adjustments can be made: Greater weight could be assigned to individual interests1595 and discretion in the choice between various policy objectives could be reduced.1596 Especially the last mentioned aspect expresses some form of balancing enthusiasm and relies on Principle Theory.1597 European proponents of Principle Theory acknowledge that balancing scepticism makes some sense in a national context with democratically legitimate legislators. In a national setting balancing enthusiasm can be challenged with some theory of democratic government.1598 In the context of EC -law, the fear from a government of judges is not convincing because of the democratic deficit.1599 The methodical problems, which were described at length above, can hinder a national court, but not the ECJ to develop argumentative standards.1600 Because of art. 220 TEC , calls for judicial restraint are inadmissible.1601 (b) Acknowledging the deficit, it could be contended that the deficit is alleviated by keeping the Community on a particularly short leash: The Community institutions must observe the principle of attributed powers, and subsidiarity (art. 5 TEC ). In choosing their policy objectives, they are not as free as the Member States because, for example, generally admissible policy objectives may only be pursued along with the overall aim of removing obstacles to trade (art. 95 TEC ). Art. 174 serves as another example for restrained Community legislation. These legal limitations must be enforceable (art. 220). If understood 1590

Pauly, supra note 8, p. 250. Ibid., pp. 259–60. 1592 Ibid., pp. 257–8, 260. 1593 Ibid., p. 260. 1594 Bühler, supra note 5, p. 204 with further references in n. 953. 1595 Ibid., p. 205; Emmerich-Fritsche, supra note 5, p. 224; Storr, supra note 5, p. 569. 1596 Pauly, supra note 8, p. 257. 1597 Ibid., pp. 257–60 who refers to Karl-Peter Sommermann, Staatsziele und Staatszielbestimmungen (Mohr Siebeck, Tübingen, 1997), pp. 411–15. Sommermann advocates Principle Theory. 1598 See Pauly, supra note 8, p. 260. 1599 Müller-Michaels, supra note 1589, p. 52; Hjalte Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Nijhoff, Dordrecht, 1986), p. 46. 1600 Pauly, supra note 8, p. 260. 1601 Cf. Rolf Rausch, Die Kontrolle von Tatsachenfeststellungen und -würdigungen durch den Gerichtshof der Europäischen Gemeinschaften (Duncker & Humblot, Berlin, 1994), p. 248. 1591

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Chapter 5. Balancing—A Legal Perspective in this way, legislative discretion is indeed reduced, but not by the democratic deficit directly but by legal rules that form part of the Treaty. In terms of Principle Theory, the principle of legitimacy and democratic government is not outweighing formal principles like discretion of legislators because due account was already paid to these principles by the aforementioned principles of subsidiarity, attributed powers, etc. Because the democratic deficit is more or less alleviated, the separation of powers argument from the national context may be employed. In EC context it can be varied like this: The Member States have negotiated a complex Treaty and over the time the procedures for the enactment of directives and regulations have become more complex (through the addition of art. 251–2). That effort would be rendered futile if eventually the Court might decide all issues that were decided in the course of one of these procedures. After all, the Council and the Parliament supply some form of (limited but sufficient) legitimacy. Although these bodies are not as legitimate as one could desire, their decisions in certain questions should be preferred to those of the Court—an institution that participates in the general legitimacy deficit of the Community and certainly suffers from greater accountability deficits than the Council and the Parliament because its members are not elected directly and are not accountable.1602 Therefore, the legalization of politics cannot be justified by a legitimacy deficit. Regarding the assessment of facts, there is no reason to treat national and European law differently, except where the law of the Treaty explicitly provides so. The choice between one of these alternatives must be based on these considerations: On one hand, art. 220 TEC and art. 6 TEU require some form of effective protection of fundamental rights in the Community. Because of international obligations (ECHR) and in some cases constitutional provisions (Italy and Germany) this standard must be equivalent to international and national standards of protection. Some critics claim that the Court fails to observe even this standard.1603 This aspect however exceeds the scope of this section. It will be the subject of detailed discussion in the next section. The other consideration that must be observed is that discretion of political bodies must not be removed completely. This is not contentious.1604 Many critics rely on some form of Principle Theory to justify an increase of scrutiny.1605 It is therefore worthwhile to consider the implications of Principle Theory for the discretion of legislative bodies. The thesis is: Principle Theory eliminates legislative discretion and this consequence is undesirable even if one believes that the democracy deficit requires increased scrutiny of Community acts (which implies that some discretion be left to legislators). The critique against Principle 1602 Rasmussen, supra note 1599, p. 46, although one must note that judges at the ECJ can be re-elected. 1603 Storr, supra note 5, pp. 570–1. 1604 Pauly, supra note 8, p. 259; Emmerich-Fritsche, supra note 5, p. 232. 1605 For example: ibid., p. 69; Pauly, supra note 8, p. 257.

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5.2 Separation of Powers Theory is especially aimed at its consequences for discretion regarding normative decisions. The rest of this section will deal with the treatment of assessments of facts by the Court.

5.2.3

The Impact of Principle Theory on the Separation of Powers

One interpretation of Principle Theory is that discretion reigns once the principle aspect of fundamental rights is affected: Structural discretion is defined by nothing else but the lack of definite commands and prohibitions. It licences what it neither commands nor prohibits. Everything that the constitution definitely licences falls under the scope of discretion. Structural discretion starts where the definite substantive normativeness of the constitution ends.1606

Principle Theory proves to be quite contradictory in this respect. Actually, one of the big concerns with Principle Theory is not that it leads to too much discretion, as this quotation might suggest, but that it leaves no discretion at all to legislators.1607 The fears are stirred by the optimization character of fundamental rights and the reconstruction of cases as collisions of principles.1608 This interpretation has two consequences: First, every legal and political question can be recast in terms of fundamental rights and thus as a question of constitutional law.1609 Second, the optimization idea effects that the legal order is already contained in the value order that is shaped by fundamental rights, it only needs explication.1610 There can only be one optimal balance between competing fundamental rights.1611 This is illustrated by figure 5.1 Therefore, legislators will have no room for a decision of their own. They are mere optimizers along with the constitutional court.1612 These problems are aggravated by the fact that Alexy recognizes normative epistemic discretion, i. e. discretion that relates to the finding and interpretation of a legal standard. Because it is the Court that has to make a final decision and because it has epistemic discretion, the 1606 Alexy, supra note 183, p. 16: “Der strukturelle Spielraum ist durch nichts anderes definiert als durch die Abwesenheit von definitiven Geboten und Verboten. Was die Verfassung weder gebietet noch verbietet, stellt sie frei. In den strukturellen Spielraum fällt somit alles, was die Verfassung definitiv freistellt oder frei lässt. Strukturelle Spielräume beginnen also genau dort, wo die definitive materielle Normativität der Verfassung endet.”; English translation of the German original by the author. 1607 Scherzberg, in: VDStRL, supra note 1343, 173; Messerschmidt, in: VDStRL, supra note 1343, 179; Böckenförde, supra note 182, p. 189; Poscher, supra note 548, pp. 82–3; cf. Aleinikoff, supra note 489, p. 961. 1608 Poscher, supra note 548, pp. 82–3. 1609 Ibid. 1610 Böckenförde, supra note 182, p. 189; Scherzberg, in: VDStRL, supra note 1343, 173. 1611 Ibid.; Messerschmidt, in: VDStRL, supra note 1343, 179. 1612 Böckenförde, supra note 182, p. 189.

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Fulfilment Principle 1

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O I M Fulfilment Principle 2

The M -line represents the set of all necessary measures and the I-line is an indifference curve, which represents all possible balances between principles 1 and 2. The point O marks the optimal solution.

Figure 5.1: Optimization of conflicting principles Court will gain even more powers.1613 These two problems together shape what is called the “constitutionalization trap”.1614 Yet, Principle Theory offers some solutions for this problem. (a)

Discretion through Formal Principles?

The obvious answer to address the problem is to incorporate separation of powers considerations into Principle Theory by treating them as principles.1615 The difference between national and European law would be that under national law the principle of separation of powers would be attributed a greater weight than under European law. This alternative is deemed inadequate.1616 Principle Theory allows for the reinterpretation of any political question as a collision of principles and thus as a question of constitutional or Treaty law. According to this conception, a constitutional court and the legislature are structurally occupied with the same task: solving collisions between fundamental rights and achieving optimizations.1617 Although legislatures go before with optimizations the constitutional court has the final say. If there is some discretion left to legislators it is only epistemic in nature (either regarding normative or factual considerations). Constitutional courts and the legislature are thus approximated. 1618 They principally decide the same questions in the same way. What is at the heart of the critique is that 1613 1614 1615 1616 1617 1618

Poscher, supra note 548, p. 83; Scherzberg, in: VDStRL, supra note 1343, 173. For example, Poscher, supra note 548, p. 82. Alexy, supra note 7, pp. 120 [82] and Alexy, supra note 183, p. 25. Poscher, supra note 548, pp. 83–4. Böckenförde, supra note 182, p. 189. See Poscher, supra note 548, p. 83 and Böckenförde, supra note 182, pp. 189–91.

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5.2 Separation of Powers under this condition the superiority of the Court’s appreciation is unacceptable. It decides the substantive matter and the scope of discretion. This problem would also arise for the ECJ if its competences were broadened in this way. Possible strategies that could be advanced to justify heightened scrutiny will be presented after the other approaches of Principle Theory to discretion will have been presented. Besides, this approach suffers from the general deficits of incorporation. Sovereignty of legislators is fundamentally changed by treating it as a principle. As a principle it can yield completely (see above Section 5.1.3). This is very well described by Hain: The objection is that that the formal principle of discretion of legislative bodies collides not only with substantive considerations but also with the formal principle of subordination of legislators to the constitution. If the courts are allowed to find the optimal distribution of principles and if such an optimization appears as a constitutional command, then the principle of discretion will have to stay back.1619 Jestaedt claims that discretion cannot encompass unconstitutional distributions of liberty.1620 It can only be claimed for legislative acts that conform to constitutional standards. Thus, formal and material principles operate at different levels. Where legislators make inadmissible choices at the outset they cannot claim discretion. Or put differently: Discretion concerns the choice among constitutionally acceptable alternatives but not among these and unacceptable choices. Principle Theory blurs this distinction. (b)

Discretion through a Re-Definition of Optimization?

Alexy has presented another interpretation of Principle Theory that demonstrates how discretion could work under the reign of Principle Theory: The claim for a wide-ranging realization of constitutional principles, which can also be understood as . . . normative optimization, means anything but the command to strive for a culmination. Though each principle claims for itself as much as possible, the optimization of clashing principles does not mean to yield to this but requires, apart from the exclusion of unnecessary burdens, only the justification of necessary burdens by at least equal importance of the satisfaction of the countervailing principle. This is a negative criterion, and that shows that the optimization in context of balancing is compatible with the framework character of the constitution.1621 1619

Hain, supra note 540, p. 136. Jestaedt, supra note 991, pp. 226–7. 1621 Alexy, supra note 183, p. 25: “Die Forderung nach möglichst weitgehender Realisierung grundrechtlicher Prinzipien, die auch als . . . normative Optimierung bezeichnet werden kann, bedeutet also alles andere als das Gebot, einen Höchstpunkt anzustreben. Zwar will jedes Prinzip für sich möglichst viel. Kollidierende Prinzipien zu optimieren heißt aber nicht, dem nachzugeben, sondern verlangt neben dem Ausschluss unnötiger Opfer nur die Rechtfertigung der erforderlichen Opfer durch mindestens gleiche Wichtigkeit der Erfüllung des jeweils 1620

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Chapter 5. Balancing—A Legal Perspective In this quotation Alexy tries to refute the critique that Principle Theory changes the character of fundamental rights by eliminating their framework character, replacing it with a complete value order.1622 He tries to show that the interpretation of rights as principles is compatible with the framework character. The framework model of fundamental rights implies discretion for political bodies because fundamental rights only prescribe minimal standards of protection. Discretion is the space that lies between these minimal positions. This corresponds to the satisficing model (cf. figure 4.3). According to this re-definition, principles do not require a culmination but only the justification of necessary burdens. Can this still be called optimization? To optimize is to realize principles as far as possible. If necessary burdens are justified by at least equal importance of competing reasons, then this amounts to find good enough reasons for an interference with fundamental rights. To justify an interference one could be content with the minimum that is required for such a justification. In this case, however, one follows the concept of satisficing instead of optimizing.1623 Who stops the strive for a culmination does not optimize but is satisfied with the achievement of some aspiration level. Alexy’s defence does not refute the critique. On the contrary, it gives it sharper focus, because it appears that the only way to arrive at discretion is to abandon optimization. One cannot maintain the framework model and the optimization model because these are incompatible. Figures figure 4.3 and figure 5.1 illustrate the fundamental difference. According to the satisficing conception, which is illustrated by figure 4.3, all options that fall within the shaded area are not disproportionate. The optimizing model, in contrast, aims at proportionate distributions, which are marked by the point O. For Principle Theory is characterized by optimization, because it is optimization that distinguishes principles from rules, Principle Theory and a framework model cannot be advocated simultaneously; one must either accept Principle Theory/optimization or the framework model. (c)

Discretion through Stalemate Situations (Structural Discretion)?

There is yet a third way of justifying discretion from the stance of Principle Theory: Where stalemate situations occur, the constitution does not decide how to decide. Here, legislators enjoy discretion. 1624 A stalemate situation obtains whenever the interference with principle P1 (in case of non-action) equals the gegenläufigen Prinzips. Das ist ein negatives Kriterium, was zeigt, dass auch die Optimierung im Rahmen der Abwägung mit dem Rahmencharakter der Verfassung vereinbar ist.”; English translation of the German original by the author. 1622 Böckenförde, supra note 182, pp. 193–9. 1623 See above, in Section 4.3.2 for a description of satisficing. See also Section 3.4 where it was asked whether disproportionality can be rationalized in optimization terms. 1624 Alexy, supra note 183, p. 22.

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5.2 Separation of Powers interference with principle P2 (in case of action) and vice versa regarding the gains. So, whatever the legislator will do, it will interfere with one principle and the interference will be equally great in both cases. This is called structural discretion. Structural Discretion is distinguished from normative epistemic discretion. The difference is that under the latter form uncertainties regarding the evaluation of circumstances exist. This is an epistemic problem. Structural discretion, in contrast, can only operate once uncertainties are cleared because one must establish that weights are equal. It is very questionable, though, whether such a situation can ever obtain. The equality of interferences in case of action and non-action means that it does not matter whether legislators act or do not act. Given that it is easier to maintain the status quo than to enact new legislation one can hardly assume a statute that will be enacted in such a case. Why act if the act does not make a difference at all? Legislators act, because they think that their decisions matter, and lobby groups act because they share this belief.1625 Because the existence of a stalemate situation depends on the levels of intensity one can recognize, Alexy could argue: The political process is more sensitive than the adjudicative one. What matters for legislators need not concern constitutional courts. But is that not a case of normative epistemic discretion? Are there any criteria to detect when the threshold is passed?1626 After all, it depends on how finely the interferences are scaled. Principle Theory usually employs three tiers (light, moderate, and serious). With such a rough scale it is quite probable that stalemate situations can occur. The more fine grained the scale is, however, the less probable such situations are. After all, it depends on how many tiers there should be and the critique is that Principle Theory does not explain how the number of tiers can be deduced from the constitution.1627 The point is crucial: It must be possible to clearly say when discretion begins. If it is for the Court to decide this issue (normative epistemic discretion) then this is a serious threat to its legitimacy. Considering the findings from the previous chapter, it should be clear that this assessment clearly exceeds human cognitive powers. Not only must the actual interferences and gains be weighed and ranked, also the hypothetical ones need to be ranked. This task is so demanding that it cannot be expected that judges will perform it in an objective manner.1628 Besides, structural discretion is at odds with the optimization ideal. Optimization is the search for the best solution and there can only be one. What Alexy thus calls structural discretion can, if Principle Theory is applied consequently, only be normative epistemic discretion. From a methodical stance this kind of discretion is not acceptable because it is tantamount to admitting that one does 1625 1626 1627 1628

MacCormick, supra note 42, pp. 9–10. Lange, in: VDStRL, supra note 1343, 169. Murswiek, in: VDStRL, supra note 1343, 169. See Schlink, supra note 549, p. 141; and Lange, in: VDStRL, supra note 1343, 169.

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Chapter 5. Balancing—A Legal Perspective not know what the law is.1629 That is the bankruptcy of legal reasoning and jurisprudence as a cognitive process. An example shall elucidate the point. Take cases where lower courts adjudicate disputes, for example the Titanic 1630 case. If one deemed the interest of the magazine equal to the intensity of calling someone “cripple”, then how should one decide? A court has to decide either way. How could one justify to deny a remedy or to give a remedy if both interests weighed equal? In that case the burden had to be equally divided, for example by paying lower damages or by replacing pecuniary damages with some act of restitution. At a second glance the same problem also arises for legislators: If the burdens of acting and non-acting were equal (the same being true for the corresponding gains) then why should one opt for an either-or-solution? Optimization would require that the burdens be equally divided between the affected groups. Imagine an environmental law case: A change of the threshold values for some toxic substance is considered. A comprehensive analysis shows that the burdens for the industry of introducing the proposed threshold value are equal to the current burdens of citizens. How can legislators justify the status quo or the introduction of the new threshold value instead of some compromise? (d)

Distinguishing Directives and Review Standards?

There is yet another approach to ensure discretion of political bodies, which was introduced by German functionalists and has been picked up by Principle Theory.1631 It is the distinction between fundamental rights as directives (Handlungsnorm) and review standards (Kontrollnorm ).1632 The prototype of such a distinction is art. 3 § 1 GG, the Equal Treatment Clause. As a directive, it commands substantial equal treatment, which is nothing more or less than material justice.1633 As a review, standard art. 3 § 1 only prohibits arbitrary classifications.1634 So according to this approach, fundamental rights as review standards have a narrower scope than fundamental rights as directives and not all claims of fundamental rights are judiciable. This approach is objectionable for two reasons: First, how can fundamental rights be not judiciable or have any contents that should not be judiciable?1635 If they really shall represent fundamental values of our society, how can one limit their normative force? As 1629

Hillgruber, in: VDStRL, supra note 1343, 175. Supra note 921. 1631 Alexy, in: VDStRL, supra note 1343, 219. 1632 Rinken, in: Azzola, supra note 978, vor Art. 93, para. 79; Konrad Hesse, ‘Funktionelle Grenzen der Verfassungsgerichtsbarkeit’, in: Müller, Jörg Paul (ed.): Recht und Prozess als Gefüge: Festschrift für Hans Huber zum 80. Geburtstag (Stämpfli, Bern, 1981), p. 261, p. 46. 1633 Heun, supra note 970 1634 Ibid. 1635 Ibid., p. 47. 1630

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5.2 Separation of Powers far as fundamental rights are only directives they cease to be legal standards.1636 Second, by what means can it be determined, what is judicialbe and what is not and what content fundamental rights as directives could have beyond fundamental rights as review standards? The thesis is that fundamental rights as directives are toothless and can at best only have vague content.1637 In combination with Principle Theory this distinction could indicate that only fundamental rights as directives are optimization commands but not as review standards. The citation above on page 263 seems to point to this direction. In that case, the findings from this paragraph support the findings that were made above on page 263. If optimization is only a directive, then it can no longer be characterized as a legal, i. e. enforceable, standard and the ideal is effectively given up as a standard of legal reasoning.1638 This is moreover tantamount to giving up Principle Theory, since it is nothing but optimization that distinguishes principles form rules; who gives up optimization must necessarily give up Principle Theory. (e)

Justification of the Impact

Four approaches to discretion of political bodies have been presented. But none is convincing. They either lead to inconsistencies, do not take discretion serious, or are not manageable. Accordingly, Principle Theory is apt to eliminate legislative discretion or to reduce it to mere epistemic discretion. In national contexts this raised the legitimacy question.1639 The democracy deficit of EC legislators warrants a different answer or a different justification for the same answer, one that pays due regard to the deficit. If increased scrutiny were objected on legitimacy grounds, critics of the Court would argue that legislators also lack legitimacy. The decisions of EC -legislators, which suffer from a democratic deficit, do not deserve as much respect as decisions of national parliaments at least discretion requires additional justification and cannot be taken for granted.1640 Yet it is a fallacy to infer the legitimacy of the Court from the legitimacy deficit of the legislators. An anti-critic might reply to the critics of the Court: “It may be that the legislators lack legitimacy, but can you positively show that the Court is legitimized?” As an EC institution the Court participates in the democratic deficit of the Community. Moreover, courts are usually considered

1636

Jestaedt, supra note 991, p. 193; Heun, supra note 970, p. 48. Jestaedt, supra note 991, p. 193; Heun, supra note 970, p. 50. 1638 It exceeds the scope of this study, which is devoted to finding judiciable legal standards, to discuss whether optimization is a sound non-legal directive for legislators; see Michael A. Slote, Beyond Optimizing: A Study of Rational Choice (Harvard University Press, Cambridge, Mass., 1989) for a discussion of optimization from a moral/ethical perspective. 1639 Böckenförde, supra note 182, p. 191; Maus, supra note 38, p. 306; Maus, supra note 97, p. 849; Tushnet, supra note 38 1640 Pauly, supra note 8, p. 257; Emmerich-Fritsche, supra note 5, p. 235. 1637

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Chapter 5. Balancing—A Legal Perspective less legitimate than legislators and this is also true for the EC institutions.1641 The members of the Court are not elected by the people and they are not members of an accountable government. Accordingly, judges are at least not democratically justified. Of course, one could object that judges need not necessarily be democratically legitimized but juridically, i. e. by the way judges decide and the decision procedure is shaped. One could even reinforce the objection by stating that it is a feature of judges and courts that they are not accountable but independent. That presupposes that legal decisions can be arrived at rationally.1642 Judgments do not derive their authority from the will of the people but from the text of the Treaty and some standards of objectivity, which ensure that there will be some impartial relationship between the text and the decision. In Chapter 1 it was shown that this is generally possible. Thus adjudicative decisions are legitimate if and insofar as they are rationally grounded on or connected with norms that are enacted by democratically legitimate bodies or by case law that is tolerated by such bodies. It is because American Realists and Maus deny this connexion of objectivity that they also defy judicial review (see the end of Section 2.4.1 and Section 2.4.3). In Section 5.1 it was shown that balancing as envisaged by Principle Theory and by many critics of the Court cannot provide adjudicative rationality and hence legitimacy. One critic of the Court openly concedes: The position of balancing scepticism has its real place in the system of parliamentary democracy, where it, indeed, makes little sense to replace balancing decisions of parliament, which can neither be methodically justified nor rationally overruled, by equally subjective decisions of a court. Such a sensitive protection for the relatively weakly legitimized decisions of Community legislators can only hardly be grounded on a theory of democratic government.1643

The argument runs as follows: Balancing is generally irrational. But because Community legislators lack democratic accountability, it is admissible for Community courts to balance, i. e. to decide irrationally. However, irrational judgments can never gain legitimacy, no matter how weak the legitimacy of another institution is. The best that could be done on grounds of this critique is to replace an irrational value judgement of a weakly legitimized body with another irrational value judgement of an even less legitimized body. It is absolutely incomprehensible how this could compensate for the democratic deficit. 1641

Rasmussen, supra note 1599, p. 46. Alexy, supra note 50, p. 24. 1643 Pauly, supra note 8, p. 260: “Ihren eigentlichen Ort hat die Position der Abwägungsskepsis aber im System der parlamentarischen Demokratie, in dem es in der Tat wenig einleuchtet, Abwägungsentscheidungen des Parlaments, die weder methodisch begründet noch rational verworfen werden können, durch ebenso volitive Entscheidungen eines Gerichts zu ersetzen. Ein derart sensibler Schutz lässt sich für die demokratisch vergleichsweise schwach legitimierten Entscheidungen des Gemeinschaftsgesetzgebers schwerlich demokratietheoretisch begründen.”; English translation of the German original by the author. 1642

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5.2 Separation of Powers The approach of the critics is also incompatible with the text of the Treaty (art. 6 § 2 TEU ); the case law of the ECtHR;1644 and, in case of German critics, art. 23 § 1 GG and the case law of the GFCC .1645 According to these sources, the yardstick is the protection of human rights as it is guaranteed by the Convention and the national law of the Member States. This also includes the rigour of review and therefore the right balance between powers of government. By requiring an equivalent standard of protection these sources assume an equivalent distribution of powers between the Court and Community legislators. The adoption of Principle Theory and an increasing rigour of review is likely to disturb this balance. Therefore, it is not convincing to heighten scrutiny by the introduction of Principle Theory to Community law. Again one must note how crucial the objectivity of legal reasoning is. Judicial review by means of balancing is deprecated because it is irrational.

5.2.4

Heightened Scrutiny of Assessments of Facts

Another obvious starting point for heightened review is the assessment of facts. From the comparative analysis above we have seen that the US Supreme Court is coupling a lenient normative standard with a forgiving stance concerning the assessment of facts, because the burden of proof is allocated in favour of government. And the US Supreme Court usually defers to the assessments of government (see page 150). The GFCC and the ECtHR also take a deferential stance—at least in the socio-economic field, which is of particular interest here. The analysis of the case law of the ECJ has shown that the Court employs both techniques to deal with facts. In the Bananas 1646 case the burden of proof was unusually allocated in favour of the Community and the Court did not assess facts. Especially in connexion with this decision, some German scholars sharply criticize the Court for reviewing Community legislation far too leniently.1647 However, the critique was not only advanced by German scholars; Tridimas believes that due to the manifest error test the Court only pays lip-service to the necessity requirement.1648 Others believe that the Court’s treatment of facts corresponds to the stance of the ECtHR and the GFCC .1649 1644

Bosphorus (Convention), supra note 558. BVerfG 2 CMLR 1974, 540 (Solange); BVerfG 3 CMLR 1987, 225 (Solange 2 ). 1646 Supra note 11. 1647 Pauly, supra note 8, pp. 259–60; Nettesheim, supra note 5, p. 107; Bühler, supra note 5, p. 205; Ekardt and Šušnjar, supra note 1315, p. 300. 1648 Tridimas, supra note 1165, p. 146. 1649 Eckhard Pache, ‘Der Grundsatz der Verhältnismäßigkeitigkeit in der Rechtsprechung der Gerichte der Europäischen Gemeinschaften’ 1999 Neue Zeitschrift für Verwaltungsrecht, p. 1033, p. 1040; Claus Dieter Classen, ‘Die Bananenmarktordnung der EG—ein Fall für das Bundesverfassungsgericht?’ 52 (1997) Juristenzeitung, p. 454, p. 456; Manfred Zuleeg, ‘Bananen 1645

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Chapter 5. Balancing—A Legal Perspective The problems with this critique are twofold: First, the critique focuses on relatively few cases. It was the Bananas case in particular that evoked a wave of critique.1650 The case, indeed, was methodically, but not in necessarily in substance, highly deficient. Second, even if some decisions could be rightly criticized it is still not established that the case law as such reveals a deficient standard. The treatment of facts by the Court was already discussed above, in Section 3.5. The purpose of the rest of this section is to compare the standard that the Court employs with the standard that is envisaged by the critics and to review the implementation of the standard to determine whether the critique is justified. Only few critics uncover the yardstick that is implicit in their critique. The basic assumption is that discretion is principally only warranted by political value judgements, not by questions of fact.1651 The exception are difficult relations between facts and the need for predictions.1652 In these cases, the assessment of facts is so difficult that eventually value judgements are necessary. Therefore it is agreed that, in principle, the assessment of complex economic matters justifies discretion.1653 However, it cannot be gained for free. Some review should still be exercised and the standard of review requires that all available scientific advice be comprehensively and exhaustively considered.1654 The critics claim that the Court does not observe the distinction between facts and value judgements;1655 does not assess facts on its own;1656 and inappropriately grants discretion in assessing facts.1657 Test cases are Bananas1658 , Winzersekt 1659 , Tobacco Advertisement 1660 , and Tobacco Labelling 1661 . As far as the critique relates to the abstract rules that can be found in the Court’s case law, the critique is not fully justified. It was shown above (in Section 3.5) that the Court, the Advocates General, and legal scholars do distinguish facts and value judgements. However, it was also shown that the Community usually acts in areas that require complex assessments. Here, the und Grundrechte—Anlaß zum Konflikt zwischen europäischer und deutscher Gerichtsbarkeit’ 1997 Neue Juristische Wochenschrift, p. 1201, p. 1206. 1650 See references at Bühler, supra note 5, p. 205. 1651 Ekardt and Šušnjar, supra note 1315, p. 288; Pauly, supra note 8, pp. 259–60; Nettesheim, supra note 5, p. 107. 1652 Ekardt and Šušnjar, supra note 1315, p. 282; Pauly, supra note 8, pp. 259–60. 1653 Ekardt and Šušnjar, supra note 1315, pp. 282–3; Pauly, supra note 8, pp. 259–60; Nettesheim, supra note 5, p. 107; Leible, in: Streinz, supra note 1332, Art. 95 EGV, para. 58. 1654 Ekardt and Šušnjar, supra note 1315, p. 309; Leible, in: Streinz, supra note 1332, Art. 95 EGV para58. 1655 Ekardt and Šušnjar, supra note 1315, p. 300. 1656 Ibid.; Nettesheim, supra note 5, p. 107; Bühler, supra note 5, p. 205. 1657 Pauly, supra note 8, pp. 259–60; Nettesheim, supra note 5, p. 107. 1658 Supra note 11. 1659 Supra note 2. 1660 Supra note 23. 1661 Supra note 2.

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5.2 Separation of Powers distinction is not clear-cut and it is for these circumstances that critics allow the Court to take a deferential stance. In this respect, the case law and the critique are congruent. A difference remains, though: The Court has explicitly allowed the Community legislators to depart from scientific expert advice. 1662 However, the treatment of facts in cases like Pfizer 1663 and TU München 1664 on one hand and Worker’s Health and Spain on the other differs fundamentally. In the former cases the Court and the CFI opted for a stronger binding force of scientific expert advice than in the latter cases. In many cases, the Court fulfils the standard that critics expect it to fulfil and that the Court has set itself. Worker’s Health, supra note 23 Here the Court required some evidence for the particular suitability of Sunday as a day of rest. Regarding the other health promoting measures it relied on the experiences of the Member States (paras. 37–9). The Opinion of Advocate General Léger reveals that the Council was informed by scientific experts and that extensive scientific reports were taken into account (para. 162, 166). However, he also showed that there was some dispute among experts (para. 162). Léger AG even stated that a scientific foundation for each measure could not be required (para. 167) and opted for a dismissal of all claims (para. 168). The Court was more rigorous than Léger AG because it required detailed expert advice and annulled the measure because of a lack thereof. ABNA, supra note 18 The Court was able to rule on proportionality with a recourse to the facts established by the parties (para. 67). The obligation to inform customers of the exact composition of the feedstuff in question was not necessary to pursue the objective (namely to trace contaminated feedstuffs), see para. 80, 83. This example shows that it is not always necessary for the Court to assess facts on its own. Tobacco Advertisement, supra note 23 In this case, the Court relied on the submissions of the parties to judge on the validity of the assessments. The Court made an independent assessment of the suitability of the measures to prevent obstacles to trade (paras. 95–105). The same is true for appreciating distortions of competition (paras. 108–14). Although the Court invalidated the directive because of a missing legal basis, the decision should not be understood as an application of a merely formal principle.1665 The Court actually applied the suitability criterion: Does a problem exist (obstacles to trade, distortion of competition) and are the measures suitable means to resolve the problems? Swedish Match, supra note 11 In this case, which concerned the prohibition of snus, the Court assessed, based on the submissions by the parties, whether snus posed risks to health. The Court acknowledged the existence of health risks: Although the cancerous nature of snus was disputed, the harmlessness of this product was not proven either (para. 51). According to the opinion of Advocate General Geelhoed, scientific expertise must be taken into account but scientific opinion need not be unanimous (para. 94 of the Opinion). The Advocate General also referred to the precautionary principle and stated: “The 1662 1663 1664 1665

Worker’s Health, supra note 23; Spain, supra note 1251. Supra note 1157. Supra note 1333. Thus I abandon my view advocated in Ekardt and Šušnjar, supra note 1315, p. 300.

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Chapter 5. Balancing—A Legal Perspective precautionary principle mainly confers on the Community legislature broader, but not unlimited, discretion. When the legislature intends to use this extended discretion it is subject to a heavy burden of proof to make sure that the alleged risk is not merely hypothetical. (emphasis added)”1666 (para. 98) Moreover the toxicity of snus was not disputed at all (para. 52). This relatively recent judgment in particular shows that the Court (and the Advocates General) does not simply rely on the assessments of the Community legislators. National Farmers, supra note 1312 The Court had to rule on the validity of certain measures against the spread of the BSE disease. The measures were taken under uncertainty. Tesauro AG and the Court let it suffice that the reasons were plausible (para. 32). Tesauro AG showed that the UK and the Community based their measures on scientific advice and that in light of this advice the perceived dangers were not unlikely (paras. 2–7).

The general line is that scientific advice alone is not conclusive. This makes sense from the point of view of risk management. Scientific expert advice is not value free, although it should be ideally. By diminishing the importance of scientific expertise the Court prevents the legislators from being thralls of scientific experts.1667 These examples show that the Court engages in an assessment of facts, where it is appropriate. However, there are of course examples where the Court’s approach is at least questionable. In the Spain 1668 case the Kingdom of Spain challenged the exchange of fishing quotas between Portugal and France, because this change, which led to an increase of the TAC for the relevant fish stocks, was not based on scientific data. Alber AG objected because the original TAC was not based on scientific data either, but on experiences drawn from economic development (para. 26). Moreover, the fish stocks were not endangered, a fact that was not disputed (para. 27). Even if scientific data had existed, the Council would not have been bound by it but could have departed from it by balancing the interests at stake (para. 21). This balance was reflected in the regulation that was challenged by Spain. The Court followed the Opinion of Alber AG. This decision and the accompanying opinion are not convincing. The main argument was that the Council had wide discretionary powers in balancing the competing interests and in assessing the basic facts (para. 22, 33–4). The Court and Alber AG referred to the Mondiet 1669 case to justify the power of the Council to decide without scientific advice. However, the difference between these cases was twofold: (a) In the Mondiet case, scientific data was available, as well as international standards. The same is true in the other cases cited in this context. In each case, some expert opinion existed or there was some reasonable dispute. In 1666 However, according to the Advocate General, the principle was not applicable, yet it shows that principally, the Court is able and willing to engage in an analysis of facts and certain procedural requirements. 1667 Cf. Worker’s Health, supra note 23, para. 165 (Léger AG). 1668 Supra note 1251. 1669 Supra note 1201, para. 31.

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5.2 Separation of Powers such situations the Council may choose among one of these opinions even if it is not the dominant one. Here, expert advice was not available at all. The Court equated the absence of expert advice with dispute among experts or an uncertain state of affairs. This requires at least some justification, which was neither provided by the Court nor the Advocate General. It is acceptable that the Court tries to ensure the autonomy of Community legislators by allowing them to choose among diverse scientific opinions or to allow them to act in the absence of scientific certainty. In this case, however, the Court allowed legislators to ground their acts on mere hypothetical knowledge and mere allegations. According to art. 8 § 3 iv) of the applicable regulation, scientific advice had to be taken into account.1670 Although it was not disputed that the fish stocks were not endangered at the time of the adoption of the regulation, the Council did not assess the consequences of the increase of the TAC . This decision does not fit and should not be cited in order to support one’s stance. It is therefore regrettable that Alber AG did not depart from this line in the related case Spain II 1671 . He maintained that the implicit change of TAC did not warrant scientific expert advice.1672 (b) There is yet another fundamental difference. In Mondiet 1673 the Council could rely on the precautionary principle to take measures against dangers under uncertainty. Those measures were of a protective nature. The increase of the TAC by about 15 per cent in the Spain 1674 case cannot be characterized as a protective measure, on the contrary: It was not unlikely that the fish stocks could be endangered by the increase. Moreover, the decision assumes that Community legislators may supplement additional reasons after the adoption of an act in order to support it. This, however, is incompatible with Community law.1675 Although there are judgments that show a doubtful treatment of facts, there are many judgments that treat facts in a satisfactory way. The Court’s general approach to the assessment of facts cannot be criticized. But on its ground some of the Court’s judgments indeed deserve criticism. But there is nothing exceptional in the Court’s making mistakes from time to time—which Court is free of mistakes?

1670

Council Regulation (EEC) 3760/92 on establishing a Community system for fisheries and aquaculture [1992] OJ L389/1. 1671 Joined Cases C–61/96, C–132/97, C–45/98, C–27/99, C–81/00 and C–22/01, Kingdom of Spain v. Council of the European Union [2002] ECR I–3439 (henceforth cited: Spain II). 1672 Ibid., paras. 85–9 (Alber AG). 1673 Supra note 1201. 1674 Supra note 1251. 1675 Callies, in: Calliess and Ruffert, supra note 402, Art. 253 EGV, para. 11.

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5.3

The Nature of Fundamental Rights

In the previous sections the methodical consequences of the distinction between rules and principles and the implications for the separation of powers were discussed. Now, we shall turn to the consequences for the understanding of fundamental rights. The assertion that fundamental rights are principles can be challenged on two grounds: It could be argued that 1. the analytical distinction between rights and principles is inconsistent. However, even if it were consistent and sound in general, it could be contended that only some rights exhibit this structure and that this must be elucidated by an individual interpretation of each right. 2. Principle Theory lends support to fundamental changes of rights (from negative rights to positive obligations, from a framework order to an all-permeating value order, from rights to values) and must therefore be rejected from a normative point of view. This critique rests on some conception of fundamental rights which requires clarification in the course of the discussion.

5.3.1

The Analytical Distinction

The heart of Principle Theory is the notion of ‘principle’ and the distinction between rules and principles. Naturally, the criticism is also directed at the very heart of the theory. From an analytic point of view, Alexy’s notion of principles differs from Dworkin’s conception (see above in Section 1.10.1(e)). The main difference is that Dworkin’s conception lacks the notion of optimization. That warrants another discussion of the distinction between rules and principles. To recapitulate: 1676 Principles can be clearly distinguished from rules. The former are optimization commands, while the latter make definite prescriptions that only depend on the factual possibilities. Therefore, principles are prima facie commands. From this difference, the different collision behaviour ensues. A collision between principles must be resolved by means of balancing without affecting the content or validity of either principle, while a collision between rules must be resolved by altering or invalidating one of the conflicting rules. A norm is either a rule or a principle. The principle/rule dichotomy and the definition of ‘principle’ can be challenged for five reasons: One could 1. argue that norms that do not have definite content cannot collide. Therefore, principles cannot collide; 2. point to certain inconsistencies of the distinction; 3. show that Principle Theory introduces further inconsistencies by addressing the problem of definite limits to interferences with fundamental rights;

1676

See Section 1.10.

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5.3 The Nature of Fundamental Rights 4. object because the analytic distinction implies a methodical approach that strictly distinguishes balancing and subsumption, which is not appropriate; and 5. argue that the characterization of fundamental rights as principles is not a solely analytic matter but a question of interpretation and application of norms which renders the analytic efforts alone insufficient.

(a)

Can Principles Collide?

According to Principle Theory, fundamental rights are principles and the collision between fundamental rights has to be resolved by means of balancing.1677 This approach presupposes that fundamental rights as principles can collide. This assumption rests on a questionable footing, because principles are defined as prima facie commands, which do not have definite content. According to Principle Theory, a conflict can occur if a norm that offers a range of possible solutions competes with a norm that also provides an array of possible concrete commands. For example, a collision could obtain in this situation: Principle P1 permits a and principle P2 requires b, while a and b cannot be fulfilled simultaneously.1678 Borowski defines a collision as follows: “ . . . principles collide, if according to their scope both principles are applicable and if they lay down contradictory consequences.”1679 ‘Collision’ is synonymous to ‘conflict’ in this definition. Poscher believes that a conflict of norms can only occur in these cases if both norms require contradictory acts.1680 Each fundamental right only excludes certain, discriminatory or disproportionate, measures.1681 Therefore, there always remains a large area of admissible measures. So both fundamental rights only exclude measures that exceed a certain threshold. A conflict can thus only obtain if both rights require measures that necessarily exceed the threshold of the competing right.1682 In terms of this study: A conflict of fundamental rights only obtains if all suitable and necessary measures fall below the minimal standard of at least one right.1683 Similarly, Zucca defines a conflict as the impossibility of fulfilling the requirements of both rights simultaneously (“incompossibility”).1684 Hain rejects the idea that principles can collide owing to their lacking definite content.1685 Only the reasons that are grounded on principles can collide but never the principles themselves.1686 1677

Alexy, supra note 7, pp. 78–9 [50]. See Alexy, supra note 77, p. 296 discussing BVerfGE 51, 324 (Verhandlungsunfähigkeitsbeschluss). 1679 Borowski, supra note 534, p. 80. 1680 Poscher, supra note 548, p. 199. 1681 Ibid., p. 200. 1682 Ibid., p. 201. 1683 See figure 4.3. 1684 Zucca, supra note 69, p. 50. 1685 Die Grundsätze des Grundgesetzes: Eine Untersuchung zu Art. 79 Abs. 3 GG 111. 1686 Hain, supra note 540, p. 113. 1678

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Chapter 5. Balancing—A Legal Perspective Proponents of Principle Theory perceive conflicts between fundamental rights because they interpret fundamental rights as optimization commands. This interpretation changes the deontic mode of fundamental rights. What non-optimization commands permit or licence, is required by optimization commands. Taking the example from above: if a was the only measure that would maximize P1 and if b was the only measure that maximized P2 than one would indeed have had to classify this situation as a conflict. But this interpretational device warrants a justification. Why should norms that are so vague, and thus so reconcilable, be interpreted narrowly, in particular if this increases the likelihood of conflicts of norms. If two norms ‘collide’, then there is nothing special in choosing an interpretation that satisfies the requirements of both norms. This interpretational directive stems from and is justified by the tenets of coherence and consistency. The findings of this subsection do not exclude the existence of real conflicts between fundamental rights. It was only tried to prove that fundamental rights as principles cannot—by definition— collide in the true sense of the word. (b)

Inconsistencies of the Rule–Principle Distinction

Though the distinction between rules and principles is claimed to be clear-cut, some differentiations appeared. And these differentiations introduce certain inconsistencies into Principle Theory. According to Alexy a norm, not just the norm sentence, may express a principle and a rule.1687 Regarding the admissibility of competing interests and the need for a justification of interferences, fundamental rights are rules. Apart from that they are principles. This is contradictory because Principle Theory claims that a norm is either a rule or a principle.1688 A further crack in the border between principles and rules appears because Alexy acknowledges that rules also have prima facie character. The difference between principles, which only exhibit prima facie validity, is that rules require the consideration of formal principles.1689 According to Alexy, this renders the prima facie character of both kinds of norms fundamentally different.1690 Borowski, a proponent of Principle Theory, noted that there was no such difference. The character of principles’ clashing is not changed by the fact that formal principles enter the struggle.1691 One could even add: In this respect principle collisions and rule collisions do not differ because principle collisions also require the consideration of, albeit different, formal principles (for example, 1687 1688 1689 1690 1691

Alexy, supra note 7, pp. 122–4 [84–6]. Ibid., pp. 77 [48]. Ibid., pp. 89 [58]. Ibid., pp. 90 [59]. Borowski, supra note 534, p. 93.

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5.3 The Nature of Fundamental Rights observing the separation of powers, see Section 5.2.3). According to Borowski, a difference remains because rules in the strict sense do not exhibit prima facie validity, in contrast to rules in the broad sense. Rules in the broad sense have the form: “r, unless principles require something else.”1692 This difference ensues not from the norm structure but from the content of a rule, which may be that a rule is open to principles. Thus, what is, according to Borowski, the main difference between rules and principles is that it is not a necessary property of rules that they may be overridden by principles. A real difference between rules and principles is not proved, because it should depend on the rule in question and the legal system whether a rule allows for the consideration of principles. Therefore, the treatment of a rule depends on its particular interpretation.1693 Moreover, it appeared that optimization commands are rules themselves, because they unconditionally require that something be optimized.1694 Therefore Alexy changed the definition of principles. Principles are not optimization commands but commands to be optimized.1695 All these differentiations, especially in conjunction, question the accuracy of the analytical distinction. (c)

Inconsistent Reconstruction of Definite Limits

Although the re-definition of principles as commands to be optimized evades some inconsistencies, it evokes criticism form another direction. Can something that shall be optimized be called a ‘command’? Is not the notion of a ‘command to be optimized’ a self-contradiction? If something should be realized to a lesser or greater extent, then it is a directive. That in turn is a questionable interpretation of fundamental rights and of law in general. Instead of being limits to the exercise of official power they are mere directives for their conduct. 1696 This point will be discussed in more detail below. For now it is important to note that some believe that the interpretation of rights as principles is likely to contribute to their being compromised.1697 Thus Principle Theory fails to protect the essence of rights. Whether this point is justified or not need not be discussed now because anyway Principle Theory tries to address the critique be it justified or not. And it is in this course where further inconsistencies are introduced. Alexy would deny that Principle Theory renders fundamental rights ineffective, because he does not purport a pure principle model of fundamental 1692

Ibid., p. 95. Cf. Poscher, supra note 548, p. 80; Günther, supra note 1535, p. 272; Raz, supra note 56, p. 834. 1694 Sieckmann, supra note 499, p. 65; Borowski, supra note 534, pp. 92–3. 1695 Alexy, supra note 494, p. 300. 1696 This is essentially Habermas’s critique (Faktizität und Geltung, pp. 315 [258–9]). 1697 Habermas, supra note 39, pp. 315 [258–9]; Forsthoff, supra note 966, p. 190. 1693

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Fulfilment Principle 1

m2

Chapter 5. Balancing—A Legal Perspective

I m1 Fulfilment Principle 2

The curve illustrates the varying substitution rate of two principles. The more principle 2 is fulfilled the more principle 1 must yield. Where the curve and the dashed lines meet, the point of resistance is achieved. Here, further substitution is not possible any more, i. e. further gains for principle 2 cannot compensate for further losses of principle 1. The curve is antiproportional. The more principle 2 is substituted for principle 1, the less will he or she be willing to pay for extra units of principle 2. The point where further substitution is not possible any more corresponds to the point where the marginal utility of principle 2 is 0. See figure 5.3.

Figure 5.2: Diminishing substitution rates and minimal positions rights but a rule/principle model.1698 Apart from being a contradiction, the rule/principle model cannot cure the deficit of the principle aspect of fundamental rights. Insofar as Alexy claims that Principle Theory takes regard of definite prescriptions of fundamental rights provisions, such as the prohibition of certain aims, Principle Theory is indeed immune from that criticism.1699 The principle/rule combination implies, however, that only insofar as fundamental rights make definite prescriptions (e. g. regarding competing aims), they can have any definitive force. Where the principle aspect of fundamental rights is affected, fundamental rights cannot—by definition as principles—pose definite constraints on government.1700 Under European law this is very often the case. The CFREU only has a general exceptions clause, which applies to all fundamental rights. The reference to the ECHR does not change the situation, because the provisions concerning legitimate aims are rather broad and the ECtHR has never invalidated a statute because it pursued prohibited aims (see above on page 89).1701 Though the legitimate aim test is important under EC -law, its importance stems from its close connexion to the principle of attributed powers: It is not the legality of the aims as such that is challenged (the list of legitimate aims is actually quite extensive, see art. 3 TEC ) but the right of the Community to further that aim, e. g. as a disguised harmonization measure (see above in Section 3.1.4). Alexy does try to address the problem of definite limits. Because the marginal substitution rate of goods is diminishing the more a good already is substituted, one will reach a point where the substitution requires an indefinitely high 1698 1699 1700 1701

Alexy, supra note 7, pp. 117–25 [80–6] Ibid., pp. 121 [82–3]. Cf. Hain, supra note 540, pp. 135–6. See art. 6 § 2 TEC and art. 52 § 3 CFREU .

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I

∆0

m2

Fulfilment P1 /Utility of P2

5.3 The Nature of Fundamental Rights

U m1 Fulfilment Principle 2

Figure 5.2 illustrates that at some point substitutions between two principles are not possible any more. It is included in this figure. The curve is anti-proportional because the utility of principle 2 increases with a diminishing rate, it is illustrated by curve U . The point where the utility cannot be increased any more is marked with the dashed ∆0 line. This is also where further substitutions are not possible any more.

Figure 5.3: Decreasing marginal utility importance of the competing interest.1702 An example are cases where the dignity of a party is affected.1703 This point marks the centre of resistance, which is illustrated by figure 5.2. This is not a satisfactory answer to the problem, at least in those cases where the dignity of two parties collides. In that case one must ask whose dignity violation is more severe. The collision problem left aside, there is another problem. There are two possibilities to construe definite limits. One could be to try to find them without balancing. Alexy’s approach could be interpreted in this way, if we suppose that the scope of dignity can be defined without balancing and if we further assume that once an interest falls under its scope balancing is precluded (which is the general view in Germany). Another approach is to use balancing as a means to find definite limits. Both approaches are problematic from the stance of Principle Theory. The first is not satisfactory because (a) Principle Theory alleges that the accommodation of principles requires balancing and that balancing excludes subsumption and (b) because principles do not have definite content. The first approach violates these tenets because according to it, definite limits are determined without balancing. This means that (a) an important aspect of the application of principles does not work according to the scheme of balancing and (b) that principles have at least two definite elements: (i) Optimize! (ii) Do not go beyond dignity (or some other border line)! If minimal standards for the application of fundamental rights can be found without balancing then Principle Theory has refuted itself. However, the alternative is not satisfactory either. To be sure, it does not refute Principle 1702 1703

Alexy, supra note 503, pp. 139–40. Ibid.

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Chapter 5. Balancing—A Legal Perspective Theory as the latter approach does. But it cannot be used to justify definite limits either.1704 If balancing is used to find limits for the process of balancing then this must be a self-recursive process. Balancing on the first step pauses for the determination of definite limits on a second step, and this goes on an on (cf. above page 254).The general claim that fundamental rights must have some definite content cannot be met effectively by Principle Theory without a self-repudiation. (d)

Direct Methodical Implications

The analytic dichotomy between rules and principles is also suspect from a methodical point of view. Together with the norm theoretic rule/principle dichotomy a methodical subsumption/balancing dichotomy is advocated. Subsumption is approximated to mechanical jurisprudence and it excludes balancing, while balancing requires intricate value judgements and excludes subsumption.1705 Both may supplement each other, but a question cannot be simultaneously dealt with by means of balancing and subsumption. The presentation of standards of legal reasoning advocates a different distinction. All cases must be dealt with by means of subsumption, i. e. in a syllogistic and deductive manner. Additionally, all cases require what was called material justification, i. e. justification by non-deductive means. However, one can distinguish cases where material justification is problematic and where it can be done in a routine way. Where it is done in a routine way, material justification happens implicitly but it still happens. Because of the discursive character of legal proceedings, the non-contentious character of issues can always be challenged. Reasoning by non-deductive means is guided by the tenets of coherence, consistency, universalizability and in that course judging by consequences. Even if it is conceded that balancing as envisaged by Principle Theory is a sound adjudicative measure these structures need not be abandoned. The strict analytical dichotomy divides the world of methodical problems into two clearly separated halves—the rule model (subsumption) and the principle model (balancing)—which is an unwarranted break with legal theory.1706 (e)

Deficiency of a Solely Analytical Approach

In Section 5.3.1(a) and Section 5.3.1(b) it was argued that the rule–principle distinction is a matter of substantive law and not a merely analytical question: Does a norm prescribe an optimization command? Does it allow for its being overridden by competing norms? This critique can be given a more general form: 1704

Cf. Hain, supra note 540, pp. 135–6. See Poscher, supra note 548, pp. 77–8; Jan Henrik Klement, ‘Vom Nutzen einer Theorie, die alles erklärt’ 63 (2008) Juristenzeitung, p. 756, p. 761. 1706 Poscher, supra note 548, pp. 77–8. 1705

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5.3 The Nature of Fundamental Rights Principle Theory obfuscates these substantive problems with the principle–rule distinction, which is located on an analytic or norm theoretic level.1707 The critics do not necessarily imply that a norm may never be interpreted as being a principle. The principal thrust is that this is an interpretational choice and that this choice must be justified like any other interpretation. Although one cannot reasonably claim that there are two neatly distinguished kinds of norms with a different collision behaviour, so far nothing prevents one from claiming that some norms or parts of a norm do exhibit such a structure. Under certain circumstances a norm or a part thereof may express an optimization command (or a command to be optimized). Turning the analytic question into a question of interpretation requires asking, among others, which consequences ensue from such an interpretation and whether it coheres. The previous section discussed the implications for balance of powers and the next one will analyze implications for the protection of fundamental rights. These sections contain substantive arguments that speak against interpreting fundamental rights as principles. The methodical considerations moreover showed that even if certain norms are regarded as principles their accommodation can work in a different way than Principle Theory expects it to work. Summary To summarize: From an analytic point of view, mainly two criticisms arise. For one thing the distinction between rules and principles is not as clear-cut as proponents of Principle Theory believe. Moreover, Principle Theory gets entangled in self-contradictions when it tries to refute the claim that it does not respect the binding force of legal norms. It must either state that norms may express rules and principles or it must argue that a definite limit to official powers can be justified without balancing. Both replies render Principle Theory contradictory from an analytic point of view. Moreover, it rests on a questionable notion of ‘collision’ and transposes the analytic distinction to the methodical level, where an unwarranted distinction between balancing and subsumption is introduced. Finally, it obfuscates that the identification of fundamental rights with principles is an interpretative choice that must be justified as such.

5.3.2

Normative Aspects

So far, the critique of Principle Theory was analytic in nature or it dealt with some implications for the separation of powers; it did not deal substantially with its understanding of fundamental rights. Two substantial objections against Principle Theory exist. One is directed at their being treated as flexible directives, i. e. as values; it resembles the critique against Utilitarianism. The other objection 1707 Günther, supra note 1535, p. 272; Jestaedt, supra note 991, pp. 214–16; Poscher, supra note 548, p. 80; cf. Raz, supra note 56, p. 834.

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Chapter 5. Balancing—A Legal Perspective aims at its supporting a broadening of the scope of fundamental rights and adding new functions to fundamental rights, which is a break with the traditional understanding of fundamental rights. The second objection is raised in North America and Europe. It is not limited to Principle Theory, but is directed at any theory that supports these developments. (a)

Implications of Principle Theory

To understand the critique against Principle Theory on these grounds, one has to grasp the implications of Principle Theory for the understanding of fundamental rights—or the implications that are perceived by critics. Principles correspond to values.1708 According to Habermas, values and rights differ in three aspects:1709 their structure (deontological/teleological), fulfilment modes (binary/gradual), and their validity (universal and unconditional/local and relative).1710 Especially, the last point is particularly characteristic. It effects a special form of flexibility.1711 The concrete weight of fundamental rights depends, among others, on the weight of the competing fundamental rights. According to Habermas, this is a property that rights should not have. Their intrinsic function is—based on Dworkin—to be trumps against some goal oriented reasons. This function would be obstructed if they were understood as values.1712 That rights should not be understood as conflicting values but as unconditionally binding norms, is shared by some traditional scholars. 1713 In this light, this statement of the ECtHR could be interpreted: The Court is faced not with a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted.1714

So, the Court does not attribute some preference between two rights (value interpretation) but believes that this right can only be interfered with under specific circumstances. (b)

Against Flexible Rights

On this background it is possible to understand the first objection against Principle Theory, its flexibility. By defining fundamental rights as principles, Principle Theory renders them adjustable. This argument has been advanced against value theories in general, but it is of course applicable to Principle 1708 1709 1710 1711 1712 1713 1714

Alexy, supra note 7, pp. 133 [92]. Habermas, supra note 39, pp. 310–11 [255–8]. See page 247. Cf. ibid., pp. 313 [257]. Ibid., pp. 315 [258–9]. Böckenförde, supra note 182, pp. 188, 198; Forsthoff, supra note 966, p. 190. Sunday Times, supra note 665, para. 65.

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5.3 The Nature of Fundamental Rights Theory, which understands itself as an enhanced value theory.1715 The major thesis of critics of value theories is that treating fundamental rights as values (or principles) entails the dissolution of constitutional restraints; it leads to an equivocation of the constitution (Verunsicherung der Verfassung).1716 This critique is related to the methodical objections against Principle Theory but they are not identical. The methodical objections relate to the finding of results from some sources. This argument relates to the dissolution of the sources themselves. This was very pointedly expressed by Forsthoff: “Had in 1933 National Socialism come across fundamental rights in the guise of values, then it would not have had to abolish them.”1717 The manipulatory opportunities were too numerous. Here, the point is not that balancing could not be performed in a rational way, but that rights should not be balanced even if balancing were rational.1718 Rights erect a “fire wall” within the legal discourse, which crumbles once rights are understood as values or principles.1719 The reason is that, according to the critics, under Principle Theory rights lose their function as definite limits. 1720 Above, in Section 5.3.1, we dealt with this aspect from an analytical point of view. It was shown that Principle Theory, indeed, cannot justify definite limits of governmental action without being inconsistent. Now, the problem will be approached from a normative perspective: Why should this characteristic of Principle Theory be rejected? To equip us with additional arguments, I shall discuss another theory of balancing, Utilitarianism or consequentialism. Utilitarianism and Principle Theory resemble each other strikingly in certain aspects. Consequentialism, or Utilitarianism as a special form of consequentialism, judges the rightness of something solely on its consequences.1721 Consequentialism usually requires that some commodity be maximized or optimized, e. g. social or personal wellbeing.1722 Principle Theory could be understood as some form of universal consequentialism, because optimization is not measured against personal but social standards. Usually, one can distinguish rule and act consequentialism.1723 1715

Alexy, supra note 7, pp. 134 [93]. Forsthoff, supra note 966, p. 190. 1717 Ibid.: “Hätte der Nationalsozialismus 1933 die Grundrechte als Werte vorgefunden, dann hätte er sie nicht abzuschaffen brauchen.”; English translation of the German original by the author. 1718 Habermas, supra note 39, pp. 316 [259–60]. 1719 Ibid., pp. 315 [258–9]. 1720 See Alexy, supra note 503, p. 134 where Alexy tries to refute the critique. 1721 Honderich, supra note 47, s. v. ‘consequentialism’; Robert Audi, The Cambridge Dictionary of Philosophy (Cambridge University Press, Cambridge, 1997), s. v. ‘utilitarianism’; Simon Blackburn, The Oxford Dictionary of Philosophy (Oxford University Press, Oxford, 1994), s. v. ‘consequentialism’. 1722 Honderich, supra note 47; Audi, supra note 1721, s. v. ‘utilitarianism’; Blackburn, supra note 1721 1723 Honderich, supra note 47, s. v. ‘consequentialism’; Audi, supra note 1721, s. v. ‘utilitarianism’; Blackburn, supra note 1721; Donald M. Borchert, Encyclopedia of Philosophy 1716

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Chapter 5. Balancing—A Legal Perspective The latter requires that the rightness of each act in itself be judged, while the former lets it suffice that only the general consequences of some rule be evaluated and that acts conform to rules that were judged right according to that criterion. Although Principle Theory is concerned with the constitutionality of statutes, it cannot be neatly described as rule consequentialism because it always considers the concrete case, unless it is applied in an abstract review of norms.1724 These categorizations left aside, there are two important characteristics that are shared by both approaches: First, both incorporate the maximization or optimization ideal and they employ some form of calculus to achieve it. Second, they are blind for the distribution of the commodity they maximize.1725 What matters is the net benefit and it is ignored that some may have nothing, i. e. may lose their freedom and liberty entirely, as long as the net benefit is increased.1726 Thus, the compensation principle is inherent to both theories.1727 Both aspects of these approaches could be attacked: Why maximize?1728 And how can it be justified that some are deprived of their liberty and freedom entirely?1729 We shall first deal with the latter aspect. (i)

Compromising Rights

To understand how Principle Theory compromises rights one should bring back to mind some classic conceptions of rights. Their purpose is to protect individuals from the whim of the majority.1730 Some economists understand them as vetoes in particularly important questions which involve high risks.1731 This is also the idea of Dworkin’s conception of principles. They are trumps against certain political goals and are thus distinguished from mere goal reasons. 1732 Rawls’s principle of lexicographic ordering, i. e. the preference of liberty over distributive considerations, also reflects this idea.1733 The idea that rights possess a core that cannot be encroached upon, is present throughout jurisdictions. Art. 52 § 1 (Macmillan Reference USA, Detroit, 2006) 1724 See page 248. 1725 Audi, supra note 1721 1726 Honderich, supra note 47, s. v. ‘consequentialism’; J.L. Mackie, ‘Can There Be a Rights-Based Moral Theory?’, in: Waldron, Jeremy (ed.): Theories of Rights (Oxford University Press, Oxford, 1995), p. 168, p. 172; Rawls, supra note 1377, § 1.5; for Principle Theory see above Section 5.3.1(c). 1727 Mackie, supra note 1726, p. 172. 1728 Eidenmüller, supra note 1346, pp. 226–34; Dworkin, supra note 99, pp. 286–8. 1729 Ibid., p. 290; Eidenmüller, supra note 1346, pp. 207–26; Audi, supra note 1721, s. v. ‘utilitarianism’. 1730 Zucca, supra note 69, pp. 6, 28. 1731 See Eidenmüller, supra note 1346, at n. 83. 1732 Ronald Dworkin, ‘Rights as Trumps’, in: Waldron, Jeremy (ed.): Theories of Rights (Oxford University Press, Oxford, 1995), p. 153, p. 153. 1733 Rawls, supra note 1377, § 2.11.

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5.3 The Nature of Fundamental Rights CFREU and art. 19 § 4 GG refer to the essence of rights as a limitation on justification. It can also be found in the case law of the ECtHR.1734 The ECJ refers to this criterion as the “substance”.1735 The very fact that Principle Theory tries to address it, indicates that this aspect must not be overlooked.1736 The idea of rights is especially directed against consequentialist reasoning. The treatment of terrorists is usually a good test case for consequentialist reasoning:1737 Torture of terrorists is justified in exceptional cases if lives of innocent people may be saved. Although the Community lacks police power, the problem of sanctions against terrorists is still relevant from a Community perspective, because it is responsible for the implementation of economic sanctions decided on the international level.1738 Utilitarianism is apt to ignore fundamental rights, because individual preferences are amalgamated and, during this process, minority interests can easily be outweighed by majority interests.1739 Rights could by incorporated by a rule consequentialist conception: regarding certain classes of cases, the observation of fundamental rights is on average wealth maximizing and thus preferable.1740 This is not a convincing solution, however, because one could imagine a society that does see a value in systematically violating fundamental rights.1741 Moreover, the rule utilitarian solution is open to exceptions for individual cases, e. g. lynching could be admissible if it were certain that the accused was guilty and that he or she were convicted in any event.1742 Rawls stated that it was not sufficient that the protection of liberty depended on contingent facts.1743 Principle Theory compromises rights and thus removes the safeguards that are established by rights by introducing the optimization ideal and by removing the special importance of rights in two ways. First, the distinction between rights and policies is ignored. Therefore rights have to compete with every interest that is not prohibited by the constitution. They are equated with 1734

Re Certain Aspects of the Laws on the Use of Languages In Education In Belgium (1979–80) 1 EHRR 252, p. 282 (henceforth cited: Re Use of Languages); Cossey, supra note 591, para. 43 (a); see Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Springer, Berlin, 2003), p. 204. 1735 ABNA, supra note 18, para. 87; Bananas, supra note 11, para. 78; Hauer, supra note 2, para. 5; Irish Farmers, supra note 1134, para. 27. 1736 See Alexy, supra note 503, pp. 139–40. 1737 See Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate (Princeton University Press, Princeton, NJ, 2006), pp. 49–51. 1738 For example, Bosphorus (Community), supra note 406; Case T–306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2005] ECR II–3533. 1739 Eidenmüller, supra note 1346, p. 209. 1740 See ibid., p. 214; Dworkin, supra note 99, p. 290. 1741 Ibid., p. 291; Eidenmüller, supra note 1346, p. 215; Leif Wenar, Rights, , 17 June 2008; Mackie, supra note 1726, p. 174. 1742 Eidenmüller, supra note 1346, p. 216; Wenar, supra note 1741 1743 Rawls, supra note 1377, § 3.26.

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Chapter 5. Balancing—A Legal Perspective ordinary policy goals. So there is no special preference of rights over some goal reasons. Second, Principle Theory supports a theory of fundamental rights that acknowledges that fundamental rights have some horizontal effect (Drittwirkung). This horizontal effect can always be used to justify infringements of fundamental rights of some for the sake of others’ freedom. Rights cease to be exceptional if they compete with equally exceptional rights. Acknowledging horizontal effects need not have the effect of compromising rights. But under these conditions the optimization idea has this effect because it leads to a “utilitarianism of rights”.1744 The adverse effects of Utilitarianism can only be avoided if one rejects the application of the compensation principle and the maximization ideal to the reconciliation of liberty.1745 A Utilitarianism of rights has the same adverse effects as ordinary Utilitarianism, namely that it violates the basic idea of human dignity by treating humanity as a mere means and not as an end.1746 Even if Principle Theory could justify definite limits with the principle of decreasing marginal utility, these limits would never be really fixed because it depends on the circumstances and on the curvature of the indifference curve where this ‘definite’ limit is located. Rights would loose their meaning if they should only be observed if that served the public good. Principle Theory could incorporate a balancing restriction that guarantees minimal standards of liberty and freedom. We have seen above that such an approach is only possible at the cost of great inconsistencies or failure to take account of it effectively because incorporation still allows for outweighing.1747 Principle Theory is not a theory of unalienable rights but of moldable rights. At this point a clarification is necessary: I have outlined in Chapter 1 how value judgements can be arrived at rationally in legal discourses. Still, it must be conceded that some vagueness will always remain. However, this vagueness should not prevent judges from finding a reasoned solution to a case. The standards of coherence and universalizability are not clear-cut criteria. The critique against Principle Theory is thus not that it does not provide clear answers. The critique rather is that this flexibility cannot be managed in a framework of legal reasoning that was sketched in Chapter 1. In other words: The standards of rationality that are presupposed by this study do not provide for unique decisions; on the contrary, much is left to good argumentation. But following Principle Theory, it is impossible to satisfy even these limited standards of rationality. 1744 Jeremy Waldron, ‘Introduction’, in: Waldron, Jeremy (ed.): Theories of Rights (Oxford University Press, Oxford, 1995), p. 1, p. 15. 1745 Rawls, supra note 1377, § 4.35. 1746 Andrew Clapham, ‘The “Drittwirkung” of the Convention’, in: Macdonald, Ronald St. John et al. (eds.): The European System for the Protection of Human Rights (Kluwer Acad. Publ., Dordrecht, Boston, London, 1993), p. 163, p. 205 at n. 152 with a reference to Kant; see also Apel, supra note 49, p. 428. 1747 See Mackie, supra note 1726, p. 174.

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5.3 The Nature of Fundamental Rights (ii)

Why Optimize?

So far, we have met many objections against Principle Theory (and consequentialism): It is impossible to arrive at objective results by means of legal reasoning; it leads to disruptions of the separation of powers within a political system; and it changes unalienable rights to moldable rights. In particular in light of these problems, the justification of the optimization ideal itself comes to mind—why optimize (or maximize)? Remember that optimization was identified as the root of methodical difficulties and the weakening of rights. Consequentialists either have recourse to intuition or commit naturalistic fallacies in justifying the maximization ideal. 1748 As Hain has correctly noted, the optimization ideal does not necessarily ensue from the fact that principles do not make definite prescriptions, because the proposition that rights should be minimized is equally compatible with it.1749 Nor can it be grounded on the proportionality ideal, because according to Principle Theory, optimization and proportionality are identical.1750 Proponents of Principle Theory deny that anything but optimization can make sense: There is no reason to accept a non-optimal result without a justification; if such a justification is available then the problem requires a re-definition and is again an optimization problem.1751 The approach of including criticism into Principle Theory is not fruitful, though, because the critique is fundamentally changed through the incorporation. Take the separation of powers argument, for example: Of course, the respect for decisions of Parliament could be incorporated into Principle Theory, but only by regarding it as a principle. As a principle it is flexible and can be overridden. The same happens with legal certainty, coherence, etc. (see above in Section 5.1.3). So, something of these aspects is lost by incorporating them into Principle Theory. Some norms simply do not allow for balancing and outweighing, e. g. the prohibition of torture. Therefore, the incorporation argument does not adequately answer the question. But even if incorporation did not suffer from this problem, the question would still remain: Why choose a theory that is so difficult to handle and leads to a disruption of separation of powers if alternatives are available? The idea of liberty itself could serve as a foundation for the optimization ideal: If one does not maximize the liberty of one citizen, then one would interfere with his or her liberty more than is necessary to secure the liberty of others.1752 This argument is not compelling, however. Suitability could also be justified as some requirement of rationality or coherence. A law that serves a 1748

Borchert, supra note 1723, s. v. ‘Utilitarianism’; Eidenmüller, supra note 1346, pp. 227–

30. 1749

Die Grundsätze des Grundgesetzes: Eine Untersuchung zu Art. 79 Abs. 3 GG 116. Hain, supra note 540, p. 117; see Alexy, supra note 494, p. 297; Alexy, supra note 7, pp. 100 [66]. 1751 Sieckmann, supra note 1354, p. 73, n. 21. 1752 Alexy, supra note 494, pp. 297–8. 1750

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Chapter 5. Balancing—A Legal Perspective certain goal only purportedly, does not make sense and is incoherent.1753 And rationality is in turn a requirement of the law state. Indeed, the case law from various jurisdictions rather favours a non-optimization interpretation than an optimization interpretation of suitability because courts do not require that legislators shall employ the best means available. It is sufficient that the goal is somehow furthered. The same is true for the necessity test.1754 It merely requires that the EC institutions should choose the least onerous measure from a set of suitable ones, i. e. the aim as such is not questioned. Moreover, weighing is not performed at this step, that less effective but also less onerous measures could produce a better net result is irrelevant at this stage.1755 Therefore, it is wrong to state that the rejection of Principle Theory is tantamount to the rejection of the proportionality principle.1756 Besides, these arguments only concern the necessity requirement, which is not disputed.1757 So, the question why the last step of the proportionality principle should involve maximization remains. Principle Theory has not provided reasons for its central tenet—another resemblance with Utilitarianism.1758 A justification can neither be borrowed from Utilitarianism because its proponents either refer to intuition or commit naturalistic fallacies.1759 For its problematic consequences the lack of a justification is defeating. (c)

Weakening of Rights through Extensive Interpretation?

The second objection against Principle Theory comprises three prongs: First, critics of this theory draw attention to a change in the interpretation and application of fundamental rights. Second, they deprecate this change because it (a) is inconsistent with a traditional (and an allegedly correct) understanding of fundamental rights, (b) substantially weakens fundamental rights, and (c) entails a dissolution of constitutional structures. Third, Principle Theory must be rejected because it supports these changes. According to traditionalists, fundamental rights should be understood as islands of sovereignty, i. e. as a space of freedom that is safe from intrusions by official authority.1760 As such, fundamental rights are reactions to specific 1753

MacCormick, supra note 42, pp. 191–3. See pages 95, 123. 1755 See above in Section 3.3. This is overlooked by Tridimas, supra note 1165, p. 139. 1756 Alexy, supra note 494, p. 297. 1757 Böckenförde, supra note 182, p. 195, n. 195; Schlink, supra note 549, p. 462. 1758 For Utilitarianism, see Eidenmüller, supra note 1346, p. 226; Borchert, supra note 1723, s. v. ‘utilitarianism’; see Slote, supra note 1638, pp. 7–8 for the dominance of the optimization ideal; for Principle Theory, see Hain, supra note 540, p. 116. 1759 Borchert, supra note 1723, s. v. ‘utilitarianism’. 1760 Böckenförde, supra note 182, pp. 188, 198; cf. Beatty, supra note 20, p. 16; Clapham, supra note 1746, p. 185. 1754

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5.3 The Nature of Fundamental Rights encroachments.1761 Therefore, they do not permeate the whole legal order but only restrain authorities in certain—narrowly prescribed—aspects.1762 This traditional view has changed. There are two extensions to the classical view: (a) Courts acknowledge that fundamental rights may express positive obligations and (b) that fundamental rights have some effect, be it direct or indirect,1763 in private law, i. e. between citizens (Drittwirkung).1764 The extensive interpretation is present in virtually all legal orders.1765 The horizontal effects of fundamental rights are recognized by the ECtHR.1766 Positive obligations are recognized by both, the ECJ 1767 and the ECtHR.1768 They usually concern social and cultural rights, an important instance is environmental protection. There is also another development, which is related to the extensive interpretation of rights: Courts focus on the justification of interferences instead of the interpretation of rights.1769 On the justification step, the principally extensive protection, which ensues from a broad interpretation, is qualified. As a description, this assessment is not controversial.1770 In international law, Drittwirkung also encompasses cases where the state acts through a private body.1771 Critics argue that these developments should be reversed. First, they represent deviations from tradition, which is a sufficient reason on its own.1772 Second, the extensive interpretation of rights combined with a proportionality analysis, which qualifies the extensively interpreted rights, results in their being weakened.1773 Acknowledging positive obligations and horizontal effects blurs the distinction 1761 Böckenförde, supra note 182, p. 188; Beatty, supra note 20, pp. 16–17; Clapham, supra note 1746, p. 185. 1762 Böckenförde, supra note 182, p. 188. 1763 See Evert Albert Alkema, ‘The Third-Party Applicability or ‘Drittwirkung’ of the European Convention on Human Rights’, in: Matscher, Franz (ed.): Protecting Human Rights, the European Dimension: Studies in Honour of Gérard J. Wiarda (Heymanns, Köln, 1988), p. 33, p. 38 and van Dijk and van Hoof, supra note 708, p. 23. 1764 See above in Section 2.3.3 for an overview of the German development. See ibid., pp. 22–6 for a general description of the law of the Convention. 1765 Beatty, supra note 20, p. 18; van Dijk and van Hoof, supra note 708, p. 25 for the interpretation of the Convention. 1766 See the judgement in Prager and Oberschlick, supra note 578; Markt Intern, supra note 595; Marckx, supra note 775 and Lingens, supra note 673. All decisions deal with private law disputes. See Clapham, supra note 1746, p. 182. 1767 Case C–265/95, Commission v. France [1997] ECR I–6959. 1768 X and Y, supra note 722; Guerra, supra note 591, para. 58; L.C.B., supra note 591, para. 36; Marc-André Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’, in: Macdonald, Ronald St. John et al. (eds.): The European System for the Protection of Human Rights (Kluwer Acad. Publ., Dordrecht, Boston, London, 1993), p. 125, p. 139; Clapham, supra note 1746, p. 172. 1769 Jestaedt, supra note 991, p. 220; Storr, supra note 5, pp. 559–61; Beatty, supra note 20, p. 18. 1770 See ibid. and Böckenförde, supra note 182 1771 Clapham, supra note 1746, p. 166; Alkema, supra note 1763, p. 39. 1772 Böckenförde, supra note 182, p. 188; cf. Beatty, supra note 20, p. 18. 1773 Jestaedt, supra note 991, pp. 49–53.

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Chapter 5. Balancing—A Legal Perspective between the state and the individual.1774 Finally, stressing the justification step to the detriment of the interpretation of rights leads to a dissolution of constitutional structures or, in the words of Forsthoff, an equivocation of the constitution (Verunsicherung der Verfassung).1775 (i)

Arguments from Tradition

First, it must be assessed which role arguments from tradition may play in determining whether fundamental rights provide positive obligations or Drittwirkung. This problem can be discussed in general and with special regard to the Community. In general, it cannot be alone decisive that some proposition was once justified, or maybe only practised.1776 It is the text of the applicable instrument that is the starting point for any discussion. Therefore arguments from tradition are only valid insofar as they are employed in the course of historic interpretation. The role of historic interpretation is particularly doubtful in the Community. The Community shapes an autonomous legal order.1777 Traditions of nation-states can therefore only be a valid guide if some justification is provided. At any rate, the tradition that is relied on must not be specific to a particular Member State. So, if it is shown that fundamental rights in Europe as a whole have historically been confined to a certain classical-liberal understanding, then this is only one indication among others (i. e. the text, its context, and teleological arguments) that this should still be so today. Historically, the function of the state has always been to guarantee a certain degree of security.1778 The protection from unlawful killing is a typical example.1779 Some historic constitutions explicitly prescribe that the state shall protect its citizens from certain dangers.1780 This essential function of the state was obscured in France and Germany through the dichotomy between the state and the individual, which is alien to common law countries.1781 So, although it is true that in the 19th century the essential function of protection has lost some importance, it has never vanished entirely.1782 Therefore, it is not about inventing new functions of fundamental rights but about bringing back 1774

Forsthoff, supra note 966, p. 186. Ibid., p. 190. 1776 Jestaedt, supra note 991, p. 104. 1777 Costa v. ENEL, supra note 401. 1778 John Locke, Second Treatise of Government, , 11 September 2008, § 93–4; Thomas Hobbes, Leviathan, , 11 September 2008, chapter xvii; Alkema, supra note 1763, p. 33; Isensse, in: Josef Isensee and Paul Kirchhof, Handbuch des Staatsrechts vol. 5 (Müller, Heidelberg, 2000), § 111, para. 32. 1779 Alkema, supra note 1763, p. 33. 1780 Isensee, in: Isensee and Kirchhof, supra note 1778, § 111, paras. 25–7, who refers to the constitutions of France, Virginia, Vermont, Massachusetts and New Hampshire. 1781 Alkema, supra note 1763, pp. 33–4; Dröge, supra note 1734, p. 254. 1782 Habermas, supra note 39, pp. 306 [250–1]. 1775

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5.3 The Nature of Fundamental Rights something to our minds that has always been around there. This is substantially weakening the force of the argument. Moreover, there exists overwhelming evidence in the text of various instruments that fundamental rights are not merely confined to a classical-liberal understanding. Art. 1 CFREU stipulates that human dignity must be respected and protected.1783 Especially art. 3 § 1 letters t and p, and art. 6 TEC show further commitments to the protection of individuals. Art. 2 § 1 ECHR provides that life shall be protected.1784 Art. 17 § 2 CFREU prescribes that intellectual property be protected. Art. 24 § 1 stipulates that children shall have a right to protection. Furthermore, there is Chapter IV of the charter which is titled “solidarity”, these rights are the prototype of positive obligations. Art. 17 ICCPR that citizens have a right to protection. Art. 17 ECHR also supports the view that fundamental rights have some effect in the relationship between private parties.1785 Although the Charter is not legally binding, the ICCPR and the ECHR cannot be ignored because of art. 6 TEU and the international obligations of the Member States.1786 Moreover, there are teleological arguments. 1787 Some scholars acknowledge that positive obligations at least exist with respect to the necessary conditions for exercising one’s liberty and freedom.1788 Otherwise, the protection of rights would not be effective. Furthermore, there are new dangers: concentration on the media market;1789 environmental hazards; collection of personal data;1790 and inequalities in labour law.1791 Dangers that result from private action can equal those that are caused by state action.1792 In many cases, state and private action can only hardly be distinguished.1793 Public authorities should

1783

The CFREU is not binding law yet. It nevertheless reflects the current development of the case law and political consensus. 1784 See also Clapham, supra note 1746, p. 177. 1785 Ibid., p. 167. 1786 See Bosphorus (Community), supra note 406, paras. 151–6. 1787 The admissibility of teleological argumentation could be questioned, because it is often unclear where the goals are drawn from. See Schlehofer, supra note 425, p. 576; Herzberg, supra note 425, pp. 6–8; Felix Ekardt and Klaus Beckmann, ‘Polizeivollzugsbeamte und aufschiebende Wirkung—Grammatische versus teleologische Auslegungsmethode im öffentlichen Recht’ 2008 Verwaltungsarchiv, p. 241, pp. 248–53. However, at least outside criminal law the goal to ensure the effectiveness of provisions can hardly be judged as inadmissible, once it is accepted that the provision is binding and if other means of interpretation support the findings (in particular the ordinary meaning). 1788 Mackie, supra note 1726, p. 170; cf. Dröge, supra note 1734, p. 182. 1789 Clapham, supra note 1746, p. 190. 1790 Ibid., p. 202. 1791 Alkema, supra note 1763, pp. 34–5; Dröge, supra note 1734, p. 207. 1792 Felix Ekardt and Davor Šušnjar, ‘Abwehr versus Schutz—eine notwendige Unterscheidung der deutschen und europäischen Grundrechtsdogmatik?’ 22 (2007) Zeitschrift für Gesetzgebung, p. 134, p. 142. 1793 Dröge, supra note 1734, p. 203.

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Chapter 5. Balancing—A Legal Perspective not eschew their responsibilities by deferring to the private sphere.1794 Those who support positive obligations attack the distinction between action and non-action on one hand and between state and individual on the other.1795 The distinction between action and non-action, and hence the state–individual dichotomy, is so questionable because nearly every failure to act could be construed as an action.1796 If certain labour rights are not granted then this may appear as a failure to act. Yet legislation exists that supports this state and courts are obliged to enforce these laws against workers. The same is true if a certain industrial plant is licenced, because once the permit is legally effective civil claims are, according to some laws, blocked by the permit, which will be enforced by the courts.1797 Every freedom that is granted to one citizen necessarily corresponds to a duty of another citizen to tolerate the exercise of that freedom.1798 The Communities could pose additional threats to fundamental rights because the realization of the internal market could be a further reason to limit the exercise of fundamental rights.1799 If one ignored the obligation to protect certain political freedoms, the realization of the Common Market would always trump. In the Schmidberger judgment, the Court acknowledged that Member States might take positive actions to protect fundamental rights even to the detriment of fundamental freedoms of the common market. If the Court had not acknowledged the existence of positive obligations in that case, then Austria would not have been able to justify the interference with the freedoms of the Common Market. After employing historic, literal, contextual, and teleological arguments of interpretation, there can be no doubt that positive obligations and Drittwirkung can principally be deduced from fundamental rights. Of course it is not excluded that certain rights cannot cause positive obligations.1800 Such a finding is, however, not the result of a general rejection of positive obligations, but of careful interpretation of specific provisions. Therefore, no theory of fundamental rights, be it Principle Theory or some other theory, can be attacked on the ground that it justifies positive obligations and related developments. On the contrary, a modern theory of their application must incorporate a theory of these recent developments.

1794

Alkema, supra note 1763, p. 34. Cf. Dröge, supra note 1734, pp. 185, 208; Habermas, supra note 39, pp. 305 [250]; Alkema, supra note 1763, p. 33; Ekardt and Šušnjar, supra note 1792, pp. 145–8. 1796 Ibid., pp. 146–7. 1797 Ibid., p. 146; see also Powell and Rayner, supra note 695, para. 44. 1798 Poscher, supra note 548, p. 200. 1799 For example, the right to demonstrate in the Case C–112/00, Schmidberger v. Republic of Austria [2003] ECR I–5659 case. 1800 Alkema, supra note 1763, p. 37; Dröge, supra note 1734, p. 242. 1795

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5.3 The Nature of Fundamental Rights (ii)

Compromising Rights?

According to the second argument an extensive interpretation, which includes positive obligations and the horizontal application of rights, will eventually compromise fundamental rights. This argument is related to the maximalist/minimalist debate in fundamental rights protection.1801 Proponents of this objection have a certain understanding of liberty which is tightly connected with the traditional view presented in the previous paragraph. Liberty is the right to “insist that everyone else in the community must ‘mind their own business’”.1802 The very traditional branch of this school of thought denies that a failure to act can constitute an interference with a fundamental right. Therefore, this view is structurally biased towards the protection of economic freedoms to the detriment of other vital rights, e. g. consumer protection or protection of health and the environment.1803 The main reason is that traditionalists believe that rights only influence the relationship between authority and a citizen, but not between citizens.1804 Fundamental rights cannot or should not clash.1805 Therefore, it necessarily follows from this proposition that the detrimental effects of the exercise of a right by one citizen cannot be described as interferences with the other’s fundamental rights. Pollution and health risks, which ensue from economic operations, are thus not a fundamental rights problem. Hence, the affected persons cannot claim a fundamental right that would require the authorities, especially legislators, to act. This rejection of a clash of rights should not be confused with the norm theoretic denial of a clash of rights. It was argued above that rights cannot collide in the true sense because they usually provide for a range of possible solutions. Thus, rights can often be interpreted in a way that excludes a conflict. Yet this does not imply that the competing right is completely irrelevant. The present rejection of a conflict of rights rests on rights’ being directed against government only. On this background it is obvious why acknowledging positive obligations and horizontal effects weakens fundamental rights: The only fundamental rights that are considered by traditionalists are economic rights and other rights that offer protection against direct interferences. If the Court does not invalidate a directive or regulation that impairs these rights for the benefit of consumer rights 1801 See Tridimas, supra note 1165, pp. 311–12; Xavier Groussot, Creation, Development and Impact of the General Principles of Community Law: Towards a Jus Commune Europaeum? (Faculty of Law, Lund Univ., Lund, 2005), pp. 43–58; Joseph H.H. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’, in: Neuwahl, Nanette A. (ed.): The European Union and Human Rights (Nijhoff, The Hague, 1995), p. 52, pp. 60–1. 1802 Beatty, supra note 20, p. 17; see, for example, Forsthoff, supra note 966, pp. 186, 188; Böckenförde, supra note 182, p. 188; Storr, supra note 5, p. 558. 1803 Ekardt, supra note 328, p. 85. 1804 Forsthoff, supra note 966, p. 186; Böckenförde, supra note 182, p. 188. 1805 Jestaedt, supra note 991, pp. 50–1.

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Chapter 5. Balancing—A Legal Perspective or health and the environment, then proponents of this view can only discern a lower protection of economic rights. They cannot, by definition, recognize that other fundamental rights benefit. Because environmental and health protection, as well as consumer protection, are objectives of vital importance for the Community, the pursuit of these aims will necessarily weaken some fundamental rights but strengthen other rights. Therefore, the critique is actually a sham. We should not ask whether fundamental rights are protected in the Community but which ones are protected. For the same reason, the minimalist/maximalist debate is a pseudo debate as some authors have rightly pointed out.1806 The debate centres around the question whether international Courts should enforce a minimal or a maximal standard of protection. This question is ill-posed, because it is unclear for which right the standard is determined. Because an increased protection of one right goes to the detriment of another one, the maximal protection of one right is tantamount to a minimal protection of another, competing, right. However, this prong of the critique receives some additional bite by being tied to the flexibility critique. According to the critics, these extensions to the classic interpretation are possible only by understanding rights as values.1807 Because the value interpretation, which is (allegedly) the only way to justify the extensions, is rejected, changes that are based on it must be rejected, too. What is crucial is whether there exists an exclusive nexus between value theories and an acknowledgement of modern developments, like Drittwirkung or positive obligations. As a matter of fact, many of those who support the changes also support Principle Theory.1808 But there are also examples of authors that support recent developments and reject value theories, including Principle Theory.1809 The ECtHR does not have recourse to a value interpretation to justify positive obligations or Drittwirkung.1810 At least insofar as positive obligations can be embedded into the classical framework they are acknowledged. It is no longer a fundamental difference; rather the degree of support varies in certain questions. With Habermas one can contend that fundamental rights are not changed and weakened by adding “new” functions to rights but by interpreting them as values.1811 Moreover, the consideration of positive obligations cannot be objected by stating that balancing positive obligations is more complex than balancing

1806 Tridimas, supra note 1165, p. 312; Groussot, supra note 1801, p. 46; Weiler, supra note 1801, pp. 60–1. 1807 Böckenförde, supra note 182, p. 182, n. 76. 1808 For example, Alexy, supra note 7, pp. 410 [300] et seq.; Dröge, supra note 1734, pp. 310–1. 1809 Habermas, supra note 39, pp. 306–7 [250–1], pp. 310 [255]; Schlink, supra note 549, pp. 465 et seq.; Poscher, supra note 548, pp. 73 et seq., 388 et seq.. 1810 Dröge, supra note 1734, pp. 192, 194, 196. 1811 Habermas, supra note 39, pp. 310 [255].

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5.4 Conclusion negative obligations.1812 From a legislative perspective, there is no difference: Legislators have to consider different approaches to ‘reconcile’ different interests, some aiming at the protection of life and health, others at preventing further burdens for economic operators. Based on a minimal position approach, the complexity-level is the same for courts: For any measure it can be asked whether the minimal standard of the right that imposes a positive obligation is either fulfilled or not. Correspondingly it can be asked whether the minimal standard of the right that imposes a negative obligation on government is either fulfilled or not.1813 It is true that more than one measure could be conceived to fulfil a positive obligation. But since it is up to the legislator to make the choice, this fact does not increase complexity for a constitutional court. If a legislative measure is declared void because it violates a negative obligation, the legislator must as well reconsider the alternatives.

5.4

Conclusion

The purpose of this chapter has been to test the appropriateness of Principle Theory as a foundation for criticizing the Court and for systematizing the case law. This was necessary, because many scholars have adopted value or principle theories. For three reasons Principle Theory has proven itself as unsuitable. Its methodical requirements are too demanding and cannot be handled in a framework of legal reasoning that is defined by coherence, consistency, universalizability, syllogistic reasoning, and defeasibility. Moreover, it cannot convincingly explain discretion of political bodies. Consequently applied, it would leave only epistemic discretion to political bodies. In light of the Court’s legitimacy deficit this would be as unjustified as it would be in the national context. In addition to these reasons, Principle Theory rests on a vague and questionable distinction between rules and principles. What is particularly worrisome is that Principle Theory turns rights into moldable entities and can thus support violations of the essence of rights. In light of these already severe problems the fact that Principle Theory has not provided any justification for its maximization ideal (beyond the necessity test) is defeating. What remains is present an alternative conception of balancing.

1812 1813

Cf. Alexy, supra note 7, pp. 421 [308–9], cited above on page 112. Cf. Ekardt and Šušnjar, supra note 1792, pp. 150 and 153–4.

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6 A Rule Based Model of Balancing The purpose of this chapter is to present the balancing conception of this study cohesively. So far, it was occupied with describing and rationalizing the way courts balance and with refuting a certain conception of balancing—Principle Theory. An alternative balancing conception was proposed in Section 4.3. It suggests that balancing, including proportionality in the narrow sense, should be broken down to smaller steps, which are discussed sequentially (lexicographically). Instead of searching for an optimal result, decision makers (i. e. judges) should only look for adequate results. This was called ‘satisficing’. The virtue of this approach is that it does not require cardinal scaling of weights and that it is more transparent. However, it was a proposal from the point of view of decision theory (not legal reasoning), although an attempt was made to rationalize the proportionality principle as a satisficing algorithm. Moreover, the proposal was not justified normatively: Neither the fundamental concept (satisficing) nor the focus on methods as such was justified. Besides, the proposal was incomplete from a legal point of view because some details (Which aims are actually legitimate? Should competing rights be acknowledged?) were omitted. Finally, possible objections against this approach were neither presented nor, let alone, refuted.

6.1

The Pivotal Role of Methodical Considerations

First of all, the starting point needs some justification. Principle Theory is founded on a certain understanding of fundamental rights: They are optimization commands. Hence, the correct way of balancing is optimization.1814 German functionalists, in contrast, believe that methods of interpretation are no help in solving difficult constitutional problems.1815 Therefore, balancing depends on the competence of the institutions in question: Those bodies that are able to decide certain issues also ought to decide them. The starting point of this study is a methodical one, i. e. balancing is approached from a methodical perspective by asking how much rationality is possible in complex decision making processes and how complexity can be reduced. Of course, any approach to balancing has to take all these aspects into account, namely the nature of fundamental rights and their effective protection, separation of powers considerations, and 1814 1815

Alexy, supra note 7, pp. 75 [47]. Rinken, in: Azzola, supra note 978, vor Art. 93, para. 95.

Chapter 6. A Rule Based Model of Balancing methodical concerns. Moreover, all requirements must be based on the text of the constitutional instrument. For the method of the ECJ , the relevant provision is art. 220 TEC . According to this provision, the Court has to enforce the law—not some form of political morality, which requires the separation of goal reasons from rightness reasons.1816 However, any discussion of balancing should begin with methodical considerations, for two reasons: (a) Many objections against Principle Theory rest on the assumption that the Weight Formula cannot operate in an objective way, because it is methodically too demanding.1817 (b) Concerns regarding the right balance between powers of government are partly based on methodical uncertainty (the constitutional court defines the margin of normative epistemic discretion).1818 For example, some German functionalists claim that the abilities of the powers involved should determine the application of norms (including balancing), because methods of interpretation are not objective.1819 An ideal theory of balancing should also abstract from the contents of the principles and rules that enter the process. How one balances is one thing; whether obscure public interests, pure policies, rights backed policies or competing fundamental rights should be considered is another. Which rights and interests should be balanced depends on a particular understanding of fundamental rights. Separating these aspects is so important, because balancing conceptions may have certain undesirable and unnecessary connotations. For example, the minimal position conception (also known as Eingriffs- und Schrankendenken) is usually thought to exclude the consideration of conflicting rights, positive obligations, and Drittwirkung.1820 Yet this association is in no way necessitated, because conflicting rights could be considered without changing the balancing process as such.1821 Likewise, the Weight Formula could be changed such that public interests had to be considered: Wpublic interest,j = Wpublic interest · Ipublic interest /(Wj · Ij ) 1816 Worker’s Health, supra note 23, para. 23; cf. Winfried Hassemer, ‘Politik aus Karlsruhe?’ 63 (2008) Juristenzeitung, p. 1, pp. 7–8 for similar considerations regarding art. 20 and art. 93 GG. 1817 See Schlink, supra note 549, p. 141; Habermas, supra note 39, pp. 315–16 [259], who raise such objections against value theories in general, and Chapter 4, which transposes it to Principle Theory. Cf. Maus, supra note 38, p. 306 and Maus, supra note 97, p. 849 who denies the rationality of any form of application of fundamental rights. 1818 Cf. the arguments of American Realists presented in Section 2.4.3, Maus, supra note 38, p. 306 and Maus, supra note 97, p. 849, and cf. Scherzberg, in: VDStRL, supra note 1343, 173; Lange, in: VDStRL, supra note 1343, 169; Murswiek, in: VDStRL, supra note 1343, 169. 1819 Rinken, in: Azzola, supra note 978, vor Art. 93, para. 95. 1820 Böckenförde, supra note 182, pp. 195–6 and Forsthoff, supra note 966, pp. 186, 191 have always advocated this restriction. The thrust is directed at interpreting rights as objective values. Because positive rights, allegedly, depend on this interpretation, they also reject positive obligations, see Böckenförde, supra note 182, pp. 168–75. 1821 For example, Habermas, supra note 39, pp. 306–7 [250–1], pp. 310 [255]; Schlink, supra note 549, pp. 465 et seq.; Poscher, supra note 548, pp. 73 et seq.; 388 et seq..

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6.2 Justifying the Satisficing Ideal

6.2

Justifying the Satisficing Ideal

Which fundamental idea of balancing, e. g. optimization or satisficing, should guide balancing cannot be deduced from constitutional texts, simply because they are silent on that matter. Due to the generality of principles of legal reasoning, a concrete balancing conception cannot be deduced from them either. Instead, the justification must first show that a particular conception of balancing works, i. e. that it is operable. In a next step it must be established that the model conforms to a constitutional text and to other normative requirements (test of coherence/consistency). This form of justification is thus deductive and inductive. By applying a test of consistency, it relies on deductive reasoning. However, finding out what should be tested in the first place is determined by distilling (inductively) a balancing model from the practice of the courts. And applying the coherence test also exceeds deductive reasoning. The satisficing ideal is a balancing conception of minimal positions.1822 Instead of pursuing the best distribution between rights, balancing should only establish whether the minimal position of the applicable principles is observed. Two variants are conceivable. According to the first alternative, the minimal position for each right at issue is determined separately for each right.1823 The second conception of balancing differs slightly from the latter approach. As much as the legislative decision-making process is nothing but relating competing principles, the courts can only elaborate minimal standards by relating competing principles.1824 Although the minimal position has, for the most part, to be determined with a recourse to the respective principle only, it cannot be elaborated in isolation. 1825 Minimal standards are understood as minimal standards of justification because the consideration of principles is tantamount to weighing arguments and counter-arguments. It is noteworthy that not the rights as such are weighed but the reasons that are based on the rights.1826 The differences between these conceptions need not be fundamental. Rather, Hain outlines more precisely than Schlink how a minimal position could be established. It is true that it is difficult to find absolute limitations to official power without considering the relevant conflict. However, it must be clarified that, according to this approach, the consideration of conflicting reasons (not rights) excludes Utilitarian arguments, i. e. determining the minimal position with a reference to the importance of the competing rights. In other words it is not identical to Wi · Ii /(Wj · Ij ). Without classifying this conception as either of these categories, the approach of this study is clearly a minimal position approach, because the courts only 1822 See Section 4.4.1 for a detailed description of the model and pages 111, 129, and 180 for a comprehensive list of criteria and a discussion of cases. 1823 Schlink, supra note 549, p. 192 and cf. Hain, supra note 540, p. 194. 1824 Ibid., p. 196. 1825 Ibid., p. 197. 1826 Ibid., pp. 198, 113.

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Chapter 6. A Rule Based Model of Balancing have to establish whether some limit is overstepped, not whether the legislators found the best solution. This limit may be circumscribed as “minimal position”, “minimal standard”, “margin of appreciation” or “margin of discretion”. The limit is not of an epistemic nature but normative and constitutes a choice among a set of admissible choices. The minimal position does not depend on the importance of the competing right or the severity of the interference with that right. Still, the minimal position is not determined by only regarding the impugned principle. Rather secondary reasons that speak in favour of a right and against it should be considered. But the reasons are not integrated and their force is not scaled cardinally. To justify the satisficing ideal, two conditions must be met. (a) It must be able, by following this approach, to produce objective results. Because of the domain specificity, objectivity is determined by standards of legal reasoning. (b) The approach must conform to constitutional requirements. Both requirements must be fulfilled for the ideal as such and its concrete implementation.

6.3 6.3.1

Objectivity The Standard in General

We have seen above, in Section 4.3, that the satisficing conception works with ordinal and nominal scales. It is generally acknowledged that such scaling is possible in decision making as such and in constitutional law, i. e. it is possible to compare the severity of interferences or the abstract weight of rights. Therefore, the satisficing approach is, in contrast to Principle Theory, cognitively manageable and likely to produce objective results.1827 The major objection against non-optimization approaches is that optimization cannot be avoided and will have to be performed anyway.1828 This objection will be dealt with at the implementation level (see next section). Yet, working with ordinal and nominal scales exclusively is but one requirement of rationality. The satisficing approach must also fulfil the major tenets of legal reasoning. In Section 4.3 the proportionality principle was rationalized as a lexicographic decision making process governed by heuristics, i. e. the process is broken down to smaller steps and each step is decided according to a rule. The requirements of each step can only either be fulfilled or not. The degree of satisfaction is irrelevant. Moreover, the non-satisfaction of one criterion cannot be compensated by the satisfaction of other criteria. Therefore, the satisficing approach fulfils the fundamental tenet of legal reasoning: deductivism. It was found above, in Section 1.3, that legal reasoning always happens in a syllogistic 1827 But cf. Martti Koskenniemi, ‘The Effect of Rights on Political Culture’, in: Alston, Philip (ed.): The EU and Human Rights (Oxford University Press, Oxford, 1999), p. 99, pp. 107–11, who advocates a sceptic stance that was refuted above in Section 1.4. 1828 Alexy, supra note 7, pp. 111 [74–5]; Sieckmann, supra note 1354, p. 73, n. 21.

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6.3 Objectivity framework, which is always complemented by material justification. By breaking down the application of the proportionality principle into distinct rules that allow for their deductive application, the satisficing ideal allows for syllogistic reasoning, too.1829 And this is also, and most importantly, true for the last step of the proportionality principle. The discussion of the case law from various jurisdictions showed that the interferences can be rated nominally by rules that implement more general principles. For example, one could ask whether a transitional period was provided or whether compensation was paid.1830 The reasons are examined lexicographically, i. e. sequentially and examination is stopped once a criterion is not fulfilled. Because it centres around the deductive application of rules, it is also open to universalizability and hence to coherence and consistency. We have seen above that universalizability cannot alone guarantee objectivity.1831 But it was shown that it is indispensable for conveying coherence and consistency. Universal rules ensure that decisions in individual cases cohere because decisions cohere and are consistent if they conform to rules that are in turn coherent and consistent with the legal order. This is also why the criteria that define proportionality in the narrow sense are expressed by rules. It ensures that a given criterion is applied in all similar cases and it is a source for analogy in cases were the rule does not directly apply. Because these criteria are rules, the known consistency checks, like lex superior, apply. We have seen above that Principle Theory is incompatible with these tenets because it treats them as principles in the sense of that theory, which allows for their being outweighed (Section 5.1.3). Formulating proportionality criteria as rules also has the advantage of allowing for defeasibility. Once formulated, a rule can be amended where appropriate, for example due to changes of the legal order, provided that this amendment is likewise formulated universally and coheres and is consistent.

6.3.2

Implementation of the Standard

Yet there is a severe objection raised against this presentation of reasoning without optimization. Proponents of Principle Theory claim that balancing cannot be eschewed.1832 At least in problem cases, judges will have to balance. At this point one must remember that balancing can have two meanings in legal writing (Section 1.10.1). In its narrow sense, it refers to a special way of reasoning, which is described by the Weight Formula and advocated by Principle Theory.1833 In a broader sense, which need not necessarily include balancing in the latter sense, it refers to decision problems that involve more 1829 1830 1831 1832 1833

See Section 4.3. See Section 2.2.2(d) (page 111) and Section 3.4 (page 180). See above page 43. Alexy, supra note 7, pp. 111 [74–5]; Sieckmann, supra note 1354, p. 73, n. 21. Alexy, supra note 7, pp. 145 [101–2].

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Chapter 6. A Rule Based Model of Balancing than one criterion and that are typically non-deductive.1834 If critics understand balancing in the former sense, then it cannot be regarded as an objection: It was argued above, in Section 1.3, and repeated here that syllogistic reasoning is always accompanied by non-deductive reasoning, although it may sometimes be implicit only, which is admissible in routine cases.1835 If balancing were understood in the narrower sense, it would indeed constitute a severe challenge to this theory and advocates of Principle Theory, who raise this objection, obviously understand ‘balancing’ in this special way.1836 The objection does not only refer to proportionality in the narrow sense but at proportionality as a whole.1837 But since proportionality comprises distinct sub-steps, the objection must be considered separately for each sub-step. The purpose here is not to show which rationalization of the proportionality principle is ‘better’ (by whatever criteria). It suffices to show that it can be rationalized within this model without any recourse to optimization (in the guise of the Weight Formula). Once this is established, it only needs to be proved that satisficing is—on an overall account—a better conception of balancing, according to standards of legal reasoning, separation of powers, and fundamental rights protection. (a)

Suitability

Most of the modern constitutional texts allow interferences with fundamental rights if these serve certain interests, e. g. “[f]reedom to manifest one’s religion or beliefs shall be subject only to such limitations . . . as are necessary . . . in the interests of public safety.” (art. 9 § 2 ECHR, emphasis added) or “[if] the limitation serves the protection of the free democratic basic order or the existence or security of the Federation or a Region, . . . ” (art. 10 § 2 GG, emphasis added).1838 On this background, the suitability criterion is merely an expression of a coherent, consistent, and truthful justification. If government or EC -institutions justify measures with alleged benefits for some goal and if these benefits cannot occur, then the justification is contradictory. Optimization is not necessary to rationalize this requirement.

1834

Aleinikoff, supra note 489, p. 946. Bengoetxea, supra note 53, pp. 167–8. 1836 See Herdegen, in: Theodor Maunz and Günter Dürig, Grundgesetz: Art. 1–11 vol. 1 (C.H. Beck, Munich, 2003), Art. 1 Abs. 1, paras. 46–7, who confused these two senses of balancing. 1837 See Alexy, supra note 7, pp. 101–3 [67–9]. 1838 art. 10 § 2 GG: “ . . . Dient die Beschränkung dem Schutze der freiheitlichen demokratischen Grundordnung oder des Bestandes oder der Sicherung des Bundes oder eines Landes, . . . ”; English translation of the German original by Julian Rivers in Ibid., p. 428. 1835

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6.3 Objectivity (b)

Necessity

According to Alexy, necessity corresponds to the Pareto-criterion, according to which a state should be preferred if it improves the position of at least one person without impairing the situation of anyone else.1839 Reformulated in Principle Theory terms: A measure that impairs the rights of one without improving the situation of others is not necessary, because the measure can be annulled (improving the situation of the negatively affected party) without obstructing the pursuit of the goal.1840 Although it is compelling from the point of optimization, it is also sound according to a satisficing approach. We learned above that it is, among others, the cognitive demands that disfavour optimization. Moreover, the fact that optimization is a positive criterion, which therefore removes discretion, is objectionable. Finally, optimization requires the relation of aims and rights, an essentially Utilitarian argument.1841 All these problems do not arise when applying necessity. First, in Section 4.4.1 we have seen that necessity has a heuristic structure, i. e. effects for the aim on the one hand and for the right on the other are discussed separately. Therefore cardinal scales are not required, indeed, a similarity with the Pareto criterion.1842 Second, necessity is a negative criterion because it does not point to certain measures. All it requires is that there be no less burdensome measures.1843 Neither does it require the necessary measure nor can it ever require increased efforts for the pursuit of the aim. Third, the aims are neither weighed nor questioned in any way. Of course, the right and the aim are not directly related. For these differences between necessity and optimization it is incomprehensible why there should be a nexus between these concepts. Besides, optimization at this tier cannot be expressed in the Weight Formula, in contrast to suitability. To recapitulate, the Weight Formula can be written in this form: Wi,j =

Wi · Ii · Ri Wj · Ij · Rj

The illegitimacy of the aim, missing suitability, or absolutely unreliable data can be expressed by assigning the value 0 to the respective variables. Thus, unsuitability (i. e. no gains (Ij ) for the competing principle Pj ) of a measure would be represented like this 1839

Ibid., pp. 149 [105], n. 222, with a reference to Schlink, supra note 549, pp. 181–2. Alexy, supra note 7, pp. 101–3 [67–9]. 1841 See Section 5.3.2(b)(ii) for a detailed description of the argument. 1842 Schlink, supra note 549, pp. 178–82. 1843 Fattoria, supra note 2, para. 55; Deposits, supra note 1126, para. 119 (Léger AG); ABNA, supra note 18, para. 108 (Tizzano AG) James et al., supra note 33, paras. 46, 48; Sachs, in: Sachs, supra note 826, Art. 20, para. 152; Dreier, in: Dreier, supra note 826, Vorb., para. 148; BVerfGE 67, 154, p. 176; BVerfGE 30, 292, p. 316; BVerfGE 37, 1, pp. 21–2; BVerfGE 25, 1, pp. 19–20; . 1840

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Wi,j =

Wi · Ii · Ri Wi · Ii · Ri = Wj · 0 · Rj 0

The equation cannot be resolved because the denominator is zero, which could be taken as a metaphor for a clear disproportionality of the measure. Illegitimacy of the aim (Wj = 0) or unreliability of data (Rj = 0) would have the same result. Necessity, however, cannot be expressed by one Weight Formula because two states must be compared. The necessity requirement can be formally written like this: Ija = Ijb and Iia 5 Iib which says that the gains for Pj must be equal in states Sa and Sb and that the interference with Pi in Sa must be smaller or equal to the interference in an alternative state Sb . In terms of the Weight Formula it had to be written this way, assuming that Wi , Wj , Ri , and Rj are equal in states Sa and Sb : Wia · Iia · Ria Wib · Iib · Rib 5 , for Ijb = Ija Wja · Ija · Rja Wjb · Ijb · Rjb This is equivalent to W(i,j)a 5 W(i,j)b . The measure is necessary if the fraction is smaller in state Sa than in Sb because the interference with Pi must be smaller in the former state than in the latter one. Because Ij remains constant as well as the other values, the fraction will be smaller. So, even under the Weight Formula necessity works much differently than at the other tiers, despite the pursuit of the optimization ideal. The necessity requirement can be rationalized in different ways if the interferences and gains are determined differently. In other words, it is open to different rationalizations. (c)

Proportionality in the Narrow Sense

However, rationalizing the suitability and the necessity requirement is not the essential step, because these tiers are accepted by balancing sceptics as well as enthusiasts.1844 A real difference manifests itself at the last step of the proportionality principle. According to Principle Theory, this test comprises the comparison of interferences and gains, where the weight of the interferences and gains is combined with their abstract importance and the reliability of empiric data. Saying that balancing cannot be avoided means that proportionality in the narrow sense cannot be effectively carried out without this comparison. Cases 1844 See Schlink, supra note 549, p. 207; Böckenförde, supra note 182, pp. 183–4; cf. Rinken, in: Azzola, supra note 978, vor Art. 93, para. 110.

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6.3 Objectivity like Man Sugar 1845 show that sometimes such a comparison of interferences is indeed necessary. This was acknowledged by this study because methodical constraints do not apply in such cases. However, in many other cases, balancing meets considerable methodical difficulties and legal objections. Principle Theory is only right if there is no way of finding minimal positions except directly by relating aims and interferences. The approach of the courts and thus this study is not to solve conflicts between fundamental rights by the application of these rights alone but by taking other general rules into account, e. g. the principle of legitimate expectations.1846 Such rules are called substantial reasons by Summers and he describes in a paper how substantial reasons operate without the need for a “close assessment” of the conflicting reasons.1847 An assessment is close if the force of a reason is precisely determined, which is required for cardinal scales. Summers presents a range of rationales that help to solve cases in this way. The characteristics of this approach are these: First, the interferences are ordinally or nominally classified by a recourse to secondary reasons and there is usually no need for a direct comparison of weights and interferences. Summers presents ten rationales. However, I believe that they can be grouped into more general categories: I. reasons relating to coherence, consistency, universalizability, and judging by consequences; II. cancelling; and III. accomodation.

The uppercase roman numbers in parentheses refer to Summers’s numbering of rationales. Group I

1845 1846

Rationale

Description

One primary substantive reason may support a decision that can be “generalized” into a decisively better legal rule. (II)

“Better” is assessed in terms of operability.

One primary substantive reason may support a decision that is more in harmony with the content and/or rationales or related general law. (IV)

This is nothing but an explication of coherence and consistency.

Supra note 1214. Zucca, supra note 69, pp. 54–5, 93–4 also favours having recourse to secondary

reasons. 1847

Resolving Conflicts Between Substantive Reasons.

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II

III

Summers Rationale

Description

One primary substantive reason may be decisively reinforced by virtue of its congruence with a relevant customary practice. (V)

This reason is more important in private law and hardly has any significance in constitutional law, because practices are only constitutionally relevant if they can be regarded as creating legitimate expectations.

One primary substantive reason may be decisively reinforced by one or more independent institutional reasons, e. g. a court may not be capable to remedy an acknowledged wrong. (III)

If procedural law is considered as law, this one could also be categorized as one of the first group. However, it was classified as II because institutional reasons decisively cancel out conflicting substantial reasons.

One primary substantive reason may, upon appropriate analysis, be seen to “cancel” the conflicting primary substantive reason. (VII)

According to this variant, a reason may remove the weight of a reason completely.

One primary substantive reason may, on consideration, ultimately turn out to be an inappropriate basis for a judicial decision. (VIII)

Summers refers to situations that force judges at a non-constitutional court, to make decisions that should ideally be decided by the legislature.

One of the primary substantive reasons in conflict may, on careful scrutiny, turn out to have little justificatory force, in absolute terms, e. g. because it rests on untrue factual assumptions. (X)

This one removes the weight of a reason completely, and hence is easy to operate. The suitability test is a good example.

It may be possible to reach a justified decision by accommodating the conflicting substantive reasons rather than by choosing between them. (IX)

Not speaking against this approach, because it is made in connexion with common law cases. For the review of legislative acts it merely means: Where the legislator has not abolished one of the rights completely but struck some compromise, we need not bother. What is more, it does not imply optimization! Rather it requires a solution that pays sufficient regard to both principles.

The conflicting reasons may turn out to be of roughly equal force, in that case proceed by priority rules (rightness reasons before goal reasons). (XI)

Deciding by priorities is a heuristic (e. g. lexicographic) way of reasoning, not an optimization way.

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6.3 Objectivity Group

Summers Rationale

Description

One primary substantive reason may turn out, in relative terms, to have somewhat more justificatory force than its conflicting counterpart. (XII)

Summers doubts that this is necessary in a significant number of cases. I would add: Where on a rough assessment primary substantive reasons differ significantly, this argument is admissible (see Man Sugar, supra note 1214).

Hain casts doubt on the applicability of the coherence test to principles: Because principles do not make definite and concrete prescriptions they cannot be subjected to a coherence test. 1848 Principles require their being related to the concrete case.1849 Although it is correct that principles are too abstract for a coherence test, this critique ignores that the rules that are based on principles can be subjected to such a test. Many of these rationales do not rely on a direct comparison of the involved principles but on the application of helper principles, secondary reasons, and these are applied on rough, i. e. nominal or ordinal, scales. It is feasible to discuss an example that illustrates the operation of rights and secondary reasons—the Tobacco Labelling 1850 case, with additional arguments drawn from the German Tobacco Labelling 1851 case. The Tobacco Labelling case concerned two clashing interests: consumer protection and economic interests. Both interests are backed up by corresponding rights. Economic rights are protected by the right to property and the right to choose and exercise an occupation. Consumer protection manifests itself as the right to life and health; moreover, this interest is protected by art. 153 TEC . We shall directly skip to the last element of proportionality analysis. To recapitulate, formulated in terms of the Weight Formula the problem can be described as follows:1852 WHealth and Consumer Protection, Economic Rights = (WHealth · IHealth · RHealth ) + (WConsumer P. · IConsumer P. · RConsumer P. ) (WProperty · IProperty · RProperty ) + (WOccupation · IOccupation · ROccupation ) According to this balancing conception, only one right is considered at a time, because the violation of one right suffices to annul a measure. Moreover, examination can be stopped as soon as the violation of one right has been found. Therefore, we do not have to integrate the interference and importance ratings for all rights. This does not exclude that courts nevertheless engage in 1848 1849 1850 1851 1852

Hain, supra note 540, pp. 129–30. Ibid. Supra note 2. Supra note 837. The formula roughly corresponds to Alexy, supra note 553, pp. 408–9, n. 64.

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Chapter 6. A Rule Based Model of Balancing an assessment of other rights, for example to reinforce their justification. It is, however, not a logical necessity. So even if the simple Weight Formula is accepted as a rationalization of the courts’ balancing approaches in simple cases (one right against another), the extended from cannot be accepted. The extension is disproved by the fact that courts consider rights sequentially. This empiric finding can also be normatively reinforced: if one right was violated then the Courts cannot continue the examination in order to change that result. Because the measures are challenged by cigarette producers, we shall start from the interference with economic rights. In favour of a violation of both economic rights speak the imposition of burdens and the principle of legitimate expectations. Moreover, one could argue that the burdens are, compared to the gains for consumer protection, out of proportion.1853 The principle of legitimate expectations was applicable. Member States raise taxes on tobacco products, in some Member States the revenues from tobacco taxes are considerable. The marketing of tobacco products has never been prohibited. But because the measure provided for transitional periods, there was sufficient time to adapt to the new situation. The assessment of the burdens is more complex. The amount of the burden was not such that it would have ruined the producers of tobacco products. Moreover, the burdens appear acceptable in light of two rationales, the causation principle and the principle of market economy.1854 The information conveyed through labels is only used to warn consumers from dangers that the tobacco processors have caused in the first place. Although it constitutes an interference with market economy, it only maintains one of its preconditions, namely the correct information of consumers. Markets only function if all participants make autonomous choices. These choices depend on information. Finally, it cannot be argued that the burdens and the gains for consumer/health protection are manifestly out of proportion, because the health risks are serious—on a rough assessment—and the freedom to sell and advertise tobacco products can still be exercised. Relying on manifest disproportionalities can be objected as introducing an unacceptable degree of ambiguity into legal reasoning. How this ambiguity can be reduced to an acceptable amount will be shown below on page 309. This model of balancing does consider arguments and counter-arguments in a way that is similar to Hain. The differences to Principle Theory are apparent. First, the reasons are not integrated in any way and the argumentation is adequately described by nominal categories. And although the arguments that are partly (!) drawn from the principles are juxtaposed, the principles are not. Moreover, the validity of the principles is not questioned, for example through the introduction of exceptions.1855 But the rules that describe which burdens are acceptable are put into concrete terms and are subject to amendment. For 1853 1854 1855

Emmerich-Fritsche, supra note 5, p. 639. See BVerfGE 95, 173, p. 187. Hain, supra note 540, p. 185.

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6.3 Objectivity example, the rule that operators are liable to limit dangers that they have caused in the first place is subject to the exception that measures that implement this liability must not amount to a disproportionate sanction. Second, reasons are considered sequentially. Furthermore, the example also shows how the minimal position can be determined without relating the rights to each other. Elaborating the standard, indeed, requires the juxtaposition of various reasons and these reasons do not affect the validity of the primary principles. Insofar Principle Theory is right. However, the conflict is not resolved by discussing only the clashing interests but by taking additional reasons into account. These reasons can cancel each other. It could be objected that one still needs a meta rule that determines which of these rationales should be decisive if more than one is applicable and they lead to conflicting results. A natural approach would be to assume that all rules have the same weight unless one rules cancels another reason. So one simply counts the number of reasons.1856 Because the Court confines itself to find disproportionalities, a draw of reasons effects that a measure must be held proportionate.1857 There is one methodical objection left. In contrast to Schlink’s approach, this one allows under certain circumstances that interferences are compared, although this is an exception. Against every balancing conception that employs two different modes of operation one could object that one needs a method to determine which mode is chosen but one of the two methods must be used in advance to make the choice so that the argument becomes circular.1858 Applied to this approach, it reads as follows: There are two approaches to balancing. The regular one focuses on the interference with the affected right alone and determines on rough terms whether the interference is acceptable. Cardinal scaling of interferences is not necessary. Exceptionally, however, interferences and gains are compared and a measure is held disproportionate if the weights differ manifestly. To assesses differences, though, cardinal scales are required. The latter approach should be chosen where such assessments can be easily made (because of the great differences), otherwise the former approach should be chosen. So the decision maker has to employ cardinal scales in order to find out whether they can be avoided. If one considers a concrete example, one will see that these assessments can be expressed nominally and that it suffices to assess whether gains and interferences are located at the opposite side of the rank. For example, in Man Sugar 1859 a rule was challenged according to which exporters were liable to forfeit the entire deposit due to the violation of a secondary, minor, obligation (applying for an 1856 1857 1858 1859

This method is called tallying, see above on page 231. Fattoria, supra note 2, para. 56. Jestaedt, supra note 991, p. 231. Supra note 1214.

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Chapter 6. A Rule Based Model of Balancing export licence in time). The forfeiture of the entire security was the most severe sanction and thus is located at the top of the rank (or the bottom respectively). Applying for the export licence in time was a secondary obligation. It is located at the lower end of the scale. Where scales are rough, it may suffice to establish that they are not located on the same level. A similar rationale can be applied where measures are taken to prevent irreversible damage to life and health. On the same grounds a positive obligation may be justified: Irreversible damages have to be prevented if it is possible to minimize the burden for the other party. So, the first condition, namely that following the satisficing ideal of balancing is methodically possible and objective according to standards of legal reasoning, is met. Again it must be clarified that this approach only claims that complexity of balancing can be reduced, not removed completely. The difference to Principle Theory is, however, that this approach satisfies the criteria of legal reasoning outlined in Chapter 1, while Principle Theory cannot even fulfil these limited standards of rationality. Thus this approach diminishes complexity such that it the problems can be discussed in a framework of legal reasoning.

6.3.3

Justifying Minimal Standards

The final and most defeating challenge to the objectivity of the approach presented so far is that it is unclear how the minimal standards are determined: Why the standards listed in the case law chapters and no others?1860 Moreover, one could object by stating that it is unclear which standards should be applied in a given case. This objection is directly related to the findings from Chapter 1, where a model of legal reasoning was presented. There it was conceded that legal justification is never exhausted by deductive logic but that it requires supplementation by non-deductive means of reasoning (material justification). The same is, of course, true for the minimal standards presented in this study. Put into more concrete terms, the problem runs as follows: Is it possible to provide sufficiently tight, non-deductive justifications for minimal standards and their application? From a sceptic stance, the question must be answered in the negative.1861 Scepticism was refuted in Section 1.4 and approaches against it were presented in Section 1.5 and Section 1.6. It is now the time to test the application of these principles. The test will proceed in two steps: At the outset, it must be conceded that there might be even more minimal standards than those presented in this study. This is due the circumstance that 1860

The rules are listed on pages 111, 129, and 180. See, for example: Derrida, supra note 63, p. 967: “The instant of decision is a madness” or Ladeur and Augsberg, supra note 63, p. 147, who claim that decisions depend on the undecidable. See Section 1.4.4 for more details. 1861

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6.3 Objectivity the standards are distilled from a certain part of the case-law only. Hence, a broadening of the scope would probably yield more standards. Moreover, it should be noted that not all standards really exhibit a normative character; some are merely argumentative strategies, for example, to help assessing the intensity of an interference. (a) First, it shall be shown that the minimal standards can be grouped and that they are based on certain general principles of law, e. g. the rule of law. These general principles are undeniable pre-conditions for any working legal system. Yet it must be clear that the minimal standards are only based on these general principles. The former cannot be fully deduced from the latter. (b) Second, it will be shown how they can be justified materially. In Section 1.7, a justification for fundamental principles of a democratic legal order was given. It should be added, that this includes the existence of a working legal system that administrates the creation, interpretation, application, and enforcement of legal norms. 1862 Moreover, a working legal system, to function properly, requires the equal application of rules and forseeability.1863 This entails coherence and consistency as principles of legal reasoning. But it also requires substantial norms that guarantee stability of legal orders; norms shall stabilize behaviour.1864 The minimal standards can be grouped according to the general principle upon which they are founded. (a) (i)

Foundation of Minimal Standards Reasons Related to Legal Certainty

The following minimal standards—present in the case-law of the reviewed courts—are based on considerations related to legal certainty: 1. 2. 3. 4.

Is a transitional period provided?1865 Are the consequences foreseeable?1866 Is the measure limited in time and intensity?1867 Is the measure periodically reviewed and/or allows for the adoption to changes?1868

1862 Habermas, supra note 39, pp. 147 [115]; Hart, supra note 39, pp. 91–9; implicit at Ekardt, supra note 111, p. 368 and Ekardt, supra note 328, p. 144. 1863 Cf. Luhmann, supra note 155, pp. 242, 277 [232, 259]. 1864 Röhl and Röhl, supra note 39, p. 201; Luhmann, supra note 155, pp. 134 [148]. 1865 Tobacco Labelling, supra note 2, para. 152; Winzersekt, supra note 2, para. 28; Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 147. 1866 Hentrich, supra note 583, para. 48. 1867 BSE, supra note 2, para. 101; Hauer, supra note 2, para. 29; BVerfGE 25, 1, p. 15. 1868 Swedish Match, supra note 11, para. 92 (Geelhoed AG); BSE, supra note 2, para. 101; Bananas—Interim Measures, supra note 1184, para. 45; T. Port, supra note 1185, para. 28; Sporrong and Lönnroth, supra note 580, para. 70.

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Chapter 6. A Rule Based Model of Balancing Deductively, it can only be shown that these principles do not contradict the principle of legal certainty and that they foster that principle. They can thus be shown to be an element thereof. But never, could these concrete rules be directly and abstractly deduced from the general principle of legal certainty. Legal norms can only influence society if its members can count on a certain stability of the legal order. No one would invest money if that investment could be frustrated by ad-hoc legislation. This is particularly relevant for the EC since one of its chief policy areas, agricultural policy, mainly consists in influencing the operation of markets. Hence, legislators are obliged to a certain degree of persistence. Therefore, market regimes may be changed but this change must not be made suddenly, otherwise the confidence of operators could substantially falter. This consideration left aside, the (implicit) assurance that investments remain valuable also conforms to the requirement to treat people with respect. The emergence of negative consequences must be foreseeable and calculable. Only then can operators adapt to changes. Similarly, it is appreciable that the period where burdens must be endured can be calculated and that the rightness of reasons is periodically evaluated. Thus it conforms to the principle of legal certainty to review reasons periodically or to limit their validity. These minimal standards cancel claims: On a rough assessment, measures that provide for transitional periods and/or their periodic review can hardly be excessive or capricious. (ii)

Existence of Legal Remedies

It can moreover be decisive whether remedies against the measure exist1869 or whether there are safeguards against abuse.1870 Since it is a requirement of the law state that legal rights can be enforced (otherwise they would be useless), this requirement is quite obvious.1871 (iii)

The Causation Principle

Some minimal standards are founded on the causation principle: 1. Is a burden justified by the causation principle?1872 2. Does a measure, while imposing burdens on operators, simply return costs that these operators had caused in the first place?1873 1869 Agosi, supra note 584, para. 57; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 1870 Brannigan, supra note 582, para. 61. 1871 See art. 6 § 1 ECHR; art. 47 CFREU . 1872 BVerfGE 95, 173, p. 187. 1873 Zuckerfabrik Soest, supra note 2, para. 146 (Lenz AG). The AG did not define the standard but merely claimed that the measure was not disproportionate.

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6.3 Objectivity 3. Is a measure just reacting on current market failures?1874

The causation principle emanates directly from the principle of autonomy: He who may enjoy the fruits of exercising his autonomy should also bear the burdens that are caused by the respective activity.1875 It is inconsistent to require that citizens be left alone in exercising their autonomy and to require in the same breath that a state or the EC (i. e. eventually other citizens) should repair the damages that the exercise of one’s liberty has just caused.1876 Rejecting the causation principle implies that others, who have not caused the damage in any way, should bear the burdens. This however is incompatible with the principle of impartiality.1877 Finally, the causation principle is explicitly mentioned in art. 174 TEC .1878 It must be clarified that one cannot deduce whether a burden is severe enough to justify a recourse to this principle.1879 (iv)

The Compensation Principle

In some cases, courts acknowledged proportionality because the burdens were compensated.1880 The compensation principle can have two forms. First, it can be employed as an argumentative strategy to deny that significant burdens, which could render a measure disproportionate, exist at all. Used in this way, no right corresponds to the principle. This modest form only has a limited use: it can only be used where losses can be compensated by economic gains and the gains must be of an amount that really alleviates the alleged burdens. Because of these limitations, this form is only applicable where profits of economic operators are at issue. Most of the discussed cases, indeed, belong to this group. Hence, it was frequently referred to. The rationale can have a stronger sense, if it can be based on a fundamental right. Many constitutions require that deprivations of property be compensated.1881 Although compensation is not literally required by art. 1 Protocol 1 1874

BVerfGE 25, 1, p. 22. Ekardt, supra note 328, p. 91. 1876 Ibid. 1877 Ibid., p. 92. 1878 Ibid. 1879 Ibid., p. 91. 1880 Fattoria, supra note 2, para. 59; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 1881 See art. 17 § 1 CFREU ; art. 16 of the Constitution of Belgium; art. 23 § 3 of the Constitution of the Republic of Cyprus; § 73 paragraph 1 of the Constitution of Denmark; § 32 of the Constitution of the Republic of Estonia; art. 17 of the French Declaration of Human Rights; art. 14 § 3 of the German GG; art. 17 § 2 of the Constitution of Greece; art. 42 § II of the Constitution of Italy; § 105 of the Constitution of the Republic of Latvia; art. 23 of the Constitution of the Republic of Lithuania; art. 16 of the Constitution of Luxembourg; § 37 (a) of the Maltese Constitution; art. 14 § I of the Constitution of Netherlands; art. 62 § II of the Constitution of Portugal; art. 20 § 4 of the Constitution of Slovakia; art. 33 § III of the Constitution of Spain; art. 18 of the Swedish Constitution; compensation is not (explicitly) 1875

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Chapter 6. A Rule Based Model of Balancing ECHR, the ECtHR does consider it as one factor, among others, that constitutes proportionality.1882 The Court argues that the right to property would be largely ineffective without a compensation requirement in case of expropriation. The Court’s position must be supported: If the only limitation to the taking of property (against the owner’s consent) were the least restrictive means test, then there would not be any effective limitation to the taking of property. Since interpretation must not render a provision ineffective, any interpretation that denies a right to compensation must be rejected.1883 Moreover, the wording of the constitutions that are silent on compensation do not contradict this finding. Additionally, the circumstance that the (still) non-binding CFREU also provides for a compensation clause (art. 17 § 1) renders it likely that the compensation requirement is consented by the Member States. So, the wording of all European constitutions either actively supports the compensation requirement or does not contradict it; the preparatory works for the CFREU also support this finding, which is additionally reinforced by a teleological argument (effectiveness, see above). Thus, it is a requirement of the law state that deprivations of property be compensated. The amount of compensation can depend on many factors: Should only the loss of property be compensated or also additional financial damages that directly or indirectly result from expropriation? By which criteria should the value of the possession be determined?1884 Answering these questions abstractly is difficult and will not be attempted here. (v)

Minimal Standards Related to the Amount of the Burden

In many cases, proportionality assessment does not (exclusively) require the consideration of normative minimal standards. Instead, there exist cancelling reasons that effect that the amount of burdens is not regarded as sufficiently high. The claims that burdens are excessive can be cancelled by either showing that there exist means to eschew the burdens or to reduce them substantially. Burdens can be eschewed in the following ways: required by: art. 1 Protocol 1 to the ECHR; art. 5 of the Austrian Staatsgrundgesetz; art. 5 of the Constitution of Bulgaria in conjunction with art. 1 Protocol 1; art. 10 of the Czech Constitution in conjunction with art. 1 Protocol 1; art. 15 of the Constitution of Finland; art. 9 of the Constitution of Hungary; art. 43 of the Constitution of the Republic of Ireland. art. 64 of the Constitution of Poland (however, a reference is made in § 3 to the substance of the right); art. 136 of the Constitution of Romania; art. 33 of the Constitution of Slovenia; . 1882 James et al., supra note 33, para. 54. 1883 It exceeds the scope of this study to review the case law of the constitutional courts of those states where the compensation requirement is not acknowledged in the constitution. Since the ECHR is binding on all these states, such a research is not necessary either. 1884 See, for example, the overview of the case law under art. 16 of the Constitution of Luxembourg available at or art. 17 § 2 of the Constitution of Greece.

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6.3 Objectivity 1. If certain practices are prohibited, e. g. the use of labels, can the affected persons have recourse to adequate replacements?1885 2. Can burdens be passed on to consumers or delegated to others?1886 3. When excessive costs are challenged, does the measure that creates costs also provides those that are negatively affected with direct or indirect compensation?1887

These reasons cannot at all be deduced from any principle. They are mere discursive responses to claims by one or the other party of a dispute. They are rather statements of facts than normative evaluations. Similarly, it can be shown that a significant burden does not exist: 1. Are levies imposed insignificantly low?1888 2. Is it merely an administrative burden that is imposed on economic operators?1889 3. Is it likely that the burden, having regard to the category of operators and costs, is small?1890 4. If a measure establishes a “new” obligation, have most of the affected competitors already voluntarily adopted that obligation, so that it does not really bring an actual change?1891 5. Does a Community measure correspond to regulations that already exist in all Member States where it is possible to exercise the regulated activity? For example, restrictions of planting vines exist in all wine producing Member States, so the Community is in principle allowed to pick up these regulations.1892 6. Does a measure impose a sanction for the breach of a secondary obligation that is as severe as a sanction for the breach of a primary obligation;1893 or is the burden in other ways manifestly out of proportion?1894 7. Is a measure requiring what is required anyway by the activity, e. g. certain qualifications or stockpiling capacities?1895

Again, these criteria do not constitute normative requirements, although they do contain evaluative terms like “small” or “significant”. Yet the normative standard is usually the manifest error test, which requires that imposed burdens and pursued goals are manifestly out of proportion. The test is not fulfilled as soon as it is shown that the burdens are not located at the upper level of 1885

Tobacco Labelling, supra note 2, para. 150; Winzersekt, supra note 2, para. 28. BVerfGE 30, 292, p. 326. 1887 Fattoria, supra note 2, para. 59; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 1888 BVerfGE 37, 1, pp. 23–4. 1889 Schräder, supra note 2, para. 18, Zuckerfabrik Soest, supra note 2, para. 76, Fattoria, supra note 2, para. 61. 1890 Schräder, supra note 2, para. 18, SAM Schifffahrt, supra note 34, para. 74. 1891 Deposits, supra note 1126, para. 83. The Court did not uncover the standard but merely established whether the burden was excessive. 1892 Hauer, supra note 2, para. 21. 1893 Man Sugar, supra note 1214, para. 20. 1894 Arai-Takahashi, supra note 577, p. 124; Reid, supra note 599, I–063; National & Provincial Building Society et al., supra note 584, para. 81; Traktörer, supra note 583, para. 60; Hentrich, supra note 583, para. 49. 1895 BVerfGE 30, 292, pp. 325–6, cf. BVerfGE 13, 97, p. 115. 1886

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Chapter 6. A Rule Based Model of Balancing the severity scale (see above, 309). It is thus sufficient to demonstrate that the burden is small enough. The criteria can therefore only work because the manifest error test exhibits a negative structure: Since it suffices to establish that measures are not out of proportion (instead of optimal) rough assessments suffice. (vi)

Summary: Minimal Standards are Rules

The first criterion that must be fulfilled is that the minimal standards can be applied in a framework of syllogistic reasoning. For example, it must be possible to operate the causation principle in this way: 1. ∀x: If x has caused a damage, then measures to remedy the damage may impose burdens on x. 2. a has caused a damage. 3. The measures may impose the burdens on x.

All standards can be formalized in the following way: Legal Certainty 1. If an effective transitional period is provided, then (not prejudicing to application of other standards) the measure is proportional. 2. If the consequences of a measure are foreseeable, then it is proportionate. 3. If the effects of a measure are limited in time and intensity, then the measure is proportionate. 4. If the measure is periodically reviewed or allows for the adoption of changes, then it is proportionate. Legal Remedies If a measure provides safeguards against abuse and/or legal remedies, then it is proportionate. Causation Principle If an operator has induced a damage, then measures that remedy the damage may impose burdens on this operator. Compensation Principle If a burden is compensated either directly or indirectly, then the measure is proportionate.

Of course, the problem lies not in giving the minimal standards a conditional structure but in determining them in the first place and in defining when consequences are foreseeable or when a transitional period is sufficient. (b)

Applying Minimal Standards

To prove that the application of a minimal standard is rational, some light should be shed on the decision situation: (a) Judicial review is negative. Courts do not decide what is the best solution but which one is clearly not acceptable. Then the problem is not whether, for example, four or five weeks are the ideal transitional period but which one is the absolute minimum. (b) A standard is never considered on its own but compared to its alternatives, i. e. the problem really is to find out the better standard from a set of conceivable 316

6.4 Conformity with Constitutional Requirements ones.1896 This simplifies the decision procedure. Instead of asking from a fresh start which transitional period is just, the court must ask whether the legislative standard or the one implicitly proposed by the parties is more coherent or whether both standards are coherent enough. Without a scale it is difficult to estimate whether a proposed rule fits. But since coherence is a matter of degree the test can be applied as soon as alternatives compete. It may then suffice to evaluate one of these alternatives as clearly less fitting than the other one. Because courts are obliged to decide concrete cases, this degree of rationality suffices. (c) Courts do not answer abstract questions but decide concrete disputes. Thus a judgment can and must always consider the merits and particulars of that case. What is under the conditions of operators and markets the bare minimum for a compensation in case of expropriation? Since it is a compensation for the taking of property, it should (in accordance with the autonomy principle) enable the expropriated to get a comparable replacement. Similarly, one can ask which transitional period is, considering the conditions of the market and the operators, at least necessary to adapt to market changes?

6.4

Conformity with Constitutional Requirements

The other condition is the conformity of this model with constitutional law. There are two categories: First, the balance between powers that is envisaged by the Treaty must be observed. Second, it must ensure an appropriate standard of protection of fundamental rights. Regarding both respects, this approach, which is roughly equivalent to the approach of the ECJ , evokes critique.

6.4.1

Separation of Powers—Discretion in Setting Policy Goals

Separation of powers considerations relate to discretion of EC -legislators. There are three aspects of discretion: setting of policy objectives, discretion regarding the assessment of facts (particularly under the suitability and necessity test), and discretion due to the method of balancing at the last step of the proportionality principle. The last two aspects have already been discussed above and there is nothing to add any more. 1897 So, what remains is the discussion of objections regarding the discretion in the setting of policy objectives. Typically, they are not based on Principle Theory. Their discussion is thus not exhausted by refuting Principle Theory. 1896 1897

Lege, supra note 179, § 21. Section 5.2.4 for facts in particular and Chapter 5.

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Chapter 6. A Rule Based Model of Balancing (a)

Setting Goals and Determining their Weight

Although it is acknowledged that EC institutions should enjoy some discretion in implementing the objectives of the Treaty, this discretion should be, according to critics, particularly limited when it comes to the setting of policy objectives: in choosing their aims, the institutions should not be as free as in pursuing them.1898 Systematically, this objection mainly aims at the legitimate aim test. Critics argue that the principle of attributed powers would be obstructed if EC institutions would not be restrained at all in setting policy objectives.1899 The Court’s position is this: First, within the legal framework the institutions are free to choose policy objectives.1900 Second, the institutions may temporarily disregard one objective for the benefit of another one.1901 Critics argue that determining the legitimacy of a policy objective is only a matter of interpreting the Treaty; hence, there should not be any discretion.1902 Reconciling conflicting aims requires a theory of balancing that is identical to the Weight Formula.1903 While there might be discretion regarding proportionality in the narrow sense, there must not be discretion for the determination of the weight of the aims. The legitimacy deficit of the Community requires a strict observance of the aims that may be pursued. Not every politically sound objective should also be sufficient from a constitutional point of view.1904 This criticism is not convincing, although its starting point is sound. The principle of attributed powers indeed requires that the Community shall only pursue those aims that are laid down by the Treaty and only if a power to pursue that aim is granted. However, where the institutions have to choose between aims or have to accommodate them, the degree of discretion depends on the theory of balancing. But because optimization was rejected, this ideal cannot apply to the legitimate aim test. Moreover, one must bear in mind that it is the setting of objectives that distinguishes legislative bodies from administrative ones. While administrative bodies must strictly obey statute law (in a national setting) or secondary law (under EC -law), it is one function of legislators to define which aims should be most important for a particular period of time. As long as aims are only temporarily disregarded or otherwise reconciled, constitutional courts should not intervene. Anything else would indeed lead to a government of judges.

1898

Pauly, supra note 8, p. 257. Emmerich-Fritsche, supra note 5, p. 198; Bühler, supra note 5 1900 Walzmühle, supra note 1132, para. 37. 1901 Valsabbia, supra note 1133, § 7 (p. 1045) (Capotori AG). 1902 Nettesheim, supra note 5, p. 107; Pauly, supra note 8, pp. 257–8. 1903 Ibid., p. 257 with a reference to Sommermann, supra note 1597, who advocates Principle Theory. 1904 Nettesheim, supra note 5, p. 107. 1899

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6.4 Conformity with Constitutional Requirements (b)

A Liberal Understanding of Rights and the ‘General Interest’

While the previous objection was closely related to methodical questions, the next one concerns the problem of what should be considered in the process of balancing. All courts that have been reviewed in the course of this study have only rarely declared aims inadmissible, at least when applying economic rights. As long as the aim conforms to the public interest (Gemeinwohl) it will be accepted, although the courts do not define the public interest. This also seems to be the position of Principle Theory.1905 Thus, fundamental rights may be restricted for the sake of nearly every policy consideration. This position evokes critique from a liberal understanding of rights.1906 According to such an understanding the exercise of rights may only be restricted for the sake of the protection of other rights, including the preconditions for their exercise.1907 The precedence of rights over other considerations can be found in Dworkin’s theory, who distinguishes between rights and policies and requires that limitations to rights be backed up by rights and not mere policies.1908 Habermas has picked up this approach and Dworkin’s metaphor of ‘rights as trumps’.1909 Rawls stipulated the rule that liberal principles take precedence over distributive considerations, the principle of lexicographic ordering.1910 Ekardt adds to these approaches that the necessary preconditions for exercising one’s rights must also be protected.1911 Mackie shares this attitude but combines it with a balancing approach that resembles Principle Theory.1912 Any policy that cannot be backed up by rights is thus inadmissible at the outset, without 1905

Alexy, supra note 553, p. 395; Pulido, supra note 532, p. 201; Stück, supra note 77,

p. 417. 1906 ‘Liberal’ can have many different meanings. Commonly, this term refers to a political/philosophical theory that stresses the preference of individual freedom over collective interests; that distinguishes between conceptions of the good life and justice; and, that recognizes that the state shall protect individuals from harm. Traditionally, liberals either endorse a minimalist conception of the state (laissez-faire liberalism) or a relatively strong role of the state (welfare liberalism). Moreover, classical positions emphasize that freedom is a matter between the state and the individual only. The conception of liberalism that underlies this study rejects a minimalist conception of the state and the idea that liberty is only a matter between the state and the individual. See Borchert, supra note 1723, s. v. ‘Liberalism’; Honderich, supra note 47, s. v. ‘liberalism’; and Ekardt, supra note 111, pp. 12–27. 1907 Two kinds of preconditions can be distinguished: necessary preconditions and others. ‘Necessary’ asserts that these preconditions are essential or mandatory for exercising rights. Such preconditions must be distinguished from conditions that foster rights, but whose absence does not preclude the exercise of rights. However, only the protection of necessary preconditions is required by rights. See Ekardt, supra note 328, p. 89; Ekardt, supra note 111, p. 218. 1908 Dworkin, supra note 1732, pp. 153, 158. 1909 Habermas, supra note 39, pp. 315 [259]. 1910 Rawls, supra note 1377, § 1.8. 1911 Ekardt, supra note 328, p. 89. 1912 Mackie, supra note 1726, p. 177.

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Chapter 6. A Rule Based Model of Balancing weighing.1913 And this applies even to those fundamental rights that do not specify the aims for which they may be restricted.1914 Because the Community is confined to the objectives that are prescribed by the Treaty, it suffices to check whether those aims contribute to the protection of rights or their necessary preconditions.1915 If this condition is fulfilled, then there is no need for implicit limitations to the discretion in setting policy objectives. The purpose of the Community is, according to art. 2 TEC , to ensure a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.

These overall aims indeed foster the protection of either rights or their necessary preconditions. Establishing equality between men and women as well as a high level of environmental protection obviously ensure the exercise of rights. Employment and social protection belong to the so-called third generation of rights and are indispensable for an autonomous life. Because autonomy is the very foundation of liberty, this aim also contributes to the protection of rights. Ensuring economic growth also contributes to this aim. The economic crises of the 1920ies and 1930ies have shown how dangerous unstable economic systems are to social justice and liberal societies. The establishment of the Common Market has provided for the longest peaceful period in European history. The aims listed in art. 3 TEC are instrumental to these aims or put them into concrete terms. Yet one could argue that these aims could be interpreted in a paternalistic way, for example: Tobacco labelling provisions are illiberal insofar as they serve the goal of protecting adult smokers from themselves.1916 In a liberal society one should assume that adult persons can decide for themselves which dangers they would like to endure. Therefore labelling must be limited to information and must not amount to an indoctrination of smokers. This argument depends on two premisses: (a) The consumers of tobacco products are really autonomous. (b) Smoking, at least in private, does not affect the rights of others. The aforementioned regulations can thus only be classified as paternalistic (and therefore inadmissible at the outset) if both premisses are correct. The first one is a value judgement, whose rationality can and must be demonstrated. We all are subject to certain constraints that force us to work, 1913 1914 1915 1916

See Zucca, supra note 69, p. 90 for another very recent adoption of this idea. Bühler, supra note 5, p. 103. See n. 1907. See Emmerich-Fritsche, supra note 5, p. 607; Ekardt, supra note 328, p. 114.

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6.4 Conformity with Constitutional Requirements eat, drink, buy certain goods, etc. Some of these constraints are socially adequate, while others are not.1917 It could be argued that smokers cannot exercise their free will, either because they are not well informed about the risks of smoking or because their addiction to nicotine. In this regard all measures that help to alleviate these problems are principally admissible. However, they must, of course, fulfil all other proportionality requirements. The value judgement necessary to determine whether someone is autonomous is subject to the rationality criteria outlined above: Is the argumentation consistent? Are the facts assessed correctly? Does it cohere? If the lack of autonomy can be demonstrated, then the goal is not paternalistic. The second condition is problematic in societies where states have positive obligations regarding social services and environmental protection. Under these circumstances it is very unlikely that an act will not affect others. Smoking increases health risks and may incur costs for health insurances which will be passed on to society. This assessment does not licence any measures whatsoever. Measures that try to address the problem must be proportionate. For example, it could be argued that it is more effective to increase insurance rates for smokers.1918 Moreover, it could be objected that the social cost argument leads us on a slippery slope, since it lends support to quite illiberal ideas. But who makes these considerations has already accepted the social cost argument as principally acceptable. Moreover, the autonomy argument can be used to produce quite illiberal results. For example, the US Supreme Court once struck down working time limitations for bakers because it believed that bakers and their employers were autonomous people that could regulate the problem through contracts.1919 However, nowadays one would argue that such regulations establish equality between the economically more powerful employers and economically weak employees. So, although the autonomy argument is not completely inadmissible it should be used with care lest it should lead to illiberal results. The balancing model of this study incorporates a liberal footing. Although the foundation of the critics is convincing, it does not effectively add anything to the case law of the court because the Community may only pursue aims that foster liberty anyway. This footing can be understood as unifying interest and will theories:1920 In principle, rights ensure that people can make autonomous choices (will-theory or in German terminology: subjektiv-rechtliche Seite). However, under certain conditions people are not able to make autonomous choices (immaturity, illness, permanent vegetative state, etc). In this case it must be

1917 Cf. Enders, in: Karl Heinrich Friauf and Wolfram Höfling, Berliner Kommentar zum Grundgesetz (Schmidt, Berlin, 2000), C Art. 1, para. 78. 1918 Ekardt, supra note 328, p. 149. 1919 See Lochner, supra note 30. 1920 Zucca, supra note 69, pp. 35–8, 64.

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Chapter 6. A Rule Based Model of Balancing reconstructed, on an impartial foundation, what is best for that individual (interest theory, in German terminology: objektiv-rechtliche Seite). This conciliating stance requires a clarification. In German law, those aspects of rights that are based on the interest aspect (according to a dominant view, positive obligations) are not as strong as those aspects that are based on the will aspect.1921 This study does not support this view. Both aspects are equally important, because both constitute fundamental rights. Having recourse to an interest aspect is only necessary, because there are special cases where justifying rights on the will aspect alone is simply unconvincing, namely where a rights holder cannot have an autonomous will on any sensible account.

6.4.2

Standard of Protection

The standard of protection of fundamental rights constitutes the other group of critique. It relates to three aspects. (i) We have seen above, in Section 5.3, that positive obligations and Drittwirkung are provided by the constitution. Therefore any theory of balancing must be able to work with these concepts. Methodically, the present approach to balancing is a minimal position approach of which it is said that it does not take sufficient regard to positive obligations and Drittwirkung. (ii) Moreover, critics argue that the margin of discretion is too broad to provide for an adequate protection of fundamental rights. (iii) And we have also seen that a theory of balancing must explain how the essence of a right may be found and how the minimal position relates to the essence. (a)

Positive Obligations

The consideration of positive obligations and Drittwirkung has two dimensions. First, a theory of balancing must be able to describe the problems involved in its own terms. In other words, it must be conceptually possible to express the consideration of positive obligations and Drittwirkung. Second, the balancing model must consider these aspects adequately, according to some understanding of fundamental rights. For example, it could be argued that positive obligations are not as important as negative rights, even if they should be considered in general.1922 Or it could be argued that they are equally important. 1923 These conditions must be fulfilled under normal and exceptional circumstances. 1921 Isensee, in: Isensee and Kirchhof, supra note 1778, § 111, para. 21; there seems to be consensus that their implementation requires legislative action: Dreier, in: Dreier, supra note 826, Vorb., paras. 101–3; von Münch, in: von Münch and Kunig, supra note 973, Vorb. Art. 1–19, para. 22; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, paras. 194–5; Sachs, in: Sachs, supra note 826, vor Art. 1, paras. 35–8; Denninger, in: Azzola, supra note 973, vor Art. 1, paras. 31–3. 1922 Isensee, in: Isensee and Kirchhof, supra note 1778, § 111 para. 8, 11, 18, 21. 1923 For example, Ekardt, supra note 328, p. 98.

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The Operation of Positive Obligations under Normal Circumstances

The understanding of rights underlying this study is a liberal one. According to this understanding, rights may only be restricted for the sake of other rights (or by policies that foster rights). Therefore, it naturally implies that the rights of others should play a role in the process of balancing. Moreover, it was described above that the model of balancing as such abstracts from the contents of the reasons involved. While on one hand the framework is not concerned with whether a measure pursues an obscure public interest (which might be even illiberal!) or the protection of fundamental rights, it does not, on the other hand, exclude the consideration of rights at the outset. Thus, this model is structurally able to consider others’ rights either as positive obligations or as Drittwirkung. So, this model, indeed, can be combined with a liberal understanding of rights. It also ought to consider positive obligations, because we seen above, in Section 5.3.2(c)(i), that the effective protection of rights also requires that at least the necessary preconditions for their exercise be protected. The next problem is whether it pays adequate regard to rights of others. The traditional German understanding of liberty is criticized because it discriminates between positive obligations and a negative protection of liberty to the detriment of the former.1924 This conception of balancing does not allow for such a discrimination. By design, it does not consider the abstract weight of reasons at the last step of the proportionality principle, where such a discrimination would be decisive. Therefore, it is forced to consider the impugned right and the right to be protected equally. An example shall illustrate the operation with positive obligations. We shall concentrate on the substantive problems and ignore issues of procedural law. For simplicity we shall recall the Tobacco Labelling example. Two groups of rights are juxtaposed in this case: consumer protection and health protection on one hand, and economic rights on the other. Above, it was discussed from the point of view of cigarette producers. Because the interference with economic rights is justified by consumer protection, the case may as well be regarded from the consumer perspective. So, instead of asking whether the Tobacco Labelling provisions unduly impair economic rights, one could assess whether they provide adequate protection.1925 The problem can be concisely described by the already familiar figure 1.3: The dashed horizontal and vertical lines represent the minimal standard for the respective right. If measures fall below this threshold, they are unacceptable and violate the right in question. 1924 Ekardt, supra note 130, pp. 128–34; Ekardt, supra note 111, pp. 208–17; see Isensee, in: Isensee and Kirchhof, supra note 1778, § 111, para. 18, 21 for a description of the prevailing view in Germany. 1925 See for an analogous discussion of the problem Poscher, supra note 548, pp. 200–1, who takes noise protection as an example.

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Chapter 6. A Rule Based Model of Balancing The courts, especially the GFCC , have also provided criteria for the minimal positive standard of protection. The standard is either violated if no measures were taken or if these are evidently insufficient.1926 In a change of circumstances the obligation is violated if the change renders the measures unacceptable (untragbar) and if the institutions have evidently violated their constitutional obligations.1927 The GFCC justifies this standard with separation of powers considerations:1928 The cases usually involve environmental law or noise reduction and are characterized by a high complexity and the influence of many competing interests.1929 In a similar manner, the ECtHR and the ECJ operate with positive obligations. In Safety Hi-Tech 1930 the Court did not require that legislators should enact measures that aim at the protection of the environment as a whole. Instead, they may single out certain aspects.1931 Even in light of art. 174 (former art. 130r), which requires a high level of protection, the Court did not require that the best conceivable measures were taken.1932 A similar position is advocated by the ECtHR, e. g. in the Powell and Rayner 1933 case.1934 The standard of protection was adequate because a range of measures were taken that provided for a standard of protection that matches international standards.1935 In Guerra 1936 , the Court found a violation of art. 8 ECHR because the neighbours of a factory received the necessary information far too late.1937 In the X and Y 1938 case, the ECtHR found a breach of the Convention because of a gap in Netherlands’ criminal law for the protection of sexual offences. Although the law was sufficient in general, it did not provide effective protection of mentally handicapped persons due to the gap.1939 Thus, the position of the courts can be summarized as follows: Positive obligations are violated if no measures are taken or if these measures are clearly unsuitable. Institutions enjoy large discretion in choosing measures.

1926 BVerfG NJW 1996, 651, p. 651; BVerfGE 88, 203, p. 254 stressing that it does not suffice that measures exist but that they must also be effective. 1927 BVerfGE 56, 54, p. 81; BVerfG NJW 1996, 651, p. 652 (also taking statistics into account that prove decreasing numbers of accidents). 1928 BVerfGE 56, 54, p. 81; BVerfG NJW 1996, 651, p. 651; BVerfG NJW 1996, 651, p. 652. 1929 See previous footnote. 1930 Supra note 1323. 1931 Safety Hi-Tech, supra note 1323, para. 46. 1932 Ibid., para. 43. 1933 Supra note 695. 1934 See Dröge, supra note 1734, pp. 313–327 for a detailed description of the positive minimal standard for legislative measures. 1935 Powell and Rayner, supra note 695, paras. 43–4. 1936 Supra note 591. 1937 Guerra, supra note 591, para. 60. 1938 Supra note 722. 1939 See X and Y for a description of the domestic law and paras. 27–30 for an assessment of the violation of positive obligations.

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6.4 Conformity with Constitutional Requirements Applying the standard to the Tobacco Labelling example, the measure fulfils this standard. Smoking poses certain health risks. Informing consumers is an adequate measure, especially in light of another aspect of consumer protection. Interpreted in light of the founding principle of autonomy, legislators cannot do nothing more but provide a firm ground for an autonomous choice (including prohibitions for juveniles), because an outright prohibition would protect consumers from themselves, which would be, indeed, inadmissible.1940 This standard is criticized because of an alleged discrimination between positive and negative obligations and because the standard is not applied consistently, at least in Germany (critics refer to the abortion cases where review was quite extensive).1941 First, there is no discrimination between positive and negative obligations. In complex areas legislators enjoy a broad margin of discretion (in all jurisdictions that were discussed in this study). No matter whether the positive or the negative aspect of rights is affected, the courts have never required the best standard of protection. This deferential stance is reflected at all review steps: the setting of policy objectives;1942 the suitability and necessity tests;1943 and proportionality in the narrow sense.1944 It could be argued that this minimal position approach is, as a whole, unacceptable (the objection that will have been refuted at the end of this chapter), but it cannot be claimed that positive and negative obligations are treated differently. As to the consistency objection: The inconsistency can be resolved in two ways. Either the deferential standard or the less deferential one is adopted for positive and negative obligations. For the reasons presented in the previous and the current chapter, the former option should be preferred. The reconciliation between positive obligations and negative rights works this way: If the minimal positive standard is not met, then it should be increased as far as necessary to meet the standard, which will entail a decrease of the protection of the negative right. But usually, the negative minimal standard will not be undermined in such a process.1945 In other words, real conflicts between rights cannot usually occur because they can be resolved by accommodation, i. e. the right whose minimal standard is observed yields to the extent necessary to preserve the minimal standard for the other right.1946 The minimal standard is violated if there is no solution possible that allows for the minimal position of both rights involved being observed. For a conflict

1940

Emmerich-Fritsche, supra note 5, p. 607 and Ekardt, supra note 328, pp. 112–14. Ekardt, supra note 130, pp. 128–34; Ekardt, supra note 111, pp. 208–17. 1942 For example, Safety Hi-Tech, supra note 1323, paras. 44, 46; see Section 3.1 for more references. 1943 See Section 3.3. 1944 See Section 3.4.2. 1945 Poscher, supra note 548, p. 201. 1946 Summers, supra note 292, rationale IX. 1941

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Chapter 6. A Rule Based Model of Balancing to obtain, it suffices that the minimal standard for at least one right is not observed. Thus the notion of conflict is not inherent to fundamental rights.1947 Although the process of accommodation resembles optimization, some differences should be borne in mind: 1. The reconciliation only aims at the removal of an unacceptable burden. As soon as the redistribution of liberty has reached this point, it must be stopped. 2. The reconciliation ignores variances with the other rights—at least up to the point where their minimal standards are not observed. In other words, this method does not consider the aggregated standard of protection (if such a standard can ever be determined). 3. This form of accommodation does not require integration. At a first step, the distribution of burdens is varied such that the minimal position of the violated right is observed. At the second step, it must be established whether this redistribution still observes the minimal standard for the other rights.

A real conflict can only obtain if this form of reconciliation fails, i. e. if any possible distribution violates the minimal standard of either right. (ii)

Aside: Balancing Required in Extreme Situations?

The previous section closed by stating that usually the minimal position of all rights can be observed. Yet there are, according to critics, cases that involve real collisions between rights, i. e. the minimal standard for either right will inevitably be violated; in these cases balancing is necessary and denying this pretends a false simplicity.1948 Indeed, cases like Aeroplane 1949 and Daschner 1950 prove that these problems are not merely theoretical. Therefore, they must be considered, at least digressively.1951 The just mentioned cases have never concerned the ECJ , because these extreme cases usually require the exercise of police power. It is questionable whether such cases could ever be tried before the Court because the Community does not possess police power and is unlikely to receive it in the near future. Nevertheless, such cases warrant a discussion. For one thing, this study aims at a theory of balancing and must therefore be able to cover extreme cases (it was shown above that standard cases can be rationalized). Moreover, it must be borne in mind that the Community is a dynamic organization. A theory of balancing must be structurally able to adapt to changes of the Community, 1947

Zucca, supra note 69, p. 116. Dreier, in: Dreier, supra note 826, Art. 1 I, para. 133; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 1, para. 79; Ekardt, supra note 328, pp. 98–9; Karl-Eberhard Hain, ‘Konkretisierung der Menschenwürde durch Abwägung’ 45 (2006) Der Staat, p. 189, p. 191; Zucca, supra note 69, p. 24. 1949 BVerfG, 1 BvR 357/05, 15 November 2006 (Aeroplane) . 1950 LG Frankfurt NJW 2005, 692–6. 1951 See also Gäfgen v. Germany, 30 July 2008 (Gäfgen) . 1948

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6.4 Conformity with Constitutional Requirements e. g. an extension of the jurisdiction of the Court to the Third Pillar of the Union (such a change would put police power problems on the agenda). Partly such changes have already occurred as cases like Yusuf 1952 and Bosphorus (Community)1953 illustrate: Although the Community does not directly exercise police power, it implements international measures that require the exercise of police power. However, these measures are implemented by the Member States. Finally, it may disputed when a real conflict between rights obtains, because it may be disputed how the minimal standard of protection should be defined. Zucca, for example, believes that the right to free press and the right to informational privacy conflict when the publication of true information is at issue.1954 Therefore, conflicts could occur outside the field of police power. Cases of real collisions are rare as they are tragic: (a) After 9/11 a discussion arose around the question whether hi-jacked aeroplanes may be downed in order to prevent their hitting atomic power plants.1955 Minimal positions are involved because downing will inevitably involve the killing of innocent passengers. Assuming principally that positive obligations exist, then the minimal position of those who are affected by damages of the nuclear power plant is also impaired, because they are innocent, too. (b) The Daschner 1956 case provides another example.1957 The judgment deals with the punishment of a police officer that threatened the kidnapper of a young boy with torture in order to learn the whereabouts of that boy. The court had to decide whether this coercion, which was employed to prevent harm, was justified by the intention to find the boy. In the first case, the reasons seem to be of equal weight. The life of some innocent people collides with the life of other innocent people. However, the number of affected people may play a decisive role by influencing, in terms of Principle Theory, the gains and interferences (Ii and Ij ).1958 In the second case, different rights collide with each other. The life of the boy was threatened; it was certain that he would die sooner or later. The life of the delinquent should not, according to the intentions of the police officer, be endangered. In German law, such cases are commonly discussed as dignity violations.1959 These rights differ in their abstract importance. Moreover, the concrete interferences, or gains respectively, differed. The delinquent was “only” threatened with torture, while the boy was supposed to die. Moreover, it was not clear, whether the boy could have been saved in time even if the delinquent had confessed. If it is assumed that dignity is a fundamental right, which is the prevailing view 1952 1953 1954 1955 1956 1957 1958 1959

Supra note 1738. Supra note 406. Zucca, supra note 69, pp. 114–15. See the Aeroplane, supra note 1949 judgment and Ekardt, supra note 328, pp. 94–100. Supra note 1950. See Dworkin, supra note 1737, pp. 49–51 for the similar ‘ticking-bomb’ example. Cf. Ekardt, supra note 328, p. 149, rationale 16. Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 1, para. 79.

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Chapter 6. A Rule Based Model of Balancing in Germany, and that positive obligations should be acknowledged, then the reasons in favour of the rights of the boy are reinforced by the circumstances of his imprisonment. If imprisoned by the state, it would have been regarded as a dignity violation. Moreover one could argue that the right to life should always have a dignity aspect.1960 Relying on Principle Theory, the outcome depends on the details: The probability of finding the boy, the nature of the damage, or the number of affected people. Balancing is even more complex because formal principles relating to the discretion of the competent bodies have to be taken into account. (1)

Torture Cases

So, the weights are at least roughly equal. In such cases, proponents of Principle Theory claim, balancing cannot be eschewed because the obligations to protect and respect are of equal weight.1961 At least for the torture cases this result is highly questionable in light of provisions like art. 104 § 1 sentence 2 GG, which unconditionally prohibits abuses of detainees.1962 The wording alone, however, is not sufficient. However, it can be supported by taking other provisions into account. Art. 2 § 2 GG protects life and health as well as personal liberty. But deprivations of liberty and interferences with health and even life can be justified (art. 2 § 2 sentence 3). In contrast to this provision art. 104 § 1 sentence 2 prohibits any interferences with life and health. This is justified by the increased exposition to danger and the fact that detained persons are already severely constrained.1963 Taking the Convention into account this tendency is even stronger: First, in contrast to many other provisions, art. 3 does not provide for any exceptions. Art. 15 § 2 stresses that derogations from art. 3 are not allowed, even in cases of national emergency. So, there is overwhelming textual evidence that disfavours justification. A look at the genealogy of these provisions supports these arguments. The atrocities of dictatorships should be prevented, among them torture. It does not matter whether it is used preventively or as a sanction.1964 Zippelius and Würtenberger believe that torture should only be prohibited in criminal proceedings.1965 However, it cannot be proved that, 1960

Hain, supra note 1948, pp. 202–3. Dreier, in: Dreier, supra note 826, Art. 1 I, para. 133; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 1, para. 79. 1962 Art. 104 § 1 sentence 2 runs as follows: “Festgehaltene Personen dürfen weder seelisch noch körperlich mißhandelt werden”. “Detained persons may not be mistreated, either emotionally or physically.” (English translation of the German original by Julian Rivers in Alexy, supra note 7, p. 433). 1963 Gusy, in: Hermann von Mangoldt et al., Kommentar zum Grundgesetz: Artikel 83–146 vol. 3 (Vahlen, Munich, 5th edn., 2005), Art. 104, para. 31. 1964 But see Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 1, para. 79; Herdegen, in: Maunz and Dürig, supra note 1836, Art. 1 Abs. 1, para. 45. 1965 Zippelius and Würtenberger, supra note 0 (2008: § 21, para. 55). 1961

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6.4 Conformity with Constitutional Requirements historically, torture was only employed in criminal proceedings. Indeed, the travaux preparatoires of the ECHR exclude this interpretation: The Consultative Assembly takes this opportunity of declaring that all forms of physical torture, whether inflicted by the police, military authorities, members of private organization, are inconsistent with civilized society, are offences against heaven and humanity and must be prohibited. It declares that this prohibition must be absolute and that torture cannot be permitted for any purpose whatsoever, either for extracting evidence, to save life or even for the safety of the State. The Assembly believes that it would be better even for society to perish than for it to permit this relic of barbarism to remain.1966

Also a comparative approach excludes the reduction to criminal proceedings.1967 As to the objection that there only was a threat with torture,1968 one must return that “showing the instruments” is but the first step of torture and cannot be separated from the actual act. Consequently, the ECtHR regards mere threats as falling under the scope of art. 3.1969 So, even the threat with torture for the prevention of harm falls under the scope of the torture prohibition, which is, according to the wording, its context and historical development, absolute. The only arguments that support the principal admissibility of justification and an actual justification in a concrete case are of a teleological nature. The duty to protect one’s dignity equals the duty to respect it (e. g. by abstaining from torture). If, under strict application of the proportionality principle, the duty to protect appears more important, then it should be preferred.1970 This argument can be refuted on two grounds. (a) The Utilitarian nature of the argument could be refuted at the outset. Torture is a phenomenon that is known for centuries. Despite some alleged and questionable advantages the framers of various constitutional instruments have condemned it.1971 A reference to dignity and the equality of protection and respect is not fruitful because it only proves the principal equality but not which measures are admissible in concrete cases. The constitutional instruments provide for numerous limitation-limitations (Schranken-Schranken) to the effect that the means are not simply justified

1966

Quoted from A. Cassese, ‘Prohibition of Torture and Inhuman and Degrading Treatment or Punishment’, in: Macdonald, Ronald St. John et al. (eds.): The European System for the Protection of Human Rights (Kluwer Acad. Publ., Dordrecht, Boston, London, 1993), p. 225, p. 226, emphasis added. 1967 Hans Danelius, ‘Protection Against Torture in Europe and the World’, in: Macdonald, Ronald St. John et al. (eds.): The European System for the Protection of Human Rights (Kluwer Acad. Publ., Dordrecht, Boston, London, 1993), p. 263, pp. 267–9. 1968 Rolf Dietrich Herzberg, ‘Folter und Menschenwürde’ 60 (2005) Juristenzeitung, p. 321, p. 25. 1969 Gäfgen, supra note 1951, para. 66. 1970 Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 1, para. 79. 1971 Gusy, in: von Mangoldt et al., supra note 1963, Art. 104, para. 34.

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Chapter 6. A Rule Based Model of Balancing by the ends.1972 This squares with the inherent Anti-Utilitarian tendency of constitutions and rights. (b) These arguments are only compelling, however, where a written text exists and is accepted as set and established. From a non-positivist stance, it could be asked what prevents one from changing the constitutional provisions such that they allow for torture in exceptional cases. These arguments are relevant if one doubts the strength the systematic considerations, which have been used to support the ordinary meaning of written torture prohibitions. There are three ‘consequential’ arguments in favour of a strict torture prohibition: (i) Torture could only be justified if it really contributed to the achievement of some goal (e. g. preventing death of others). However, information obtained from torture is notoriously unreliable. Persons under pain are willing to confess anything. This renders torture unsuitable and cancels the main argument in favour of torture. (ii) If at all, it only makes sense to torture someone who has the desired knowledge and how can be called guilty of committing a crime. But it is the very aim of (preventive) torture to gather this information. (iii) This implies the last objection: How can abuse against torture be effectively prevented? How can broad interpretation of exception clauses be prevented? It is likely that allowing torture in some cases leads to a slippery slope toward an illiberal society.1973 Indeed, the torturing societies of the past have been illiberal. Therefore it is—on average—the better rule to prohibit torture. In sum, balancing is excluded by a rule, the prohibition of torture and, additionally, by consequentialist arguments. A final objection may be that this prohibition requires balancing and value judgements, therefore proportionality considerations cannot be eschewed.1974 This claim rests on a lack of analytical precision. It is true that there is more than one factor that is relevant for the classification as torture or inhuman treatment, e. g. the duration of the treatment or the sex of the victim.1975 The intention to torture can play a role, although its lack need not rule out torture.1976 This form of balancing is structurally different from balancing at the justification step, which is required by Principle Theory. Pulido revealed that the components of the Weight Formula can be broken down to more factors:1977

1972 See Bodo Pieroth and Bernhard Schlink, Grundrechte (C.F. Müller, Heidelberg, 21st edn., 2005), para. 366. 1973 Ekardt, supra note 328, p. 65. 1974 Herdegen, in: Maunz and Dürig, supra note 1836, Art. 1 Abs. 1, paras. 43–7; Hain, supra note 1948, p. 211. 1975 Ireland v. The United Kingdom, (1979) 2 EHRR 25, para. 167; Raninen v. Finnland, (1998) 26 EHRR 563, para. 55. 1976 Price v. United Kingdom, (2002) 34 EHRR 53, para. 24. 1977 The Rationality of Balancing, 206–8. The variable names are slightly adapted to the scheme used in this study, which is based on Alexy’s later articles in Ratio Juris, while Pulido uses a scheme that is based on Alexy, supra note 553

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Wi,j =

Wi · Ii · Ri Wi · (· · · Ei · Spi · Pi · Rei · Di ) · Ri = Wj · Ij · Rj Wj · (· · · Ej · Spj · Pj · Rej · Dj ) · Rj

The letters that put I into concrete terms stand for Efficiency, Speed, Probability, Reach and Duration. Pulido found two other factors that are not relevant for this discussion and whose omission is indicated by ellipses. The objection (“classification of some treatment as torture requires balancing”), confuses the determination of I with the application of the complete Weight Formula. Duration of treatment and the sex of the victim are factors that are relevant in determining I. And this form of classification may as well be called ‘balancing’ in the broad sense of the term (see Section 1.10.1). But the explication of the Weight Formula provided by Pulido shows in an abundantly clear way that this form of ‘balancing’ is but one element of the application of the Weight Formula. If the objection aims at uncovering this circumstance, then it is very valuable, because it clarifies that the assessments for the application of minimal standards do require complex and non-deductive value judgements. However, if it aims at showing that balancing in the Principle Theory fashion cannot be avoided, then it is unconvincing due to its confusing different meanings of ‘balancing’. (2)

Downing of Aeroplanes

In cases that involve torture the balancing-is-unavoidable objection could be refuted with the help of written provisions and consequentialist arguments. In contrast to the prohibition of torture, the right to life is subject to exceptions. The GFCC also had recourse to the protection of dignity and thus could introduce a balancing prohibition.1978 Whether dignity is regarded as a fundamental right, as the preparatory work of the CFREU suggests, or as the foundation of fundamental rights is not relevant here, because even in the latter case it would play a role as an element of contextual interpretation.1979 The GFCC started with an appraisal of the right to life and health and introduced the dignity guarantee at the justification step to the effect that the interference could not be justified.1980 However, it also invalidated the statue because of suitability considerations: It did not believe that the necessary assessments could be made accurately and in time.1981 The problem is essentially the same

1978

Aeroplane, supra note 1949, paras. 128–37. See also Herdegen, in: Maunz and Dürig, supra note 1836, Art. 1 Abs. 1, para. 17; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 1, paras. 28–30; Höfling, in: Sachs, supra note 826, Art. 1, paras. 3–5a; against this Dreier, in: Dreier, supra note 826, Art. 1 I, paras. 124–8; Ekardt, supra note 328, p. 62. 1980 Aeroplane, supra note 1949, paras. 128–37. 1981 Ibid., paras. 123–7. 1979

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Chapter 6. A Rule Based Model of Balancing as in the torture cases. The German debate has partly been quite polemic.1982 Therefore it is particularly important to remember that the purpose of this analysis is not actively participating in the debate but to uncover the structure of the arguments and to refute the “balancing is unavoidable objection”! And as well as in the torture case, a violation of a minimal standard can be based on two argumentative strategies: (a) It could be argued that even if such a measure were admissible in theory, it could never be justified in light of the difficulties to assess the facts in an appropriate manner: The tragedy would be complete before the necessary measures could even be initiated.1983 (b) It could be argued that, independently of the facts, such a measure is incompatible with essential constitutional guarantees, which follow from the protection of dignity. The protection required by this principle is absolute and excludes any form of balancing.1984 The first strategy is a cancelling reason which tries to show that the measures are based on inaccurate facts. It does not require any balancing and belongs to group I of the criteria presented above. With a little modification, it also belongs to group II. The second strategy rests on certain assumptions (under German Constitutional Law) and tries to establish consistency. It is thus belongs to group II of the criteria presented above. (a) The first strategy proved to be quite important in the proceedings before the GFCC . The Court considered these reasons first, and additionally relied on the second strategy. Evidence suggested that it was virtually impossible to make correct assessments in time which was aggravated by the fact that Germany is a relatively small country.1985 Thus the measure was unsuitable, even under the already very forgiving “likely to contribute to” standard.1986 The refutation could be even reinforced. It is a requirement of universalizability that norms be operable.1987 However, deciding whether an aeroplane is hi-jacked; whether there are innocent people on board; how much time there is to act; and whether the side-effects of downing will entail greater damages than letting the aeroplane hitting its target are so intricate and complex that it is unlikely that they can be properly applied on average.1988 Thus, denying proportionality does not only draw on a cancelling reason (group I ) but can also be based on group II considerations, i. e. even if suitability were acknowledged. Especially, if the positive obligation to protect people on the ground from such attacks is taken into account, the clear unsuitability renders the measure disproportionate:1989 1982 In particular: Josef Isensee, ‘Menschenwürde: die säkulare Gesellschaft auf der Suche nach dem Absoluten’ 131 (2006) Archiv des öffentlichen Rechts, p. 173, pp. 192–3. 1983 This corresponds to Aeroplane, supra note 1949, paras. 123–7. 1984 This corresponds to Ibid., paras. 128–37. 1985 Ibid., paras. 126–7. 1986 See above 123 and the overview of the proportionality principle at 121 for a description of the standard. 1987 See above, on page 43. 1988 Ibid., pp. 123–7. 1989 See above page 141.

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6.4 Conformity with Constitutional Requirements The protective measure rests on the vague and improbable chance that an attack of this kind will be recognized early enough. Hillgruber assumes that the Court argued incoherently because it believed that the necessary determinations could be made if the plane did not carry innocent persons and upheld the statute to this extent.1990 First, it is doubtful how this determination can be made at all; second, if it is difficult to determine whether a plane is abused as a weapon then this must be true for any plane, carry it passengers or not. This is unconvincing because it is highly doubtful how an aeroplane can be hi-jacked without notice when neither the crew nor passengers are on board, i. e. outside the normal course of traffic. If this were possible, then the Court’s argumentation would indeed be inconsistent. But inconsistency can be resolved in two ways: Therefore, the impugned provision could have been invalidated completely. Isensee argues that the mere circumstance that facts might be uncertain cannot prevent the state from acting. 1991 The Court tries to escape reality by denying this possibility to protect people.1992 This argument does not capture the Court’s reasoning correctly because evidence does not only suggest that facts are uncertain (which is indeed not unusual) but that it is impossible to make the assessments. Anyway, this part of the discussion is directed at establishing whether facts are certain enough to justify such a measure or not. And it is argued that the Court’s assessment of facts was incoherent. An application of the Weight Formula cannot be discerned. (b) The second strategy is more difficult to apply. The Court argued as follows: First, passengers did not consent to be killed in the course of downing, by merely boarding the plane.1993 Second, the fact that the passengers were doomed anyway was irrelevant, the proposition that human life could be discounted was alien to the German Constitution.1994 Third, neither could the passengers be regarded as part of the weapon, which would have ended their humanity and rendered them mere “objects”.1995 Fourth, people might only be obliged to sacrifice their life if the body politic as such were jeopardized. However, the impugned statute 1990 Cristian Hillgruber, ‘Der Staat des Grundgesetzes—nur “bedingt abwehrbereit”?’ 62 (2007) Juristenzeitung, p. 209, n. 39. 1991 Isensee, supra note 1982, p. 192, n. 103. 1992 Ibid., p. 193. 1993 Aeroplane, supra note 1949, para. 129; moreover, presuming an acceptance of the risk to downed by boarding the plane, would lead to absurd results if transposed to similar cases (Torsten Hartleib, ‘Der neue § 14 III LuftSiG und das Grundrecht auf Leben’ 58 (2005) Neue Juristische Wochenschrift, p. 1397, p. 1400). 1994 Aeroplane, supra note 1949, para. 130; see also Michael Pawlik, ‘§ 14 Abs. 3 des Luftsicherheitsgesetzes—ein Tabubruch?’ 59 (2004) Juristenzeitung, p. 1045, p. 1050 who argues that accepting the rationale in this case leads to a slippery slope towards accepting it in many other cases. Clear differentiations as required by legal reasoning are not possible. 1995 Aeroplane, supra note 1949, para. 133.

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Chapter 6. A Rule Based Model of Balancing aimed at the prevention of grave accidents which might be (but did not have to be) politically motivated. 1996 Eventually, the statue could not be grounded on the duty to protect, because legislators had discretion in fulfilling their obligation but might only choose among constitutionally admissible measures. Because killing innocent passengers was prohibited by the constitution, the duty to protect could not be fulfilled by using this measure.1997 Critics object to nearly all arguments.1998 Some scholars deny that the German Constitution prohibits sacrificing one’s life without consent.1999 They refer to art. 12a § 1 GG, which imposes the obligation to serve in the armed forces. This obligation implies that the Constitution accepts the death of soldiers, which can as well be classified as a “sacrifice”.2000 Moreover, the Court held obligatory vaccination against certain diseases constitutional, although this necessarily implied the statistical death of some.2001 Besides, the judgment discriminates between positive and negative obligations, which is inadmissible because both obligations are principally of equal weight.2002 Taken seriously, the equality of positive and negative obligations requires additional reasons for a preference of the negative over the positive obligation, which are not named by the Court. The innocence argument is unconvincing, since the people on the ground are also innocent. 2003 Moreover, it cannot be irrelevant that the passengers are doomed to die anyway.2004 This argument must be distinguished from flat Utilitarianism, which some authors do not do:2005 It is not the mere fact that the passengers are few compared to the people on the ground. What is decisive is that they will die anyway but that the death of others can be prevented.2006 According to Pawlik the balance must be clearly tipped against the passengers.2007 1996

Ibid., para. 134; see also Hartleib, supra note 1993, p. 1401; Pawlik, supra note 1994,

p. 1055. 1997

Aeroplane, supra note 1949, paras. 135–7. Only the first seems to be accepted: Hartleib, supra note 1993, pp. 1399–1400; Pawlik, supra note 1994, p. 1050. 1999 Hillgruber, supra note 1990, pp. 216–17; Enders, in: Friauf and Höfling, supra note 1917, C Art. 1, para. 94; Hartleib, supra note 1993, p. 1400. 2000 Hillgruber, supra note 1990, pp. 215–16 and Christof Gramm, ‘Der wehrlose Verfassungsstaat?’ 121 (2006) Deutsches Verwaltungsblatt, p. 653, p. 660. 2001 Ibid., p. 659; this is overlooked by Hartleib, supra note 1993, p. 1400. 2002 Hillgruber, supra note 1990, p. 217; Ekardt, supra note 328, p. 98; Gramm, supra note 2000, p. 658. 2003 Hillgruber, supra note 1990, p. 217; Gramm, supra note 2000, p. 658. 2004 Hillgruber, supra note 1990, p. 217; Ekardt, supra note 328, p. 96; cf. Gramm, supra note 2000, p. 659; Pawlik, supra note 1994, p. 1054. 2005 For example, Bodo Pieroth and Bernd J. Hartmann, ‘Der Abschuss eines Zivilflugzeugs’ 27 (2005) JURA, p. 729, pp. 729–30; Wolf-Rüdiger Schenke, ‘Verfassungswidrigkeit des § 14 III LusftSiG’ 59 (2006) Neue Juristische Wochenschrift, p. 736, p. 738; cf. Hartleib, supra note 1993, p. 1398. 2006 Ibid.; Gramm, supra note 2000, p. 660. 2007 Pawlik, supra note 1994, p. 1054. 1998

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6.4 Conformity with Constitutional Requirements Furthermore, the recourse to dignity is incoherent, if not contradictory, because the dignity conception of the Court tries to circumscribe a standard of protection that is not relative to a certain state of affairs. However, by alluding to a differentiation between the state of war and peace it violates the standard of protection that it has imposed on itself.2008 The judgment does not cohere with prior decisions of the Court: Although the Court acknowledged in Abortion II 2009 that the unborn child was helpless and in a particular need for protection, it nevertheless recognized the right of the mother to end pregnancy if this were necessary to protect the life of the mother.2010 According to Gramm, the Court acknowledged in the Schleyer 2011 case that state’s discretion must be broad enough to cope with (acute?) terrorist attacks.2012 Moreover, the Court ignored that the statue did aim at protecting the political system as a whole.2013 The following could be added: The denial of protection by the Court is circular. Only if it is established that killing the passengers is unconstitutional, can the corresponding measure be excluded. But proving this premiss is the purpose of proportionality analysis. Hence, this premiss cannot be used to declare the measure at issue unconstitutional. The second argument is correct but it does not support the conclusion. The German Constitution does not exclude the justification of infringements of the right to life (art. 2 § 2 GG), be it discounted or not. Having said that, it is only known that the life of the passengers is as important as the life of people on the ground. But it does not prove that the passengers’ rights are more important. This is what constitutes a tragedy: Whatever the state does, some will suffer harm. Deciding to abstain from action is also a decision that moreover entails consequences that require justification. The structure of the arguments can be described as follows. It should be obvious that the reasoning of the Court does not fit into the Weight Formula, because it rejects at the outset a comparison of the interests of the people on the ground and the passengers. But are the admittedly more complex arguments of the Court’s critics reminiscent of the Weight Formula? Assuming that the critics are right, the dilemma can be described in the following way: There are two groups of victims, both are innocent, none has consented to being killed, and the rights of both must be considered. Critics argue that in this very special and admittedly extreme situation, the balance should be tipped in favour of those who have at least a chance to live. What the critics did was cancel the rightness reasons that come into consideration. They showed that there is now convincing 2008 2009 2010 2011 2012 2013

Gramm, supra note 2000, p. 658. Supra note 963. Ibid. BVerfGE 46, 160 (Schleyer). Gramm, supra note 2000, p. 659. Ibid., p. 660; see also Pawlik, supra note 1994, pp. 1052–4.

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Chapter 6. A Rule Based Model of Balancing reason that allows giving preference to either interest at stake. To do so they partly showed that the Court argued incoherently or even inconsistently. The remnant of the argument could be identified with an application of the Weight Formula. Since the abstract weights are equal they can be ignored. Moreover, the critics argue that the necessary facts are established, hence R can also be ignored. So the weight of the interferences is compared. However, this process can hardly be called optimization but is an application of the manifest error test: What is at stake is the end of society as a whole, a gross catastrophe. On the other hand the interest of the passengers is minute because it is absolutely sure that they will die anyway. Critics argue that it is impossible to restrict the application of this rationale, it would open up a Pandora’s box.2014 But by requiring a gross catastrophe for society as a whole an operable criterion that prevents its unrestricted application is at least conceivable. Moreover, these goal reasons are only applied because all other reasons are inconclusive (see above, rationale XI of Summers). The discussion is not important because of its outcome (which cannot be transposed to EC -law anyway) but because it shows how even tragic problems can be discussed without invoking the Weight Formula. Instead of making difficult assessments, the problem can be resolved at the suitability level and by employing cancelling and operability reasons which do not rely on close comparative assessments on a cardinal scale.2015 It moreover illustrates that a minimal position approach is structurally able to operate positive obligations and to treat positive and negative obligations equally; in fact, this constituted the dilemma. In particular, the argument from unsuitability is no indication for a preference of negative over positive obligations: It implies that a state that relies on the vague and improbable chance to down an aeroplane is not taking its obligation to protect seriously and thus acknowledges the importance of positive obligations. (iii)

Legalization of Politics?

The balancing approach suggested by this study is structurally able to operate with positive obligations. Because it is combined with a liberal understanding of 2014

Ibid., p. 1050; Hartleib, supra note 1993, p. 1398. Because of the analytical nature of this study, my opinion in this debate only deserves a footnote: If there did not exist the problem of assessing the facts, the critique would be convincing. However, given that it is so difficult to make the necessary decisions in time, the critics would also have to resolve the following problem: Given that facts are uncertain, should an aeroplane be downed or not? If no, then they eventually accept the Court’s judgment. If yes, then they allow the intentional killing of innocent people because of some doubtful evidence. This, however, requires at least some additional justification because critics assume that it is clearly established that the facts are already established or that they can be established. (Ekardt, supra note 328, p. 98; Hillgruber, supra note 1990, p. 217; Isensee, supra note 1982, p. 192, n. 103; Gramm, supra note 2000, p. 658). 2015

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6.4 Conformity with Constitutional Requirements liberty and because it recognizes that liberty is not only imperiled by government alone but also by private persons, it requires the consideration of positive obligations and Drittwirkung. Embodying positive obligations and Drittwirkung is, however, in turn objectionable. Critics claim that acknowledging these rather recent developments will entail a legalization of politics.2016 Yet, it is not clear at what the critique actually aims because usually it is also aimed at the method of balancing, which is typically optimization.2017 If it is only aimed at optimization it does not affect this conception of balancing. What thus remains is to establish whether the consideration of positive obligations alone, irrespective of the balancing method, can lead to a legalization of politics. In every constitutional system, particularly those systems with a constitutional court, nearly every political question also has a legal equivalent. Legal constraints are particularly important in a system that suffers from a democratic deficit. Still, some discretion must be left to legislative bodies. But how much discretion is left does not depend on which reasons a court can consider but how they are considered. With Habermas I would argue that it is not acknowledging positive obligations but treating rights as values (optimization) that removes discretion.2018 Denying the relevance of positive obligations may reduce the number of proceedings before a constitutional court. And the less proceedings there are, the smaller is the chance that regulations or directives will be annulled or must be changed. Yet, where the constitution grants positive rights this is unavoidable. (b)

Effective Protection

Finally, we can turn to the effective protection argument. Critics argue that the large discretion that must be granted by approaches such as the one proposed by this study unduly impairs the protection of fundamental rights. It was noted above, in Section 5.3.2(c)(ii), that such an objection begs the question which rights are meant. Because many Community acts strengthen the protection of consumers, health and the environment, these acts interfere with some rights (mainly economic rights) but benefit other rights (e. g. right to life and physical integrity), provided that liberty may only be limited for the benefit of rights.2019 Therefore, it is imprecise to claim that the protection of fundamental rights is generally weakened if discretion for legislators is broad. The invalidation of a measure may benefit economic rights but weaken environmental protection (and hence the right to physical integrity). Considering this relationship, the objection cannot be upheld, especially if one bears in mind that the optimization 2016

Böckenförde, supra note 182, pp. 188–9; Koskenniemi, supra note 1827, p. 114. Böckenförde, supra note 182, p. 189, although he notes on page 174 that positive obligations need not require optimal protection. 2018 Faktizität und Geltung, pp. 309–10 [253–5]. 2019 See Section 5.3.2(c)(ii) for references. 2017

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Chapter 6. A Rule Based Model of Balancing ideal is unconvincing. It is not the Court’s task to find the best distribution between freedom and liberties. If legislators have chosen between admissible distributions, then the choice cannot be challenged. (c)

Essence

The protection of the essence of rights is closely related to the effective protection of fundamental rights. One of the major objections against Principle Theory was that it does not provide for definite limits to interferences with rights, despite the requirements of the Court’s case law. To recapitulate: Principle Theory identifies the proportionality principle with essence protection.2020 This approach is called relative in German commentaries to art. 19 § 2 GG, the essence clause.2021 The relational approach is usually contrasted with the ‘absolute theory’, which is the older approach.2022 According to the purest form of this approach, the essence is something fixed.2023 However, the dividing line between these approaches is blurred because some proponents of the ‘absolute theory’ allow for the consideration of unavoidable necessities or acknowledge that there may be some cases where it will be impossible to protect the essence.2024 The ‘absolute theory’ faces two difficulties. First, it is difficult to distinguish the essence of a right from the rest that does not deserve absolute protection.2025 Second, critics believe that there already are many norms that violate the absolute essence guarantee but whose constitutionality cannot be sensibly challenged.2026 The fact that many proponents of absolute theories themselves open the approach to particulars of a case is self-defeating.2027 Yet the wording of art. 19, and also of art. 52 § 1 CFREU (“Any limitation . . . must respect the essence of rights.”, emphasis added), speaks in favour of absolute essence conceptions. Moreover, the major objection against relative theories remains: Can the essence really be protected by an approach that allows for the essence being outweighed if the competing aims are important enough?2028 This approach renders the essence clause superfluous.2029

2020

Alexy, supra note 7, pp. 271 [195]. Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, paras. 11–14; Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, paras. 142–3. 2022 Ibid., Art. 19 Abs. 2, para. 139. 2023 See Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, para. 7; Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 139. 2024 Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, para. 8, 9. 2025 Ibid., Art. 19 Abs. II, para. 5; Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 141. 2026 Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, para. 15; Krebs, in: von Münch and Kunig, supra note 973, Art. 19, para. 25. 2027 Ibid.; Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, para. 9. 2028 Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 147. 2029 Ibid. 2021

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6.4 Conformity with Constitutional Requirements It is feasible to introduce a third category next to absolute and relative conceptions, a variable approach to essence. Although the relative conception is a subset of variable conceptions it is not identical to it. Relative conceptions should be more precisely called relational theories because the decisive factor is the importance of the competing aim to which the impugned right must be related to obtain the essence. Opening the essence definition to the particulars of a case need not be identical to optimization. For example, the essence may depend on the duration of the interference and other effects, e. g. on the possibility to pay compensation. Yet, this is not identical to a relation of interferences and gains because only one half of the relationship is assessed (see above on page 330).2030 Huber proposes a mixed essence conception, the qualitative-structural approach. The starting point is the distinction between the Schutzgut, i. e. the protected activity, and the right, i. e. the enforcement opportunities.2031 The idea is that it is the essence of the right as an enforcement opportunity that is protected and not the essence of the activity.2032 An essence violation should therefore not depend on whether some characteristics of the activity are obstructed.2033 Instead, two criteria must be fulfilled: (a) The protected activity must exist, i. e. the individual power to plan one’s life and the principal equality between individuals, and (b) an effective protection of this activity.2034 As well as earlier authors, he connects the essence guarantee with dignity. There must remain a sufficiently large portion of autonomous deliberation about one’s life.2035 The right must not be reduced to merely formal protection.2036 The approach depends on area specific evaluations, i. e. the essence of one right must be determined independently from other rights, although parallels may be established.2037 In addition to the protection of the dignity portion, essence protection requires that the right can be legally enforced.2038 Essence protection is not a mere principle but a rule, in terms of Principle Theory.2039 Huber’s approach must face an objection that is also directed at relative theories, namely that it renders the essence guarantee superfluous. Dignity 2030

See Pulido, supra note 532, pp. 206–8. Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, paras. 152–4; Zucca, supra note 69, p. 35 also introduces a similar distinction between the ‘right to’ on one hand and, for example, ‘life’ on the other. 2032 Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, paras. 152–4. 2033 Ibid. 2034 Ibid.; see also ibid., Art. 19 Abs. 2, para. 127 for the connexion between dignity protection and the essence. 2035 Ibid., Art. 19 Abs. 2, para. 155; see also Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, para. 6 referring to Dürigs essence conception. 2036 Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 156. 2037 Ibid., Art. 19 Abs. 2, paras. 157–8. 2038 Ibid., Art. 19 Abs. 2, paras. 160–3. 2039 Ibid., Art. 19 Abs. 2, para. 164. 2031

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Chapter 6. A Rule Based Model of Balancing already is an element of European and German protection of fundamental rights.2040 The same is true for procedural rights, like access to courts. These are protected by art. 6 ECHR and, in Germany, art. 19 § 4 GG (see also art. 47 CFREU ). So Huber’s conception conforms to various constitutional requirements and provides for an adequate systematization, but it does not really depend on art. 19 § 2. Considering the genealogy of this provision and augmenting Huber’s conception, this objection will lose its force. In Germany, the essence protection was introduced because of the experiences in the Weimar Republic. Under the WRV fundamental rights did not bind the legislature. They were rather directed at the executive branch and prohibited nothing but unlawful force.2041 No bounds existed and rights could be rendered entirely ineffective, provided that formal requirements were met.2042 After World War II, these consequences were regarded as unacceptable. Fundamental rights should also bind legislators (art. 1 § 3 GG).2043 Because many rights laid down exceptions, the essence guarantee should prevent rights’ becoming ineffective. So, the essence guarantee is functionally a limitation to limitation clauses, a limitation-limitation (Schranken-Schranke). The little direct importance of the essence protection may be due to the emergence of other limitation-limitations: • Legislators are bound to pursue legitimate aims only.2044 The pursuit of some aims is prohibited. This is also true under Community law with the principle of attributed powers.2045 • Some means are prohibited, without exceptions (e. g. degrading treatment, art. 104 § 1 sentence 2 GG and art. 3 ECHR). • There are numerous procedural safeguards that ensure the enforcement of rights (art. 6 ECHR and art. 19 § 4 GG and art. 6 § 1 and § 2 TEU ). • The principle of equal treatment also binds the legislature.2046 • Measures must be suitable and necessary and the facts adduced by legislators are principally subject to review.2047 2040

Sachs, in: Sachs, supra note 826, Art. 20, para. 43. Klaus Stern and Michael Sachs, Das Staatsrecht der Bundesrepublik Deutschland. Allgemeine Lehren der Grundrechte vol. III/2 (C.H. Beck, Munich, 1994), § 85 I 5; Maunz, in: Maunz and Dürig, supra note 821, Art. 19 Abs. II, para. 16. 2042 Stern and Sachs, supra note 2041, § 85 I 5. 2043 See ibid., § 85 III 1. 2044 Dreier, in: Dreier, supra note 826, Vorb., para. 146; Starck, in: von Mangoldt et al., supra note 822, Art. 1 Abs. 3, para. 267; Sachs, in: Sachs, supra note 826, Art. 20, para. 149;BVerfGE 81, 157, pp. 188–9. 2045 See Bananas, supra note 11, paras. 48–9; Tobacco Labelling, supra note 2, paras. 60–2; Worker’s Health, supra note 23, paras. 11–17; Schräder, supra note 2, paras. 7–11; Tobacco Advertisement, supra note 23, paras. 76–84 and Section 3.1 and page 89. 2046 See for EC -law ABNA, supra note 18, para. 63; Swedish Match, supra note 11, para. 70. 2047 Sachs, in: Sachs, supra note 826, Art. 20, para. 150; Dreier, in: Dreier, supra note 826, Vorb., para. 147; BVerfGE 67, 154, p. 175; BVerfGE 81, 157, p. 192; Sachs, in: Sachs, supra note 826, Art. 20, para. 152; Dreier, in: Dreier, supra note 826, Vorb., para. 148; BVerfGE 67, 154, p. 176; Worker’s Health, supra note 23, para. 57, emphasis added; see also Schräder, 2041

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6.4 Conformity with Constitutional Requirements • Measures must not be out of proportion to the aims (prohibition of disproportionality, Übermaßverbot).2048 • The dignity provisions provide special protection by excluding those measures that remove autonomous deliberation or aim at its removal. • Some rights are not even derogable and the derogation, where it is principally admissible, is subject to judicial review (art. 3, 14 ECHR). • Limitations must observe basic requirements of the law state, like the observance of legitimate expectations.

These criteria include Huber’s essence conception but also go beyond it. They are even more likely to make the essence guarantee superfluous. However, in light of the historic development this objection is not convincing.2049 Many limitation-limitations are not explicitly laid down, e. g. in Germany there is no constitutional provision that defines the proportionality principle. The essence protection serves as a common ground for the development of unwritten limitation-limitations and for contextual interpretation of written guarantees. It is a clear expression of the idea that some limitations cannot be justified however compelling the needs may be. It is an unambiguous expression of a certain understanding of liberty: Liberty is not merely the freedom from unlawful force but, additionally, the freedom from unreasonable, discriminatory, arbitrary, degrading, and disproportionate force. The spirit of the essence protection is to prevent rights from becoming ineffective. This ideal cannot be fulfilled with only one criterion, e. g. the prohibition of manifest disproportionality. There are numerous threats to the effectiveness of rights and the remedies must be equally flexible. The essence guarantee provides the underlying rationale that ties all these remedies together: Rights must never be reduced to empty words. Although unreasonable force would also be inadmissible, it is incorrect to identify essence protection with the prohibition of unreasonable force and an obligation to give a satisfactory justification, as it is proposed by Hain.2050 With Weinberger it must be borne in mind that a rational justification alone is not fruitful without substantive criteria.2051 Because such an essence conception does not define the essence in absolute terms it is subject to the objections against relative theories. Art. 52 § 1 reads: “Any limitation on the exercise of the rights and freedoms recognised by this Charter . . . must respect the essence of those rights and freedoms” (emphasis added). Therefore, it cannot depend on the justifying reasons and supra note 2, para. 23; Fattoria, supra note 2, para. 55. 2048 Sachs, in: Sachs, supra note 826, Art. 20, para. 154; Dreier, in: Dreier, supra note 826, Vorb., para. 149; see for example BVerfGE 16, 194, pp. 201–3; Irish Farmers, supra note 1134, para. 27 emphasis added; Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22; see also Pfizer, supra note 1157, para. 452. 2049 See Krebs, in: von Münch and Kunig, supra note 973, Art. 19, para. 24. 2050 Die Grundsätze des Grundgesetzes: Eine Untersuchung zu Art. 79 Abs. 3 GG 197. 2051 Logische Analyse als Basis juristischer Argumentation 185–202.

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Figure 6.1: Two essence paradigms. other particulars whether a limitation is justified.2052 This provision should erect a last line of protection against encroachments.2053 Graphically, the essence conceptions can be contrasted as it is shown in figure 6.1. The left pair of circles represents the absolute conception of essence. The inner circle marks the essence, while the outer circle marks those parts of a right that may be limited. In contrast, the position of this study, based on Huber’s conception, understands the essence as a segment with a certain minimal size. 2054 It does not matter which angle it covers, as long as the angle is not too narrow. The major thrust against relative theories is directed at their allowing for the essence to be outweighed: “There are no higher-order [legal] goods than the essence.”2055 This particular aspect of the objection, however, does not affect this conception because the relational comparison of values is rejected anyway. Even Stern and Sachs, who advocate an absolute conception, acknowledge that the essence may depend on factors of a particular case, for example the duration of an interference.2056 Therefore, another objection that is directed at a partial identification of fundamental rights protection and essence protection is unfounded, namely that rights protection should not be reduced to essence protection.2057 According to this approach the minimal standard is quite demanding: Even violations of standards of reasonableness are essence violations, not only gross atrocities. 2052

See Stern and Sachs, supra note 2041, § 85 III 2 a) referring to art. 19 § 4: “in no case . . . ” (“in keinem Falle . . . ”). 2053 Ibid. 2054 Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 155. 2055 Stern and Sachs, supra note 2041, § 85 III 2 a) α: “Gegenüber dem Wesensgehalt gibt es keine höherrangigen Güter.” (Emphasis retained from the original). 2056 Ibid., § 85 III 2 c) γ ββ. 2057 Dreier, in: Dreier, supra note 826, Art. 19 II, para. 17.

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6.4 Conformity with Constitutional Requirements Thus, the labels ‘minimal position’ and ‘essence’ are admittedly misleading. They should not be read as describing the level of protection but as describing the way the standard is determined: without recourse to relational approaches. The minimal position approach squares with this essence conception. This was proved for the elements of the proportionality principle as a whole, including the legitimate aim test. Huber claims that the Court does not protect the essence of rights, because it identifies essence with proportionality, 2058 and because it fails to define the scope of the rights and thus the Schutzgut, i. e. the protected activity.2059 This assessment is objectionable, for two reasons: (a) Huber himself notes that some issues that are considered as fundamental rights problems under German law are assessed separately under Community law, e. g. the principle of legitimate expectations.2060 As another example could serve the legitimate aim test and the suitability requirement. In Worker’s Health 2061 the Court assessed the suitability in connexion with the legitimate aim test and the latter in isolation from fundamental rights. In ABNA2062 the necessity test was also carried out separately so that there was no need to engage in an assessment of fundamental rights. The discussion of the case law has shown that the Court applies nearly every limitation-limitation that were listed above, except those that cannot play any role in Community law, because of a lack of competences. For example, the prohibition of degrading treatment does not make sense directly for an organization that lacks police power. (b) The other part of the objection clings to an understanding of essence that is based on the Schutzgut. However, Huber himself proposed an essence conception that abstracts from the Schutzgut and that mainly relies on the effectivity of the right as an enforcement opportunity. Therefore, the protection of the essence does not necessarily depend on the precise definition of the scope of the right, especially if one allows for parallel evaluations, as Huber does.2063 Some rationales do not in any way depend on the right involved, e. g. suitability and necessity (except for the initial question whether justification is possible at all). Now that the method of determining the essence is defined, we can discuss the relationship between proportionality and essence protection. According to the essence approach presented above, the effectiveness of rights is ensured by various standards, among others, proportionality. Still, this approach differs from relative conceptions. First, proportionality is not based on a value interpretation of rights, which is typical for proponents of relative conceptions.2064 Second, 2058

Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 207. Ibid., Art. 19 Abs. 2, paras. 198–9; Storr, supra note 5, p. 559. 2060 Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 195. 2061 Supra note 23. 2062 Supra note 18. 2063 Ibid., Art. 19 Abs. 2, para. 157. 2064 Alexy, supra note 7, pp. 271 [195]; see Maunz’ overview in Maunz and Dürig, supra note 821, Art. 19 Abs. 2, paras. 12–13, 19. 2059

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Chapter 6. A Rule Based Model of Balancing proportionality is but one element of essence protection. The essence may be impaired for other reasons, too.

6.5 6.5.1

Remaining Objections Uniformity

Two objections against this balancing conception remain. The first aims at the consequences for dogmatic clarity and differentiation. Many critics of the Court argue that it does not cleanly define the scope of the rights, including their weight,2065 and—connected with the latter objection—that it has an undifferentiated approach to limitations of rights (which is continued by the Charter).2066 These objections are directed at the case law of the Court. Since this study has developed a balancing conception that squares with the Court’s approach, the critique also affects the approach suggested by this study. All critics base their objections on Principle Theory but not all objections can be refuted by simply showing that the very foundation of the critique is unsound. The critique that relates to the definition of the scope of rights and the lack of differentiations between rights does not in any way depend on the validity of Principle Theory. As a matter of fact, it could be equally directed against it. The Court’s approach to the application of rights and the Principle Theory approach are both centred around the justification step. 2067 Forsthoff accused value theories of dissolving constitutional structures.2068 The European variant of the critique is principally the same, but it does not accuse the Court of dissolving structures but of being unable to built them up in the first place. The critique is only convincing if the justification of interferences differs with from right to right. Therefore, it is incumbent to assess the influence a fundamental right can have on the justification step. The first obvious impact on the justification level is an enumeration of admissible policy objectives. A survey of the case law of the ECtHR has shown that despite the detailed and differentiated limitation clauses a uniform approach to the admissibility of policy objectives has emerged. The GFCC ’s three-tier model under art. 12 GG has dissolved over the years. Even rights that do not lay down exceptions may be limited under German law and there is virtually no restraint in setting policy objectives.2069 The texts of art. 12, art. 14 GG, 2065

Huber, in: von Mangoldt et al., supra note 822, Art. 19 Abs. 2, para. 197; Bühler, supra note 5, p. 203; Storr, supra note 5, pp. 558–9. 2066 Bühler, supra note 5, pp. 210–11. 2067 Jestaedt, supra note 991, pp. 220–2. 2068 Forsthoff, supra note 966, p. 190, Verunsicherung der Verfassung. 2069 It is commonly required that the objectives must correspond to constitutional values, in particular rights of others; see Kokott, in: Sachs, supra note 826, Art. 4, paras. 125–7; Preuß, in: Azzola, supra note 973, Art. 4 Abs. 1, 2, para. 28; Morlok, in: Dreier, supra note

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6.5 Remaining Objections and art. 1 Protocol 1 do not restrict the policy goals at all. Limitations can thus only be effective if there are explicit prohibitions, e. g. through legal bases for Community measures. The suitability and the necessity test do not in any way depend on the right at issue because only the means are related to the aim. The margin of discretion may vary but it was shown above that it varies with the complexity of the issue and the institutional settings. Critics argue that it should vary with the severity of the interference.2070 It is unsound that rigour of review should only depend on the interference: The decisive factor is complexity. Where a matter simply is complex rigorous review amounts to a substitution of assessments. Conversely, if a matter is simple, then there is no reason to accept discretion, however, slight the interference is (provided that it is legally relevant at all). Determining the minimal position, indeed, depends on the right at issue, but it does not necessarily depend on explicating the scope of a right. It would only do so, if a model of essence were suggested that mainly depended on the Schutzgut. The minimal position conception of this study, however, is based on ensuring the effectiveness of the right, i. e. on the effective enforcement of legal safeguards. The effectiveness can be principally assessed uniformly, i. e. without a special dependence on the Schutzgut. This does not exclude the emergence of area-specific dogmatics, e. g. relating to freedom of speech. But the underlying principles are not restricted to a particular area. Besides, the last step of the proportionality step is usually applied in connexion with fundamental rights appraisal: “[the] exercise [of rights] may be restricted, provided that those restrictions . . . do not constitute a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed”.2071 Hence, the Court is also able to develop area-specific dogmatics for the last step of the proportionality principle.

6.5.2

Really Non-Consequentialist?

A theme that has underlain the refutation of Principle Theory was the rejection of Utilitarian or Consequentialist reasoning. Consequentialist reasoning is employed by advocates of torture, which was rejected. Principle Theory was found to share many characteristics with Consequentialist reasoning. The Anti-Consequentialist objection could also be raised against the approach that is endorsed by this study. Proportionality will inevitably result in employing Utilitarian arguments.2072 826, Art. 4, para. 115. However, a liberal understanding of rights already imposes a limitation to the rights of others and the limitation to constitutionally acknowledged “values” should be self-evident. 2070 Bühler, supra note 5, pp. 210–11. 2071 Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. This standard is also implicitly applied in Duff, supra note 16, para. 30. 2072 Koskenniemi, supra note 1827, pp. 111, 114.

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Chapter 6. A Rule Based Model of Balancing Moreover, the tenets of universalizability and coherence are in a certain manner Consequentialist, because a decision is accepted if it can be based on a universal rule that coheres and if coherence is determined, among others, by assessing the consequences of a rule. A decision, even if it appears as a just one, will be rejected if it effects adverse consequences for the legal order as a whole.2073 The only difference to Utilitarianism is that the consequences for the legal order as a legal system instead of society as a whole are considered. The sole consideration of consequences is unduly narrowing the scope of legal justification.2074 This critique can be refuted on two grounds. First, it must be clarified that the coherence and consistency tests do not only consider consequences but also the ratio decidendi as such. Considering consequences is thus only one step among others to justify a decision.2075 Second, the consequences a judge has to consider are legal implications.2076 Therefore this form of reasoning differs substantially from Utilitarianism: (a) Considering consequences is nothing but anticipated universalizability: The name [juridical consequences] is well chosen, for to declare a particular right (jus dicere) is necessarily, in the role of an impartial judge, to declare it as available in every like case. Hence, as a person of prudence and forethought any judge must look across the range of possible situations which will have to be covered by a proposed ruling in point of right. Such consideration of a range of possible cases cannot but be necessary to adequate assessment of the acceptability of the decision entertained in the present case.2077

(b) The consequences are those for the legal order as a legal system. Even if it appears as Consequentialist in isolation, it is not if this form of reasoning is viewed from the point of view of society as whole. From this stance, it can have a distinctively Anti-Utilitarian effect. For example, will a rule, if adopted, entail the law state’s being abolished? If the answer were yes then it should not be adopted, despite its allegedly good consequences for society as a whole. This last argument also sheds some light on another difference to Utilitarian reasoning. According to a rule Consequentialist approach, the existence of a law state will be required if and only if it leads to an improvement of social utility. According to this conception, the rules of a law state do not serve an instrumental purpose but exist for their own right. Besides, it does not employ integration algorithms to evaluate the consequences for the legal system, which would required by a Utilitarian approach.2078

2073

Cf. Sieckmann, supra note 499, p. 197. Alexy, supra note 7, pp. 145 [101]. 2075 MacCormick, supra note 42, p. 104. 2076 Ibid., p. 106; Hassemer, supra note 1816, p. 8. 2077 MacCormick, supra note 42, p. 106, emphasis added. 2078 Remember that Utilitarianism requires optimization (or maximization) and that this balancing ideal in turn requires the integration of variables, which in turn requires their being cardinally scaled; see Section 4.1 and Section 5.3.2(b). 2074

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6.5 Remaining Objections

6.5.3

Case Law Positivism?

Principle Theory is criticized for only explaining judgments.2079 Any decision can be rationalized ex-post as the optimization of clashing principles. But Principle Theory cannot predict the outcome of decisions; in other words, it can trace developments of case law but is unable to contribute anything new to its development. It is an analytic theory without any normative bearing.2080 Judgments cannot be criticized on its ground.2081 A similar objection could be raised against this theory: one of its major tenets is coherence, not only with written rules but also with case law. Therefore, it could equally well be accused of a lack of normative substance. This objection is unconvincing. First, the very claim that Principle Theory lacks any normative substance is plainly wrong. Most of the German critics of the Court base their criticism on Principle Theory.2082 The GFCC ’s Aeroplane 2083 judgment can also be criticized from the stance of Principle Theory.2084 Second, to refute objections of this kind, it is important to restate the role of case law and coherence in general. It was outlined in Chapter 1 that the reliance on case law does not imply blindly following precedents. A precedent is only binding if it is coherent and consistent. Moreover, the reliance of precedent allows for development and change. But above all, it is not the only standard of legal reasoning. There are other formal standards and there are fundamental rights, which serve as substantive standards. Besides, this study was able to refute the critics of the Court not only with descriptive accounts of what courts do but also with normative arguments. This alone proves that it has a normative bearing. Finally, the reliance to case law must be distinguished from a post-modern doctrine of case-law as it is expressed by Christensen and Fischer-Lescano.2085 The reason for relying on case law is not that decisions are based on the “undecidable”. Neither are judgments experimental. Having recourse to case law is an expression of coherence and hence non-deductive rationality, which is a form of rationality that is ignored by post-modern legal theory.

2079 2080 2081 2082

Klement, supra note 1705, p. 756; Poscher, supra note 548, pp. 75–6. Ibid., p. 76; Klement, supra note 1705, p. 756. Poscher, supra note 548, p. 76. For example, Pauly, supra note 8, pp. 257–60 or Emmerich-Fritsche, supra note 5,

p. 69. 2083

Supra note 1949. For example, Hillgruber, supra note 1990, pp. 216–17 employs Principle Theory arguments. 2085 Christensen and Fischer-Lescano, supra note 153, p. 20; Ladeur and Augsberg, supra note 63, pp. 175–7. 2084

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6.6

The Model Summarized

This chapter presented a rule based model of balancing. Its features are: (a) Justifications of interferences with rights are assessed sequentially. (b) Each assessment step is governed by rules. (c) Missing rules may be found by applying non-deductive methods of legal reasoning. This rule based structure is also inherent to the last step of the proportionality principle. Here, proportionality comprises the protection of the essence of a right to something, e. g. the right to property. Whether the essence is infringed is usually not determined by relating the interference with a right to the gains for the competing aims. Instead, the acceptability is determined with a recourse to secondary reasons and a focus on the interference. Relating gains and interferences is only exceptionally admissible. Secondary reasons are derived from legal principles, e. g. the principle of legitimate expectations. Although this model relies on the application of principles, important differences to Principle Theory must be noted. Principles are never applied directly but only serve as reasons for rules. Thus it is not the principles that collide in the true sense of the word, but the rules and reasons that are derived from principles. Assessing proportionality is essentially operating with these rules, e. g. by changing and amending them. This model can be concisely summarized as follows: 1. Is justification possible? Some rights do not allow for the justification of interferences and are not derogable or only under specific circumstances. 2. Is the aim admissible?2086 Aims may be excluded by the text of fundamental rights or by the legal bases for EC institutions. To make the test effective it requires assessing whether the alleged problem really exist and whether the measures actually aim at its removal.2087 3. Are the means suitable? This test is satisfied if the means actually contribute to the achievement of the goal. Government is not required to choose the best measure available.2088 4. Is the measure necessary? This requirement is fulfilled if no means exist that are equally suitable and that impose less onerous burdens. Both sub-tests may be assessed in any order and both must be fulfilled. This test is a negative criterion, because it can only exclude certain measures but can never require more severe measures for the pursuit of the aim.2089 5. Does the measure constitute an intolerable and disproportionate burden, impairing the very substance of the right? This test does not have a monolithic structure either. Depending on the right affected or policy area involved an infringement of the substance can be determined by the following criteria: (a) Criteria relating to forseeability and legitimate expectations: (i) Is a transitional period provided?2090 2086 Tobacco Labelling, supra note 2, para. 149; Zuckerfabrik Soest, supra note 2, para. 73; Affish, supra note 2, para. 42; Winzersekt, supra note 2, para. 22. 2087 See Section 3.1. 2088 Worker’s Health, supra note 23, para. 57. 2089 Fattoria, supra note 2, para. 55. 2090 Tobacco Labelling, supra note 2, para. 152; Winzersekt, supra note 2, para. 28;

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6.6 The Model Summarized (ii) Are the consequences foreseeable?2091 (iii) Is the measure limited in time and intensity?2092 (iv) Is the measure periodically reviewed and/or allows for the adoption to changes?2093 (b) Criteria relating to the flexibility of the measure: (i) Does a measure leave discretion to the Member States (to prevent infringements of fundamental rights)?2094 (ii) Does a measure provide rules in case of force majeure, hardship, or other extreme burdens?2095 (iii) Does a measure allow for the consideration of merits of a specific case?2096 (iv) Is the decision process structured such that competing interests can be considered?2097 (v) Is the measure of a sweeping nature?2098 (c) Criteria relating to the existence of legal remedies: (i) Are there remedies against the measure?2099 (ii) Are there safeguards against abuse?2100 (d) The causation principle and related criteria: (i) Is a burden justified by the causation principle?2101 (ii) Does a measure, while imposing burdens on operators, simply return costs that these operators had caused in the first place?2102 (iii) Is a measure just reacting on current market failures?2103 (e) The possibility to eschew the burden: (i) If certain practices are prohibited, e. g. the use of labels, can the affected persons have recourse to adequate replacements?2104

Manssen, in: von Mangoldt et al., supra note 822, Art. 12 Abs. 1, para. 147. 2091 Hentrich, supra note 583, para. 48. 2092 BSE, supra note 2, para. 101; Hauer, supra note 2, para. 29; BVerfGE 25, 1, p. 15. 2093 Swedish Match, supra note 11, para. 92 (Geelhoed AG); BSE, supra note 2, para. 101; Bananas—Interim Measures, supra note 1184, para. 45; T. Port, supra note 1185, para. 28; Sporrong and Lönnroth, supra note 580, para. 70. 2094 Duff, supra note 16, para. 29; Erpelding, supra note 1200, paras. 28, 21 here proportionality was assessed in connexion with equal treatment. 2095 Reich, supra note 1229, p. 268; BVerfGE 13, 97, p. 120 BVerfGE 39, 210, pp. 235–6; Bananas—Interim Measures, supra note 1184, paras. 41–7; T. Port, supra note 1185, paras. 27, 38. 2096 Man Sugar, supra note 1214, para. 30; Smith and Grady, supra note 754, para. 93. 2097 Jacobsson, supra note 578, para. 62. 2098 Open Door, supra note 578, paras. 73–4. 2099 Agosi, supra note 584, para. 57; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 2100 Brannigan, supra note 582, para. 61. 2101 BVerfGE 95, 173, p. 187. 2102 Zuckerfabrik Soest, supra note 2, para. 146 (Lenz AG). The AG did not define the standard but merely claimed that the measure was not disproportionate. 2103 BVerfGE 25, 1, p. 22. 2104 Tobacco Labelling, supra note 2, para. 150; Winzersekt, supra note 2, para. 28.

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Chapter 6. A Rule Based Model of Balancing (ii) Can burdens be passed on to consumers or delegated to others?2105 (iii) When excessive costs are challenged, does the measure that creates costs also provides those that are negatively affected with direct or indirect compensation?2106 (f) Amount of burden: (i) Are levies imposed insignificantly low?2107 (ii) Is it merely an administrative burden that is imposed on economic operators?2108 (iii) Is it likely that the burden, having regard to the category of operators and costs, is small?2109 (iv) If a measure establishes a “new” obligation, have most of the affected competitors already voluntarily adopted that obligation, so that it does not really bring an actual change?2110 (v) Does a Community measure correspond to regulations that already exist in all Member States where it is possible to exercise the regulated activity? For example, restrictions of planting vines exist in all wine producing Member States, so the Community is in principle allowed to pick up these regulations.2111 (vi) Does a measure impose a sanction for the breach of a secondary obligation that is as severe as a sanction for the breach of a primary obligation;2112 or is the burden in other ways manifestly out of proportion?2113 (vii) Is a measure requiring what is required anyway by the activity, e. g. certain qualifications or stockpiling capacities?2114

Criteria 1–4 are relatively easy to apply limitation-limitations. They are all cancelling reasons in the terminology introduced above on page 305. This summary of criteria under 5 covers cancelling reasons. The criteria that are listed under 5a and 5b could be understood as belonging, except for forseeability, to the accommodation group: measures that conform to these criteria make a compromise between the urgency of the aim and the interference. Yet they actually cancel the claim that the substance of a right was affected by a measure: a flexible measure that is imposed with a transitional period or that is limited will hardly be excessive. The 5c criteria are of a cancelling nature: Where 2105

BVerfGE 30, 292, p. 326. Fattoria, supra note 2, para. 59; Hentrich, supra note 583, para. 48; Lithgow, supra note 616, para. 120. 2107 BVerfGE 37, 1, pp. 23–4. 2108 Schräder, supra note 2, para. 18, Zuckerfabrik Soest, supra note 2, para. 76, Fattoria, supra note 2, para. 61. 2109 Schräder, supra note 2, para. 18, SAM Schifffahrt, supra note 34, para. 74. 2110 Deposits, supra note 1126, para. 83. The Court did not uncover the standard but merely established whether the burden was excessive. 2111 Hauer, supra note 2, para. 21. 2112 Man Sugar, supra note 1214, para. 20. 2113 Arai-Takahashi, supra note 577, p. 124; Reid, supra note 599, I–063; National & Provincial Building Society et al., supra note 584, para. 81; Traktörer, supra note 583, para. 60; Hentrich, supra note 583, para. 49. 2114 BVerfGE 30, 292, pp. 325–6, cf. BVerfGE 13, 97, p. 115. 2106

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6.6 The Model Summarized they are not fulfilled, it is unlikely that a measure will be held proportionate. The causation principle (5d) also cancels reasons. If it is applicable, operators cannot principally object to the introduction of burdens. They may only object to the manner (5a and 5b). These criteria mainly ensure that basic requirements of the law state are observed. The rest of the criteria relate to the disproportionality test. Having recourse to 5e, one can cancel the objections that burdens are out of proportion. If applicable, these reasons effect that burdens are located at the lower end of the scale. Thus the manifest-disproportionality test will not succeed. The same is true for the 5f criteria. One should bear in mind that the latter criteria only work if a manifest disproportionality is required, instead of proportionality. This is special in two respects: First, it only requires rough assessments. Second, it is a negative criterion, which requires the Court to establish that institutions remained within their bounds of discretion. These criteria can be extended by means of analogy. Although, they are formulated as questions, they are rules, e. g. if a measure changes the market position of operatiors, it must do so by providing a transitional period or compensation. Not all rationales fit all rights. For example, the compensation principle, either as an argumentative strategy (“there actually are not burdens”) or as an emanation of the right to property, is not applicable to violations of the right to life and health. Constitutional texts do not provide any support for an extension of this requirement to violations of the right to life and health. That is not to say that compensation is not required, but it will not render a measure proportionate, i. e. it will not have justificatory force. Neither can the compensation principle be employed as an argumentative strategy to deny the existence of burdens, because neither life nor health can be metricated in any meaningful way (in contrast to property). All criteria taken together ensure that institutions do not take arbitrary, disproportionate, unreasonable, and degrading measures, i. e. they prevent encroachments on the essence of rights (and not the Schutzgut). This framework must be adopted to the applicable legal framework. It was already shown that criteria 2–4 can be applied independently of a specific right. If the Court, in its practice, detaches these elements from fundamental rights appraisal, then this is not objectionable. It actually increases the strength of law state elements, if rules regarding competence and necessity can be enforced without having to to rely on the violation of specific subjective rights, which is required in Germany, for example by § 42 II Verwaltungsgerichtsordnung [German Rules of Procedure for the Administrative Courts] (VwGO): To the extent it is not otherwise provided by law, an application is only admissible, if the applicant claims a violation of his [i. e. subjective] rights by the administrative act, its being denied, or its not being enacted.2115 2115

“Soweit gesetzlich nichts anderes bestimmt ist, ist die Klage nur zulässig, wenn der

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6.7

Conclusion

The purpose of this chapter has been to present and to justify the balancing conception of this study. In contrast to Principle Theory it is based on a satisficing ideal of decision making. This requires that the decision making process is broken down to simpler rules, which can be applied in a binary way. Therefore, this model understands fundamental rights as rules. It does not deny that principles exist, but it rejects the idea that they can be directly applied to a case. Finding rules based on principles does not work in the scheme of balancing but by having recourse to coherence, consistency and universalizability, i. e. striving for the formulation of universally applicable, operable rules that fit into the legal order and that serve as premisses in deductive reasoning. It acknowledges the limited cognitive capacities of human beings and thus only requires rough assessments. This model does not deny that value judgements are necessary to find and apply rules, it only claims that the judgements required by this model are far easier to manage and to justify than those required by Principle Theory.

Kläger geltend macht, durch den Verwaltungsakt oder seine Ablehnung oder Unterlassung in seinen Rechten verletzt zu sein.”, my translation, emphasis added.

352

General Summary The study aimed at analyzing the conditions for invalidating legislative Community acts on grounds of a violation of fundamental rights and the proportionality principle. How fundamental rights and proportionality are applied and how large the discretion for legislators is, depends on a conception of balancing. Therefore, the study effectively discussed balancing approaches of various courts, Principle Theory, and the minimal position approach. This discussion was based on some general requirements of legal reasoning, which were elaborated at the beginning of the study. And the analysis also covered the cognitive demands of these approaches. In light of the balancing conception that was elaborated in the course of this study, the case law of Court is acceptable in principle. Yet, some decisions can be criticized.

The Plan of this Study Revisited Chapter 1 Chapter 1 tried to clarify these issues: • Objectivity and rationality in legal reasoning are possible in principle. • Which conditions must be fulfilled for a decision to be rational, i. e. what are the ‘truth’ conditions for legal decisions? • Rightness depends on conformity with formal criteria and some substantial values. It presented the rule of law, democracy, and fundamental rights as a set of substantial values, reconstructed by means of discourse theory, however, not as a universal and final justification but as a reasonable explication of how these values must be understood in the EC . • It presented interpretation and the stare decisis doctrine as emanations of general rationality requirements. • Finally, it raised the question whether Principle Theory instantiated general rationality requirements.

Chapter 2 Before the suitability of Principle Theory was discussed from a theoretical stance, it had been discussed how constitutional courts from other jurisdictions apply proportionality and fundamental rights. It was found that the courts largely do not apply what constitutes Principle Theory—optimization and the Law of Balancing. In most of the recent cases, the last element of proportionality review exhibited a rule-based structure. These rules in turn are not found by optimizing fundamental rights (as principles) but by applying additional legal norms, like the tenet of legitimate expectations or equal treatment.

General Summary

Chapter 3 The findings from Chapter 2 were acknowledged by a discussion of the case law of the ECJ . The cases are governed by a thorough application of the legitimate basis test, followed by a suitability and necessity (least restrictive means) test. Additionally, the Court employed further standards, like requiring transitional periods or compensation. However, there are nevertheless cases where Principle Theory seems to provide an adequate rationalization of the Court’s reasoning: In the Deposit cases, minor violations of administrative obligations were sanctioned by the most severe penalty, the loss of the whole deposit. The Court directly compared the losses and gains for the interests at stake and accordingly decided that the loss of the whole deposit was evidently disproportionate. Yet it seemed doubtful whether this reasoning is completely congruent with Principle Theory and the Law of Balancing.

Chapter 4 While the previous two chapters described the courts’ way of reasoning, this chapter tried to explain why the courts largely refuse to apply Principle Theory, and why they nevertheless seem to stick to it in some cases. It did so by uncovering the assumptions of Principle Theory which concern the cognitive demands: It was found out that, counter to allegations of proponents of Principle Theory to the contrary, the Law of Balancing requires a cardinal scaling of all aspects involved. This requirement, however, cannot be fulfilled in constitutional law, which is not disputed among advocates and critics of Principle Theory. And this also explains why judges do not follow the approach of Principle Theory: They are simply not capable to fulfil the cognitive demands of this approach. However, this chapter did not stop at this assessment. It also provided an alternative vision of individual and adjudicative choice: This study borrowed from psychology the notion of satisficing as an alternative to optimization. It proved to provide a sound explanation of the reviewed decisions, even for those that seem to follow the optimization ideal: Optimization is applied where the cognitive demands are acceptable, i. e. where evident disproportionalities occur. This chapter did not aim at a normative justification or critique of either ideal. It only showed which cognitive requirements one must accept, if one is willing to follow either ideal. For Principle Theory it showed that one would have to manage highly demanding cognitive requirements, which were unlikely to be fulfilled (as the review of case law had shown). The satisficing ideal proved to be less demanding and easier to manage.

Chapter 5 While the previous chapter only told us what we would have to accept, given we wanted to follow a certain decision making ideal, this chapter discussed why 354

General Summary Principle Theory should be rejected from a normative perspective. Arguments from three groups were presented and discussed to show that Principle Theory is undesirable. Methodically, Principle Theory is not only difficult to manage from a general perspective (as the previous chapter has shown), it can also hardly fulfil the general rationality requirements of legal reasoning. From a separation of powers perspective, we noted that the optimization ideal, if consequently applied, would remove legislative discretion. Finally, it could be shown that it erodes the force of fundamental rights, because the optimization ideal structurally prevents the construction of definite limits.

Chapter 6 The last chapter picks up the trail of Chapter 4, where an alternative to the optimization ideal, and hence Principle Theory, was presented. Analogously to the previous chapter, it tries to justify a mode of justification that is based on the satisficing ideal and lexicographic reasoning. It shows that this way of reasoning is likely to fulfil the rationality conditions outlined in Chapter 1, to ensure legislative discretion, and to take fundamental rights seriously. It also dealt with possible objections against this approach and tried to refute them. Based on these findings the general approach of the Court is acceptable, although not all decisions are acceptable.

What Has Not Been Argued Due to the potentially large scope of this study, it seems also necessary to clarify what the study did not aim at and what was not intended to say: This study acknowledged that a set of basic values is necessary to arrive at a decision; formal criteria alone are not sufficient. However, the study did not aim at devising a theory of justice. It rather understands itself as a tool that can be used once a set of values has been found and has been correctly interpreted. As such it is a necessary element of a theory of justice: As much as a method of reasoning alone is inconclusive, so must be basic values if they are not accompanied by a sound method that tells how these values should be applied, reconciled, etc. As far as necessary for carrying out the study, I assumed a very basic set of values with an interpretation that seems to fit the EC . Therefore, this method is only convincing in so far as these basic values are accepted. This is certainly a limitation, but one that is, I believe, acceptable for a study that tries to explain and criticize the case law of the ECJ . Although the one right answer thesis was stressed, as well as the circumstance that the balancing conception of this study fulfils the rationality requirements outlined above, it is not claimed that the results obtained by applying this method are infallible. It was also emphasized that legal reasoning requires non-deductive value judgements, whose ‘truth’ cannot be easily determined. By 355

General Summary proposing a rule-based balancing model it only aimed at reducing and managing complexity—not at removing it. Principle Theory was thus not criticized because it requires non-deductive value judgements, but because it requires a way of reasoning that makes it impossible to reduce and manage complexity by the modest means of legal reasoning, i. e. syllogism, universalizability, coherence, and consistency. Finally, this study did not aim at providing an account of rational behaviour in general. It was only argued that judges are constrained by the requirements of legal reasoning and the existence of a legal framework. In other words, their rationality is bounded. Any theory of legal reasoning, must accept this circumstance, if it does not want to require the impossible from judges. Combined with the previous point this means: Reasoning according to a rule-based model of legal reasoning is difficult but possible, while it is impossible for judges to follow the Law of Balancing in most cases.

A Summary of Concrete Results—in Theses The numbering of items corresponds to the numbering of section headings and thus deviates from the scheme used in the rest of this study. Where necessary, page ranges are given.

Chapter 1 1. The purpose of this study is to develop a form of legal reasoning. It is assumed that moral and legal reasoning can principally be distinguished. 2. It is possible to distinguish between legal reasoning in routine cases and in problem cases. These groups of cases can be distinguished by increased efforts for the justification of the used premisses. The distinction is not clear-cut but pragmatic, no universal rules can be applied on this distinction. Nevertheless, it is feasible to cling to this distinction because the objectivity of legal reasoning can be criticized for problem cases only or for clear cases and problem cases. 3. Legal justification always has a formal and a material aspect. The formal one consists in a deduction from given premisses, while material justification aims at the justification of the premisses. This form of reasoning is always non-deductive. (13–15) The problems with non-deductive reasoning are threefold: When is it necessary? Where does it start from? And how can the outcome be determined? The thesis of this study is that all these questions can be given a rational, but not infallible, answer. (15–16) 4. Scepticism challenges the rationality of legal reasoning. However, all forms of scepticism have proven themselves contradictory and, hence, unconvincing: 1. The rationality of interpretation cannot be denied because it requires a denial of the objectivity of language in general, which is impossible because otherwise the sceptic claim could not even be uttered. 2. The Realist claim, according to which no judgement is governed by rules, is also unconvincing because a Realist judge must at least assume one rule, namely that any judgment shall be correct.

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General Summary 3. General moral scepticism is unconvincing from a legal perspective because judges have to decide cases authoritatively. At least in the legal sphere, they cannot escape the requirement of justification. 4. The one right answer thesis thus implied need not lead into a government of judges, if the one right answer concerns the existence and demarcation of mere limits to legislative power. 5. The answer to scepticism consists in showing that judgment can be grounded on some substantial values and formal principles. Examples are Dworkin’s conception of integrity and German evaluation jurisprudence ( Wertungsjurisprudenz). 6. The following formal principles could be identified: coherence, consistency, universalizability, and defeasibility: 1. Coherence can be defined as a requirement to “make sense as a whole”. It requires more than the mere absence of contradictions and is a matter of degree. Moreover, it must be understood as a formal criterion. 2. Consistency is defined as the absence of contradictions. Both, coherence and consistency, can be applied to the legal system as a whole, a subsystem, or a single judgment. 3. Universalizability requires that legal reasoning shall aim at the application and/or finding of norms that are formulated without regard to special persons or singular situations. It is also a formal criterion. According to this criterion, it is also required that norms shall only employ operable criteria. This criterion is instrumental insofar as it cannot alone guarantee the correctness of a judgment. However, by applying it it can be assessed whether a judgment is based on a rational norm. 4. Legal reasoning is moreover dynamic and legal norms are defeasible, i. e. it might turn out at a later time that they were wrong, e. g. due to a change in the legal system. Changes thus required, however, must in turn fulfil the criteria of universalizability, coherence, and consistency. 7. Legal reasoning is not only determined by formal principles but also by substantive standards. Having recourse to discourse theory it could be shown that fundamental rights and democracy are indispensable standards of legal reasoning. Although these findings were made by recourse to moral reasoning, it is not argued that legal reasoning is a special case of moral or practical reasoning, because the operation of the arguments can depend on their context (either legal or moral). 8. Interpretation instantiates these requirements. Especially coherence and consistency are implemented by checking whether a decision conforms with written norms. Such a test requires the norms’ being interpreted. Moreover, interpretation must in itself obey the tenets of coherence and consistency, which is mainly ensured by systematic (contextual) interpretation and under certain circumstances teleological interpretation. 9. Moreover, the consideration of precedents follows from the tenets of legal reasoning just described. By sticking to precedents, courts fulfil the tenets of coherence, consistency, and universalizability. Fulfilling these requirements is in turn a requirement of the law state, according to which equal things have to be treated equally. Of course, this does not imply a blind adherence to precedents. From the principle of equal treatment follows that only equal cases have to be treated equally. This opens up the possibility of distinguishing. Moreover, the precedents can be proven to be wrongly decided (overruling). Thus precedents distribute the burden of demonstration: A departure from precedents is always

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General Summary possible, but who is willing to depart from a precedent must give a justification, while sticking to a precedent requires no justification. Thus, it can be said that precedents exhibit a presumptively binding force. 10. The principle of proportionality seems to exceed the model of syllogistic reasoning. Two approaches are conceivable. 1. The approach of Principle Theory, the Law of Balancing, can be understood as a form of non-deductive reasoning. ‘Balancing’ can have two meanings: It can denote non-deductive reasoning in general, or it can refer to a very special form of it, which is expressed by the Law of Balancing. (69–70) Principle Theory is based on interpreting fundamental rights as principles, i. e. as optimization commands, which only express prima facie commands. They require their reconciliation in case of ‘conflicts’. This and the Law of Balancing are concisely expressed by the Weight Formula: Wi,j = Ii · Wi · Ri /(Ij · Wj · Rj ) Legislative discretion is, according to this approach, sufficiently considered, its reconstruction is complex, though (70–76). 2. According to the framework model of rights, fundamental rights are understood as limited standards (‘minimal positions’) for the exercise of legislative (and executive) power. Because of their limited nature, they do not conflict and do not require optimization. Discretion is simply described as the ‘space’ that lies between the limits erected by fundamental rights.

Chapter 2 1. The case law analysis was guided by the following questions: Which standards of review have evolved? What is the rigour of review? Which criteria govern the choice of a standard or determine the rigour of review? Do the courts rather follow Principle Theory or do they apply a minimal position test? Standard of Review The ECtHR and the GFCC both apply the proportionality principle, including a legitimate aim test. The US Supreme Court does not apply the last element of the proportionality principle and even the first elements are not always applied. Rigour of Review The ECtHR discusses the rigour of review under the label ‘margin of appreciation’. Its width depends on the complexity of the matter; the legitimacy of the institution; and the existence of international standards. The GFCC also applies these criteria, except for the last one. This set of criteria effects that the review of legislation in the socio-economic field is rather lenient, compared to, for example, freedom of speech cases. However, the European courts apply all proportionality requirements, while the US Supreme Court confines itself to applying the legitimate aim test and the suitability criterion. Moreover, they are more strictly applied, especially regarding the burden of proof. The last element of proportionality review is an additional restraint on legislators. Principle Theory/Minimal Position The margin of appreciation doctrine of the ECtHR is incompatible with Principle Theory because review is not aimed at finding the optimal balance between two rights but to find out whether states have ‘overstepped’ their margin of appreciation. To determine whether the margin was observed the ECtHR focuses on

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General Summary the interferences and does not compare them with the importance of the pursued aim. The same applies to the GFCC , at least nowadays. Although earlier judgments and the programmatic statements of recent judgments seem to support Principle Theory, the actual application does not do so, especially in cases concerning socio-economic legislation. Even in the formerly paradigmatic groups of balancing cases, namely those concerning freedom of speech, the GFCC refrains from a juxtaposition of aims and interferences, which is required by Principle Theory. The method of the US Supreme Court obstructs the application of Principle Theory because it is a method that applies to the last step of the proportionality principle, which is regularly omitted by the US Supreme Court. Instead of comparing aims, the European courts ensure a minimal standard of protection. Standards are derived, among others, from principles of legitimate expectations and equal treatment. Thus it can be said that courts balance. But they do not compare interferences with competing aims but with a minimal standard.

Chapter 3 Under EC -law, the proportionality principle comprises these steps: 1. Although it is not a formal part of it, the legitimate aim test must be considered in connexion with the proportionality test, because suitability and necessity cannot be assessed without relating means to ends. The legitimacy of the aims can be assessed under three labels: 1. The legal basis test is particularly important and effective. It comprises three steps: Is the pursued aim principally admissible? Does a problem really exist? Does the measure really aim at its removal? The test thus overlaps with suitability. Its force is limited because legislators enjoy large discretion in setting their aims and because goals that are not covered by the legal basis may be pursued along with the admissible one. 2. Fundamental rights do not pose effective limits to goal setting, at least with regard to the socio-economic field (which is of particular interest to this study). 3. Neither can international treaties limit the set of admissible aims because the most important treaties in this context, the WTO agreements, are largely without direct effect. 2. Suitability is also applied outside the legal basis test. For the test to be fulfilled, it suffices that means are likely to contribute to the achievement of the aim. 3. Necessity is identical to the least restrictive means test: A measure only fails to meet this criterion if it is established that there are clearly less onerous measures that are equally effective regarding all pursued goals. The critique against the application of this element is largely incorrect, except where the Court completely fails to apply the test. This is a clear violation of art. 220 TEC ; however, it happens only rarely. 4. Proportionality in the narrow sense is usually shifted to fundamental rights appraisal. It must be strictly distinguished from necessity.

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General Summary 1. There are two programmatic definitions of the standards: The first standard resembles the Weight Formula, because it requires a relation being established between the importance of the pursued aims and the interferences. The second standard differs fundamentally because it only considers the severity of the interference. Both standards only pay limited regard to individual burdens. 2. In their actual application, the standards do not differ, because both are reduced to a manifest error test. An error is only found if the bounds of discretion are clearly overstepped. (176–179) An application of a variant of the Weight Formula can only be found in a single specific group of cases, the deposit cases. (179–180) Usually, the Court only focuses on the interference, whose severity is determined by a comprehensive list of criteria. (180–181) 3. The Court’s case law corresponds to the case law of the ECtHR and the GFCC . The courts only rarely, if at all, apply the Weight Formula. 5. Treatment of Facts: 1. The Court and the CFI both distinguish between facts and value judgements. The same is true for the AG and the literature. There is moreover consensus that review covers the correct assessment of facts by the institutions. The problem, however, is that usually complex facts are at issue where the dividing line between facts and their interpretation/evaluation is difficult to draw. 2. Although the Court is allowed to find evidence on its own incentive and although the parties usually have a duty to co-operate during the proceedings, there must be a burden of proof (burden of persuasion) if evidence remains—after all efforts—inclusive. (186–188) (a) The burden of proving that illegitimate aims were pursued rests on the party that challenges the Community act. Either proving is not an insurmountable hurdle or it does not play a role because it may suffice to establish that the ‘purported’ aims and the ‘actually’ pursued aims both fall under the scope of the legal basis. (b) The suitability of a measure must be positively established and proved by the party that alleges its validity. (c) Missing necessity must be proved by the party that alleges it. (d) Regarding proportionality in the narrow sense, the burden is borne by the party that alleges disproportionality. 3. The Treaty and the Court do not have a uniform approach to the treatment of uncertainty. The precautionary principle provides some guidance in environmental law and health protection issues. (191–193) But it does not force legislators to act. Legal requirements for nonlegislative acts may be stricter. In social policy, the institutions are not bound by evidence at all. (193–194) The breadth of discretion depends on the policy area. (194–196) 6. The standard of protection corresponds well to the standards of the ECtHR and GFCC . The dogmatic structures differ and elements of proportionality are assessed in different contexts but this does not have an impact on the standard of protection.

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Chapter 4 1. Taking the SEU calculus, the following could be illustrated: 1. Once optimization (maximization) is required and a decision is based on more than one variable, these variables must combined (integrated). 2. Goods can be scaled in various ways. Two broad categories can be distinguished: A scale can allow for computations (cardinal scale) or it does not do so (nominal, lexicographic, and ordinal scales). 3. If variables must be combined (integrated), then cardinal scales must be used, i. e. a scale that allows for the assertion “good a is x times better than good b”, where x is any number. 2. Based on what was learnt from the SEU calculus, similar findings were made regarding the Weight Formula, because it also requires optimization: 1. The Weight Formula requires cardinal scales because otherwise the necessary integration could not be performed, nor could the exponential growth of weights and interferences could be described. 2. At least in constitutional law, it is doubted that cardinal scaling can be rationally performed. This view is shared by balancing enthusiasts as well as critics. 3. Five attempts at interpreting the Law of Balancing such that cardinal scaling could be avoided were made. But none was compatible with it. The Weight Formula thus constitutes the correct formal description of the Law of Balancing. 3. Presenting an alternative vision of individual choice: 1. The descriptive account of balancing is relevant from a legal perspective because any methodical conception must be workable, the impossible may not be demanded. Even if the application of the Weight Formula were ‘only’ difficult, instead of impossible, it would nevertheless be likely to threaten legal certainty. Finally, the Weight Formula apparently does not capture the Court’s balancing conception. Therefore, it must be justified why a difficult, if not impossible, to apply approach should be employed instead of the Court’s current approach. 2. The alternative to optimization and the Weight Formula mainly consists in dropping the optimization ideal. This in turn allows to give up integration and, hence, cardinal scaling. Such an approach is called ‘satisficing’. 3. The priority heuristic was presented as a ‘satisficing’ algorithm. It works with simple comparisons; more than one criterion can be considered, but only one criterion at a time is considered; and it suffices to achieve an aspiration level, i. e. it is not required that the optimum be achieved. 4. Transposing individual decision theory to legal reasoning: 1. The proportionality principle could be reconstructed as a lexicographical algorithm: Its sub-principles are considered one at a time and only one sub-principle is decisive, i. e. the non-fulfilment of one principle cannot be compensated by the fulfilment of another one. All of its subprinciples can be applied with ordinal scales only, even the last step. Only sometimes, proportionality in the narrow sense requires direct comparisons of gains and interferences. However, this is only the case, if the assessments can be made on a rough scale.

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General Summary 2. This rationalization leaves enough room, and indeed requires, nondeductive value judgements. But it gives them a stable deductive framework and thus makes them transparent and manageable. Yet it does not render them trivial.

Chapter 5 Objections against Principle Theory do not only arise from decision theory but also from a theory of law and legal reasoning: 1. Principle Theory is methodically objectionable because it drops the principle of universalizability (248–249). It moreover cannot establish how cardinal scales could be managed in a system of legal reasoning. (252) Moreover, Principle Theory is likely to erode dogmatic structures, because it considers principles that maintain these structures at the same cognitive step as substantial standards. Therefore, so-called formal principles have to compete with substantial standards which effects the former being devalued. (254) 2. Principle Theory is likely to eliminate legislative discretion. 1. Separation of powers considerations have the same justificatory force in EC -law as in national law. The democratic deficit alone does not warrant a fundamental change of these considerations. 2. At least prima-facie, optimization implies the strive for the best solution. Hence, legislative discretion requires extra justification. But all approaches fail: (a) Discretion cannot be ensured by incorporating it as a formal principle, because this does not exclude that it can yield completely and because the formal principle of observing the substantive constraints of the constitution must be considered, too. (b) Neither can optimization be redefined as a negative criterion, because this implies that the strive for the optimum is abandoned. (c) Neither can stalemate situations create so-called structural discretion because it is very unlikely that they can occur under a ‘principle’ interpretation of rights and how it can be determined whether weights are equal. At best such situations can create normative epistemic discretion, which is tantamount to acknowledging the bankruptcy of legal reasoning. (d) Neither can discretion be reconstructed through the distinction between directives (Handlungsnorm) and review standards (Kontrollnorm). If optimization were only regarded as a directive, it would cease to be a legally relevant standard. (e) The impact on the separation of powers cannot be justified. Even if a democratic deficit is taken into account, the potentially complete substitution of legislative assessments with those of the Court will not remove the democratic deficit but increase it. 3. Neither does the democratic deficit warrant a change of the Court’s general approach to the assessment of facts. However, some individual judgments should not be regarded as binding precedent. 3. Principle Theory should moreover be rejected because of its questionable conception of fundamental rights:

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General Summary 1. The analytical distinction between rules and principles, which is the heart of Principle Theory, is not convincing: (a) Principle Theory assumes that principles can collide. This is questionable, though, because they do not have any definite content. (b) The distinction between rules and principles is not as clear-cut as proponents of Principle Theory purport it to be. (c) Principle Theory is unable to reconstruct definite limits to fundamental rights without entangling itself in severe self-contradictions. (d) The strict rule/principle distinction implies a correspondingly strict subsumption/balancing distinction, which is an unwarranted break with legal theory. (e) The classification of norms as rules or principles is an interpretative one. Principle Theory obfuscates this. 2. Principle Theory’s understanding of rights is questionable, even if it is conceded that rights could sometimes be understood as principles (i. e. optimization commands): (a) Principle Theory states that the force of a right depends on the force of the competing right. (b) Like Utilitarianism, Principle Theory ignores that a right may yield completely. (284) Thus, Principle Theory cannot comply with the essence requirement. (284–285, 286) (c) Principle Theory cannot be criticized for its justifying the consideration of positive obligations. On the contrary, any theory of fundamental rights must be able to reconstruct the operation of positive obligations.

Chapter 6 1. Developing an approach to balancing must start from methodical considerations. This is not trivial because there are approaches that depart from separation of powers considerations or norm theoretic assumptions. The methodical approach must be separated from substantial questions: The former is concerned with how reasons are operated, while the latter chiefly relate to what should be balanced at all and which importance should be assigned. The methodical approach depends on these aspects but is not identical to them. 2. While Principle Theory is founded on the optimization ideal, this approach follows the satisficing ideal. This ideal fits the case law of the courts: Courts usually only check whether a certain limit (“margin of appreciation”, “margin of discretion”) is overstepped. Congruence with case law alone does not suffice. To be fully justified, two conditions must be fulfilled. 3. From the point of view of legal reasoning, it must be possible to fulfil the objectivity standards of legal reasoning. 1. Because the standard works with nominal scales, mere comparisons, and a lexicographic processing of reasons, its cognitive demands are moderate. The lexicographic processing of reasons implies a rule based structure, which is particularly congruent with the syllogistic model of legal reasoning and thus with the related core tenets.

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General Summary 2. It can moreover be shown that optimization is not the sole possible justification for proportionality (302–304) and that the last step in particular can be applied without balancing in the Principle Theory fashion, even where the manifest error test is applied (309–310). 4. Following the satisficing ideal, it is moreover possible to fulfil the relevant constitutional requirements: 1. The satisficing ideal respects the separation of powers not only by granting discretion for the assessment of facts and the balancing of interests but also by allowing policy makers to choose between a set of permissible goals without forcing a certain preference between one of the goals. 2. Following the satisficing ideal, it is possible to ensure an adequate standard of protection: (a) Employing the satisficing ideal, it is possible to model the application of positive obligations under normal and extreme situations (so-called tragedies). Rationalized in light of the satisficing ideal, positive obligations do not lead to a legalization of politics. (b) The model can neither be challenged because it does not ensure effective protection of rights. Such critique is unconvincing because it usually understands ‘rights’ as negative rights. The critique becomes meaningless, if positive and negative obligations are treated equally. (c) Finally, the satisficing ideal conforms with the requirement that the essence of rights not be impaired. 5. Possible objections against this model could also be refuted: 1. Focusing on the justification step does not lead to a uniformity that might loosen the standard of protection. 2. Neither can it be said that the requirement of universalizability, which received so much emphasis in the course of the study, renders this conception effectively consequentialist and thus subject to the same objections as Principle Theory. 3. Finally, this conception does not endorse a shallow case law positivism: Theoretically, it only assumes a presumptively binding force of precedents. Effectively, it criticized some judgments and provided a (normative) justification for all others. This justification was based on a certain conception of fundamental rights, separation of powers considerations, and methodical requirements.

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Translations German Tobacco Case Numbers in the leftmost column refer to the page number of the reports of the BVerfG. 183

a) Eingriffe in die Freiheit der Berufsausübung bedürfen gemäß Art. 12 Abs. 1 Satz 2 GG einer gesetzlichen Grundlage, die den Anforderungen der Verfassung an grundrechtsbeschränkende Gesetze genügt. Die gesetzlichen Grundlagen sind dann mit Art. 12 Abs. 1 GG vereinbar, wenn sie durch ausreichende Gründe des Gemeinwohls gerechtfertigt werden und wenn sie dem Grundsatz der Verhältnismäßigkeit entsprechen, wenn also das gewählte Mittel zur Erreichung des verfolgten Zwecks geeignet und auch erforderlich ist und wenn bei einer Gesamtabwägung zwischen der Schwere des Eingriffs und dem Gewicht der ihn rechtfertigenden Gründe die Grenze der Zumutbarkeit noch gewahrt ist (vgl. BVerfGE 76, 196 ; 85, 248 ; GRUR 1996, S. 899 ).

184

b) Diese Voraussetzungen sind hier erfüllt. b) These requirements are fulfilled in this case. Die Tabak-Kennzeichnungsverordnung be- Regarding the warnings the Tobacco Ladient sich bei ihren Warnhinweisen auch belling Regulation exerts official authorder Autorität des Staates und beansprucht ity and claims a special, legally conveyed damit ein besonderes, rechtlich vermittel- responsibility. tes Vertrauen.

184

a) According to art. 12 § 1 GG, the interferences in the freedom to exercise an occupation require a statutory basis that complies with the standards that the constitution sets for laws that interfere in fundamental rights. The statutory bases comply with art. 12 § 1 GG, if they are justified by sufficient objectives of the common good and if they conform to the principle of proportionality, i. e. if the means employed are suitable and necessary for the attainment of the pursued goal and if in a global balancing between the intensity of the interference and the weight of the justifying reasons the limit of appropriateness (Zumutbarkeit) is observed [omitting the references]

184

Diese Wahrnehmung von Hoheitsrechten This exercise of official powers is conist freilich verfassungsrechtlich unbedenk- stitutionally reassured, because the conlich, weil der Inhalt tents

184

der Warnung mit den naturwissenschaftlichen Erkenntnissen übereinstimmt, die Warnung vor Gesundheitsgefahren in den Bereich der Hoheitsaufgaben gehört und die Maßnahme den Anforderungen der Berufsausübungsfreiheit genügt.

of the warning conforms to scientific knowledge, the warning of health risks belongs to the range of official objectives and the measure complies with the requirements of the freedom to exercise an occupation.

184

Gesetzliche Grundlage der Verordnung ist § 21 Abs. 1 Nr. 1 LMBG, Geltungsgrund der konkret formulierten Pflichten die Tabak-Kennzeichnungsverordnung.

Statutory base for the regulation is § 31 para. 1 no. 1 LMBG [Lebensmittel und Bedarfsgegenständegesetz], the concrete obligations are founded on the Tobacco Labelling Regulation.

Translations aa) Die Warnhinweise dienen dem Schutz der Verbraucher vor den Gesundheitsgefahren des Rauchens. Es ist allgemein anerkannt, daß das Rauchen gesundheitsschädlich ist (vgl. BGH, NJW 1994, S. 730 ). Unter Rauchern und Nichtrauchern gibt es kaum jemanden, dem diese Gefahren gänzlich unbekannt wären (BGH, a.a.O.). Das Rauchen tötet mehr Menschen als Verkehrsunfälle, Aids, Alkohol, illegale Drogen, Morde und Selbstmorde zusammen (vgl. [ . . . ]). 184 Zigarettenrauchen ist in den Industrieländern die häufigste und wissenschaftlich am deutlichsten belegte Einzelursache für den Krebstod (vgl.[ . . . ]). 184–5 Im Ergebnis ist nach heutigem medizinischen Kenntnisstand gesichert, daß Rauchen Krebs sowie Herz- und Gefäßkrankheiten verursacht, damit zu tödlichen Krankheiten führt und auch die Gesundheit der nicht rauchenden Mitmenschen gefährdet (vgl. [ . . . ]). 185 bb) Die Warnung vor diesen Gesundheitsgefahren gehört zu den legitimen Aufgaben des Staates. Staatliche Gesundheitspolitik darf jedenfalls vor medizinisch erwiesenen und schweren Gefahren des Rauchens warnen und dem Konsumenten bewußt machen, daß aktives Rauchen den Raucher, passives Rauchen auch andere schädigt. Die lediglich sprachliche Form dieser Warnhinweise legt dem Adressaten nahe, seine Kaufentscheidung im Hinblick auf die Gesundheitsgefahren nochmals zu überdenken. Diese staatliche Aufklärung dient daher dem Schutz der Bevölkerung vor Gesundheitsgefahren.

184

185

cc) Der Gesetzgeber durfte auch von der Eignung der Maßnahme zum Schutz der Volksgesundheit ausgehen. Die Beurteilung dieser Eignung unterliegt grundsätzlich seiner Einschätzung (vgl. BVerfGE 25, 1 ; 30, 292 ). Zwar nimmt gegenwärtig der Zigarettenkonsum trotz der allgemeinen Warnhinweise zu. Im Jahre 1994 stieg der Konsum in Deutschland um rd. 3 v.H. auf 131,1 Mrd Zigaretten (vgl. [ . . . ]).

380

aa) The warnings are employed for the protection of consumers from the health risks of smoking. It is generally acknowledged that smoking is detrimental to health [omitting references]. Among smokers and non-smokers there is hardly anyone to whom these dangers are unknown [omitting references]. Smoking kills more people than car accidents, aids, alcohol, illegal drugs, murders and suicides together . . . . Smoking cigarettes is the most frequent and scientifically best proved single cause for cancerous death in industrial nations .... According to current medical expertise it is confirmed that smoking causes cancer as well as heart and vescular diseases and thus entails lethal diseases and also endangers the health of non-smoking fellows . . . . bb) A warning of these health risks belongs to the legitimate objectives of the state. Official health policy may at least warn of the medically proven and severe risks of smoking and make the consumer aware of the fact that active smoking harms the smoker and that passive smoking harms others. The merely lingual form of these warning suggests to the addressee to reconsider in light of the health risks the decision to buy. Hence, this official form of information serves the goal of protection of the public from health risks. cc) The legislator was allowed to assume the suitability of the measures for the protection of public health. The assessment of this suitability principally falls under its discretion . . . . Indeed, the consumption of cigarettes increases despite the warnings. In 1994 the consumption in Germany increased by approximately 3 % to 131.1 billion cigarettes . . . .

Translations 185

Doch ist jedenfalls die gesetzliche Einschätzung, daß mit Warnhinweisen eine noch größere Ausweitung des Tabakkonsums verhindert werden könne, verfassungsrechtlich nicht zu beanstanden. Die Warnungen sind geeignet, den Verbraucher zumindest von einem bedenkenlosen Konsum von Tabak abzuhalten.

But at least the assessment that warnings could prevent even larger increases in tobacco consumption cannot be constitutionally questioned. The warnings are suited to prevent the consumer at least from a reckless consumption of tobacco.

185–6

Auch die konkrete Ausgestaltung der Warnhinweise genügt den Anforderungen der Geeignetheit. Die Aussage über die Kausalität des Rauchens bei der Verursachung von Krebs, anderen Krankheiten und der Gesundheitsgefährdung Dritter steht mit den Ergebnissen naturwissenschaftlicher Forschung im Einklang. Sie besagt nicht, daß das Rauchen die alleinige Ursache sei, bringt andererseits auch nicht zum Ausdruck, daß ein Nichtraucher gegen jedes Krebs- und sonstiges Krankheitsrisiko gesichert sei. Vielmehr verweisen die Warnhinweise nach allgemeinem Sprachverständnis des Begriffs „Verursachen“ auf einen typischen und verallgemeinerungsfähigen Kausalzusammenhang von Rauchen und Gesundheitsschaden; sie machen bewußt, daß bei Verzicht auf das Rauchen ein wesentliches Gesundheitsrisiko entfällt.

Also the concrete implementation of the warnings satisfies the requirements of suitability. The assertion concerning the causal relation between smoking and cancer as well as other diseases and the health risks of others conforms to the results of scientific research. It does not say that smoking is the sole cause, on the other hand it does not express that non-smokers are protected from any risk of cancer or other diseases. Rather the warnings refer, according to common understanding of the notion ‘causing’, to a typical and generalizable causal relation between smoking and harms to health. They make aware of the fact that a major health risk vanishes by stopping smoking.

186

dd) Die Warnung ist auch erforderlich. Eine schonendere Möglichkeit zum Schutz gegen die vom Rauchen ausgehenden Gefahren ist weder dargetan noch ersichtlich. Sie ergibt sich insbesondere nicht aus den Regelungen der Gefahrstoffverordnung. Die Kennzeichnungspflicht für krebserzeugende Stoffe und Zubereitungen nach der Gefahrstoffverordnung [ . . . ] schreibt in § 6 vor, mit welchen Angaben gefährliche Stoffe und Zubereitungen zu kennzeichnen sind. Danach sind krebserzeugende Stoffe im Sinne der Verordnung mit dem Gefahrensymbol des Totenkopfs mit gekreuzten Gebeinen und der Gefahrenbezeichnung „giftig“ (Gefahrensymbol und Gefahrenkennzeichnung T, Anhang I Nr. 2), dem Hinweis auf besondere Gefahren „Kann Krebs erzeugen“

dd) The warning is also necessary. A less burdensome opportunity for the protection from the health risk is neither asserted nor discernible. In particular it does not result form the Regulation about Dangerous Substances (Gefahrstoffverordnung). The labelling obligation for cancerous substances and compositions form the Dangerous Substances Regulation . . . indeed prescribes in § 6 which which information dangerous substances have to be labelled. Accordingly, cancerous substances in the sense of the Regulation have to be labelled symbol of the skull with crossed bones and the description “poisonous” . . . , the warnings of special dangers “can cause cancer”

381

Translations oder „Kann Krebs erzeugen beim Einatmen“ (R-Sätze 45 und 49, Anhang I Nr. 3) sowie mit entsprechenden Sicherheitshinweisen, z.B. „Unter Verschluß aufbewahren“, „Darf nicht in die Hände von Kindern gelangen“ oder „Nur in gut gelüfteten Bereichen verwenden“ (S-Sätze 1, 2 und 51, Anhang I Nr. 4), zu kennzeichnen. Über diese Kennzeichnungspflicht nach § 6 hinaus stellt die Gefahrstoffverordnung in § 13 zusätzliche Anforderungen an die Kennzeichnung und Verpackung von Stoffen und Zubereitungen, die für jedermann erhältlich sind. 186 Diese Bestimmungen zur Kennzeichnung und Verpackung von krebserzeugenden Stoffen oder Zubereitungen gehen in Ausmaß und Deutlichkeit der Warn- und Schutzmaßnahmen über die Kennzeichnungspflicht des § 3 TabKTHmV hinaus. Zudem handelt es sich bei Tabakerzeugnissen um Genußmittel, bei deren bestimmungsgemäßer Verwendung Gesundheitsschäden regelmäßig auftreten. Vertrieb und Werbung sind daher - ebenso wie das Verhalten der Verbraucher - nach anderen Maßstäben zu beurteilen. 186–7 Im übrigen käme als Maßnahme, die neben der staatlichen Gesundheitsaufklärung - anstelle der Warnhinweise geeignet wäre, den bedenkenlosen Tabakkonsum einzudämmen, vor allem ein Werbeverbot in Betracht. Auch Auflagen für den Vertrieb wären zu erwägen (z.B. Verbot des Automatenvertriebs und des Verkaufs an Jugendliche). Gegenüber diesen Alternativen erscheint die angegriffene Regelung als das mildere Mittel (vgl. hierzu die Empfehlung des Bundesrats für zusätzliche Beschränkungen der Werbung für Tabak und Tabakerzeugnisse und den ausdrücklichen Widerspruch des Wirtschaftsausschusses hiergegen, BRDrucks 87/2/88).

186

382

or ‘can cause cancer in case of inhalation’ . . . and with corresponding safety notices, for example “store closed”, “must not get within reach of kids” or ’only use in well ventilated areas’ . . . . In addition to this labelling obligation according to § 6 the Dangerous Substances Regulation stipulates further requirements for the labelling and packaging of those substances and compositions that are available to anybody.

These provisions for the labelling and packaging of cancerous substances or compositions go beyond the labelling obligation of § 3 of the Tobacco Regulation, regarding the extent and the sharpness of the warnings. Moreover, tobacco products are Genußmittel at whose proper use harms to health typically occur. Distribution and advertisement, as well the behaviour of consumers, therefore have to be judged by different criteria. By the way, as a measure that—along with official health information—could be suitable for the reduction of tobacco consumption one could think of an advertisement ban. Also conditions for the distribution (for example, a ban on slot machine distribution and sale to juveniles). Compared with these alternatives the challenged measure appears to be the less onerous one . . . .

Translations 187

ee) Die Pflicht zur Anbringung von Warnhinweisen berührt offensichtlich auch nicht die Grenze des Zumutbaren. Der Eingriff in die Berufsausübung erlaubt weiterhin die werbende erwerbswirtschaftliche Tätigkeit der Tabakindustrie und überbringt dem Konsumenten lediglich eine medizinische Wissensgrundlage für seine Kaufentscheidung. Das gewählte Beschränkungsmittel - die bloße sprachliche Einwirkung durch Warnhinweise - ist eine Handlungsform, die den Gütertausch durch Angebot und Nachfrage unberührt läßt und dem Nachfrager lediglich einen Erwägungsgrund bewußt macht, der nach gegenwärtigem medizinischen Erkenntnisstand allgemein bewußt sein sollte.

ee) The obligation to label [the packages] with warnings obviously does not reach the border of appropriateness. The interference in the exercise of occupation still allows the advertising and operation side occupation of the tobacco industry and merely supplies the consumer with a knowledge base for his decision to buy. The chosen measure—the merely lingual interference through warnings—is a policy option that does not affect the exchange of goods through demand and supply and that simply makes the demander aware of a consideration that, according to current medical knowledge, anyone should be aware of.

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ff) Auch die Indienstnahme privater Organisations- und Finanzkraft für die staatliche Aufgabe der Gesundheitspolitik ist mit Art. 12 Abs. 1 GG vereinbar (vgl. BVerfGE 68, 155 ). Die Pflicht zum Aufdruck der Warnhinweise rechtfertigt sich aus der besonderen Sach- und Verantwortungsnähe der Hersteller und Händler von Tabakerzeugnissen zu der Aufgabe des Schutzes vor Gefährdungen durch einen Tabakkonsum, den diese Unternehmen veranlassen.

ff) Also the claiming of private organizational and financial resources for the official duty of health policy conforms to art. 12 § 1 GG . . . . The obligation to label with warnings is justified by the special responsibility that producers of and traders in tobacco products have for the protection from the risks of a tobacco consumption that is initiated by these enterprises.

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Index abortion in Germany 141–2 in USA 150 abuse of power see misuse of powers aeroplanes downing of 327–8, 331–6 as a tragedy 327 aggregation of individual preferences 220–1 of variables in Weight Formula 211 aims discretion in choosing ˜ in EC-law 165–8 in ECHR-law 89–90 in German law 123 amalgamation of individual preferences see aggregation of rights/interests 285 of utility 205 appropriateness see suitability argumentation see justification aspiration level and legal reasoning see minimal positions, see satisficing determination of 233 function of 229 autonomy used as ‘dignity’, 320 and causation principle 313 and smoking 320–1 as a foundation of justice 50–1 defined as ‘respect’, 50

the Weight Formula 74 bounded rationality definition of 226 varieties of 227–8 burden of proof see also standard of proof definition of 186 distribution of 186–91 evidential burden definition of 186 persuasive burden definition of 186 cardinal scale and SEU 208–9 case law see also precendets, see also ratio decidendi inductive approach to 84–5 Certainty, Legal used as ‘legitimate expectations’, 311 as a minimal standard 111 certainty, legal as a minimal standard 311 clear and hard cases see routine and problem cases coherence and consistency 35 and integrity 36 definition of 35 compensation as a minimal standard 95–6, 177–8, 181, 313–14 justification of 313–14 conflict of principles see principles Consequentialism see Utilitarianism consistency and coherence 39 definition of 39 constitution as a foundation 77–9, 274 as a framework 19, 77–9, 274 under principle theory 263–4

balance of powers see discretion usedasseparation of powers, 131 and assessment of facts in EC-law 184–5 in Germany 131–3 in USA 150–1 and judicial review 144–5 balancing definition of 69–70 different meanings of see balancing, détournement de pouvoir see misuse of powers definition of decision theory Law of Balancing and psychology 226–7 definition 70 definition of 72 use of ˜ in legal reasoning 228–9

Index use of economic ˜ in legal reasoning, 201–2, 219–21 deconstruction see post-modernism deđuctivism see syllogism and coherence 36 and rationality 14–15 rationality 27–8 relationship to balancing 16, 69, 280 defeasibility and scepticism 27–8 as non-monotonous reasoning 28, 43 definition of 43, 44 through minimal standards 301 deference see discretion democratic deficit and judicial review 7, 258–61 definition 258 dignity see autonomy discourse ethics and objectivity of language 23 and universal values 48 final justification 52 final justification of 48 role of 47 transcenđental argument 49–50 discourse theory see discourse ethics discretion and optimization see Section 5.2.3(b) justification of in EC-law 6–7, 258–61 in US-law 148–9, see also judicial review normative epistemic ˜, 75–6, 261 structural ˜, 75, 264–5 distinguishing of precedents 64

development of 31 problems of 32 evidence see burden of proof, see facts facts used as ‘evidence’, 184 and subsumption 183 discretion, see balance of powers and assessment of facts in contrast to value judgements 16 their role in EC-law 184–5, 270–3 in ECHR-law 91, 99 in German law 131–3 in US-law 150–1 freedom of speech in ECHR-law 97–102 in German law 134–40 in US-law 152 insults in ECHR-law 101 in German law 138–40 fundamental rights and Drittwirkung see positive obligations as defensive rights 293 as directives/ review standards 144 as positive obligations 90 in ECHR-law 104–5, 112–14 in German law 140–2, 290–2 as protective rights 290–2 maximalist interpretation 293 minimalist interpretation 293 general in contrast to universal 41 goals see aims

equal treatment see universalizability as a minimal standard in German law 127 Handlungsnorm see fundamental rights, essence see proportionality, directive/reand minimal standards 341 view standard and Principle Theory 277–80 hardship in ECHR-law 111 as a minimal standard in German law 121, 338 in EC-law 173, 349 evaluation see value judgement in German law 128 is-ought-distinction 185 non-deductive see material justifica- heuristics in legal reasoning 236–9, see tion Section 6.3.2 of facts 184–5 in psychology 231–2 evaluation jurisprudence

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Index horizontal effect, see fundamental rights material 12 and Drittwirkung, see fundamental rights as protective Kaldor-Hicks optimum and social choice 220–1 rights definition of 182 Hume’s Law see is-ought-distinction Kontrollnorm see fundamental rights, impartiality see proportionality, directive/reand causation principle 313 view standard as a foundation of stare decisis 66 language-pragmatic, see transcendentalas an element of justice 50 pragmatic integrity language and coherence 36 and morality 48–9 critique of 36–7 objectivity of 18–9, 26–7 inter-subjectivity see objectivity law state as an objectivity condition 24 used as ‘rule of law’, 68 Interessenjurisprudenz see interest jurisand case law 68 prudence and post-modernism 257 interest jurisprudence and rationality 288 used as ‘Interessenjurisprudenz’, 31 and taking of property 314 development of 31–2 requirements of 341, 348 interpretation leeway see discretion and diversity of languages 58–9 legitimate expectations see certainty, lerole of ˜ in this study 61 gal is-ought-distinction and change of case law 64 used as ‘Hume’s Law’, 16 and tobacco producers 308 practical use of as a limitation-limitation 341 in EC-law 185 as a minimal standard 348 in ECHR-law 110 limitation-limitation judicial review list of 340–1 history of logic see deđuctivism, see rationality in Germany 118–20 Luftsicherheitsgesetz see aeroplanes, in USA 147–8 downing of justification of manifest error test in German law 118–20 in EC-law in US-law 157–9 judicial self-restraint 144, 259 explication of 176 jumps see transformations in ECHR justice explication of 95 role of ˜ in this study 45 in German law justice and legal reasoning see special case and necessity test 124 thesis and facts 131 justification and positive obligations 141 and suitability 126, 128 used as ‘argumentation’, 13 maximization deductive used as ‘formal ˜’, 13 of principles see optimization used as ‘internal ˜’, 13 metrication external see material, 15 in constitutional law 73, 219–21 formal ˜, see deductive ˜, see internal minimal standards in EC-law 180–1 ˜ in ECHR-law 111 in problem cases 12 in routine cases 12 justification of 310–6

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Index misuse of powers in EC-law see manifest error test explication of 176 moral norms 10 morals law and ˜, 45 necessity in EC-law 169–70 in ECHR-law 89 in German law 124 in US-law 150, 151 norms conflict of see principles, conflict of definite 70 rules and principles 70

in EC-law 67–9 presumptively binding 65 principles as a framework see constitution conflict of possibility of 77, 275 resolution of 71–2 probability Bayesian interpretation of 228 proportionality and balancing see Section 6.3.2 and Law of Balancing 72 directive/review standard 266–7 proportionality in the narrow sense in EC-law 181–2 in German law 128–30 in US-law 154–6 psychology see decision theory

objectives see aims objectivity definition of 23–4 ratio decidendi one right answer thesis definition of 62 and judicial activism 28–9 rational relationship 150, see suitability open texture 11, 30 rationality see bounded rationality and special case thesis 55 instrumental ˜, 204, see also subjecoptimization tive expected utility of fundamental rights, see normative 23–5 Section 4.2.1 according to Principle Theory 72– reason and justification of discourse ethics 5 53 critique against 287–8 Rechtsstaat see law state in ECHR-law 100, 112 right to choose an occupation in German law 128–9 in German law see of principles 70–1 Section 2.3.2(a) used as ‘maximization’, 71 right to choose and occupation requirements of 73–5 in EC-law see overruling Section 3.4 of precedents 68 right to property see also compensation Pareto principle in EC-law see and necessity test 303 Section 3.4 definition of 182 in ECHR-law see parochial concepts see thick concepts Section 2.2.2(a) post-modernism 25–8 rights see also fundamental rights and discretion 256–7 interest and will theories 321–2 and judicial review, see post-modern- risk assessment 185 ism and judicial review routine and problem cases see justificaprecedents see distinguishing, see overrultion ing distinction of 12–13 binding force rule of law see also law state, see also in England 63 certainty, legal in Germany 65–6 and case law 64 justification in England 64 and principles of legal reasoning 43

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Index satisfice see see satisficing satisficing see also bounded rationality and legal reasoning 299–300 conformity with deđuctivism 300 origin of 229 scales cardinal and Weight Formula 213–14 definition of 206–8 lexicographic definition of 206 nominal definition of 206 ordinal definition of 205–6 in legal reasoning 236–9 Schranken-Schranken, see limitation-limitation separation of powers see balance of powers and functional limitations of review 144–5 SEU see subjective expected utility special case thesis 54–6 stability see also certainty, legal, see also coherence, see also legitimate expectations of legal order 64, 66 standard of proof definition of 186 stare decisis doctrine application of see also precedents in England 64 in German law 65–6 subjective expected utility definition of 208 suitability used as ‘rational relationship’, 150 definition of in EC-law 168 in German law 122 in USA 150 rigour of review in EC-law 168–9 in German law 123–4 in USA 150–1 role of in ECHR 91 syllogism in problem cases 12 introduction of 13

relationship to balancing 280, 300–1 relationship to universalizability 43 relevance of 31 syllogistic reasoning see syllogism thick concepts see language objectivity of used as ‘parochial concepts’, 18–9 torture as a tragedy 327 definition of 330–1 discussion of 328–30 tragedies see aeroplanes and torture transcendental-pragmatic used as ‘language-pragmatic, universal-pragmatic’, 49 transcenđental argument 49–50 transformations within law 15–6 transitional periods as a minimal standard in German law 128 as minimal standards in EC-law 180 justification of 311 transitivity critique of 226 definition of 205 universal-pragmatic, see transcendentalpragmatic universal in contrast to general 41 universalizability and optimization 254 as a principle 254 Utilitarianism definition of 283–4 maximization justification of 288 role of fundamental rights 285 utility definition of 204 value judgement used as ‘evaluation’, 16 definition 183 in contrast to facts 16, 183 value jurisprudence see evaluation jurisprudence value order critique 143 in German law 135

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Index ranking of values 219 weights scales 74 Wertungsjurisprudenz see evaluation jurisprudence

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