Volume 8, Number 2, 2023
P-ISSN: 2502-8006 E-ISSN: 2549-8274
DOI: https://doi.org/10.22373/petita.v8i2.220 Indexed by Scopus:
https://suggestor.step.scopus.com/progressTracker/?trackingID=6104E7D47B535213
PROPORTIONALITY ANALYSIS IN COMPETING RIGHTS CASES:
A MODEL FROM THE GERMAN FEDERAL CONSTITUTIONAL COURT
TANTO LAILAM
Universitas Muhammadiyah Yogyakarta, Indonesia E-mail: [email protected]
PUTRI ANGGIA
Universität Autonoma de Barcelona, Spain E-mail: [email protected]
NITA ANDRIANTI
Goethe-Universität Frankfurt Am Main, Germany E-mail: [email protected]
Abstract: The research focused on the proportionality analysis (proportionality principle) as a legal reasoning method to decide competing rights cases in the German Federal Constitutional Court (GFCC) or Bundesverfassungsgericht. Normative legal research uses statutory, legal concept, and case approaches. It is prioritized secondary data. Proportionality is the ultimate rule of law, global constitutionalism value, and the benchmark for constitutional judges to review conflicts between individual rights and state interests. Hence, an analysis model for measuring quarrels of competence between the European Union and Germany. It is four stages of assessment analysis: legitimate aims, suitable, necessary, and balancing (strict sense). The result of the research saw that it was a constitutional reasoning model in landmark decision cases in 2020-2022, namely the European Central Bank asset case, the climate change case, the Election of a Vice- President of the Bundestag case, and the Bavarian Constitution Protection Act case. Based on these case reviews, it is well applied, systemized, structured, and comprehensive in each case. However, not all stages are used in competing rights analysis, especially the balancing test as the last analysis in proportionality.
Keywords: Proportionality, Constitutional Court, Competing Rights, Germany
Abstrak: Penelitian ini memfokuskan pada doktrin proporsionalitas dalam kasus competing rights (hak yang bersaing) di Mahkamah Konstitusi Federal Jerman. Penelitian hukum normatif ini menggunakan pendekatan perundang-undangan, konsep hukum, dan asas dengan mengutamakan data sekunder. Doktrin proporsionalitas merupakan “the ultimate rule of law” and “global constitutionalism” yang menjadi tolok ukur hakim konstitusi dalam menilai konflik hak individu dengan kepentingan negara, bahkan sebagai model analisis untuk mengukur benturan kompetensi antara Uni Eropa dengan Jerman. Analisis ini melalui empat tahapan penilaian, yaitu: analisis tujuan yang sah dalam pembentukan hukum, kebutuhan hukum, perlunya kebijakan untuk mencapai tujuan, dan keseimbangan
dalam hukum. Hasil temuan menunjukkan bahwa analisis proporsional digunakan sebagai model argumentasi hukum dalam kasus yang menjadi perhatian publik pada tahun 2020- 2022, yaitu: kasus Bank Central Eropa, kasus perubahan iklim, kasus perlindungan data pribadi di Bavaria, dan pemilihan Wakil Presiden di Dewan Perwakilan Rakyat Jerman.
Berdasarkan telaah kasus tersebut di atas, analisis proporsionalitas diterapkan secara baik, tersistem, terstruktur, dan komprehensif dalam setiap kasus. Namun tidak semua tahapan digunakan dalam melakukan penilaian, terutama uji keseimbangan sebagai batu uji terakhir dalam doktrin proporsionalitas.
Kata Kunci: Proporsionalitas, Mahkamah Konstitusi, Hak yang bersaing, Jerman Introduction
In the context of a modern state, there are three interrelated pillars: the rule of law, separation of power and democracy, and human rights. It is the foundation and basis of a modern-state democracy to create comprehensive protection, including a mechanism for the legal settlement of human rights violations. In a majority democracy, there is a danger of a “tyranny of the majority” that infringes on the needs of the minority. Similarly, suppose the power of state institutions is very strong in a democratic system. In that case, it will impact the weak protection of constitutional rights in favour of the public interest/majority group (the state). It is an interconnected-integrated whole, which must be realised and balanced by the constitutional or equivalent courts.1
Constitutional courts and Judges ensure this balance of these pillars by implementing functions as the guardian of state ideology, the sole interpreters of the constitution,2 the protector of the citizen’s fundamental rights,3 and providing significant contributions in the process of consolidating democracy.4 The implication is that without it, the Court will become a “political tool” of power to legitimise its decisions and distance itself from protecting citizens’ constitutional rights. In realising this function, constitutional judges in the German Federal Constitutional Court (GFCC) have and are free to choose a constitutional reasoning model based on constitutional values, norms, and legal culture.
The constitutional reasoning of the courts is related to the process carried out by justices to create the decision on the case they have settled. It is related to the arguments that underlie a decision or the analytical study of a decision, namely the relationship between legal arguments and judge’s decisions and the accuracy of legal arguments. It is understood as comprising both the justification argumentation of legal acts and the interpretation articles of the constitution.5
The term “constitutional reasoning” has two meanings; it refers to the motivations and mental processes that lead a decision-maker to take a particular course of action (motivating reasons). On the other hand, reasoning refers to the justifications for the decision maker’s chosen course of action that she may publicly present (justificatory reasons)6. The family legal system (continental Europe’s civil law system/ Rechtsstaat or État de droit) and
1 Cristóbal Caviedes, ‘Is Majority Rule Justified in Constitutional Adjudication?’ (2021) 41 Oxford Journal of Legal Studies 376 <https://academic.oup.com/ojls/article/41/2/376/6031984>.
2 Tanto Lailam & Nita Andrianti, ‘Legal Policy of Constitutional Complaints in Judicial Review: A Comparison of Germany, Austria, Hungary, and Indonesia’ (2023) 11 Bestuur 75.
3 Muhammad Siddiq Armia, ‘Constitutional Practice Of Asean Countries: Questioning Judicial Review, Religions And Minority Issues’ (2022) 7 Petita : Jurnal Kajian Ilmu Hukum dan Syariah., p.42
4 Iwan Satriawan and Khairil Azmin Mokhtar, ‘The Constitutional Court’s Role in Consolidating Democracy and Reforming Local Election’ (2016) 1 Constitutional Review 103 <http://ejournal.
mahkamahkonstitusi.go.id/index.php/const-rev/article/view/115>.
5 András Jakab, ‘Judicial Reasoning in Constitutional Courts: A European Perspective’ (2013) 12 German Law Journal 1217.
6 Andr´as Jakab, Arthur Dyevre and Giulio Itzcovich, Comparative Constitutional Reasoning (Cambridge University Press 2017), p. 10-11.
the legal culture influence the judge’s perspective in creating constitutional reasoning.
Legal systems are a struggle of cultural, social, political, economic, and other values accommodated into a country’s legal system. It has contributed to the global exchange of constitutional knowledge.7 In Germany, proportionality analysis is the most widely used method of constitutional reasoning to test competing rights cases. Hence, this research specifically focuses on the proportionality analysis in the GFCC landmark decisions in 2020-2022.
Proportionality analysis (proportionality principle) is a critical tool for the government’s legal policy if there is a conflict between citizens’ fundamental rights and public or state interests. From the rule of law and human rights perspective, “if discusing about human rights, also discussed about proportionality”. It is the ultimate rule of law,8 constitutional doctine,9 global constitutionalisme value,10 and guiding idea in contemporary international human rights law11. In Germany, it is fundamental constitutionalism and the basis of legal and political culture,12 and to assess the constitutionality of state violations of the right to equality.13
In the GFCC, it is an analytical model often used in deciding the issue of competing rights in the abstract and concrete judicial review, constitutional complaints, disputes the authority of state institutions, and others. It examines whether the challenged measure serves a legitimate aim and is suitable, necessary, and appropriate for achieving it. The last element (appropriateness) entails balancing the different interests affected by the measures.
The GFCC’s practice has strongly influenced constitutional courts/judges in European law and numerous foreign jurisdictions. It is analysed as a last in assessing competing rights in respective countries. It balances individual, group, and State interests in political functions14. This research focuses on proportionality analysis as a constitutional reasoning model and its implementation on cases categorised as landmark decisions in 2020-2022.
These are the European Central Bank asset case, the climate change case, the Election of a Vice-President of the Bundestag case, and the Bavarian Constitution Protection Act case.
Methods
The normative legal research uses statutory, legal concepts, and case approaches. It is prioritized secondary data. The statutory analyzes the constitution’s content, laws, and procedural law. The legal concept examines the historical aspects and development of the idea of proportionality in the practice of the GFFC up to four perfect stages (legitimate aims,
7 Konrad Lachmayer, ‘Constitutional Reasoning as Legitimacy of Constitutional Comparison’ (2013) 14 German Law Journal, p. 1468.
8 Moshe Cohen-Eliya and Iddo Porat, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8 International Journal of Constitutional Law 264.
9 Vicki C. Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) 124 The Yale Law Journal 3096.
10 Alec Stone Sweet and Jud Mathews, ‘Proportionality and Rights Protection In Asia: Hong Kong, Malaysia, South Korea, Taiwan - Whither Singapore?’ (2017) 29 Singapore Academy of Law Journal 11 Bradley W Miller and Grant Huscroft, Proportionality and The Rule of Law: Rights, Justification, 774.
Reasoning (Cambridge University Press 2014).
12 Niels Petersen, Proportionality and Judicial Activism Fundamental Rights Adjudication in Canada, Germany, and South Africa (Cambridge University Press 2017).
13 Guy Lurie, ‘Proportionality and the Right to Equality’ (2020) 21 German Law Journal; See also Jacco Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (Cambridge University Press 2013).
14 Patricia Popelier & Catherine Van De Heyning, ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis’ (2013) 9 European Constitutional Law Review, p. 230.
suitability, necessity, and balancing). It also discusses the method of analyzing competing rights in each of these stages. Case approach to investigate various judicial review issues, constitutional complaints, election complaints, and state institution authority disputes.
Data collection of books, dissertations, and online international journals by library research at the University zu Köln and the Academy for European Human Rights Protection, Faculty of Law University zu Köln, Germany. Descriptive methods analyzed all legal documents collected and comprehensively analyzed the GFCC model in assessing competing rights cases.
Results
German Federal Constitutional Court Authority
The German 1949 Basic Law (Grundgesetz für die Bundesrepublik Deutschland) entrusts the GFCC with great and strong powers15 to the guardian of the 1949 Basic Law (Hüter der Verfassung),16 protect the constitutional rights of citizens, regulate democracy, and design compliance of state institutions and individuals with the Court’s decisions. This complete system of authority proves that the 1949 Basic Law has designed the GFCC as a modern court that can accommodate all legal mechanisms in protecting the fundamental rights of citizens based on the values of individualism and liberalism. It is a legal mechanism without problems/lack in enforcing these fundamental rights.
Strengthening the protection of constitutional rights is certainly motivated by the design of a democratic legal state and legal certainty. The following is an explanation of some of the authorities of it:
First, in the Judicial review mechanism, the GFCC has the authority to review abstract norms (abstrakte normenkontrolle), concrete/specific norms or constitutional questions (konkrete normenkontrolle). It is best approached through the constitutional interpretation model17 to realise the goals of the state (welfare rechtsstaat).18 Abstract judicial review is a court’s assessment of the text of the law (articles, paragraphs) and its potential future implications. It is regulated in Article 93 (1) No.2 and No.2a of 1949 Basic Law. Article 93 (1) No.2, which regulates the provision that the GFCC has the authority to decide: “in case of disagreement or doubt regarding the formal or substantive conformity of a federal law or state law with the 1949 Basic Law or the conformity of a state law with another federal law submitted by the German Federal Government (Bundesregierung) headed by the Federal Chancellor (Bundeskanzler) the Federal President (Bundespresident); the State Governments (Bundesländer) or one-quarter of the Members of the Federal Parliament (Bundestag)”. Hence, Article 93 (1) No 2a of 1949 Basic Law states: “In the event of a difference of opinion as to whether a law fulfils the conditions laid down in Article 72 paragraph (2) of the 1949 Basic Law, at the request of the Federal Assembly or the council of state delegates (Bundesrat), the Government/State Parliament”.
15 Muhammad Siddiq Armia, ‘Constitutional Courts And Judicial Review: Lesson Learned For Indonesia’
[2017] Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan, p. 109; See also Muhammad Siddiq et all Armia, ‘Post Amendment of Judicial Review in Indonesia: Has Judicial Power Distributed Fairly?’ (2022) 7 JILS 525; Muhammad Siddiq Armia, ‘Ultra Petita and the Threat to Constitutional Justice: The Indonesian Experience’ [2018] Intellectual Discourse.
16 Iwan Satriawan and others, ‘Judicial Appointment of German Bundesverfassungsgericht: Lesson for Indonesia’, Proceedings of the International Conference on Sustainable Innovation on Humanities, Education, and Social Sciences (ICOSI-HESS 2022) (Atlantis Press SARL 2022) <https://www.atlantis- press.com/doi/10.2991/978-2-494069-65-7_14>, p.142.
17 Muhammad Siddiq Armia, ‘Constitutional Courts And Law Reform: A Case Study Of Indonesia’ (Anglia Ruskin University, Cambridge, United Kingdom 2016), p. 7.
18 Jimly Asshiddiqie, ‘Building A Constitutional Aware Culture To Create A Democratic Law State’ (2023) 8 PETITA: Jurnal Kajian Ilmu Hukum dan Syari’ah <https://petita.ar-raniry.ac.id/index.php/petita/
article/view/128>, p. 3.
Concrete judicial review is a legal mechanism that gives judges in the ordinary courts or the Supreme Court a role in protecting basic state rights from the threat of laws made by the legislature.19 It is submitted by judges in ordinary courts when facing constitutional issues in applying laws in litigation cases that are being resolved.20 Kommer21 says that jurisdiction is when judges assess “unconstitutional laws whose validity is relevant to the decision to be made. However, since they do not have the authority to annul/declare unconstitutional laws, the judges must refer the matter to the GFCC through a judicial referral. Concrete test cases are initiated by ordinary courts22 in the form of judicial referrals23. However, this power is highly dependent on the willingness of ordinary courts to refer questions of constitutionality to the Court.
Second, Constitutional Complaint. It is one of the most important legal mechanisms in the modern German judicial review system. It directs the government or state officials to comply with the constitution’s provisions. In this mechanism, citizens’ rights should not be violated by the state/government/state actors in all branches of power.24 In Germany, the constitutional complaint mechanism is known as verfassungsbeschwerde, which was first regulated through the GFCC March 16, 1951 (Gesetz über das Bundesverfassungsgerichts 16 März 1951), but was later included in the constitution along with the constitutional amendments in 1969, covering individual constitutional complaints (Article 93 (1) No.
4a of 1949 Basic Law) and City/Association of City complaints based on Article 93 (1) No.4b of 1949 of 1949 Basic Law. is the most widely used judicial review mechanism, especially by individual citizens (individual constitutional complaint). It is certainly since individuals in abstract and concrete tests do not have the legal standing to be applicants.
The objects dispute are the Court’s decision, laws and ordinances, omissions on the part of the legislator, other sovereign Acts of European Authorities, Others Sovereign Acts of the Highest Federal Authorities, Others Sovereign Acts of the State Authorities, Others Sovereign Acts of the Municipal Authorities, and others.25
Third, the GFCC has two authorities in resolving disputes over the authority of state institutions: disputes between constitutional organs at the federal level; and between federal and state organs. It is regulated in Art. 93(1) no. 1 of the constitution and §§ 63
19 Tanto Lailam and M Lutfi Chakim, ‘A Proposal To Adopt Concrete Judicial Review In Indonesian Constitutional Court: A Study On The German Federal Constitutional Court Experiences’ (2023) 10 PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 148 <https://jurnal.unpad.ac.id/pjih/article/
view/43060>, p. 151.
20 Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (Oxford University Press 2013), p.104.
21 Donald P. Kommers, ‘German Constitutionalism: A Prolegomenon’ (2019) 20 German Law Journal 22 Sylvain Brouard and Christoph Hönnige, ‘Constitutional Courts as Veto Players: Lessons from the 536.
United States, France and Germany’ (2017) 56 European Journal of Political Research 529 <https://
ejpr.onlinelibrary.wiley.com/doi/10.1111/1475-6765.12192>, p.3.
23 Denis Preshova, ‘On the Rise While Falling: The New Roles of Constitutional Courts in the Era of European Integration’ (Universität zu Köln Germany 2019), p. 23.
24 Tanto Lailam, Putri Anggia and Irwansyah Irwansyah, ‘The Proposal of Constitutional Complaint for the Indonesian Constitutional Court’ (2022) 19 Jurnal Konstitusi 693 <http://localhost/index.php/
jk/article/view/1939>, p. 679; A Ahsi Thohari, ‘The Manifestation of the Rechtsidee of Pancasila in Regulating the Constitutional Rights in Indonesia’ (2019) 4 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah 149.
25 Tanto Lailam, ‘Peran Mahkamah Konstitusi Federal Jerman Dalam Perlindungan Hak Fundamental Warga Negara Berdasarkan Kewenangan Pengaduan Konstitusional’ (2022) 13 Jurnal HAM 65
<https://ejournal.balitbangham.go.id/index.php/ham/article/view/2357>, p. 73; Obikwu, ‘The Federal Constitution, National- Ethnic Minority Groups and the Creation of States: The Post–Colonial Nigerian Experience’ (2017) 2 PETITA: Jurnal Kajian Ilmu Hukum dan Syari’ah <http://petita.
ar-raniry.ac.id/index.php/petita/article/view/56>; Emmanuel Obikwu, ‘International Law And Revolution In The 21st Century’ (2019) 4 PETITA: Jurnal Kajian Ilmu Hukum dan Syari’ah.
et seq. of the GFCC Act, it is file reference ”BvE”. State organs can apply if another state organ impairs its constitutional authority. Fourth, Dissolution of Political Parties. The proceedings are regulated by Art. 21(2) of the constitution and Art 43 of the GFCC Act (file reference is ”BvB”). It is due to the aims or behaviour of its followers (political figures) who seek to undermine or abolish the free democratic basic order or endanger the existence of the Federal Republic of Germany. The Bundestag (Parliament), Bundesrat (Senate), and Federal Government as an application in this case.
Fifth, Electoral complaints. The GFCC is authorised to resolve disputes relating to elections.
It decides on complaints filed by associations regarding the non-recognition of their political party in elections (Article 93(1) no. 4c of the Basic Law and §§ 96a et seq. of the GFCC Act). In addition, it is also authorised to deal with complaints relating to the validity of elections or the acquisition or loss of Member of Parliament status (Article 41(2) of Basic Law and § 48 of the GFCC Act), including the election of German representatives to the European Parliament. It is file reference ”BvC”. Sixth, Impeachment of the President/
Vice President and Judges. It is regulated in Art. 13 No.4 of the GFCC Act provides that it has the authority to rule on a motion for the impeachment of the Federal President by the Bundestag or Bundesrat under Article 61 of 1949 Basic Law provided that the Federal President has committed a constitutional violation. Hence, Article 13 No.9 of the GFCC Act provides that it has the power to rule on impeachment motions of federal and state judges under Article 98 (2) and (5) of the 1949 Basic Law if the judge violates the principles of this Constitution or the constitutional order of the country in his/her official capacity as a judge.
In exercising its powers from 1951-2022, the GFCC has received cases (proceedings brought) and rendered decisions on the cases filed (proceedings concluded), as shown in the table below:
Table 1. Types of proceedings, 1951- 202226
Types of Proceedings Proceedings
brought Proceedings concluded
Constitutional complaints 249,980 247,197
Judicial review proceedings (Abstract and Concrete
review) 3,997 3,889
Organstreit proceedings (dispute between
constitutional organs) 384 362
Electoral complaints 500 463
Proceedings for the prohibition of political parties/
exclusion from state funding 10 9
Preliminary injunctions (without principal proceeding
(BvQ file reference) 4,220 4,207
Other types of proceedings 218 218
Total 259,309 256,345
Proportionality Analysis in the GFCC
The 1949 German Basic Law do not establish guidelines for the judges to use analysis method in deciding their competing rights cases, but they have methodological freedoms.
The style of constitutional reasoning it has developed over time reflects its authority as
26 ‘Bundesverfassungsgericht Report’ (2022).
a judicial institution with a global vision of constitutional law, legal culture, and a legal- policy roadmap. In the GFCC, the decisions are (1) judgement based on an oral hearing and (2) order, the decision result without an oral hearing (Art. 25 (2) of the GFCC Act). An oral hearing is rare, and when they occur at the Court’s invitation, they are usually conducted by a law professor or constitutional litigation experts. Its decisions must be made “in the name of the people” (Art. 25 (4) of the GFCC Act) and erga omnes implication; invalidate it with public consequences. A law declared unconstitutional has binding legal force and applies to the applicant and all those harmed by the challenged law. The erga omnes regulated that “the decisions of the court shall be binding upon the constitutional organs of the Federation and the Laender (state), as well as on all courts and those with public authority” (Art. 31 of the BVerfG Act). In issuing judgements/orders, Constitutional Court judges must develop constitutional reasoning based on the German constitutional system.
In Germany, the proportionality analysis is evolved and older than the 1949 German Basic Law, first as an 18th-century legal philosophy and then as an unwritten principle of public law, and was first developed by the High State Administrative Courts, primarily the Prussian Oberverwaltungsgericht case, and applied to police measures that infringed on an individual’s liberty or property in cases where the law gave the police discretion or regulated police activities in a rather vague manner.27 The GFCC then fleshed it out under the 1949 Basic Law, which began to transfer this analysis into constitutional law and apply it to laws limiting fundamental rights cases. It offers courts a doctrinal structure that allows them to resolve conflicts between competing values without establishing abstract value hierarchies. From the 1950s until now, the GFCC has issued more than two thousand decisions that explicitly refer to the proportionality principle.28
Rupprecht Krauss’ dissertation from 1953 is widely regarded as having significantly impacted applying the proportionality test in case settlement at the GFCC. Krauss introduces the approach of “proportionality in a narrow sense,” where proportionality, according to him, will make the state pay more attention to the rights of its citizens. It is therefore irreconcilable with the system of the 1949 Constitution that the executive can be allowed to intrude into the private sphere of individuals beyond the limits of what is necessary to achieve the authorised objective”. Proportionality in the strict sense must be added to the least restrictive means test “if the principle of necessity is not to lose its substance.” The elevation of its place in the constitution is a function of the changing character of citizen-state interaction in the modern welfare state. The GFCC has outlined a familiar multi-stage framework.
In the leading case, Apothekenurteil (1958), the Court distinguished the least restrictive means test from balancing in the strict sense for the first time as separate elements. In its considerations, the GFCC focuses on the tug-of-war between the rights of citizens and the public interest, stating that:
“The purpose of constitutional rights is to protect individual liberty, while the purpose of regulation is to ensure adequate protection of the public interest.”
An individual’s claim to freedom will have a greater impact; the more his right to choose his profession is questioned, the more important public protection becomes and the disadvantages of free professional practice. When attempting
27 Dieter Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 384, p.384-385
28 Andrej Lang, ‘Proportionality Analysis by the German Federal Constitutional Court’ in Mordechai Kremnitzer, Talya Steiner and Andrej Lang (eds), Proportionality in Action Comparative and Empirical Perspectives on the Judicial Practice (Cambridge University Press 2020), p.22.
to maximise both demands most effectively, the solution can only be found in carefully balancing [Abwägung] of the two opposing and possibly conflicting interests.”
The proportionality principle involves resolving a conflict of competing rights between two or more individual rights and the public interest, and this conflict is ultimately resolved at the balancing stage.29
Andreas Voßkuhle, President of the GFCC 2010-2020, stated that it decides cases baSed on developing a system of German legal concepts called Verfassungsrechtsdogmatik.30 It describes a coherent legal system referring to legal texts or decisions made by GFCC and discussed by professional actors of the Rechtsstaat (e.g. in courts, government agencies, law schools). The most successful is the proportionality test. Hailbronner and Martini’s opinion is that it is a model for many constitutions and constitutional courts worldwide and an internationally recognised global principle31 commonly used in democratic societies to balance rights and legal restrictions.32 Proportionality is one of the most common legal concepts used by constitutional courts to rationalise judicial decision-making, particularly to oversee political authority33 or conduct analysis and evaluation of policies made by the government.
Angelika Nußberger explains34 that implementing the Court’s judgements is even more difficult when they are based on applying in a triangular or multipolar conflict in which different human rights have to be balanced. It coined the expression “multipolar conflicts”
for this phenomenon in its famous case, Görgülü judgment”. Petersen’s35 argument saw it in four stages: first, legitimate aims. What is the goal of government policy? whether it is legitimate or not. Second, Suitability. Whether the constitutional rights restriction is consistent with a legitimate government policy objective under the constitution; Third, Necessity (Erforderlichkeitsprinzip). It must be assessed whether alternative measures can be identified that cause a weaker interference with the fundamental right at issue or a weaker interference with the protected area. Fourth, Balancing. It balances the cost and benefit (adequateness) of legal norms.
29 Tanto Lailam & Putri Anggia, ‘The Indonesian Constitutional Court Approaches the Proportionality Principle to the Cases Involving Competing Rights’ (2023) 19 Law Reform 113; Winibaldus Stefanus Madung, Otto Gusti Ndegong; Mere, ‘Constructing Modern Indonesia Based on Pancasila in Dialogue with the Political Concepts Underlying the Idea of Human Rights’ (2021) 5 Journal of Southeast Asian Human Rights 1 <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/20258>.
30 Andreas Voßkuhle, ‘Preface to the German Law Journal’s Constitutional Reasoning: Special Edition’
(2013) 14 German Law Journal 980, p.980.
31 Michaela Hailbronner and Stefan Martini, ‘The German Federal Constitutional Court’ in and Giulio Itzcovich Andr´as Jakab, Arthur Dyevre (ed), Comparative Constitutional Reasoning (Cambridge University Press 2017). p.367.
32 Giri Ahmad Taufik, ‘Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly’ (2018) 4 Constitutional Review 45; Muhammad Siddiq Armia, ‘Public Caning: Should It Be Maintained or Eliminated? (A Reflection of Implementation Sharia Law in Indonesia)’ [2019] Qudus International Journal of Islamic Studies; Muhammad Siddiq Armia and others, ‘Criticizing the Verdict of 18/JN/2016/MS.MBO of Mahkamah Syar’iyah Meulaboh Aceh on Sexual Abuse against Children from the Perspective of Restorative Justice’ (2022) 17 AL-IHKAM: Jurnal Hukum & Pranata Sosial 33 Martin Höpner, ‘Proportionality in the PSPP Saga: Why Constitutional Pluralism Is Here to Stay and 113.
Why the Federal Constitutional Court Did Not Violate the Rules of Loyal Conduct’ (2021) 6 European Papers- A Journal on Law and Integration 1527.
34 Angelika Nußberger, ‘Subsidiarity in the Control of Decisions Based on Proportionality: An Analysis of the Basis of the Implementation of ECtHR Judgments into German Law’, Anja Seibert-Fohr and Mark E. Villiger (Nomos Verlagsgesellschaft 2014), p. 167.
35 Niels Petersen (n 12).
Gertrude Lübbe-Wolff36 argues that the law is based on the principle of proportionality, which says that it must be: (a) appropriate or suitable (geeignet) to achieve its goal; (b) necessary (erforderlich) to achieve its goal, and; (c) adequate (angemessen), without affecting the freedom of rights. These three principles symbolise the idea of optimising the protection of constitutional rights. That is, by applying proportionality, maximum results will be obtained with the smallest form of loss. Thus, this test consists of three measures, namely: (i) the policies taken must be rationally related to the objectives to be achieved, (ii) these policies must at least have the potential to harm the related constitutional rights, and;
(iii) there must be a proportional relationship between the impact on the rights harmed and the objectives achieved. It focuses on the circumstances of each case and consists of four steps: a measure restricting a fundamental right has to pursue a legitimate aim; it has to be rationally connected to this aim; there should not be a less restrictive alternative measure that is equally effective; and, finally, the measure has to be proportionate—that is, it has to strike an appropriate balance between the fundamental right and the pursued public purpose.
Applying the proportionality analysis has inspired international and constitutional courts in various countries, but it is open to criticism, especially in the third stage of balancing.
It is an instrument of political power arrogance, a legal instrument of judicial self- empowerment.37 and an instrument of irrational reason putting incomparable values on the same scale.38 Balancing is seen as an arbitrary measure that lacks rational standards and is thus suspected of being a cover for political considerations in legal decision-making.
Andrej Lang analyses the problem of implementing it in the GFCC, identifying several characteristic flaws of measures that are, namely: (i) the Court views certain objectives with suspicion; (ii) policy-makers must ensure that fundamental rights interests are not completely lost as a result of the challenged policy, but are accommodated by the policy in some form; (iii) more specifically, the court favours individual justice over legal certainty; (iv) the Court’s proportionality test is focussed on redressing excessive burdens and hardships for particular groups of recipients of the policy under scrutiny; (v) policy- makers should ask themselves whether they have narrowly tailored their policies; (vi) policy-makers should take into account that certain policy areas are subject to very high judicial scrutiny”. Kommers’ opinion: “when applying the principle of proportionality to infringements of fundamental rights, three criteria must be met. First, the law restricting the fundamental right must be an appropriate means (geeignet) to achieve a legitimate aim. Second, the means used to restrict the right must be necessary (erforderlich) to achieve the legal objective. Finally, the burden on the right must align with the benefits the law seeks to provide.39
Discussion
This discussion focuses on the analysis of proportionality in the decisions of the GFCC in 2020-2022. There are several cases, namely preliminary injunctions (reference BvQ file), constitutional complaints (reference BvR file), election complaints (reference BvC file), constitutional organ disputes between supreme federal organs (reference BvE file), abstract judicial review based on requests by constitutional organs (BvF file reference), concrete judicial review based on judicial references (BvL file reference), namely:
36 Gertrude Lübbe-Wolff, ‘The Principle of Proportionality in the Case-Law of the German Federal Constitutional Court’ (2014) 34 Human Rights Law Journal 13, p. 13.
37 Niels Petersen, ‘Balancing and Judicial Self-Empowerment: A Case Study on the Rise of Balancing in the Jurisprudence of the German Federal Constitutional Court’ (2015) 4 Global Constitutionalism 49.
38 Niels Petersen, ‘How to Compare the Length of Lines to the Weight of Stones: Balancing and the Resolution of Value Conflicts in Constitutional Law’ (2013) 14 German Law Journal 1387.
39 Andrej Lang (n 28).
Tabel 2. Cases of proceedings in GFCC, 2021-202240
Tipes of proceedings
Proceedings pending January 1
New proceedings
Concluded proceedings
Proceedings pending on December 31 2020 2021 2022 2020 2021 2022 2020 2021 2022 2020 2021 2022 Preliminary
injunctions
(BvQ) 6 16 13 271 237 209 261 240 209 16 13 13
Constitutional complaint
(BvR) 3300 3028 2828 5194 5059 4670 5466 5259 4716 3028 2828 2782
Electoral complaints
(BvC) 54 39 22 16 22 31 31 41 14 39 20 37
Constitutional organ disputes
(BvE) 13 22 24 11 10 4 2 8 9 22 24 19
Concrete judicial review
(BvF) 93 102 101 36 19 19 27 20 19 102 101 101
Abstract judicial
review (BvL) 4 5 6 1 2 1 0 1 0 5 6 7
In general, in GFCC decisions that include proportionality principle as a benchmark, at least the structure of the decision includes several things: First, facts of the case, discussing the constitutional problem in the background of the challenged provision, provisions relevant to the proceedings, legal mechanisms (the constitutional complaint/ object disputes), oral hearing (if there is meeting). Second, subject matter and admissibility discusses the subject matter, admissibility, European Union law, and outcome of the admissibility assessment.
Third, Merits, the subject of this analysis, discusses the general standards of substantive constitutionality, which include:
a. Principle of proportionality as the central standard of review: legitimate purpose, suitability, necessity, and proportionality in the strict sense which is associated with the issue of competing rights to be decided;
b. legal clarity and specificity;
c. protection of the core of constitutional rights;
d. Effect on this constitutional issue and procedural requirements.
In addition, constitutional judges also elaborate on the issue of competing rights by looking at the substantive constitutionality of the challenged provisions that specifically examine the articles that cause problems. Fourth, outcome and legal consequences. It contains the constitutional judges’ conclusions on the case and the legal consequences.
Specifically, this analysis focuses on several landmark decisions in 2020 – 2022, namely:
The constitutional complaint case was the European Central Bank asset or Public Sector Purchase Programme (ECB’s asset) in 2020. It is the Second Senate decision on file reference 2 BvR 859/15 inter alia. The climate change case (hereinafter climate change) in 2021 is the First Senate decision on file reference 1 BvR 2656/18 inter alia. Hence, a landmark decision in 2022, namely (1) Bavarian Constitution Protection Act case by First Senate on file reference 1 BvR 1619/17; (2) Election of a Vice-President of the Bundestag case on file references 2 BvE 2/20 (Right of individual Bundestag members to nominate candidates) and 2 BvE 9/20 (Election of a Vice-President of the Bundestag).
40 ‘Bundesverfassungsgericht Report’ 2020, 2021, and 2022 (n 25).
ECB’s Case (2020)
The constitutional complaint related to the Court of Justice of the European Union (CJEU) decision on December 11, 2018 (Weiss and Others, C-493/17). It held that a measure of a European Union institution is not in line (unconstitutional) with the European order of competencies and thus not binding on Germany. It decided that the Bundesbank (German Central Bank) may no longer participate in bond purchases or increase the monthly purchase pace after a transitional period of no more than three months unless the European Central Bank (Europäischen Zentralbank). In this case, the competing right relates to the European Union’s and Germany’s interests as Member States. Hence, the analytical approach used by the GFCC is proportionality principle. It is a general principle of law that is not only a legal foundation of German constitutional law but has also been recognised in European law. Even in European integration, proportionality informs the delimitation of competencies between the European Union and the Member States. Art 5 (1) of the Treaty on European Union (TEU) regulated: «The principle of conferral governs the limits of Union competences. The principles of subsidiarity and proportionality govern the use of Union competences”.
Under the proportionality test, the GFCC examines whether the challenged measure has a legitimate aim and whether the measure is appropriate, necessary and suitable to achieve this aim. The latter last element (appropriateness) requires a balance between the various affected interests affected by the measure. Governing Council demonstrates that the PSPP satisfies the principle of proportionality. It is inconsistent with case law and with Article 5 TEU – Balancing-stage of proportionality unsuitable for motive control41. It decision sent shock waves42 / negative reactions43 through the European Union (inside and outside Germany) and set “a bomb under the EU legal order”44, and gave impacted risks destabilising judicial dialogue.
The GFCC’s main point of critique is the lack of an EU law proportionality assessment concerning the ECB. Before assessing it, the Court had to get the contrary CJEU judgment out of the way.45 Its judgment may be seen as a thorn in the eyes of the Court of Justice and the EU as a whole, but if responded to adequately could help to reform these weaknesses of the EU constitutional legal order for the better.46 It has an obligation and responsibility to “continuously monitor the execution of the European integration agenda” (Integrations program) for violations by EU institutions and a violation of the individual right to democracy.47 It consistently developed a doctrinal tool to guide its role as guardian of the national constitutional order and the democratic principle. Thus, it is enforced when the constitutional control of monetary policy measures is required.48
41 Niels Petersen and Konstantin Chatziathanasiou, ‘Balancing Competences? Proportionality as an Instrument to Regulate the Exercise of Competences after the PSPP Judgment of the Bundesverfassungsgericht’ (2021) 17 European Constitutional Law Review 314.
42 Niels Petersen, ‘Karlsruhe’s Lochner Moment? A Rational Choice Perspective on the German Federal Constitutional Court’s Relationship to the CJEU After the PSPP Decision’ (2020) 21 German Law Journal 995.
43 Matthias Goldmann, ‘The European Economic Constitution after the PSPP Judgment: Towards Integrative Liberalism?’ (2020) 21 German Law Journal 1058.
44 Dieter Grimm, ‘A Long Time Coming’ (2020) 21 German Law Journal 944.
45 Franz C Mayer, ‘To Boldly Go Where No Court Has Gone Before. The German Federal Constitutional Court’s Ultra Vires Decision of May 5, 2020’ (2020) 21 German Law Journal 1116.
46 Annegret Engel, Julian Nowag and Xavier Groussot, ‘Is This Completely M.A.D.?’ (2020) 3 Nordic Journal of European Law 128 <https://journals.lub.lu.se/njel/article/view/21995>, p.128–150.
47 Isabel Feichtner, ‘The German Constitutional Court’s PSPP Judgment: Impediment and Impetus for the Democratization of Europe’ (2020) 21 German Law Journal 1090 <https://www.cambridge.org/
core/product/identifier/S2071832220000607/type/journal_article>.
48 Teresa Violante, ‘Bring Back the Politics: The PSPP Ruling in Its Institutional Context’ (2020) 21
The CJEU found these considerations to be irrelevant in its review. Since EU institutions must adhere to the principle of proportionality (Art. 5(1) second sentence of the Treaty on European Union) in exercising their competencies, this approach is not comprehensible and objectively arbitrary. As a result, the judgment rendered by the CJEU is not binding on Germany; it was incumbent upon the Federal Constitutional Court to conduct its review of the ECB’s compatibility with the EU integration agenda. The GFCC found that the ECB had exceeded its mandate, which means that it had acted ultra vires: it is not ascertainable in its decisions, did consider the effects of the bond purchases on economic policy matters (pensions, real estate prices, companies, banks etc.), an area for which the Member States have competence, nor can it be determined that the ECB balanced these effects against its monetary policy aims. In other words, it is not ascertainable that any proportionality assessment was carried out.
Climate Change case (2021)
The case has issued a landmark court decision49 because they either mark an unexpected turning point in environmental jurisprudence or introduce a new conceptual analysis of the law vis-a`-vis the global challenge of climate change50. It is a highly complex problem.
Many factors and changes in the Earth’s climate system due to human activities contribute to global warming51. The Federal Climate Change Act (FCCA) 2019 is an original version enacted in December 2019 and represented the country’s first comprehensive climate law52 to combat the effects of global climate change central purpose is to refer to the Paris Agreement’s obligation to limit the increase in global average temperature. It concerns the German climate protection policy submitted by minors and adults with different occupations and living in various jurisdictions, most in Germany and some in Bangladesh and Nepal.53
In this case, competing rights occur between the interests of individual freedom, the interests of individuals (future generations), and the interests of the state. In this case, applying the principle of proportionality prioritises the necessity analysis. It is the third stage after the analysis of legitimate aims and suitability, and it is precautionary measures that respect fundamental rights, which discusses several main competing rights in the case of climate change, namely: (i) obligation to contain risk to freedom. It focuses on the judge’s assessment of the government’s policy in regulating the risk to people’s freedom in the use of CO2 before 2030,; (2) the necessity of a development-friendly planning horizon;
in this context, the constitutional judge assesses whether the climate change regulation is under legal politics that are friendly to future development; (3) requirements for the structuring of the reduction pathway. It focuses on whether the legal policy is under the need to reduce gas emissions. Based on the principle of proportionality (necessity) that the provision is contrary to the 1949 Basic Law, the decision states that:
«It follows from the principle of proportionality that one generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively
German Law Journal 1045.
49 Rike Krämer-Hoppe, ‘The Climate Protection Order of the Federal Constitutional Court of Germany and the North-South Divide’ (2021) 22 German Law Journal 1393.
50 Petra Minnerop, ‘The “Advance Interference-Like Effect” of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court’ (2022) 34 Journal of Environmental Law 135.
51 Philipp Semmelmayer, ‘Climate Change and the German Law of Torts’ (2021) 22 German Law Journal 1569.
52 Minnerop (n 50).
53 Gerd Winter, ‘The Intergenerational Effect of Fundamental Rights: A Contribution of the German Federal Constitutional Court to Climate Protection’ (2022) 34 Journal of Environmental Law 209
<https://academic.oup.com/jel/article/34/1/209/6420385>.
minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom – something the complainants describe as an ‘emergency stop’».
The GFCC decided that the FCCA (Klimaschutzgesetz) violated fundamental rights protected under the 1949 Basic Law. It is dedicated to several paragraphs describing how and why politics fails to address the climate crisis in any way that could be considered adequate54. In this decision, the GFCC ruled parts of the FCCA unconstitutional, arguing that the relatively lenient emission reduction targets until 2030 would place the disproportional burden for emission reductions on younger people and future generations55. The Court decided that a constitutionally relevant temperature threshold of below 2°C and preferably 1.5°C can, in principle, be converted into a remaining global CO2 budget56. It has already defined climate policy and law-making in Germany and revolutionized the traditional concept of
‘interference’ with fundamental rights under the German Basic Law.
In this case, it is interesting that the principle of proportionality provides a guideline for lawmakers to make “forward-looking” policies by paying attention to the constitutional rights of future generations; on the other hand, it must be able to provide solutions to current problems.57 Because in the principle of proportionality, the issue of climate change is not only a current problem and the current government’s responsibility but also a future problem that affects the lives of future generations. So that in making policies, the government must comprehensively examine aspects of the balance between the rights and obligations of current citizens and future generations in the German context of generations before and after 2030.
Bavarian Constitution Protection Act case (2022)
This case is a constitutional complaint against several articles of the Bavarian Protection of the Constitution Act of July 12, 2016 (Bayerisches Verfassungsschutzgesetz), last amended by § 3 of the Act Amending the Bavarian Police Act and Other Statutory Provisions of July 23, 2021. The Bavarian Protection of the Constitution Act authorises the Bavarian Land Office for the Protection of the Constitution (Bayerisches Landesamt für Verfassungsschutz), i.e., the Bavarian domestic intelligence service. It has powers that allow it to carry out covert surveillance measures. Some provisions of the Act are incompatible with the 1949 Basic Law and violate the general right to personality in its manifestation as the right to self- determination of information or as the right to confidentiality and integrity of information technology systems. In part, the Act also violates individual and home telecommunications privacy inviolability.
Art. 15(3) of the Law on disclosure of traffic data originating from data retention is declared unconstitutional and void. It is incompatible with the principle of legal clarity and violates Art. 10(1) of the 1949 Basic Law regarding guaranteeing personal data protection. Meanwhile, several articles were declared contrary to the 1949 Basic Law but remain in force temporarily until at least July 31, 2023, such as Art. 9(1) first sentence,
54 Christina Eckes, ‘Tackling the Climate Crisis with Counter-Majoritarian Instruments: Judges between Political Paralysis, Science, and International Law’ (2021) 6 Science, and International Law, European Papers 1311.
55 Christian Flachsland and Sebastian Levi, ‘Germany’s Federal Climate Change Act’ (2021) 30 Environmental Politics 118.
56 Karen Pittel, ‘The Intertemporal Distribution of Climate Policy Burdens, and the Decision of the German Constitutional Court’ (2021) 22 CESifo Forum 5 15.
57 Chairul Fahmi and Muhammad Siddiq Armia, ‘Protecting Indigenous Collective Land Property in Indonesia under International Human Rights Norms’ (2022) 6 Journal of Southeast Asian Human Rights 1 <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/30242>.
which regulates surveillance of private homes, Art. 10(1) which regulates provisions regarding remote searches of information technology systems, Article 12(1) regarding the tracking of mobile devices, Art. 18(1) which specifically regulates undercover officers, and several other articles.
The Bavarian Constitution Protection Act decision uses the principle of proportionality as the main standard of review, analysing four test stages: legitimate purpose, suitability and necessity, and proportionality in the strict sense (balancing). This principle measures the strictness of the proportionality requirement applicable to covert surveillance measures by domestic intelligence agencies depending on the gravity of the interference caused by the measures. Hence, judges also analyse the particularities of intelligence service powers instead of police powers, the lack of operational follow-up powers, and the implications for requirements applicable to data collection powers. Three stages were used to analyse whether the Bavarian Constitution Protection Act was under the law’s intended purpose under the 1949 Basic Law. Hence, it is analysed whether the protection of constitutional rights can be achieved and whether the policy meets the needs of constitutional rights protection. The three questions at these three stages, normatively that the protection of constitutional rights in this field is fulfilled. Thus, the Court conducted a balancing analysis as the last in applying proportionality principle.
The fourth stage of the test, balancing in the strict sense, was a comprehensive analysis of the data collection, which assessed the frequent cases affecting personal constitutional rights, the need for harm caused by the application of this Law, the threshold for interference by the Bavarian domestic intelligence service through the exercise of remote search powers, surveillance of private homes, subsidiarity, and other specific cases. It is also proportionate to analyse the need for surveillance specifically related to the protection of the constitutional order of the Bavarian state.
Hence, it is further use and sharing of data: further use within the scope of the original purpose dan changed purpose (data sharing). It is an analysis of the criterion of a hypothetical recollection of the data and differentiation according to recipients of the data. It is data sharing with public security authorities, prosecution authorities, any other bodies, foreign bodies, and own further use for changed purposes. The principle of proportionality in the strict sense also places special requirements on the statutory provisions governing the powers of data processing and sharing. The constitutional requirements applied to the further use and sharing of data collected by the state are informed by the principles of purpose limitation and change in purpose.
Vice-President of the Bundestag Election case (2022)
The Bundestag is a parliamentary body at the federal level headed by the Presidium of the Bundestag. This institution is led by a President and several Vice Presidents who serve as deputies. The Presidium is to be chosen in free elections in keeping with the independent electoral mandate exercised by members of the Bundestag. The case of a dispute over the authority of a state institution (Organstreit proceedings) originated from the interpretation of the Bundestag Standing Orders stipulating that at least one Vice President must represent each parliamentary group. The first applicant is the Alternative für Deutschland (AfD) parliamentary group which demands its constitutional rights based on the Bundestag’s individual rights members to nominate candidates; this application is motivated by the rejection of the candidates nominated by them; the second applicant from individual members of the Bundestag whose right to nominate as Vice President through the individual - independent route.
In the first case (file reference 2 BvE 2/20), the Court rejected a challenge from the applicant. It is a competition for the rights of the AfD parliamentary group in determining the vice-presidential candidate using an election system by members of parliament. The AfD considers that by the 1949 Basic Law, it has the right to appoint a vice president who represents its group, while the state (parliament) has the right to elect a vice president proposed by the parliamentary group, including the AfD. The GFCC’s decision to reject this application was based on assessing the principle of proportionality. It assessed whether the challenged measure serves a legitimate aim and whether it is suitable, necessary and appropriate for achieving its aim. The last element (appropriateness) requires balancing the different interests affected by the measure. In this case, the requirement of free elections ensures that the Vice-President of the Bundestag enjoys great confidence in parliament. Suppose parliamentary groups are given the power to unilaterally appoint members of the Presidium. The purpose of these elections will be undermined, and this condition is contrary to the principle of proportionality. This court decision limits the right to nominate parliamentary groups without an election process in the Bundestag. The bottom line is that the AfD’s right to nominate candidates is through an election system so that the nominated candidates, if elected, can carry out their duties effectively, including when acting as mediators in the Bundestag.
Competing rights in the second case (file references 2 BvE 9/20) are the interests of individual members of parliament and parliamentary groups. The problem is that individual members cannot nominate the Vice-President of the Bundestag without going through the parliamentary group. In the context of this competing right is the limitation of individual member freedom in the election system in the Bundestag, which proposes a Vice President candidate through a parliamentary group. The court rejected this request for a dispute over the authority of a state institution because this individual right could be limited based on the principle of proportionality. It is done to protect other constitutional interests that have the same weight. Based on a proportionality principle, it is permissible to interpret the Bundestag Rules of Procedure in a way that gives the right to nominate candidates for deputy positions in the Presidium to parliamentary groups, not through individual-independent channels. Such an interpretation of parliamentary procedures aims to safeguard the function of parliament, protecting constitutional interests, which are as important as protecting an independent mandate.
The application of proportionality principle in the case of disputes over the authority of state institutions is interesting, in particular, that the rejection of the application aims to prioritize the functioning of a democratic parliament through the election system of the Bundestag. In addition, to maintain the continuity of the Vice President’s function as a mediator representing parliamentary groups, and at the same time aiming for an effective performance in parliament which in general has an impact on the increasingly democratic implementation of the Bundestag’s functions in establishing laws, electing the chancellor and supervising the government.
Conclusion
Proportionality principle is a very important benchmark for “the ultimate rule of law” and
“global constitutionalism” originating from the German legal culture. It has been accepted in many Constitutional and equal Courts in the world with four stages: legitimacy purpose;
suitability; necessities; and strict sense (balancing). It is a culture of judges deciding legal issues in Court. In this research, the analysis was conducted on four landmark decision cases 2020-2022, namely: the European Central Bank asset case (2020), the climate change case (2021), the Bavarian Constitution Protection Act case (2022), and the Election of a
Vice- President of the Bundestag case (2022).
In the case of the European Central Bank assets, proportionality principle is used to measure the competence of the European Union and Member States (Germany). It is used to annul the Court of Justice of the European Union (CJEU) decision on December 11, 2018 (Weiss and Others, C-493/17) through a constitutional complaint mechanism. In the case of the climate change case, the principle of proportionality is used to test government policies that raise conflicts of individual rights for generations before and after 2030 in using CO2. It is important to provide guidelines for legislators so that they can be obliged to make “ forward-looking “ policies by paying attention to the constitutional rights of future generations. In the decision of the Bavarian Constitution Protection Act, it uses the principle of proportionality as the main standard for review with four stages of testing:
legitimate purpose, suitability and necessity, and proportionality in the strict sense (balancing). It is to measure the strictness of the proportionality requirements that apply to acts of covert surveillance by domestic intelligence services depending on the severity of the disturbance caused by these actions. Hence, in the Election of a Vice-President of the Bundestag case, the application of proportionality principle in cases of disputes over the authority of state institutions has interesting things; the rejection of the application aims to prioritize the functioning of a democratic parliament through the election system of the Bundestag. Based on the review of the four cases above, it is implemented properly, systemically, structured, and comprehensively in each case. However, not all stages are used in conducting a competing rights analysis, especially the balancing analysis.
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