How does the IES test work?

Faculty of Law

The proportionality test and in particular the test of appropriateness (also proportionality in the sense) is unpopular with many students or is not taken seriously enough. The examination is often dismissed as subjective, imprecise and arbitrary [1] and examined accordingly in an unstructured manner. Precisely because the test of proportionality is usually at the end of an exam, the test is often too tight and too unclean and valuable points are given away. [2] The careful examination would provide space for independent argumentation, which often distinguishes “good” or “fully satisfactory” from average work. The following scheme is intended to show how the proportionality test can be structured in order to ultimately enable a clear, if not completely value-neutral [3] decision.

Proportionality

The intervention (means) would have to be proportionate to the purpose it pursues.

I. Legitimate end and means

1. Legitimate purpose

Legitimate purposes are basically all public interests (there are multiple purposes, they should all be mentioned).

Exceptions:

- Unreserved fundamental rights (legitimate purposes limited to the protection of constitutional goods) [4]

- Qualified legal reservations (e.g. Art. 11, Paragraph 2, Art. 13, Paragraph 2, Art. 13, Paragraph 7 of the Basic Law) [5]

- Purpose restrictions (e.g. three-stage theory within the scope of Art. 12 GG)

Note: If there are several purposes, the following test must be carried out for all purposes or individual purposes must be eliminated at different levels (for example, an intervention may be unsuitable for achieving one of the purposes). [6]

2. Legitimate means

The question of Legitimacy of the means seldom poses problems. It should be noted, however, that there are illegitimate means per se (e.g. censorship, Art. 5 I S. 3 GG and the death penalty, Art. 102 GG).

II. Suitability

Here only those means are singled out that are "absolutely unsuitable" [7] to achieve the purpose. So it is sufficient if the means at least promotes the achievement of the end.

The legislature is also given a margin of prognosis.

III. Necessity

Necessity exists if no milder means for achieving the purpose comes into question or milder means are not immediately suitable for achieving the purpose

With regard to the same or better suitability, the legislature is granted a prerogative of assessment (including scope for assessment and assessment). [8]

When comparing several remedies, the nature and intensity of the intervention, the number of people affected, stressful or beneficial effects on third parties and side effects of the stressful measure must be taken into account. [9]

Note: At least one other remedy should usually be discussed here. If no such thing is mentioned in the facts, creativity is required.

IV. Appropriateness (proportionality in the sense of the term)

Here the severity of the encroachment on fundamental rights must be weighed against the benefit of the purpose pursued. Appropriateness is ensured if the encroachment on fundamental rights is not disproportionate to the intended purpose. [10]

In order to achieve a clear pre-structuring of the actual weighing, the abstract value of means and end should first be determined and then the specific severity of the intervention and the specific degree of achievement of the purpose. Appropriateness is thus divided into the following three steps.[11]

1. Abstract valence

On the one hand, the abstract value of the means, on the other hand, the abstract value of the purpose must be determined. An abstract higher valuation of means or end leads to a weighing advantage. [12]

a) Abstract valence of the means

How important is the fundamental right which has been interfered with (e.g. unconditional fundamental rights are of high abstract value)? Is the core area of ​​the fundamental right affected? Are protection areas strengthened (e.g. Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG)? Is there a graduated protection concept (e.g. Art 12 I GG)?

E.g.: Art. 2 para. 1 GG (general freedom of action)

b) Abstract value of the purpose

How important is the purpose that was pursued with the encroachment on fundamental rights? Purposes of constitutional status (e.g. environmental protection Art. 20 a GG) are more important than purposes that are only legally defined or not at all.

The importance of the purpose can be classified on a (rough) three-point scale from light, medium to heavy weight. [13]

E.g.: The protection of the free democratic basic order is of outstanding importance (heavy weight), while the protection of the sidewalks from pollution is only of secondary importance.

2. Concrete evaluation

As part of the specific value, the specific severity of the intervention and the degree to which the purpose has been achieved must be determined.

a) Concrete severity of the intervention

The actual severity of the intervention can be rated on a rough scale from easy, medium to difficult. [14]

The specific severity depends on how often, how long and how intensively the fundamental right in question was interfered with. [15]

Exceptions, transition periods, etc., which can lessen the severity of the intervention, must also be observed.

b) Degree of achievement of purpose

Here it is important to evaluate the degree of scope and the likelihood of achieving the purpose. The more likely it is that the intended purpose will be achieved and the more extensively the purpose is achieved, the higher the specific degree of achievement of the purpose.

3. Weighing up the conflicting concerns

The last step is to draw an overall balance from the results found. Often there will be a clear trend here. If, for example, the concrete and abstract severity of the intervention is particularly high and the intervention is only for a subordinate purpose, the realization of which is also unlikely, the result is obvious.

Sometimes, on the other hand, there are difficult balancing questions or even stalemates. For example, the encroachment could be both abstract and concrete, but the purpose pursued could be a purpose of constitutional rank (heavyweight), which, moreover, will be fully achieved with 100% probability. In these situations it can help to use the “wild card” of the Control density to pull. [16]

Depending on the density of controls, the state's arguments must be checked with varying degrees of rigor. As a control measure come one intensive content control, the Justifiability check and the mere evidence check into consideration. The choice of the standard of control depends on the intensity of the encroachment on fundamental rights and any uncertainties with regard to forecast decisions and must be justified in the specific case. [17]

In case of doubt, the BVerfG will not find any unconstitutionality in order not to substitute one's own opinion for the assessments of the legislature or the administration (which discretionary leeway was granted by the legislature). [18] The control density should, however, only be used as the last “argument”. In no way does the reference to this replace a proper pre-structuring and weighing up.

For more in-depth information from the more up-to-date training literature:

Kluckert, The weighting of public interests in the context of the proportionality test, JuS 2015, 116 ff.

Klatt / Meister, The Principle of Proportionality, JuS 2014, 193 ff.

Michael / Morlok, Grundrechte, 4th edition, 2014, Rn. 611 ff.

Reuter, Thomas, Proportionality in the narrower sense - the unknown being, JURA, 2009, p. 511 ff.

Vosskuhle, Basic Knowledge - Public Law: The Principle of Proportionality, JuS 2007, 429 ff.

© Markus Heintzen and Heike Krieger (Free University of Berlin)

B.processing for capital city cases: Andreas Buser

Processing status: November 2015


[1] In the literature, too, the weighing up of proportionality is sometimes felt to be subjective and irrational, see: Klatt / Meister, JuS 2014, 193 (194) with reference to Schlink, Weighing in Constitutional Law, 1976, 79; Habermas, Between Facts and Norms, 1996, 258; Webber, Canadian Journal of Law and Jurisprudence 2010, 179.

[2] The special importance of appropriateness for the award of points also emphasize: Vosskuhle, JuS 2007, 429 (431); Reuter, JURA 2009, 511 (512) and Klatt / Meister, JuS 2014, 193 (196).

[3] On the objectivity problem of weighing up: Klatt / Meister, JuS 2014, 193 (198 f.).

[4] On this: Michael / Morlok, Grundrechte, Rn. 615.

[5] On this: Michael / Morlok, Grundrechte, Rn. 634.

[6] Michael / Morlok, Grundrechte, Rn. 618.

[7] BVerfGE 30, 250 (262 ff.); 55, 28 (30); 65, 116 (126).

[8] See only: Michael / Morlok, Grundrechte, Rn. 621; Klatt / Meister, Jus 2014, 193 (195).

[9] See only: Reuter, JURA 2009, 511 (513) with further references.

[10] See from the case: BVerfGE 50, 217 (227); 80, 103 (107); 99, 202 (212 f.).

[11] So also: Michael / Morlok, Grundrechte, Rn. 618; Reuter, JURA 2009, 511 (515) with further references; Klatt / Meister, JuS 2014, 193 (196).

[12] Klatt / Meister, JuS 2014, 193 (197).

[13] Klatt / Meister, JuS 2014, 193 (196).

[14] Klatt / Meister, JuS 2014, 193 (196).

[15] Michael / Morlok, Grundrechte, para. 625.

[16] On this: Klatt / Meister, JuS 2014, 193 (199).

[17] On this: Klatt / Meister, JuS 2014, 193 (199) with further references.

[18] Michael / Morlok, Grundrechte, Rn. 626; Reuter, JURA 2009, 514 f.