The Importance of Proportionality and Germany's Constitutional Court

If you ever get the chance to read about the history of Germany’s Constitutional Court, you will find out that it has a very interesting background. It only goes back to 1951, when the principality of Baden merged with two others in order to form Baden-Württemberg. Karlsruhe, the former capital of Baden, was given a consolation prize: to be the quarters of the Constitutional Court of the new Federal Republic. This is appealing since the Court is far from Berlin, the capital, but this fact has not precluded the Court’s importance in Germany’s powers arena.

Proof of that authority is that in some people’s eyes, the Court is Germany’s most powerful institution. Approval rate for the Court goes as far as eighty-percent, while less than fifty-percent have confidence in the federal government and the Bundestag. It is seen to be above politics – which might be an explanation for the high-rate approval – but like every other key Court in the world, like for example, the United States Supreme Court, there is no doubt that it is also a political player. However, unlike United States Supreme Court and Venezuela’s Tribunal Supremo de Justicia, the judges in Germany’s Constitutional Court, seek consensus in every case they handle, and rarely write dissenting opinions.

The overcome of Nazi philosophy of justice explains a great deal how the Court works today. For example, any citizen may raise a constitutional case, contrarily to the Nazi years, when formal justice was only for a few. Germany’s magna carta, which will mark its 60th birthday on May 23rd, 2009, declares in its first article that human dignity shall be inviolable. It also sets up a structure with very limited powers for the President and strong state governments. More importantly, Germany’s Constitution freedoms do not extend to those who would destroy freedom, which may explain how Holocaust-denial can be a crime despite freedom of speech.

Soon, the Court is to rule on the European Union's Lisbon treaty, which specialists say could put the judges out of business. The treaty of Lisbon is an international agreement signed in Lisbon on December 13th, 2007 that, if ratified by European Union’s Member States, would bring a substantial change in the workings of the European Union. The main legal transformations would be the adoption of the Union’s human rights charter, the Charter of Fundamental Rights, as legally binding. Furthermore, the European Court of Justice would gain jurisdiction for more issues, and a new 'emergency' procedure would be introduced into the preliminary reference system, which would allow the Court of Justice to act "with the minimum of delay" when a case involves an individual in custody. Briefly speaking, if ratified, the Treaty of Lisbon will change things, by giving the European Commission and the European Court of Justice a bigger role in justice and security affairs.

The ratification of the Lisbon Treaty would also bring considerable adjustments in regards to the relationship between the European Court of Justice and the European Court of Human Rights. For the past years, there have been some concerns about consistency in case law between the two courts. The European Court of Justice refers to the case law of the European Court of Human Rights, and treats the European Convention of Human Rights, as it was part of the European Union’s legal system. However, as the law stands today, the European system of Human Rights is completely different and unconnected with European Union law. The competence of the European Court of Human Rights emerges from the ratification of the Convention of Human Rights and has very little to do with the European Union system. Nevertheless, if the Treaty of Lisbon is ratified, the European Union is expected to sign the European Convention of Human Rights. This would make the European Court of Justice bound by the European Court of Human Rights and subject to its human rights law.


The membership of Germany in the European Union is enshrined in its Constitution; and the Constitutional Court has a long-lasting collaboration with the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg. In February, it was argued before the Constitutional Court that the Lisbon Treaty would give the European Union the attributes of a state without making it democratically accountable, and that would undermine the Court's powers to protect the fundamental rights of Germans. Therefore, it was contended that the ratification of the Lisbon Treaty would infringe the Constitution, and consequently, the treaty should not be ratified.

Nowadays, in an international community densely populated with rights, every legal act is likely to infringe at least one another. In the next days, the Court will surely use "proportionality" to decide what can be allowed. The Court will do this applying the so-called proportionality test. The answers have revealed, for example, where a journalist's right to free speech ends and a citizen's right to privacy begins. While applying proportionality, the Court has issued controversial statements like the following:

"Possessing a little cannabis is fine, says proportionality, because law enforcement must be balanced against the right to free development of personality".

Invented by Prussia in the 18th century to limit the Kaiser's power, proportionality has influenced constitutions from Canada's to South Africa's. The influence of such test is unprecedented, even when America's Supreme Court, which has its own form of rights-balancing, is taking an interest. For example, Justice Stephen Breyer of the United States Supreme Court referred to proportionality in a recent dissenting opinion on gun control.


It was on the District of Columbia v. Heller case, that Justice Breyer, arguing against the use of categorical strict scrutiny test in the application of the United States Constitution Second Amendment, used “proportionality” as a term of art in Supreme Court case law, while stating:

“Any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns in the other (…) Contrary to the majority’s unsupported suggestion that this sort of proportionality approach is unprecedented, the Court has applied it in various constitutional contexts, including speech cases and due process cases”.

This doctrine of proportionality sets out three questions that courts should answer while applying the proportionality test: i) whether a law is actually serving the end it purports to serve; ii) the availability of alternative, less drastic means by which that same end could be achieved; and iii) whether the end pursued by that law is worth the restriction or costs imposed.

Proportionality is a gear that will help to keep the network of the German Constitution with European law alive. There is no doubt that each Court (namely, the European Court of Human Rights, Germany’s Constitutional Court and The European Court of Justice) is protective of its own competence and jurisdiction, but at the same time willing to avoid any type of conflict. The European Court of Justice and the European Court of Human Rights have gained much power since 1974, when the Constitutional Court began the transfer of powers to Europe, with the condition that the rights of the Germans’ will be protected and if not, the Court would regain them.


In that sense, it is interesting to appreciate what Renate Jaeger, the German judge of the European Court of Human Rights has said to explain the complex relationship between the European Courts and the Constitutional Court. He evokes an Alexander Calder mobile rather than a pyramid in order to understand the system and the supremacy of the European Courts. Still, there have been some differences. For example, the European Court of Human Rights told the Constitutional Court that its pro-paparazzi decision in a case involving Princess Caroline of Monaco, struck the wrong balance between press freedom and privacy.

Academics point out that the Lisbon treaty would tilt the balance of power toward the European Court of Justice, but not very far. Nevertheless, it surely will be worthy of note how the Constitutional Court applies the principle of proportionality in this issue, since it involves the Court’s own power. Latin America, and especially Venezuela, has a lot to learn from the Constitutional Court of Germany, a Court that favors the protection of the rights of its citizens than a portion of power. Proportionality, as applied by Germany’s Constitutional Court is becoming a global constitutional law principle and its application will keep bringing innovative and fair solutions to constitutional problems. If there is any benefit on being a third world country, that should be that you don’t have to improvise. You only have to study and start doing what developed countries have successfully manage to do. There isn’t a faster way to get on track towards progress.