1 - Proportionality Analysis by the German Federal Constitutional Court

Summary

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the German Federal Constitutional Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The findings reinforce the existing perception that strict proportionality is the central stage of the proportionality analysis: it is the stage responsible for the vast majority of failures, and even in the rare cases of failure at the worthy purpose, suitability, or necessity stages, half of those cases continue to the final stage. The findings do demonstrate several forms of deviations in practice from the standard sequential model of proportionality. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.