The Structure of the Proportionality Test

1
The Structure of the Proportionality Test


This chapter highlights some important aspects of the structure of the proportionality test. These are relevant as a basis on which the more detailed analyses in this book are built upon. Therefore, although not presenting something entirely new in substance, this chapter lays down the state of the art of proportionality analysis. We will frequently refer to these fundamentals throughout the book.


The proportionality test is widespread all over the world, and it is applied by various jurisdictions.1 Although there are certain differences and uncertainties in applying the test,2 an underlying structure can be revealed.3


The proportionality test per se is largely independent from any specific catalogue of basic rights. It is ‘appropriately multicultural’4 and refers to the process of analysis which is not greatly influenced by local moral or political beliefs.5 Applied appropriately, it has a disciplining and rationalizing effect on judicial decision-making.6


The principle of proportionality requires that there be a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective.7 A four-step test, with the sub-tests of legitimacy, suitability, necessity, and proportionality in the narrow sense, has been established.8


I. The four proportionality rules


The proportionality test consists of four rules,9 namely legitimate ends, suitability, necessity, and proportionality in its narrow sense. The first stage examines whether the act pursues a legitimate aim; suitability, whether the act is capable of achieving this aim; necessity, whether the act impairs the right as little as possible; and the balancing stage, whether the act represents a net gain, when the reduction on enjoyment of rights is weighed against the level of realization of the aim.10 The principle of suitability is an expression of the idea of Pareto-optimality and excludes the adoption of means which obstruct at least one right without promoting any other right or interest. The principle of necessity requires that of two means promoting a certain right or interest to, broadly speaking, the same degree, the one that interferes less intensively with a conflicting right or interest must be chosen. This structure of the proportionality test is based on rational grounds and can be seen as the underlying form of any proportionality analysis.


In practice the handling and the meaning of the individual steps differ in various jurisdictions.11 It should be noted, however, that Greer’s claim that this four-step structure of rights analysis was different from ‘the formal sequence of questions’ the ECtHR followed, is mistaken.12 On the contrary, Alexy’s analysis of the proportionality test is as neatly in accordance with the jurisprudence of the ECtHR as possible.13 The example Greer himself refers to demonstrates this clearly. He argues that:


In the particularly problematic context of articles 8–11, for example, the interference must be prescribed by law, necessary in a democratic society in pursuit of one or more of the specified interests, and proportionate to a pressing social need.14