THE RACE TO RATIONALITY REVIEW AND THE … EU/3(1)_Germany_8 - copie.pdfTHE SCORE OF THE GERMAN...

DOI: 10.5235/17521467.6.3.347

THE RACE TO RATIONALITY REVIEW AND

THE SCORE OF THE GERMAN FEDERAL

CONSTITUTIONAL COURT

Klaus Meßerschmidt*

Abstract

Judicial review is composed of a triangle of substantive, procedural, and impact

review which often overlap and culminate in the concept of rationality review.

The dichotomy of substantivism and proceduralism is modified in German

Constitutional Law for two reasons: Firstly, because the German Basic Law asks

for a minimum procedural review, and secondly, because the principle of

proportionality often requires an assessment of facts and a prognosis, thus

establishing an impact review which sometimes overlaps with a procedural

review. However, the quest for rational decision-making and due deliberation

does not prevail over substantive review. Only in borderline cases where the

compatibility of a law with the substantive requirements of the Constitution

cannot be ascertained, due to the empirical or prognostic complexity of the

matter, may standards of proper lawmaking be the decisive criteria. These

standards are not directly derived from the EU Better Regulation agenda. Rather,

they are part of the proportionality principle, which may be viewed as the Trojan

horse of procedural and impact review in German judicial review. Even though

the legislator is generally ‘better placed’ for both reasons of democratic

legitimacy and superior fact finding capacities, the Constitutional Court, under

certain circumstances, may substitute the findings and prognosis of the lawmaker,

in particular when legislation lacks procedural rationality or when a law is

dominated by special interests.

Keywords

Better regulation; efficiency; German Federal Constitutional Court; impact

review; judicial review; proportionality; procedural review; prognosis; rational

lawmaking; substantive review

* Klaus Meßerschmidt is lecturer of public law at Erlangen-Nürnberg University and professor of

public law at Berlin Humboldt University. He specialises in legisprudence, environmental, and European law. I would like to thank my colleague Roland Ismer and the anonymous reviewer for

valuable suggestions, Rachel Woodland and Sophia Piotrowski for proofreading.

348 Meßerschmidt

Legisprudence, Vol. 6, No. 3

A. INTRODUCTION

Judicial review of legislation has witnessed significant changes in the past

decades, both in the European Union and in many Member States, Germany

included. These changes comprise the growing interest in the procedural

requirements of legislation on the one hand and evidence-based legislation1 on

the other hand. The common ground is the search for ‘principles of proper law

making’,2 which relate to the universal idea of rationality. Traditional

jurisprudence, in contrast, paid little attention to the input and the impact of

legislation. This attitude culminated in the famous words of a renowned German

scholar of constitutional law: “Der Gesetzgeber schuldet gar nichts anderes als

das Gesetz”,3 implying that ‘laws are laws’ and Constitutional Courts should only

take an interest in their wording and meaning, setting both standards of

deliberation and impact aside.

Corresponding to this paradigm shift, procedural review and impact review

may be distinguished and separated from traditional substantive review. This

article contends that both issues are interrelated, even though they seem to

represent opposite approaches to legislation and judicial scrutiny. While the

traditional approach to judicial review, substantive judicial review (if we may

borrow the American terminology), is not at the centre of the following analysis,

it must be taken into account as part of the background of the debate on the

procedural review of legislation. It should be clear from the outset that most

suggestions of procedural review do not rival that of substantive review.

Nevertheless, the relationship between procedural and substantive review is

somewhat more complicated than ‘coexistence theory’ suggests, and situations

may occur where a choice between these different approaches has to be made. By

analysing judicial review, this article contends that the impact review may serve

as a link between substantive and procedural review. How this happens will be

explained later. Although several aspects of the subject matter of this paper may

be controversial, no doubt exists about the determination of judicial review to act

as a regulatory watchdog. Does this mean that constitutional courts should apply

as many approaches of review as possible, or should they act more cautiously?

While some scholars hail the Court ‘as a perfect agent to weed out bad laws’,4

others prefer a less radical gardener. This ongoing debate explains why the quest

for rationality review is both of theoretical and practical concern. The focus is on

1 R.A.J. van Gestel, ‘Evidence-based Lawmaking and the Quality of Legislation: Regulatory Impact Assessments in the European Union and the Netherlands’ in H. Schäffer and J. Iliopoulos-Strangas

(eds.), State Modernization in Europe (Bruylant 2007) 141. 2 P. Popelier, ‘Legal Certainty and Principles of Proper Law Making’ (2000) 2 European Journal of Law Reform 321. 3 K. Schlaich, ‘Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen’ (1981) 39

Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 99, 109. 4 G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press 2005)

56.

Quality of Legislation 349


Germany and the European Union because the German Federal Constitutional

Court (FCC) and the European Court of Justice (ECJ) represent different though

convergent and increasingly interdependent approaches to judicial review

yielding a far bigger caseload than the courts of the other EU Member States.

Consequently, both the ECJ and, to a lesser degree, the FCC serve as a source of

inspiration for the litigation of several courts in Europe and beyond.

These are the focal points of this article while other aspects of the multi-

faceted debate on the proper balance of judicial power and legislation are left

aside. For instance, the debate on the ‘negative form of legal supervision by

constitutional courts’ as a way of safeguarding the discretion of the legislature,

has attracted so much attention5 that there is no need to return to it. Suffice it to

state that the German Federal Constitutional Court does not renounce on positive

prescriptions to the legislature although they meet criticism because of the

imminent juridification of politics. Nor can this paper examine other ‘weapons of

limited warfare against unconstitutionality’,6 such as admonitory decisions,

declarations of incompatibility (instead of declaring legislative acts null and

void), judicial orders, and the interpretation in conformity with the Constitution

which was introduced as a means of judicial self-restraint, but may have the

opposite effect.7 Indirect effects of court decisions and the feedback process of

judicial review are also omitted. Thus, the regulatory watchdog named FCC can

bark and bite in more ways than the major ones that are presented here. In fact,

regulatory review raises more intriguing questions than this paper can tackle. It

would be interesting as well to analyse the driving forces behind regulatory

review. Since most scholars agree on the fact that constitutional courts, to some

degree, select cases,8 we have every reason to believe that the ECJ and national

constitutional courts are into agenda formation which influences their role as a

5 A. v. Brünneck, ‘Constitutional Review and Legislation in Western Democracies’ in C. Landfried

(ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 219 and

258–259. This paper mainly draws on references in English language. With regard to German sources it should be noted that the original ideas may have been published elsewhere or by another author. In

general more detail references are to be found in the quoted papers or books. 6 M. Cappelletti, ‘The Modern System of Judicial Review’ in M. Cappelletti and W. Cohen (eds.), Comparative Constitutional Law (Bobbs-Merill 1979) 94. 7 T. Gawron and R. Rogowski, ‘Implementation of German Federal Constitutional Court Decisions:

Judicial Orders and the Federal Legislature’ in R. Rogowski and T. Gawron (eds.), Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court

(Berghahn 2002) 239, 244–248; C. Landfried, ‘Constitutional Review and Legislation in the Federal

Republic of Germany’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 147, 154. 8 E. Blankenburg, ‘Mobilization of the German Federal Constitutional Court’ in R. Rogowski and T.

Gawron (eds.), Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (Berghahn 2002) 157, 166; J.B. Grossmann and C. Epp, ‘Agenda

Formation on the Policy Active U.S. Supreme Court’ in R. Rogowski and T. Gawron (eds.),

Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (Berghahn 2002) 103; H.W. Perry, Deciding to Decide: Agenda Setting in the

United States Supreme Court (Harvard University Press 1991).

350 Meßerschmidt


regulatory watchdog and which might explain why they bark, bite, or remain

silent from time to time.

B. THE TRIANGLE OF JUDICIAL REVIEW

Judicial review may be broken down to three dominant aspects of review:

substantive review, procedural review, and impact review.

1. Substantive Review

Substantive judicial review examines whether the content of legislation is in

accordance with the Constitution. It is the standard review provided by the

German Federal Constitutional Court. The cases range from abortion to taxation

and relate, in particular, to fundamental freedoms. “In its ‘pure form’, substantive

judicial review is not interested in the way in which the legislature enacted the

law; it is interested merely in the result or outcome of the enactment process.”9

This statement generally holds true. The case law of the FCC, however, provides

examples where the borderline of substance and procedure has become porous,

and substantive and procedural arguments are interchangeable to some degree.

Legislation refers to both process and product.10

The intrinsic wisdom of the word

is confirmed by the interaction between procedures and results. A corrupted

procedure often affects the quality of the law. Therefore, the process-product-link

merits close attention.

2. Procedural Review

The debate on procedural review is currently taking place on two levels: a

theoretical level and another level which focuses on the specific provisions of

national (or European) constitutional law.

(a) The General Debate on Proceduralism

From a theoretical point of view, it may be argued that common substantive

values are more debatable in a pluralist society than procedural rules. Therefore,

procedural review should be more easily accepted. Proceduralism promises to

9 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston University Law Review 1915, 1923. 10 I.B. Flores, ‘The Quest for Legisprudence: Constitutionalism v. Legalism’ in L.J. Wintgens (ed.),

The Theory and Practice and Legislation: Essays in Legisprudence (Ashgate 2005) 26, 29: “[T]he word ‘Legislation’ is ambiguous as it implies activity-process, on one side, and product-result, on the

other.”



bridge the gap between democracy and constitutionalism by minimising the

counter-majoritarian difficulty of judicial review.11

Sociologists also suggest that

fair proceedings contribute to the legitimacy of decisions. This idea was

originally supported by Niklas Luhmann,12

who combined sociological and legal

expertise with a deep interest in philosophy, and who was an opponent of Jürgen

Habermas in the German debate of the 1960s to 1990s on discourse theory.

However, it is not always clear which procedural prerequisites are deemed

necessary and whether a formal-legal or a more demanding approach that focuses

on the preconditions of rational discourse should be suggested. Besides, trust in

proceduralism may suffer from make-believe procedures. In practice, only few

reliable criteria exist to distinguish true assessment and deliberation from window

dressing.

(b) Proceduralism in German Constitutional Law

From a positivist point of view, it can be stated that the European Union and

Germany are more advanced in procedural review when compared to the situation

in the United States of America. Even though neither the ECJ nor the FCC have

fully subscribed to the most ambitious concepts of procedural review, there is no

‘puzzling resistance to judicial review of the legislative process’ which apparently

characterizes the debate overseas.13

The German Basic Law (Grundgesetz)

contains several provisions on the legislative procedure, such as rights to initiate

legislation and bicameral passage, and violations of these provisions in the

legislative process are subject to judicial scrutiny by the FCC. Moreover, the FCC

is suspected of a ‘preference for a higher degree of quasi-judicial procedural

regulation to be adopted by the legislature’,14

though evidence supporting this

theory is only supplied for judicial orders which are a special case of regulatory

review.

Although there is no German equivalent to the US ‘Enrolled Bill’ doctrine,15

the scope of procedural review is open to debate. Provisions on the enactment

process, which are not a part of the Constitution, but belong to the internal

parliamentary rules [Geschäftsordnungsrecht of Bundestag and Bundesrat] are

not legally binding for the lawmakers. Nevertheless some constitutional law

scholars suggest that more procedures should be regulated in a binding way,

11 J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980). 12 One of his major writings bears the telling title: N. Luhmann, ‘Legitimation durch Verfahren’ (1st

edn., Hermann Luchterhand Verlag 1969). 13 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011)

91 Boston University Law Review 1915, 1925. 14 T. Gawron and R. Rogowski, ‘Implementation of German Federal Constitutional Court Decisions: Judicial Orders and the Federal Legislature’ in R. Rogowski and T. Gawron (eds.), Constitutional

Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court

(Berghahn 2002) 252. 15 I. Bar-Siman-Tov, ‘Legislative Supremacy in the United States? Rethinking the Enrolled Bill

Doctrine’ (2009) 97 Georgetown Law Journal 323.

352 Meßerschmidt


prohibiting all kinds of deviations by the lawmakers, especially in the drafting of

laws, which is completed, in general, by the administration. However, due to the

minimum procedural review executed by the Court for many decades, the

German debate mostly focuses on procedural review writ large, which resembles

“semiprocedural judicial review” as expounded by Bar-Siman-Tov,16

and no

longer on procedural review writ small, which only checks the explicit procedural

standards as contained in the Constitution. Under ‘semiprocedural judicial

review’, a court reviews the legislative process as part of its substantive

constitutional review of legislation, and only if that content infringes upon

constitutional rights or other constitutional values, does the court examine the

legislative record to ensure the satisfaction of some procedural requirements in

the procedural process. Most suggestions relate to the unwritten procedural

principle of due deliberation.17

The importance of procedural standards of

lawmaking is illustrated by a recent of outsourcing legal drafting to law firms

which threatens the impartiality of laws and underscores the warning of a post-

democratic transformation of modern states.18

(c) Rival Concepts of Procedural Duties

The debate on procedural review in Germany culminated with the suggestion that

the legislator should be put under the obligation of rational decision-making.

According to this view, the legislator has a constitutional duty to deliberate.19

Some German scholars have even claimed that there should be an obligation

under constitutional law of legislators to use an ‘optimal method’ of legislation.20

There are many ways to question this seemingly persuasive idea. First of all, the

background of this idea must be taken into account, namely the proceduralism-

substantivism-contest, and the related debate on the supremacy of the legislator or

the Constitutional Court in Western constitutional democracies. Poor awareness

of the conflict between the quest for a rational perfection of lawmaking and the

justification of second-best laws through the principle of democratic decision-

making are major drawbacks of the theory of procedural duties to rationality.

Primarily two competing views of legitimacy must be weighed: the input-oriented

approach – the law is constitutional because it is approved by the democratic

16 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91 Boston University Law Review 1915, 1924. 17 ibid. 1922. 18 In general, see: C. Crouch, Post-Democracy (Polity Press 2004) 41; K. Meßerschmidt, ‘Private Gesetzgebungshelfer: Gesetzgebungsoutsourcing als Privatisiertes Regulierungsmanagement in der

Kanzleiendemokratie?’ (2012) 51 Der Staat 387 (in particular on outsourcing of lawmaking, which

became apparent in the banking-crisis-legislation). 19 G. Hoffmann, ‘Das Verfassungsrechtliche Gebot der Rationalität im Gesetzgebungsverfahren’

(1990) 10 Zeitschrift für Gesetzgebung 97. 20 G. Schwerdtfeger, ‘Optimale Methodik der Gesetzgebung als Verfassungspflicht’ in R. Stödter and W. Thoeme (eds.), Hamburg – Deutschland – Europa: Festschrift für Hans Peter Ipsen zum 70.

Geburtstag (Mohr 1977) 173.



sovereign – and the output-oriented approach, which comes in various guises –

the law is constitutional (i) because it does not infringe fundamental freedoms,

(ii) because it serves sound objectives or (iii) because cost-benefit analysis yields

a positive result. Although the two approaches partially overlap and reinforce one

another, they may also lead to conflicting results. Additionally, the quest for an

optimal method of lawmaking also suffers from a lack of methodological

foundation due to the one-sided legal training of the proponents, who currently

neglect the inclusion of decision, choice, and management theories in the

construction of rational legislation. My main objection to this suggestion,

however, results from its excessive character. It is not necessary to establish a

duty to rational lawmaking in such a strict sense in order to sanction a lack of

rational lawmaking. Legal theory draws a distinction between legal obligations

that are owed to others and ‘self-regarding duties’.21

In German legal

terminology, the latter duty is called ‘Obliegenheit’, contrary to ‘Pflicht’.

Constructing rational decision-making as a mere ‘Obliegenheit’ may at first sight

seem strange since legislation, as such, is never self-referential. However, this

approach makes the important contribution of explaining why procedural defaults

in the art of rational decision-making only matter when the decision is wrong or,

at least, debatable in substance. On the contrary, decisions which are compatible

with the constitution may overcome the procedural and methodological defects of

decision-making. Thus, the strict duty theory should be rejected as an

exaggeration, which creates problems better to circumvent. These problems can

be elegantly solved by the more moderate concept of the legislator’s self-interest

in rational lawmaking. Once the legislator knows that a rational procedure of

lawmaking helps to defend borderline cases, they will be eager to prove to

judicial review that the law under scrutiny resulted from well informed and

responsible deliberation.

3. Impact Review

Modern laws and statutes claim, as a rule, to change the world, at least in part.

Most of them are conceptualised and presented as tools for solving societal

problems, ranging from security risks to social welfare. For example, laws may

promise to alleviate the burden of bureaucracy or introduce additional controls.

The objectives of lawmaking range from incremental improvements, such as

easier access to justice by allowing plaintiffs to submit their claims via internet, to

ambitious or even over-ambitious goals, such as coping with global climate

change. These laws derive their legitimacy, in political terms, not only from the

input, according to the procedural requirements of the Constitution or other rules

governing the legislative process, but also from the output. From the output-

oriented point of view, it is not enough to produce a legislative act, which lives up

21 J. Austin, The Province of Jurisprudence Determined (2nd edn., J. Murray 1861) 400.

354 Meßerschmidt


to the formal standards of lawmaking, but one which also achieves the desired

results while avoiding unintended consequences. Legal realism, which has

successfully influenced legal thinking in Europe, goes beyond the ‘law in the

books’ to include ‘law in action’. Thus, the reputation of lawmaking nowadays

largely depends on the outcome. Due to the instrumentalist turn of legal

thinking,22

law in general is no longer construed exclusively as a representation of

intrinsic value or ultimate political authority, but has become a major part of

modern performance-oriented, efficiency-driven governance. Only few adherents

of the natural law theories would object to the conception of law as ‘a means for

deliberately moulding and fashioning individual conduct and social relations’.23

In order not to go from one extreme to the other, I admit that laws often combine

both instrumental and intrinsic value.

Hence, lawmakers, legal scholars, and the general public have increased their

interest in the pre-conditions of effective lawmaking on the one hand, and the

evaluation of legislative output on the other hand. Most contemporary legal

philosophers, political scientists, sociologists, and scholars of legisprudence agree

that law (i) may have both social and economic consequences and (ii) that

lawmaking authorities, therefore, should be guided by the foreseeable

consequences of the law in deciding whether to enact, maintain, change, or

abolish it. It is nowadays common understanding that these consequences are the

‘most important consideration bearing on the justifiability of the law’. Therefore,

the legislators should make an effort to act upon informed judgments on the likely

consequences of the law.24

From the myriads of statements promoting this view,

two quotations summarise the main points: “The lawgiver has to base his or her

legislative decisions on detailed analyses of what the consequences will be of the

legislative decisions made. The lawgiver has to be able to foresee the effects of

his or her decisions.”25

Even more to the point is the following comment: “The

quality of the laws produced by the legislative process increases when more and

better verifiable information is available on the circumstances under which the

law has to function. (…) Evaluation adds value to the legislative process because

it tests the assumptions on which a law is based.”26

Otherwise, the request that

regulation and its enforcement should be proportionate, accountable, consistent,

22 cf. K. van Aeken, ‘Legal Instrumentalism Revisited’ in L.J. Wintgens (ed.), The Theory and

Practice and Legislation: Essays in Legisprudence (Ashgate 2005) 67 (on legal instrumentalism). 23 J. Raz, Between Authority and Interpretation (Oxford University Press 2009) 105. 24 ibid. 104 ff. 25 L.D. Eriksson, ‘Making Society through Legislation’ in L.J. Wintgens (ed.), Legisprudence: A New

Theoretical Approach in Legislation (Hart Publishing 2002) 41 and 47. 26 H.B. Winter, ‘The Forum Model in Evaluation of Legislation’ in L.J. Wintgens (ed.),

Legisprudence: A New Theoretical Approach in Legislation (Hart Publishing 2002) 139 and 146 ff.



transparent, and targeted27

would be likely to fail. Not surprisingly, regulatory

impact assessment is a cornerstone of the EU Better Regulation agenda.28

The focus on impact review neither implies that all laws serve a particular

purpose, nor does it presuppose that the lawmaker exclusively acts upon the logic

of instrumental rationality. Some laws are ‘not intended to be enforced at all’, or

only in selected cases.29

The debate whether symbolic legislation may be justified

or should be abolished in general, may be left aside, since it does not directly

affect impact review, although impact review, at least, is very helpful in detecting

symbolic legislation which is suspected to be unconstitutional.

Moreover, the widespread commitment to impact assessment and impact

review does not guarantee good regulation. Ideology, special interest, and the

striving for immediate instead of sustainable success are strong opponents.

Currently, the EU and, in particular, German energy policy hold extreme

examples of wrong assessment of facts and prognoses, if not outright

manipulation and deception. As another disturbing example of the incapacity of

most politicians and economists to predict future developments, the Euro crisis

comes to mind. Such negative experience gives rise to doubts whether impact

assessment and impact review only work with less complex issues.

The issue of impact review covers both methodological and institutional

aspects. Methodological analysis concentrates on the prospects of evidence-based

lawmaking, thus going far beyond the professional competence of lawyers and

legal scholars. Institutional analysis in turn raises questions relating to the legal

quality of the rules of good lawmaking, such as evidence-based legislation, and –

provided a legal obligation to evidence-based lawmaking can be established –

with which branch of government or the judiciary the responsibility to control the

accomplishment of this standard rests. Moreover, it will be necessary to

determine the intensity of control.

4. Conflicts and Synergies

(a) The Relationship between Procedural and Impact Review

Procedural and impact review are mutually reinforcing. Procedural scrutiny is not

merely suggested for art’s sake or exclusively as an instrument to soothe popular

discontent. Rather, the partisans of procedural review expect an improvement on

the quality of legislative decisions when rational standards of decision-making are

met, such as the comprehensive establishment of facts, a thorough impact

assessment, consultations with stakeholders, transparent debates, no

27 A. Renda, Impact Assessment in the EU: The State of the Art and the Art of the State (Centre for

European Policy Studies 2006) 29 (referring to the UK example). 28 ibid. 48 ff. 29 L. Fuller, The Anatomy of Law (Mentor 1968) 40 ff.

356 Meßerschmidt


predetermined decisions, and the unbiased weighing of pros and cons, etc. As we

will see later, an important part of impact review refers to the procedural and due

diligence aspects of ascertaining the facts and the methodology of prognosis.

(b) The Relationship between Procedural and Substantive Review

It is important to understand that procedural and substantive review may also be

mutually reinforcing, although they represent different concepts of judicial

review. In the context of German law, as well as in European law, there is no need

to discuss radical proposals to substitute substantive review with procedural

review, since both the German Constitution and the European Treaties ask for

judicial protection of fundamental rights resp. freedoms. On the contrary, the

German and EU examples not only reaffirm that the distinction between

substance and procedure is elusive,30

but also show that substantive and

procedural review interact with each other. As a matter of fact, the key notions of

substantive control, in particular the principle of proportionality, have strong

procedural aspects that will be demonstrated later. The study of the adjudication

of the German Federal Constitutional Court reveals that it has not substituted

procedural review for substantive review. The judges only added some procedural

arguments as an addition to their substantive review. How and why did this

happen? In dealing with infringement cases, the Court obviously tried to exert

proportionality review, but also wanted to avoid a full review of legislative facts

and an impact assessment of its own. Therefore, the Court generated both

procedural and methodological standards as to the ascertainment of facts and

impact assessment. These standards allow the Court to avoid completing an

evaluation of its own, and to invalidate legislation because of a lack of evidence

of justification. Since in all proportionality issues the burden of proof rests with

the legislator a contended law may be annulled on the basis of an accomplished

negative evaluation by the Court, or because the Court finds that the legislator did

not provide enough reasons to justify a piece of legislation. This burden of proof

argument is even more prominent in the case law of the ECJ.31

Insufficient

analysis of facts and poor impact assessment, thus, fit both in the substantive and

the procedural context. In the end, it makes no difference whether the verdict is

based on the substantive burden of proof argument or procedural criticism of the

enactment process. This argument is reinforced by the finding that even the US

Supreme Court, though strictly opposed to procedural review, has checked in a

30 cf. I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’

(2011) 91 Boston University Law Review 1915, 1923. 31 cf. D. Keyaerts, ‘Courts as Regulatory Watchdogs: Does the European Court of Justice Bark or Bite?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), Role of Courts in a Context of

Multilevel Governance (Intersentia 2012) no. 4.3.5.



number of more recent cases that Congress based its decisions on sufficient

legislative findings as part of the Court`s substantive review of legislation.32

All in all, the situation of judicial review in Germany can be summarized by

adopting the definition of semiprocedural judicial review by Bar-Simon-Tov:

Under ‘semiprocedural judicial review’, a court reviews the legislative

process as part of its substantive constitutional review of legislation, and only

if that content infringes upon constitutional rights (or other constitutional

values such as federalism) does the court examine the legislative record to

ensure the satisfaction of some procedural requirements in the procedural

process. Under this model, defects in the legislative process, such as

inadequate deliberation, may serve as a decisive consideration in the judicial

decision to strike down legislation. However, these procedural requirements –

and the judicial examination of the legislative process itself – are only

triggered when the content of the legislation is allegedly unconstitutional.33

C. THE PATH TO JUDICIAL REVIEW OF RATIONAL LAWMAKING

Before turning to the notion of rational lawmaking and its role in judicial review a

twofold clarification is in order. Firstly, this paper does not address rationality

review as just another kind of review, but as the common denominator of

procedural and impact review. Secondly, rationality review is not restricted to a

simple test of reasonableness, but encompasses different levels of scrutiny which

apply according to criteria to be discussed later.

The following section focuses on the institutional aspects of rational

lawmaking, in particular on the role of courts as regulatory watchdogs. Since the

adjudication of courts depends on the availability of legal standards, it is

necessary to investigate first, how, and to what degree, the general quest for

evidence-based rational legislation translates into a legal standard.

The idea of rational lawmaking and a corresponding rationality review is no

truism. The lawmaking process is primarily dominated by vested interests,

ideological motivations, tactical manoeuvres, and public relations exercises,

rather than by scientific reasoning.34

The idea that parliamentary deliberation

guarantees the rationality of the outcome turned out to be a 19th

century illusion.

Therefore, the concept of rational lawmaking is a very ambitious one. In order to

avoid a shift of power from traditional democracy to a government of judges and

32 cf. I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’

(2011) 91 Boston University Law Review 1915, 1925. 33 ibid. 1924. 34 K. van Aeken, ‘Legal Instrumentalism Revisited’ in L.J. Wintgens (ed.), The Theory and Practice

and Legislation: Essays in Legisprudence (Ashgate 2005) 83.

358 Meßerschmidt


experts, rationality review must be cautious. The quest for rationality review has

to take into account that the Constitution imposes only minimal rationality

standards for legislative decision-making.35

Extending this modest demand would

increase the tension between democracy and constitutionalism. Although

important scholars of political philosophy and legal theory argue that no such

contradiction exists, it can hardly be denied that legally binding rules of rational

decision-making may reduce political choice. Thus, it is not yet clear whether the

concept of deliberative democracy broadens or diminishes democracy. Hence, a

further inquiry into more advanced rationality standards is omitted on principle,

and not merely in the interest of a slim line of argumentation.

I introduce the term ‘rationality review’ without providing an explicit

definition. Since I have dealt with this complex term elsewhere,36

I confine

myself to the essential point that rationality review does not only refer to intrinsic

formal rationality of lawmaking, but also to extrinsic substantive rationality.37

In

practice, the latter is the decisive part since most formal aspects are already

covered by traditional judicial review.

Among the competing concepts of rationality, instrumental and discursive

rationality attract much attention.38

The debate between these two may be put

aside in this paper since it covers both empirical and normative aspects. Where,

from an empirical point of view, Weberian teleological rationality may suffer

from a narrowed perspective similar to that of the homo oeconomicus, the more

complex discursive rationality is highly appealing to legal theorists. However,

even discursive rationality does not paint the full picture. Owing to its focus on

stakeholder consultations and perfect deliberation, it provides no clear answer for

the impact of ideologies and lobbyism on legislation. Furthermore, the attitude of

discursive rationality towards instrumental rationality is somewhat ambiguous.

Does it integrate instrumentalism in a broader concept or does it revise purposive

rationality? Even though the instrumental view has been criticized for

simplification, it prevails in legislative evaluation. Notwithstanding its flaws,

instrumental rationality, therefore, underlies the following analysis.

1. The German Experience

This analysis starts with German constitutional law and the adjudication of the

German Federal Constitutional Court and afterwards turns to the European Court

35 U. Karpen, Gesetzgebungs-, Verwaltungs- und Rechtsprechungslehre: Beiträge zur Entwicklung

einer Regelungstheorie (Nomos 1989) 42. 36 cf. K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 777–816. 37 cf. I.B. Flores, ‘The Quest for Legisprudence: Constitutionalism v. Legalism’ in L.J. Wintgens (ed.),

The Theory and Practice and Legislation: Essays in Legisprudence (Ashgate 2005) 37 (referring to

Max Weber). 38 cf. W. Cyrul, ‘How Rational is Rational Lawmaking’ in L.J. Wintgens (ed.), The Theory and

Practice and Legislation: Essays in Legisprudence (Ashgate 2005) 93.



of Justice. In comparing the case law of both courts, similarities, as well as

differences, will become evident.

(a) The Non-Enforceable Character of the EU Better Regulation Agenda

Why start with German constitutional law? The fact that the author is more

familiar with German law is not reason enough. At first sight, European law

would seem to be the better starting point not only because of its broader

application but due to the fact that the European Union appears to be more

committed to good lawmaking than the German legislator. While the European

Union has subscribed to the programme of good regulation which reflects the

universal interest in Good Governance, the German legislator has so far not

adopted similar standards of lawmaking.39

However, the EU declarations on

Better Regulation are – at best – soft law and not yet part of the acquis

communautaire. Thus, the ECJ cannot directly apply these declarations as legal

standards of regulatory control. Although Better Regulation has become ‘a new

mantra’ of EU policies,40

it is still restricted to the art of lawmaking and does not

serve as a yardstick of judicial review, so far.41

As the Action Plan for Better

Regulation, which goes back to the Commission’s 2001 White Paper on European

Governance,42

and the Mandelkern Report,43

and their respective updates were

launched by the EU Commission, this comes as no surprise. The 2003 Inter-

Institutional Agreement on Better Regulation reacted to widespread criticism of

the Commission supposedly ‘playing solo’ on the reform of European

governance,44

but did not involve the judicial branch. EU and legisprudence

scholars hold that Better Regulation programmes are generally designed as

39 However, some modest and vague provisions exist in the procedural codes on drafting legislation,

e.g. [Gemeinsame Geschäftsordnung der Bundesministerien]. The Normenkontrollrat established at the office of the German Chancellor only deals with the issue of administrative burden. A framework

of procedural rules for legislation was proposed by J. Lücke, ‘Die Allgemeine

Gesetzgebungsordnung’ (2001) 16 Zeitschrift für Gesetzgebung 1. 40 A. Renda, Impact Assessment in the EU: The State of the Art and the Art of the State (Centre for

European Policy Studies 2006) 43. 41 Some counterexamples are provided by: D. Keyaerts, ‘Courts as Regulatory Watchdogs: Does the European Court of Justice Bark or Bite?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene

(eds.), Role of Courts in a Context of Multilevel Governance (Intersentia 2012) at no. 4.2 ff. R.A.J.

van Gestel and M.-C. Menting, ‘Ex ante Evaluation and Alternatives to Legislation: Going Dutch?’ (2011) 32 Statute Law Review 209, 217, conclude that ‘Community courts are slowly starting to

recognize Better regulation tools as self-binding and essential procedural requirements, limiting their

review to the existence (or otherwise) of a RIA or consultation process, without engaging in a detailed assessment of the way in which these procedures have effectively been undertaken’. For further in-

depth analysis of the relation between soft law and judicial review, see: E. Korkea-Aho, ‘Better

Judicial Review? EU Courts and the Smart Regulation Agenda in Implementing Chemicals Regulation’ (2012) 6(3) Legisprudence 397. 42 Commission, ‘European Governance’ (White Paper) COM (2001) 428 final. 43 Final Report November 2001. 44 A. Renda, Impact Assessment in the EU: The State of the Art and the Art of the State (Centre for

European Policy Studies 2006) 50.

360 Meßerschmidt


administrative guidelines, without the intention to submit them for judicial

scrutiny.45

This result is somewhat disappointing. From what we know, obedience to

legal standards grows when control mechanisms are in place. Therefore,

procedural standards, as well as the quest for evidence-based lawmaking, need

some sort of complementary review. Better Regulation guidelines will be more

effective when legislators have to face review. However, legal facts cannot be

changed at will simply because some of us would prefer a different result.

The ECJ as a regulatory watchdog, therefore, cannot refer to a specific legal

framework which provides it with precise standards of high-quality regulation,

but must resort to rules and principles of conventional primary or secondary law.

Thus, European law, compared with German law, offers no superior model of

regulatory control which needs to be examined first. On the contrary, due to the

long tradition of regulatory control by the FCC, which was introduced almost two

decades before the ECJ did likewise, and because of the legal doctrines employed

by the Court in order to establish its control over legislation, it is appropriate to

start with the example of Germany. Since the FCC is widely reputed to be ‘the

most active and powerful constitutional court in Europe’46

and disposes of

‘unique powers of judicial review of legislation’,47

the Karlsruhe tribunal may set

a benchmark in the field of regulatory review.

Nevertheless, it can be concluded from the European experience that no direct

link exists between the better lawmaking agenda and the growing emphasis on the

role of the ECJ as a regulatory watchdog. The increased interest, both in

regulatory reform and regulatory review, is no coincidence either. However, to

explore their common roots goes beyond the objective of the present analysis. A

further conclusion from the EU Better Regulation agenda may be drawn: Its

emphasis on impact assessment suggests a clarification of the notion of evidence-

based legislation. The establishment of facts has to be supplemented by a

prognosis of the results of legislative action and non-action. Since legislation is

not a mere statement of facts, but an attempt to change facts, any serious

discussion of the pros and cons of legislation, and its alternatives, requires a

forecast of probable further developments. This task is of equal importance as the

assessment of facts, but is often more difficult. On the one hand, social and

economic studies refer to the risks of prognosis. They are perfectly aware of the

so-called regulation paradox: “[T]he demand for regulation increases while the

45 cf. D. Keyaerts, ‘Courts as Regulatory Watchdogs: Does the European Court of Justice Bark or Bite?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), Role of Courts in a Context of

Multilevel Governance (Intersentia 2012) 2. 46 D. Kommers, ‘The Constitutional Court of the Federal Republic of Germany’ (1994) 26 Comparative Political Studies 470. 47 T. Gawron and R. Rogowski, ‘Implementation of German Federal Constitutional Court Decisions:

Judicial Orders and the Federal Legislature’ in R. Rogowski and T. Gawron (eds.), Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court

(Berghahn 2002) 243.



increase of the complexity of the environment, in which the laws have to operate,

reduces the chances of reaching the goals of the legislation.”48

On the other hand,

politicians and legislators ask for clear statements in order to legitimise their

decisions. Since they are often prone to wishful thinking, ‘telling the truth to

politicians’ is a difficult task.49

As a result, the collaboration of think tanks and

political advisors may end in an awkward situation, either the advisors disappoint

politicians with an unbiased analysis, which may have a negative impact on

future business relations, or they look to manipulate the facts to adapt the

prognosis to meet the expectations of politicians or lobbyists. Thus, evidence-

based lawmaking implies the need for impartial and unbiased analysis, and a

transparent handling of prognostic imperfection.

(b) The German Approach to Rationality Review of Legislation

As mentioned above, German law, constitutional law included, lacks an explicit

standard of good lawmaking. In the field of political commitment to good

regulation, the results of the German debate, which echoes the American and

European debate, are poorer than the European declarations. However, following

decades of constitutional adjudication, some criteria have evolved, which come

close to standards of good lawmaking. It should be noted that these standards are

rooted in the protection of fundamental freedoms,50

and thus do not warrant

general application on all kinds of legislation. The acknowledgement of

procedural standards by the FCC did not follow a master plan, but happened more

or less occasionally. In the beginning, procedural requirements may even have

served as a stopgap. In some hard cases the Court did not want to sustain a

motion nor did he dare to overrule it. By establishing procedural standards instead

of conferring a substantive right, the Court had found an elegant escape. The

Numerus Clausus Case makes a good example.51

Later, the initial ‘tactics’

evolved into a principle. Similarly, the ECJ seems to employ the duty to give

reasons as a substitute for substantive review.52

All in all, the German FCC has

been ‘in the business of determining the reasonableness of government action’53

for decades and there is no indication that they could go out of business anytime

soon. Thus, although the European Better Regulation guidelines are not applied in

48 K. van Aeken, ‘Legal Instrumentalism Revisited’ in L.J. Wintgens (ed.), The Theory and Practice and Legislation: Essays in Legisprudence (Ashgate 2005) 78. 49 cf. A. Wildavsky, Speaking Truth to Power (Little, Brown 1979). 50 P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6(3) Legisprudence 257 (for the convergent trend in ECHR adjudication). 51 D.P. Currie, ‘Lochner Abroad: Substantive Due Process and Equal Protection in the Federal

Republic of Germany’ [1989] Supreme Court Review 333, reprinted in (2008) 9 German Law Journal, 2179. 52 A.H. Türk, Judicial Review in EU Law (Edward Elgar 2009) 114. 53 D.P. Currie, ‘Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany’ [1989] Supreme Court Review 333, reprinted in (2008) 9 German Law Journal,

2179, 2221.

362 Meßerschmidt


German litigation, the FCC contributes, in a way, to the improvement of

legislation.

The underlying basis of rationality review by the FCC is that the German

Constitution – as is the rule with modern constitutions – protects various

fundamental rights. Most of these rights are not guaranteed under all

circumstances (as with ‘absolute’ rights), but have to be weighed with actual and

potential justifications for legislative infringements. This approach has sometimes

been criticized as being too ‘soft’. However, it enhances the chance to extend the

constitutional review of legislation, since it allows for the review of any kind of

detrimental effect of legislation on individual freedoms and not only violations of

the “core” of fundamental rights. An almost extreme example of the FCC’s

willingness to extend judicial review to underlying facts represents the Numerus

Clausus judgment which simultaneously established a sweeping procedural

obligation of the State to prove that universities have exhausted all capacities.

Otherwise, the exclusion from applicants to state universities could not be

justified.54

This highly popular decision does not make sense to everybody. An

American expert on German constitutional law was amazed that ‘the Court has

gone so far as to review the adequacy of teaching loads in order to determine

whether there is room for additional students’.55

The call for justification of legislative acts consists of two elements: (i) The

objective of the law must be legitimate. Most laws pass this exclusively or, at

least, predominantly normative test. The question, e.g., whether it is justifiable to

launch a missile at an aeroplane, which has been taken over by terrorists, in order

to prevent a nine-eleven style catastrophe, although the lives of innocent

passengers will be sacrificed by this preventative act, is a matter of principle and

cannot be decided by merely factual arguments. (ii) However, even laws which

pursue legitimate objectives may be unconstitutional when they do not take into

account that a less restrictive but equally effective alternative exists. The least-

restrictive test allows for the attainment of the objective without, or with less, cost

for the affected individuals in terms of fundamental rights of these citizens. This

is the overall idea of the principle of proportionality. Within the proportionality

test, which includes several steps, one has to consider whether the measure under

scrutiny satisfies the following requirements: (i) the measure – regarded as a

means to an end – must be apt for reaching the predetermined end (geeignet); (ii)

the suitable measure must be necessary (erforderlich), which means that it must

not exceed what is required to attain the objective and that no less restrictive resp.

burdensome yet safe solution to the problem exists; (iii) the means must be

reasonable (angemessen). Only within this last test, to some extent, does a

weighing of means finally take place in order to guarantee a proper balance

54 33 BVerfGE 303 (1972) at [351]; 54 BVerfGE 173 (1980) at [191]. 55 D.P. Currie, ‘Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany’ [1989] Supreme Court Review 333, reprinted in (2008) 9 German Law Journal,

2179, 2198 ff.



between the effects of the limiting measures and the legislative objective, whereas

both the suitability and the least-restrictive tests heavily rely on facts. Whether

these facts are easy or difficult to ascertain depends on the circumstances.

Obviously, a statute which regulates the opening hours of the local swimming

pool requires less factual analysis and prognosis than a law which seeks to

promote renewable energies. To sum up, the FCC applies the proportionality

principle within constraints ‘as a subsidiary authority for the assessment of

political outcomes’.56

Simultaneously, proportionality review sometimes gives

way to procedural review. The general analysis of Patricia Popelier perfectly fits

the German experience: “Proportionality analysis takes procedurals requirements

into account, in particular when broad deference hinders a substantive assessment

of legislation, leading to a point of convergence of regulatory reform and process

review.”57

Thus, the proportionality principle has emerged as the Trojan horse of

due deliberation and impact review.

The principle of proportionality was first established in the late 19th

century

by the Prussian Administrative High Court in building control law (Kreuzberg

case), then extended to administrative law in general, and was later promoted to

constitutional law.58

Applying this principle to acts of legislation constitutes the

most important paradigm of the adjudication of the FCC. Some German lawyers

even praise the proportionality principle as an ‘export hit’ of German

constitutional law, which was only possible because of the general acceptance of

proportionality in Western thinking. Due to the legally binding character of this

principle, all legislative acts which lack proportionality are void.

Due to its focus on means-end flaws,59

and the weighing of interests, the

principle of proportionality exhibits striking similarities with economic efficiency

and effectiveness standards.60

Since the legal system is under pressure to

accommodate to the demands of efficiency and cost-benefit analysis, an

economic reading of the proportionality test may lead to the introduction of

operational methods of evaluation into judicial review and thus increase

transparency. Due to the widespread criticism of the unpredictable character of

the weighing process this could be a major improvement. A merger of economic

and legal thinking has some drawbacks as well. Since I dealt with the relationship

56 C. Engel, ‘The Constitutional Court: Applying the Proportionality Principle – As a Subsidiary

Authority for the Assessment of Political Outcomes’ in C. Engel and A. Héritier (eds.), Linking

Politics and Law (Nomos 2003) 287. 57 P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6(3)

Legisprudence 257. 58 S. Michalowski and L. Woods, German Constitutional Law: The Protection of Civil Liberties (Ashgate 1999) 83–85 (for a concise description in English). 59 cf. S. Eng, ‘Legislative Inflation and the Quality of Law’ in L.J. Wintgens (ed.), Legisprudence: A

New Theoretical Approach in Legislation (Hart Publishing 2002) 65, 76–78. 60 For further references, see P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory

Watchdogs’ (2012) 6(3) Legisprudence 257.

364 Meßerschmidt


of proportionality and efficiency elsewhere,61

I do not go into details here. Some

decisive points are presented in the introduction to this issue.

In addition to the principle of proportionality, some other principles of

constitutional law, the ban on arbitrary decision-making in particular, may

occasionally require a conclusion of facts, or a prognosis when a debatable piece

of legislation is presented before the Court. Its legal function is to ensure not only

formal but also substantive equality by preventing public authorities from

arbitrary action and thereby imposing a justification for differential treatment.62

Interestingly enough, the FCC touched on the notion of rational lawmaking for

the first time, though in a sceptical vein, in commenting on the boundaries of the

right of judicial review in relating to the equality principle:

“The Equality principle offers the Federal Constitutional Court no possibility

of examining a statute from the viewpoint of ‘universal justice’ and thereby

constituting its own interpretation of justice for that of the lawmaker. The

Equality principle leaves open to the lawmaker, much more, a wide area of

discretion. The Federal Constitutional Court can only examine whether the

asserted boundaries of this area have been overstepped, and has certainly not

to find whether the lawmaker has in particular instances employed the most

suitable, the ‘most rational, or the most just’ solution.“63

By making heavy use of the principles of proportionality and equality, the

German FCC differs from the French Conseil Constitutionnel which has a

reputation for showing ‘a certain amount of self-restraint in not using the

principles of proportionality or rationality of the legislative act, and in making

only moderate use of the violation of the principle of equality as grounds for

nullification’.64

(c) Implementation of Rationality Review

The ensuing adoption of rationality review by the German Federal Constitutional

Court constitutes an adequate response to the growing problems of lawmaking.

Simultaneously, it gives rise to new problems which so far have not been solved

by the Court or academia. While the weighing requirement established in town

planning law, which asks above all for a complete inventory of all relevant facts

61 K. Meßerschmidt, ‘Efficiency and the Principle of Proportionality: Shall Lawyers Learn from Economists?’ (2001) EuroFaculty Papers Riga; K. Meßerschmidt, ‘Ökonomische Effizienz und

Juristische Verhältnismässigkeit: Gemeinsames und Trennendes’ in E. Gawel (ed.), Effizienz im

Umweltrecht: Grundsatzfragen Wirtschaftlicher Umweltnutzung aus Rechts-, Wirtschafts- und Sozialwissenschaftlicher Sicht (Nomos 2001) 219 (for a more extensive study in German). 62 A.H. Türk, Judicial Review in EU Law (Edward Elgar 2009) 133. 63 3 BVerfGE 182 (1954). 64 L. Favoreu, ‘The Constitutional Council and Parliament in France’ in C. Landfried (ed.),

Constitutional Review and Legislation: An International Comparison (Nomos 1988) 81, 102.



and affected interests, inspires some scholars to construe legislation in a similar

vein, legislative acts differ from planning in that they do not implement statutes,

but possess a superior legitimacy, being the emanation of the political decision of

the legislator. The relationship between the Constitution and statute law cannot be

reduced to the idea of implementation, which characterizes the relationship

between statutes and decrees or planning acts. Even though the idea of

parliamentary sovereignty was never influential in Germany – this can be

explained by the preoccupation of the German public law doctrine with the role

of monarchy in the 19th

century and with the elaboration of constitutional

democracy in the second part of the 20th

century65

– equating legislative

discretion with administrative discretion would be too extreme.66

Therefore, the

case law on the abuse of administrative discretion may not be applied as a

blueprint for solving the problems of negligence and fallacies in the legislative

process.

Consequently, the FCC and public law scholars had to elaborate criteria for

procedural and impact review on their own. From the various shortcomings which

judicial review has encountered, be it insufficient fact finding, false prognosis and

miscalculation or other shortcomings of due deliberation, this article selects only

the reasons that are perceived to be most important.

The German constitutional law doctrine acknowledges that the legislative

process is not only a rule-governed, but also a political process, which resists full

legal determination. Procedural review beyond the strict rules of the legislative

procedure contained in the Constitution thus gives rise to serious questions. First

of all, the need to distinguish mere technical rules and procedures which affect

the due process of lawmaking requires thorough exploration and intense debate.

Assuming that some rules may be deduced from the Constitution, which must be

adhered to in order not to challenge the legitimacy of the legislation, the even

more intricate question arises whether procedural review may prevail over

substantive review. Imagine a law which fully conforms to substantive

constitutional law, respecting individual freedoms and producing good results,

while the process of enactment suffers from inadequate deliberation and

insufficient consideration of facts. As I have argued in more detail elsewhere, the

substantive quality must prevail over procedural defects, some elementary rules

excluded, such as rules of recognition and strict procedural rules.67

Thus, I prefer

the ‘semiprocedural’ model of judicial review, according to which procedural

requirements are only triggered when the content of the legislation is allegedly

unconstitutional.68

It conforms to the “soft duty” approach presented in a previous

section.

65 cf. K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 654–712. 66 ibid. 270–305. 67 K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 817–880. 68 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011)

91 Boston University Law Review 1915, 1924.

366 Meßerschmidt


Rationality review may range from a broad rational basis test to a much

stricter ‘clear and present danger’ test or a more refined strict scrutiny test. These

terms, which have a more or less precise meaning in US constitutional law,69

do

not apply directly to German judicial review. However, it is hard to translate the

three-tier German model consisting of a manifest error test (Evidenzkontrolle), a

more intense justifiability review (Vertretbarkeitskontolle), and a full (intense)

substantive review (intensivierte inhaltliche Kontrolle). The FCC has expounded

this sliding scale in its landmark decision on worker participation

(Mitbestimmungsurteil).70

The idea of varying degrees of judicial review had been

familiar to German constitutional law since the Court suggested in the seminal

1958 Pharmacy decision that the intensity of judicial review should vary

according to the severity of the intrusion (Stufentheorie).71

The innovative turn

consists in submitting not only the weighing process, but also the quality

standards of prognosis to gradation. The choice of the standard of review depends

both on legal and factual criteria. Legal criteria, such as the standing of freedoms

and the intensity of the infringement on the one hand, and the difficulty of

legislative evaluation and prognosis, which varies according to the arena of

legislation, on the other hand, should be taken into account in order to determine

the intensity of review.72

Thus, the graded test of the constitutionality of laws

implies that (i) the most intense supervision must be exercised where personal

and political rights of the individual are affected, whereas (ii) economic and

social regulation enjoy the largest amount of freedom of discretion.

The correlation between the intensity of an infringement and the intensity of

review is generally acknowledged as a criterion of judicial review. The same is

true of the impact of prognostic problems on the intensity of judicial review.

Taking into consideration the prerogative of the legislator, including the

evaluation of facts, as well as the prognosis (Einschätzungsprärogative), the

Court gives the benefit of doubt to the legislator.73

Facing growing problems of

prognosis due to faster changing societal conditions in a globally complex, more

‘liquid’, and more ‘risky’ environment,74

impact assessment may become a new

battleground for politics and the judiciary. It must be hoped that the Court does

not resort to the complexity argument as an easy excuse for escaping review.

Stressing the procedural elements of review is an important device to uphold

impact review even under conditions of uncertainty. This brief sketch of

69 K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 621–627 (with further references). 70 50 BVerfGE 290 (1979) Codetermination Case. 71 7 BVerfGE 377 (1958) at [405]. 72 A. v. Brünneck, ‘Constitutional Review and Legislation in Western Democracies’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 256–257;

K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 1048–1052. 73 K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 926–1040. 74 K. van Aeken, ‘Legal Instrumentalism Revisited’ in L.J. Wintgens (ed.), The Theory and Practice

and Legislation: Essays in Legisprudence (Ashgate 2005) 78 (with further references).



arguments presented in detail elsewhere75

is all that is required. Moreover, a

closer analysis would reveal that the details are far from clear. Unfortunately, but

not surprisingly, the FCC, for instance, has never ventured to define the three

levels of judicial review proposed.

Notwithstanding the plethora of scholarship dedicated to judicial review and

legislative discretion, some unresolved or even unrecognized problems still exist.

Perhaps the most intricate question refers to the graded approach to judicial

review. Though the general idea is highly convincing, the same is not true of the

link between the constitutional weight of the subject matter of the law and the

legislative prerogative with regard to the facts underlying the legislation and the

foreseeable impact of the legislation. The conventional approach says, roughly

speaking, that the necessary precision of assessment and review depends on the

importance of the issue. This argument may be right in everyday life and in line

with the teaching of economics of information. It is less persuasive when applied

to constitutional law. All constitutional review deals with significant problems.

Therefore, leniency towards factual or prognostic review cannot be justified

because the matter in question, as compared to others, seems to be less important.

The suggestion that the Court should abstain from review when “only facts” are

concerned must be rejected as well. This means that only the complexity

argument or the need for immediate legislative action may justify error tolerance

by the Court.

Another difficulty of rationality review results from the fact that most of the

time, this kind of review only works if the judiciary succeeds in gathering

sufficient information on the objectives of the legislator. Since the latter is under

no obligation to give reasons for their plans,76

this task may be hard to

accomplish at times.77

Even though the German lawmaker does provide

comments on their intentions, the explicit motivation may be vague, or even

misleading, in that the real goals are often not revealed. The legislator may also

try to impede judicial review by submitting several vague, ambiguous, or even

contradictory reasons.78

This strategy may prevent the judiciary from determining

the legislative goal, though they may try to deduce the true intentions of the

lawmaker from the content of the law.

With respect to the completion of impact assessment and prognosis review

another problem requires attention: German constitutional law clings to the

distinction of ex ante (prospective) and ex post (retrospective) impact

75 cf. K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 994–1004. 76 Article 296(2) TFEU has no counterpart in German constitutional law. J. Lücke, Begründungszwang und Verfassung: Zur Begründungspflicht der Gerichte, Behörden und Parlamente

(Mohr 1987) pleaded in vain for obligatory reason-giving in legislation. 77 cf. K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 917–918. 78 G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press 2005)

48 (arguing that the legislator is interested in strategies to reduce transparency).

368 Meßerschmidt


assessment.79

Since a prognosis ex post is contradictory in itself, the FCC, at first

sight, seems right to prefer ex ante prognosis to ex post evaluation. Focusing on

prospective evaluation, instead of retrospective evaluation, while new information

is available requires reasoning under a veil of ignorance. Thus, any ex post

exercise in ex ante evaluation seems to be paradoxical. Still, a strong argument in

favour of this approach stems from the obvious fact that this approach is

beneficial for the legislator because it allows the defense of any law, which has

not achieved the attached goal, where the legislator had reason to believe that it

would. Moreover, ex ante assessment80

is a procedural approach which may be an

asset in itself. However, two objections to ex ante review81

arise: (i) When a law

ends in failure, it is little consolation that the legislator tried hard to complete a

professional prognosis. The judgment on the appropriateness of restrictions to

individual freedoms should use the best, and most recent information, instead of

indulging in the artificial reconstruction of an ex ante perspective. (ii) According

to the German doctrine, the notion of a breach of the Constitution does not imply

any reproach to culpable action. Suffice to state that the legislator has enacted an

unconstitutional law. Whether they intended to violate the Constitution, or not, is

outside the scope of judicial review. Consequently, the ex ante prognosis and due

diligence of prognosis are of little importance within the context of judicial

review. Rogers and Vanberg present another argument for ex post review. Vanberg

looks at judicial review as a means of intertemporal cooperation: According to

Rogers and Vanberg, legislators must base their support for particular proposals

on their projected impact, whereas the actual impact cannot be perfectly

anticipated and foreseen. Unintended and undesirable consequences of a policy

may only emerge in the implementation stage. Hence, judges, in general, will

have access to better information about the actual impact than legislators had at

the legislative stage. Although this finding is neither really new nor fully correct,

the conclusion is innovative: “[W]hen striking down legislation that has produced

undesirable and unintended consequences judges may be a service that legislative

majorities value.”82

This argument is convincing to a certain degree and explains

why the saga of the combat between the legislator and the judiciary does not tell

the full story. Above all, it contributes to an appeasement in the debate on the

counter-majoritarian difficulty. Nevertheless, the ex ante prognosis should not be

rejected completely as a means of judicial review. In cases where ex post

evaluation does not provide clear results the Court must resort to ex ante

prognosis, privileging the diligent and punishing the careless legislator. Finally, a

79 The terminology may deviate from the definitions given by e.g.: J. Verschuuren (ed.), The Impact of

Legislation: A Critical Analysis of Ex ante Evaluation (Martinus Nijhoff Publishers 2009) 5. 80 cf. R.A.J. van Gestel and M.-C. Menting, ‘Ex ante Evaluation and Alternatives to Legislation: Going Dutch?’ (2011) 32 Statute Law Review 209, 211 ff.

81 K. Meßerschmidt, Gesetzgebungsermessen (Nomos 2000) 996–1004. 82 G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press 2005) 54–55, referring to J. Rogers, ‘Information and Judicial Review: A Signaling Game of Legislative-

Judicial Interaction’ (2001) 45 American Journal of Political Science 84.



clarification is advisable: The reservations about ex ante evaluation only apply to

its general deployment in judicial review, while ex ante evaluation during the

process of lawmaking merits full support. Therefore, the research question that

was raised by van Gestel, ‘how ex post evaluation can be organized in such a way

that it contributes to the quality of ex ante evaluation and vice versa’,83

requires

close consideration.

(d) Conclusion

According to Flores, legisprudence ‘will be much better off with “strong

constitutionalism” than with “weak constitutionalism”’.84

Modern, post-fascist

Germany has dedicated itself to ‘strong constitutionalism’ probably more

fervently than any other nation. The Basic Law is openly hostile to the idea of a

supreme, omnipotent legislature, and has more confidence in the rule of law than

in democracy. Thus, procedural autonomy and the prerogative of the Parliament

matter less in Germany than in other Western countries. Even though

legisprudence as an academic discipline does not necessarily profit from strong

constitutionalism, as the below-average status and the slow progress of

legisprudence in Germany demonstrate,85

the diagnosis of Flores seems true in

regard to the growing role of procedural and impact review in the adjudication of

the Constitutional Court. Whether the density of judicial review of the ECJ will

indicate vice versa the state of ‘constitutionalism’ in the EU remains to be seen.

2. The EU Experience

The case law of the ECJ holds many examples of both procedural review and

impact review. The need for a review of minimum process requirements stems

from the fact that EU Treaty Law contains provisions on the lawmaking process

(Articles 293–297 TFEU). Procedural requirements of the subsidiarity principle

may also be subjected to judicial review. The assessment of facts and the impact

prognoses are aspects of everyday business for the European Court of Justice.

Due to the broad conception of freedoms, as expounded in particular in the

Dassonville formula,86

the identification of measures having equivalent effect to

quantitative restrictions often requires an empirical analysis of the effects of the

debated national regulation. Besides this, the ECJ has also adopted the

83 R.A.J. van Gestel and M.-C. Menting, ‘Ex ante Evaluation and Alternatives to Legislation: Going

Dutch?’ (2011) 32 Statute Law Review 209, 212. 84 I.B. Flores, ‘The Quest for Legisprudence: Constitutionalism v. Legalism’ in L.J. Wintgens (ed.), The Theory and Practice and Legislation: Essays in Legisprudence (Ashgate 2005) 43 85 Compared, in particular, with Austria, Belgium, the Netherlands and Switzerland. cf. K.

Meßerschmidt, ‘Gesetzgebungslehre zwischen Wissenschaft und Politik: Entwicklungstendenzen der Legisprudenz’ [2008] Zeitschrift für das Juristische Studium (ZJS ) 111, 224. 86 Case 8/74 Procureur du Roi v. Benoît and Gustave Dassonville [1974] ECR 837.

370 Meßerschmidt


proportionality test.87

Not surprisingly, the ECJ invokes this principle to assess

whether EU legislative measures are appropriate for attaining the objective

pursued by the legislation at issue.88

Therefore, the above-mentioned typical

operations, which may include prognosis, have to be completed. In her

introduction to this issue, Patrica Popelier concludes that ‘acting in accordance

with procedural impact assessment guidelines, will convince the Court that the

measure is proportional’. Moreover, the focus of ECJ judicial review on manifest

error, especially in the view of the complexity of the implementation of multiple

criteria,89

must be taken into account. According to the ECJ and the European

General Court, (i) political responsibilities of the legislature, (ii) the difficulty to

re-evaluate the assessment of complex economic situations or (iii) choices of a

political, economic and social nature may justify the reduced intensity of judicial

review also in relation to the application of the principle of proportionality.90

However, this general approach and the ECJ’s pedantic approach to protecting

market freedoms against national infringements may collide. Owing to the

European finality EU Courts reduce the intensity of their review to the application

of manifest error, misuse of powers, or clear excess of discretion, where decisions

of the EU legislator are at stake.91

In spite of the case law ‘it would be helpful if

the rationale(s) for reduced or enhanced review could be made clear and then

applied consistently across the range of EU law’.92

Finally, national legislators

may benefit from the fact that the burden of producing evidence rests on the

Commission. ECJ settled case law states that in procedures for failure to fulfil a

European law obligation, it is incumbent upon the Commission to prove the

allegation that the obligation has not been fulfilled without being able to rely on

any presumption.93

Member State legislators, in turn, may provide evidence that

87 cf. N. Emiliou, The Principle of Proportionality in European Law (Kluwer 1996); A.H. Türk, Judicial Review in EU Law (Edward Elgar 2009) 135–138. 88 See e.g.: Case C-58/08 Vodafone Ltd and Others v. Secretary of State for Business, Enterprise and

Regulatory Reform [2010] ECR I-4999, paras. 55–68. 89 Case C-341/95 Gianni Bettati v. Safety Hi-Tech Srl [1998] ECR I-4355 at [35]. 90 (i) Case T-13/99 Pfizer Animal Health SA v. Council of the European Union [2002] ECR II-3305 at

[412]; Case C-347/03 Regione autonoma Friuli-Venezia Giulia and Agenzia regionale per lo sviluppo rurale (ERSA) v. Ministero delle Politiche Agricole e Forestali [2005] ECR I-3785 at [131]. (ii) Case

T-180/00 Astipesca, SL v. Commission of the European Communities [2002] ECR II-3985 at [79];

Case T-125/01 José Martí Peix SA v. Commission of the European Communities [2003] ECR II-865 at [123]. (iii) Joined Cases T-332/00 and T-350/00 Rica Foods (Free Zone) NV, Free Trade Foods NV

and Suproco NV v. Commission of the European Communities [2002] ECR II-4755 at [155]. 91 A.H. Türk, Judicial Review in EU Law (Edward Elgar 2009) 146–147. 92 ibid. 325. 93 Case 96/81 Commission of the European Communities v. Kingdom of the Netherlands [1982] ECR

1791 at [6]; Case C-408/97 Commission of the European Communities v. Kingdom of the Netherlands [2000] EDR I-6417 at [15]; Case 404/00 Commission of the European Communities v. Kingdom of

Spain [2003] ECR I-6695 at [26]; Case C-434/01 European Commission v. United Kingdom of Great

Britain and Northern Ireland [2003] ECR I-13239 at [21]; Case C-194/01 Commission of the European Communities v. Republic of Austria [2004] ECR I-4579 at [34]; Case C-494/01 Commission

of the European Communities v. Ireland [2005] ECR I-3331 at [41]; Case C-441/02 Commission of



they have in fact employed methods of good regulation. Since the case law of the

ECJ has been thoroughly analysed by David Keyaerts, I confine myself to these

few comments.94

Obviously, the ECJ and the European General Court have

caught up with the German FCC within short time and are now taking the lead.

Keyaerts demonstrates that not only the principle of proportionality and the

related notion of efficiency, but also the impact assessment and consultation

standards which have been specified in the Better Regulation programme, but are

built on primary law (e.g. Articles 11(2) and 11(3) TEU with regard to

consultations) have effectuated this breakthrough. The ECJ is ‘slowly starting to

get involved in the assessment of legislative quality’.95

It remains to be seen how

the German FCC will react to this challenge. It is to be expected that the race

between European and Member State courts will be for the benefit of regulatory

review. However, further investigation is needed to verify this generalization.

3. A Short Comparison

This paper claims that a comparison of the case law and the role of different

courts in Europe, both national and European, as regulatory watchdogs is needed.

While, unfortunately, the overwhelmingly rich case law made it impossible to

conduct a thorough investigation within short time, an analysis of the landmark

decision of the Karlsruhe Court on Bavarian pharmacies,96

and the more recent

ECJ case on Spanish pharmacies97

may serve as an instructive example. The first

case is sometimes misrepresented as a tribute to legislative discretion,98

though

the opposite is true. The second case does not only show the tremendous progress

in impact assessment, but casts (additional) doubt on the reasoning of the

Karlsruhe Court. Both cases deal with the regulation of pharmacies by means of

licenses. Whereas the German court rejected restrictions of the right to establish

pharmacies on conditions of economic viability and economic harm to nearby

competitors (‘needs-test’), the ECJ, albeit its reputation of being neoliberal,99

the European Communities Federal Republic of Germany [2006] ECR I-3449 at [48]; Case C-6/04

European Commission v. United Kingdom of Great Britain and Northern Ireland [2005] ECR I-9017 [75]; Case C-221/04 Commission of the European Communities v. Kingdom of Spain [2006] ECR I-

4515 [59]. 94 D. Keyaerts, ‘Courts as Regulatory Watchdogs: Does the European Court of Justice Bark or Bite?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene (eds.), Role of Courts in a Context of

Multilevel Governance (Intersentia 2012) 4. 95 R.A.J. van Gestel and M.-C. Menting, ‘Ex ante Evaluation and Alternatives to Legislation: Going Dutch?’ (2011) 32 Statute Law Review 209, 225. 96 Judgment of June 11, 1958 (Apothekenurteil; Pharmacy Decision) 7 BVerfGE 377 (1958). 97 Joined Cases C-570/07 and C-571/07 José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v. Consejeria de Salud y Servicios Sanitarios and Principado de Asturias [2010] ECR I-4629. 98 A. v. Brünneck, ‘Constitutional Review and Legislation in Western Democracies’ in C. Landfried

(ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 258. 99 Denied by J. Kokott, ‘Der EuGH: Eine Neoliberale Institution?’ in C. Hohmann-Dennhardt et al.

(eds.), Grundrechte und Solidarität: Festschrift für Renate Jäger (Engel 2011) 115.

372 Meßerschmidt


took a closer look at the reasons underlying the Spanish law. The Spanish law

protects single pharmacies in rural areas and establishes minimum distances from

existing pharmacies for newcomers. The Court upheld in principle the legislation,

accepting, in particular, the objective to ensure adequate pharmaceutical services

and to prevent the concentration of pharmacies in certain attractive locations. This

encouraging message is overshadowed only by the invalidation of a bonus

granted to domestic applicants which ignites the anti-discrimination mission of

the ECJ. The German decision on the establishment of pharmacies, on the

contrary, neglected the economic impact of free access to the pharmacy retail

market, thus contributing to the proliferation of pharmacies and creating

additional costs of health insurance. Since the times when the FCC spoke out in

favour of unrestricted freedom of establishment of pharmacies the total number

trebled from less than 7,000 in 1958 to approximately 21,000 at present. Although

the immediate response to the 1958 pharmacy decision, which only affected

Bavaria directly, was far from dramatic, the Karlsruhe Court sent a clear signal

that pharmacies would no longer have to face quantitative restrictions.

Simultaneously, the Court demonstrated that its prophecies were not necessarily

better than the legislator’s prognosis. As a result, the costs of this strange blend of

market liberalism and welfare politics had to be borne by the insured. Nowadays,

the oversupply of pharmacies in urban areas coexists with a growing number of

areas that are under-supplied. Thus the legislator has to think on incentives for the

establishment of pharmacies in rural areas. Hence, the conclusion may be drawn

that procedural and methodological review of evidence-based lawmaking

contribute to better regulation, not because of their intrinsic value, but as an

incentive to improve impact assessment and the rationality of lawmaking by

legislators who should be better prepared to launch smart regulation than any

court. Therefore, the regulatory watchdog must not become a superior regulator.

No role reversal should be tolerated. Both procedural and rationality review may

not be used as a pretext to indulge in judicial activism.

D. CONCLUSION: ALLOCATION OF EXPERTISE

From the previous analysis it follows that German constitutional law provides the

Federal Constitutional Court with the power to review, to some degree, both the

enactment process, and the quality of legislative facts and impact assessment.

While this achievement is generally accepted, the limits of judicial review are still

to be discussed. It should be borne in mind, however, that the courses are set both

in the European Union and in Germany. The assumption, that the ‘costs of a

regime that permits erroneous judicial updating would be even greater than the



costs of a regime that leaves all updating to imperfect legislatures’,100

is not an

option. Therefore, the American debate merits careful attention even though it

cannot be fully adopted.

From an institutional choice perspective,101

both the institutional balance and the

‘better placed’ argument must be taken into account.102

Obviously rationality

review goes hand in hand with the institutional self-interest of the Court which

explains its persistence. Nevertheless, the partisans of procedural and impact

review should give reasons as to why both may be better placed with a court than

with parliamentary self-control. One argument may be based on the idea of

intertemporal cooperation mentioned-above. I will focus in this section on the

issue of impact review because modern Better Regulation guidelines, addressed

to the lawmakers, and some aspects of regulatory review overlap.

The irony of the growing importance of empirical data and prognoses in

judicial review is that the FCC, although not well prepared for this task, is held in

high esteem not only because of the quality of legal arguments but also for their

sense of reality. It cannot be denied that the Court works on unfavourable terms.

Unlike Administration and Parliament the FCC is exclusively staffed by

lawyers103

and has no direct access to think tanks. The constitutional judges are

not recruited to represent all layers of society, but are chosen based on their

conformity with a professional standard of interpreting the Constitution.104

The

100 A. Vermeulen, Judging under Uncertainty: An Institutional Theory of Legal Interpretation

(Harvard University Press 2006) 65. 101 cf. N.K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public

Policy (University of Chicago Press 1994). Short overview: A. Vermeulen, Judging under Uncertainty: An Institutional Theory of Legal Interpretation (Harvard University Press 2006) 64–70. 102 P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6(3)

Legisprudence 257. Slightly sceptical: R.A.J. van Gestel and M.-C. Menting, ‘Ex ante Evaluation and Alternatives to Legislation: Going Dutch?’ (2011) 32 Statute Law Review 209, 226, resuming the

criticism of R. Munday, ‘In the Wake of “Good Governance”: Impact Assessments and the

Politicisation of Statutory Interpretation’ (2008) 71 Modern Law Review 386. In general on the relative institutional capacity as an argument in judicial review, see: D. Halberstam, ‘Pluralism in

Marbury and van Gend’ in M.P. Maduro and L. Azoulai (eds.), The Past and Future of EU Law: The

Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 26 and 33–34. 103 On the professional background o constitutional judges, see: A. v. Brünneck, ‘Constitutional

Review and Legislation in Western Democracies’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 226–229. C. Landfried, ‘Constitutional

Review and Legislation in the Federal Republic of Germany’ in C. Landfried (ed.), Constitutional

Review and Legislation: An International Comparison (Nomos 1988) 149, concludes: “Though a relationship between a professional career and their understanding of political problems can only be

assumed, a trend towards the predominance of professional experience in the judiciary and in

administration could imply that the judges are increasingly ill-prepared to cope with the many issues that are brought before the Court. It would therefore be desirable that judges represent a broader

spectrum of professional experience,” 104 E. Blankenburg, ‘Mobilization of the German Federal Constitutional Court’ in R. Rogowski and T. Gawron (eds.), Constitutional Courts in Comparison: The U.S. Supreme Court and the German

Federal Constitutional Court (Berghahn 2002) 170.

374 Meßerschmidt


well equipped library of the FCC, the internet, and the research assistants do not

compensate for this deficit. Thus, the judges ‘predominantly receive their

information (…) from the submissions of the parties, often as well from the

comments of various interest groups that may be submitted with or without

request’.105

Since this report of an insider still holds true, I continue to quote from

this source:

Comments of this kind are sought and made use of to a great extent by, e.g.

the West German [Bundesverfassungsgericht]. In general, the formal

commissioning of neutral experts for opinions on legal or actual questions is

not made. In their mostly long and intensive deliberations, judges mainly tend

to inform themselves mutually. Due to the various professional, social, private

and political horizons of experience, it is possible for them to compensate for

information deficits.106

The crucial question whether constitutional judges should consider data from the

social sciences or natural sciences was answered in the negative:

Special competence over social-science or natural-science matters is

recognizable neither with individual judges nor in the case law of a particular

court. All in all, constitutional courts seem to have an aversion to the

utilization of social-science or natural-science data. In this manner, the West

German [Bundesverfassungsgericht] expressly rules out the exhaustive

analysis of economic or technical matters. (…) Constitutional courts consider

social-science or natural-science data only to the extent that appears necessary

to give their decisions a plausible foundation, making them more acceptable

in the society. In essence, though, they draw only upon that social-science or

natural-science information that has been presented to them by the parties. For

their part, constitutional courts in general make no effort to collect social- or

natural-science data officially.107

Another ten years before Konrad Zweigert complained:

Political decisions are predominantly looked for in legally and constitutionally

prescribed frames of reference. As in courtrooms, where we often lament the

105 A. v. Brünneck, ‘Constitutional Review and Legislation in Western Democracies’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988) 230. See

also: F.R. Llorente, ‘Constitutional Review and Legislation in Spain’ in C. Landfried (ed.),

Constitutional Review and Legislation: An International Comparison (Nomos 1988) 127, 143, reports an even more extreme attitude of the Spanish Constitutional Court: “They consider no facts other than

those raised by the parties and almost never include considerations based on a direct analysis of the

social or natural reality affected by the law.” 106 ibid. 230. 107 ibid. 230–231.



fact that the social reality is perceived only insofar as it fits the statutory

categories, the legislators and the government now repeat this. Realistic

investigations of social problems and the search for innovative solutions [are]

replaced by preconceived perceptions of the world and juridical semantics.108

Although the situation has improved ever since such comments were made, it

should be highlighted that the FCC still suffers from severe informational deficits

and can only perform a plausibility test because they lack the kind of expertise

that is needed to do a full double-check. This may be good enough for the

annihilation of evident violations of the Constitution, but does not provide for

better regulation in the full meaning of the term. Thus, a broadening of the

information basis of the court by specific tools seems to suggest itself even

though the effect on judicial review is hard to predict. One argument recalls

examples in the history of judicial review ‘where the consideration of social facts

led the judges to judicial self-restraint, while the neglect of the social dimension

of a problem and a dogmatic argumentation were connected to a transgression of

competence’. From this observation the conclusion may be drawn: “A broad

information basis seems to protect the judges from a precipitate dogmatic

standpoint and the more realistic view of the problem makes the judges to be

more inclined towards self-restraint.”109

However, more information may

encourage the Court as well to strengthen judicial review. Therefore, the

suggestion to establish a scientific service at the Court, which did not catch much

attention since it was submitted almost three decades ago, should be reexamined

without prejudice to the outcome. This is no plea for another scientific service

yet. Before making plans on institutional settings, different ways to provide the

‘regulatory watchdogs’ with better, scientifically validated information should be

analysed. Besides, existing scientific services should be evaluated first. Facing

the huge variety of problems that come before the Court a huge scientific service

might be required. Instead of creating a new and inflexible bureaucracy the

establishment of a scientific network which may be coordinated by a small

scientific service and transparent consultation procedures may be the better

choice. Notwithstanding this caveat, I agree with Landfried’s idea ‘to have a

group of social and natural scientists who could put together the relevant facts

concerning a decision and thereby put the judges in a better position to classify

the many reports they get from interest groups. International comparison, so far

108 K. Zweigert and H. Dietrich, ‘Bundesverfassungsgericht: Institution mit Zukunft’ in W. Däubler and G. Küsel (eds.), Verfassungsgericht und Politik (Rohwolt 1979) 11, 19 (translation by E.

Blankenburg). 109 C. Landfried, ‘Constitutional Review and Legislation in the Federal Republic of Germany’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988)

162.

376 Meßerschmidt


neglected to an astonishing degree by the judges, could gain in relevance with the

help of social scientists’.110

Since the FCC possesses no fact finding or prognostic capacities of their own

the tremendous trust in judicial review,111

even beyond the classical domain of

jurisprudence, must be explained. The main reason of the Court’s lead over

lawmakers results from the widespread belief that the Court is impartial, more

detached, and unbiased,112

whereas the administrative and legislative bodies are

often subjected to rent-seeking vested interests which lobby for special interest

legislation.113

Although the notion of special interest legislation is widely

neglected in the German academic debate, there is obviously a strong feeling that

the legislator merits less trust than the judiciary. An analysis of this phenomenon,

which may reflect a persistent alienation with respect to the democratic process,

is not in place here. It should be noted, however, that the quest for judicial review

is not counter-majoritarian when the review focuses on pieces of legislation

which clandestinely promote the interests of very small fragments of the

population. Thus, a small German party may have a reputation of conferring

favours to small groups of their electorate or to donators. In spite of this, special

interest legislation is not the stigma of a single party. Major legislation in

Germany, such as the so-called Riester reform which enticed millions of

employees to sign in private insurance contracts as well as the massive promotion

of renewable energies, serve business interests above public interest. The

difficulties to cope with lobbyism result from the fact that it is both influential

and, to some degree, legitimate. Legislation is not automatically irrational

because it results from interest representation.114

The defence and promotion of

particular interests is an integral part of the political logic of democracy in

modern pluralist societies. Though no guarantee exists that the practice of agency

capture will not extend one day to the Constitutional Court, the German public is

confident that this will never happen to the FCC.115

This assumption is

110 C. Landfried, ‘Constitutional Review and Legislation in the Federal Republic of Germany’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988)

166. 111 See e.g.: K. v. Beyme, ‘The Genesis of Constitutional Review in Parliamentary Systems’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988)

21, 37; G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press

2005) 119. 112 ibid. 52. 113 cf.. R.A. Posner and W. Landes, ‘The Independent Judiciary in an Interest-Group Perspective’

(1976) 18 Journal of Law and Economics 875. 114 cf. L.J. Wintgens (ed.), Legisprudence: A New Theoretical Approach to Legislation (Hart

Publishing 2002) 3. 115 As Kommers rightfully remarks ‘there is no logical reason for believing that the Basic Law is safer in the hands of a constitutional tribunal than in the hands of parliamentary bodies’, see: D. Kommers,

‘The Federal Constitutional Court’ (German Issues 14, American Institute for German Studies 1994)

35. G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press 2005) 108, presumes ‘that the FCC is more likely to rule against a statute when an interest group or an

outside government files a brief in opposition to a challenged statute’.



unfounded. We can learn from the more advanced American debate that process

failures in the form of rent-seeking activity and differential interest-group access

afflict the courts as well as legislatures.116

Being aware of their dependency on

popular support, the FCC, in general, is very careful not to jeopardize their

goodwill by debatable and one-sided case law.117

Even though it might be stated

that the Court has particular understanding for the interests of their peers,118

the

Court, both in the Hartz IV case,119

and their recent decision on social benefits for

asylum seekers,120

forced the legislator to give more money to the mass of

German and foreign recipients who have only little in common with the bourgeois

background of the Court.

The detachment of the Court, however, has a drawback: The Court is not

accountable and therefore does not hesitate to take decisions which would

discredit the Parliament. In addition to this, since the Court makes decisions only

on a case-by-case basis (‘one case at a time’)121

there is no room for the trade-

offs, which are such an important part of parliamentary decision-making.122

The

necessity of trade-offs even serves as a principle justification to support

parliamentary democracy over democracy by plebiscite. It is a common belief

among political scientists that ‘Parliaments not only have a greater legitimacy but

also are better qualified than courts to adapt law to social change and to initiate

social change by a process of trial and error’.123

Critics of judicial activism assert

that courts ‘lack the adaptability and capacity to carry out a successful social

policy role’. Adjudication, they claim, is ‘a particular poor means for framing

116 E.R. Elhauge, ‘Does Interest Group Theory Justify More Intrusive Judicial Review?’ (1991) 101

Yale Law Journal 31; A. Vermeulen, Judging under Uncertainty: An Institutional Theory of Legal

Interpretation (Harvard University Press 2006) 65 (with further references). 117 Cf. G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press

2005) 16, 21–25, 49, 62, 117 and 120–125. 118 cf. Judgment of 14 February 2012 (2 BvL 4/10) on the remuneration of university professors. <http://www.bverfg.de/entscheidungen/ls20120214_1bvl000410.html>. 119 Judgment of 9 February 2010 (1 BvL 1/09) <http://www.bverfg.de/entscheidungen/

ls20100209_1bvl000109.html>. See M. Meßling, ‘Grundrechtsschutz durch Gesetzgebungsverfahren: Zum Urteil des Bundesverfassungsgerichts vom 9. Februar 2010 (SGB II-Regelsatz-Urteil)’ in C.

Hohmann-Dennhardt et al. (eds.), Grundrechte und Solidarität: Festschrift für Renate Jäger (Engel

2011) 787; K. Meßerschmidt, ‘The Good Shepherd of Karlsruhe: The “Hartz IV” Decision on Unemployment Benefits and Social Allowances – A Good Example of Regulatory Review by the

German Federal Constitutional Court?’ in P. Popelier, A. Mazmanyan and W. Vandenbruwaene

(eds.), Role of Courts in a Context of Multilevel Governance (Intersentia 2012) 235. 120 Judgment of 18 July 2012 (1 BvL 10/10, 2/11). 121 Affirmative: C.R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court

(Harvard University Press 1999). 122 cf. H. Schulze-Fielitz, ‘Der politische Kompromiß als Chance und Gefahr für die Rationalität der

Gesetzgebeung‘(1988) 13 Jahrbuch für Rechtssoziologie und Rechtstheorie 290. 123 C. Landfried, ‘Constitutional Review and Legislation in the Federal Republic of Germany’ in C. Landfried (ed.), Constitutional Review and Legislation: An International Comparison (Nomos 1988)

18.

http://www.bverfg.de/entscheidungen/ls20120214_1bvl000410.html&gt

http://www.bverfg.de/entscheidungen/

378 Meßerschmidt


issues and devising effective policies’.124

The lack of accountability and steering

capacity of the Court may, in the end, lead to serious problems which remind one

of the proverbs fiat iustitia, pereat mundus and judex non calculat. The above-

mentioned recent decisions of the Court have large financial implications and

stand in stark contrast to the assumption that the FCC practices great restraint in

cases that have an impact on the budget.125

They diminish the financial

manoeuvre room of the legislator and have adverse consequences for other policy

areas. The perfection of ‘small scale’ rationality does not necessarily contribute to

‘large scale’ rationality, but, on the contrary, may be detrimental to the overall

balance of legislation, in particular those which relate to issues of distributive

justice.

Some short remarks on the methods of procedural and impact review shall

complete this article. Since the Court, as mentioned above, does not dispose of

specific capacities to evaluate legislation outside the lawyer’s universe it must

apply different methods such as justifiability control. The Court does not evaluate

the legal facts on their own, but checks whether the legislator has gathered

sufficient information and submits plausible arguments during the court

proceedings. Though the knowledge of the Court is even more limited than that of

Government and the Parliament, the more detached attitude of the Court may

result in a kind of review which is superior, not only because the Court has the

final say but because they provide a more convincing analysis of the legal facts. It

is up to the lawmakers to avoid any revision of the law by paying strict attention

to the procedural requirements, which overlap with the need for an unbiased fact

finding and balanced impact assessment.

124 J.B. Grossmann and C. Epp, ‘Agenda Formation on the Policy Active U.S. Supreme Court’ in R.

Rogowski and T. Gawron (eds.), Constitutional Courts in Comparison: The U.S. Supreme Court and

the German Federal Constitutional Court (Berghahn 2002) 105. 125 G. Vanberg, The Politics of Constitutional Review in Germany (Cambridge University Press 2005)

131–133.

Copyright of Legisprudence: International Journal for the Study of Legislation is the propertyof © Hart Publishing, Oxford and its content may not be copied or emailed to multiple sites orposted to a listserv without the copyright holder's express written permission. However, usersmay print, download, or email articles for individual use.

THE RACE TO RATIONALITY REVIEW AND THE … EU/3(1)_Germany_8 - copie.pdfTHE SCORE OF THE GERMAN...

Documents

Transcript of THE RACE TO RATIONALITY REVIEW AND THE … EU/3(1)_Germany_8 - copie.pdfTHE SCORE OF THE GERMAN...