THE PRINCIPLE OF PROPORTIONALITY AS JUSTIFICATION TEST ON THE GROUNDS OF ART. 52 I CFR
THE PRINCIPLE OF PROPORTIONALITY AS JUSTIFICATION TEST ON THE GROUNDS OF ART. 52 I CFR

Summary/Abstract: In different jurisdictions the principle of proportionality is newly invented or its application intensified through constitutionalization, jurisdiction and legal methodology. Its impact on judgments on fundamental rights has revealed remarkable judgments since the Treaty of Lisbon entered into force. The variety of views and approaches has evoked enthusiastic and skeptical views on the broader application of this principle with regard to balancing colliding rights. Through Lisbon the EU has made a rather clear statement. Due to art. 52 I CFR (Charter of Fundamental Rights) proportionality may be deemed as backbone of justification, as heart of the whole charta. It is qualified as one of the guiding horizontal principles, the major legal figure or essence of examination of justification. No other rule of the charter was such intensively amended by the European Constitutional Convention. Proportionality as general principle of law is an integral part of the EU as legal community. But as expression of justification the requirements are specifically directed to fundamental rights. What is the logic of proportionality? How should essential elements of proportionality be applied? Which scrutiny of judicial application may be caused thereby? Answers may differ due to the understanding of each legal system or culture on international level, the level of the EU as well as in the member states. But art. 52 III, IV CFR requires a coherence among the ECHR, EU primary law and member state laws.4 The application of proportionality on fundamental rights will show its practical significance, convergences and divergences. Hence, proportionality is of impact on legal discipline, confidence and justice. Moreover, the change of scrutiny of judicial application determines the correlations among state powers. As far as courts intensify the application of proportionality this may influence, limit or govern legislation and execution. Due to its history and constitutional development over the second half of the last century and from the beginning of this century in the coherent, cooperative context of art. 52 CFR the jurisdiction and legal literature in Germany may be of epistemological value.

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