ČERVÍNEK, Z.: The Necessity Test in the Practice of the Czech Constitutional Court: Between the Devil of Judicial Activism and the Deep Blue Sea of Judicial Resignation. Právny obzor, 106, 2023, special issue, pp. 41-65.
https://doi.org/10.31577/pravnyobzor.specialissue.2023.03
The Necessity Test in the Practice of the Czech Constitutional Court: Between the Devil of Judicial Activism and the Deep Blue Sea of Judicial Resignation. The proportionality analysis is the dominant method of constitutional review throughout the world, and this is also the case in the Czech Republic, where its application took hold not long after the re-establishment of the Constitutional Court in the early 1990s. This paper analyses the Czech Constitutional Court’s jurisprudential approach to one of the sub-tests of the proportionality analysis, the necessity test. Building on comparative and theoretical foundations, the text first presents the general theoretical background of the necessity test before moving on to a summary of the variations of the abstract definition of the necessity test and its content in the practice of the Czech Constitutional Court. Subsequently, the application of the variants is compared and evaluated using case-studies of individual cases ruled upon by the Czech Constitutional Court. Finally, the paper concludes with a normative assessment of the variants of the necessity test which paves the path for judicial practice to evade the devil of judicial activism and the deep blue sea of judicial resignation, two structural pathologies that threaten its practical application.
Keywords: Proportionality Analysis; Necessity Test; Constitutional Review; Czech Constitutional Court
Introduction
Proportionality analysis is currently considered the default method for reviewing legal acts restricting fundamental rights.
1)
It is routinely applied by courts throughout the world, and the Czech Republic is no exception in this regard. In the practice of our Constitutional Court (the CC), this method became established relatively soon after its re-establishment in the early 1990s.
2)
Proportionality analysis traditionally consists of four sub-tests which the act of the public authority under review is required to meet in order to be considered constitutionally compliant: the tests of legitimacy, suitability, necessity and balancing (proportionality in the narrow sense). The legitimacy test questions whether the reviewed legal act (or measure) pursues a constitutionally compliant goal (for example, the protection of another fundamental right or the public interest). The suitability test examines whether the measure under review (the means chosen by the public authorities) is in some way capable of achieving that goal. The necessity test queries if there are no alternative means that would be capable of achieving the pursued legitimate goal and which would at the same time be less restrictive in relation to the limited fundamental right (i.e., to restrict it to a lesser extent, or not at all). Finally, the balancing test is the last hurdle that the reviewed legal act is required to leap, and it is often referred to as the "
heart
" of the proportionality analysis.
3)
Within this probe, courts assess conflicting constitutional values in terms of their relationship to each other and examine whether the challenged legal act has a disproportionate impact on the sphere protected by the fundamental rights of the individual. In other words, the balancing test attempts to determine whether there is a reasonable relationship between the harm caused to the affected fundamental right and the importance of the reasons supporting the measure which imposes these restrictions.
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The issue of balancing has been the subject of extensive academic attention due to the fact that it is considered to represent the heart of proportionality. In this respect, the doctrine reflects jurisprudence in which the threshold criteria are most often perceived as merely paving the way for balancing; while the main argumentative efforts of the courts are concentrated in the balancing, the other tests only examine whether a real conflict exists between constitutional values in a specific case.
5)
The necessity test, the aspect of the issue to which this article is devoted, has been largely neglected in academic literature to date. However, as this article will attempt to show, the necessity test is of fundamental importance from the point of view of the constitutional review. It plays a fundamental role in setting the overall intensity of the review which may range from complete resignation to effective review or even boundless judicial activism.
The main goal of this article is to define the necessity test in greater detail and to outline the individual ways in which it can be understood. At the same time, I will try to compare different approaches to the criterion of necessity and draw attention to their advantages and drawbacks. The study adopts a legal-theoretical approach, but the examination of the jurisprudential practice of the CC always serves as a starting point for my more general (theoretical) considerations. These two components, the theoretical and practical aspects, intertwine, supplement and move forward throughout the text, simultaneously providing critical reflections on the jurisprudence of the CC. This multi-faceted approach should allow us to draw some conclusions about how the necessity test should be best applied in order to avoid the two extreme positions indicated above and to ensure that the CC is neither overly activist nor overly restrained.
General Remarks on the Necessity Test
As was indicated in the introduction, proportionality consists of a sequence of steps that a legal act under review is required to fulfil in order to be considered constitutionally compliant. even if the reviewed legal act passes the tests of legitimacy and suitability, this does not mean that its "struggle" for constitutionality has already been won. Public authorities have a whole range of means or measures
6)
at their disposal which are capable of achieving their objectives, and it may be the case that one or other of these measures are less restrictive to the rights of the individual than the measures under review in the proportionality test. In such a case, the public authority would have no reasonable grounds on which to choose the more "drastic" means to implement its goals if less restrictive alternatives are capable of fulfilling those goals to the same or similar extent. In such a case, the measure under review would not be considered necessary.
7)
The necessity test is intended to detect such excessively burdensome measures. According to this criterion, a measure is constitutionally acceptable only if there is no other measure that would be capable of achieving the pursued legitimate goal which would also be less restrictive with respect to the fundamental right in question. Public authorities should therefore select measures which cause the least possible harm to the individual with respect to their rights if it is a matter of regulating a certain human activity; similarly, if it is a measure that brings some benefit to the individual, then this should cause the least possible harm to society as a whole.
8)
The necessity test assumes the existence of a plurality of equally suitable means of achieving the objective in question. These measures are then compared, and an assessment is made as to whether any of them is less restrictive with respect to restricting a specific fundamental right than the measure under review.
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If, however, there are no other measures which can achieve the objective, then the question of the existence of more moderate measures does not arise at all, and the necessity test would be considered to have been met.
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Further to this topic, möller adds that even the option of the complete absence of intervention (which would not be based on another measure capable of achieving the objective in question) cannot be considered as a relevant alternative.
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The necessity test is also based on the assumption that the goal pursued by the reviewed act of the public authority has been found to be legitimate and that the chosen means are capable of achieving their goal, and therefore the only relevant question at this stage is whether or not there are alternative means that are less restrictive to the restricted right. The necessity test optimizes the potential for resolving conflicts between constitutionally protected values, and this process of