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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

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.

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

Proportionality analysis is currently considered the default method for reviewing legal acts restricting fundamental rights.
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.
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 "
" of the proportionality analysis.
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.
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.
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
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.
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.
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.
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.
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.
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 optimization has often been compared to the economic doctrine of Pareto efficiency. If we apply this theory to the concept of the necessity test, the resolution of a conflict between two constitutionally protected values would only be considered optimal if the improvement of the position of one party could only be carried out at the expense of the other party.
In other words, the measure under review is truly necessary if there is no alternative measure that could improve the position of the individual whose rights are affected by the measure under review, without at the same time reducing the degree of fulfilment of the conflicting constitutionally protected value. In contrast, if there was an alternative measure that would be capable of fulfilling the objective pursued to the same extent and which would also be less restrictive to the affected right, then the position of the individual guaranteed by their fundamental right could be improved without any harm to the value whose fulfilment is sought by the challenged measure. The necessity test is intended to prevent such unnecessary sacrifices of fundamental rights.
The tests of both necessity and suitability are typically described as factual or empirical tests, as they involve an examination of the existence of alternative measures and a choice between them.
Nonetheless, it is often overlooked that the argumentation within this step is necessarily substantive as well as qualitative and thereby also requires value judgements. From the content of the necessity test already discussed above, we can conclude that it consists of two basic elements: the first is intended to determine the extent to which the legitimate aim pursued by the legal act under review has been achieved, while the second aims to assess the degree of infringement of a limited fundamental right by the measure under review in comparison with the available alternatives.
Both elements require a value judgement to be made. However, this one is not as comprehensive as in the case of balancing.
The necessary degree of fulfilment of the objective is determined by the relevant decision-making body and it belongs to its discretion. The role of the Constitutional Court in performing the necessity test is to assess whether the alternative means of achieving this objective do so to approximately same extent while imposing fewer restrictions on the fundamental rights and freedoms of individuals; the Court cannot use this process to order public authorities to meet specific targets in achieving objectives.
If the alternative measure is less restrictive with respect to fundamental rights but will not achieve the objective to the same or similar extent, then the measure proposed by the public authority will easily pass the necessity test. This is also the case if the alternative measure entails other significant negative externalities, such as a significant increase in the budget
or the restriction of the fundamental rights of third parties.
Any alternatives which result in these undesirable consequences will not be deemed comparable to the measure under review as they do not represent a practical alternative. The primary consideration of alternative measures in the necessity test is the question of the degree to which they can fulfil the required goal, and the identification of practical alternatives capable of doing so is the first aspect of the necessity test.
In the second aspect of the necessity test, the Court focuses on whether any alternative measures are less restrictive to the limited fundamental rights from the perspective of the individual concerned.
If the Court has determined that the alternative measure is able to fulfil the legitimate goal to the same degree as the measure under review, the only thing that matters is the severity of the interference with the fundamental right.
In this regard, however, it should be noted that although the necessity test requires value judgements and substantive argumentation, neither the importance of the pursued goal nor the relative severity of the limitations imposed on the fundamental right play any role within this criterion. As with the evaluation of the positives and negatives of the measure in question, this question is reserved for the final step of the review, the balancing test. It should be stressed once again that the necessity is a threshold test; nothing is being weighed in the process.
3. Abstract Definition of the Necessity Test in the Practice of the CC
In the practice of the CC, different terms are used for the necessity test. While the term "
is used most frequently, other terminology is found in judgements including "
minimum impair stage
or "
least-restrictive-means test
one notable example was the term "
minimization of infringement
", the meaning of which was shrouded by an "aura of the unknown" in early jurisprudence, but in terms of content, this criterion was also applied as substitute for a necessity test.
The CC sees all of these terms as synonymous, often using more than one within the framework of a single decision.
If we move from the semantics to the content of the necessity test, we find that the necessity test has been defined in the practice of the CC in two main ways, the first of which was predominant for much of the early history of the Court, with the second beginning to appear in the jurisprudence of the CC only in the second decade of the new millennium.
Let us therefore start with the traditional way in which the test was defined. Its foundations (and those of proportionality analysis as a whole) were laid out by the CC in the paradigmatic Judgement no. Pl. ÚS 4/94 in which the CC concluded that the necessity test consists in comparing "
legislative instrument limiting the fundamental right or freedom, with other measures allowing it to achieve the same goal, but not affecting fundamental rights and freedoms
However, the CC did not consider the argument arising from the necessity to be conclusive - apparently due to its abstract definition, which it limited only to examining whether there is an alternative measure that would not limit fundamental rights at all - and thus left the question of its fulfilment or non-fulfilment open. As a result, once the balancing test had been carried out, the analysis was complemented by with the so-called minimization of infringement test, according to which it is the "
obligation of the legislator to also look for possibilities of minimization
of infringement
[to a fundamental right]
and transform them into the appropriate legislative measures.
only within the framework of this test did the CC assess the existing alternatives and determine whether they are also less restrictive with respect to the limited fundamental right. In short, then, the incomplete definition of the necessity test forced the CC to implement the minimization of infringement test.
However, this shortcoming was soon eliminated. In Judgement no. Pl. ÚS 15/96, the CC modified the content of the necessity test to ensure that it also included the question of whether alternative measures would not only eliminate any restriction of fundamental rights, but also whether the limitation would be to a lesser extent:
The second criterion for mutual comparison of conflicting fundamental rights and freedoms is the criterion of necessity, which consists in comparing a legislative instrument that restricts the fundamental right or freedom, with other measures enabling the achievement of the same goal, but not affecting fundamental rights and freedoms, or involving them in a lesser intensity.
The early jurisprudence of the CC was characterized by relatively significant fluctuations in the content and structure of the proportionality analysis, and these rapid changes allow the development of the definition of the necessity test to be traced. Regarding the abstract definition of proportionality analysis, the CC frequently refers to Judgement no. Pl. ÚS 3/02
in which the CC formulated necessity by stating that the public authority "
is allowed to use only the least restrictive - in relation to the affected fundamental rights and freedoms - of several possible means
Two years later, the CC offered a somewhat different redefinition of the nece
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