Abstract
In a considerable series of rulings the German Federal Constitutional Court has construed the Bonn Basic Law as requiring lawmakers to monitor the impacts of statutes and to revise or adjust them in the light of evolving legislative facts, which mostly compensates for the Court’s deference to legislative prognoses under conditions of high epistemic uncertainty. The legisprudential tenets of retrospection and correction are thereby converted into legal-constitutional duties (supposedly) binding on legislatures. Drawing on German case law, this chapter discusses the rationale, scope and shortcomings of this strand of review, and underlines the difficult role of ex post evaluation in the judicial control of legislation. A twofold thesis is submitted. On the one hand, a post-legislative doctrine may be expected to provide a dynamic protection of fundamental rights by smoothing the way for the courts to second-guess the constitutionality of statutes in retrospect without intruding into lawmakers’ primary competences to deal with social complexities. But, on the other hand, the German experience illustrates that such a doctrine is not easy to apply and remains under-enforced for the most part, which casts doubts on whether it is an effective safeguard of fundamental rights over time or whether, instead, it has a merely rhetorical or dilatory function. Finally, I argue that approaches to the constitutionalization of ex post evaluation like that of the German Constitutional Court, while being positive on the whole, should not obscure the problems that arise from the ex ante perspective under which legislation is usually reviewed, and suggest making more space for evaluation and impact arguments in constitutional review.
I very much thank Klaus Meßerschmidt for his comments, and the Alexander von Humboldt-Foundation for generously supporting my 2014 stay at the University of Erlangen-Nuremberg’s Institute of Legal Philosophy (J. Sieckmann’s Chair), where this essay was conceived. Further support was provided by the Ramón y Cajal Research Fund and the project DER2014-55400-R of the Spanish Ministry of Economy.
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Notes
- 1.
In this piece, Beobachtung is translated as monitoring or observation; Nachbesserung as revision; and Korrektur as correction, whereby the two latter notions are used synonymously (dissenting, Choi 2002: 79 ff.; cf. Mayer 1996: 22 ff). A range of related terms appears in this context with slightly different meanings or connotations, e.g. Überprüfung (checking); Prüfung (examination); Anpassung (adaptation); Verbesserung (improvement); Beseitigung (removal); or Berichtigung (correction), but I will not enter into further terminological clarifications. As explained below (Sect. 11.2), the monitoring and revision duties are here considered jointly as “the post-legislative doctrine”. On the phrase “duty” as applied to lawmakers, see Sect. 11.4.
- 2.
- 3.
Wintgens (2012: 267 ff., 302 ff.).
- 4.
- 5.
See e.g. Bussmann (2010: 279 ff.), van Aeken (2011: 50 ff.), Böhret and Konzendorf (2001: 255 ff.), Morand (1994: 134 ff.). Delving into the varied typology of laws, regulatory strategies and legislative impacts, or into the requisite tailoring of evaluations (Rossi et al. 1999: 38 ff.) would take us too far. Suffice to say that retrospective evaluation should not be seen as a purely “ex post” task, but linked to specific, measurable and time-tied goals and prior prospective assessments, i.e. the evaluation of laws and their implementation should be the last stages of a cycle or process already begun at the pre-legislative stage.
- 6.
Since retrospective evaluation is both an epistemic and a decisional process, hopes for a totally neutral ascertainment of legislative impacts get often dashed—whether or to what extent evaluations respond to the caprices of politics shall not be discussed here, though (cf. Howlett et al. 2009: 178–179).
- 7.
- 8.
There are exceptions, though: for instance, Art. 24 of the French Constitution states that “the Parliament (…) evaluates public policies”; or, according to Art. 170 of the Swiss Constitution , “The Federal Parliament shall ensure that the efficacy of measures taken by the Federation is evaluated”.
- 9.
BVerfGE 16, 147 (188). A duty or commitment “to repeal or change” a law upon a “factual development” rebutting legislative prognoses was introduced by the mills act decision of 1968 (BVerfGE 25, 1, 12–13), whereas requirements on the monitoring of legislative impacts and facts can be already identified in the surviving dependents case of 1975 (BVerfGE 39, 169, 181 ff. and 193 ff.) and, more clearly, in Kalkar (1979) and aircraft noise (1981) (see below Sect. 11.2), as well as in the census decision of 1983 (BVerfGE 65, 1, 55–56).
- 10.
This is a steady opinion of the Court as to electoral thresholds: BVerfGE 120, 82 (108–09); 129, 300 (321–22); 82, 322 (338); and BVerfG, Judgment of 26 February 2014, 2 BvE 2/13 et al., para 53. See below Sect. 11.2.
- 11.
BVerfG, Judgment of 27 January 2011, 1 BvR 3222/09, para 51.
- 12.
So, if the BVerfG declares a statute incompatible with the Basic Law instead of voiding it, this entails a duty of revision or correction on the lawmakers’ side (Choi 2002: 169), which is often accompanied by a timescale set by the Court.
- 13.
On this intertwinement, Bickenbach (2014: 363 ff., 405 ff.), defining monitoring as a “fore-duty” (Vorpflicht); or Meßerschmidt (2000: 1008), arguing that revision implies a previous check (Prüfauftrag); cf. Tekin (2013: 41 ff.); Flückiger (2007: 159); Albers (2006: 28); Choi (2002: 77); Augsberg and Augsberg (2007: 308). That lawmakers should be bound to observe legislative impacts or facts without being likewise bound to act accordingly makes little sense.
- 14.
BVerfGE 49, 89 (130 ff., 142 ff.).
- 15.
“If signs appear in future” that breeder reactors pose such risks “with certain probability” (it would be primarily incumbent on the political state organs to appreciate it), “the lawmaker would be obliged to act again” (BVerfGE 49, 89, 132).
- 16.
BVerfGE 56, 54 (71–72, 78 ff., 81 ff.), drawing on Kalkar as concerns personal integrity.
- 17.
The Court can ascertain such a violation only “when it is evident” that a regulation, being originally in accordance with the Basic Law, “has become constitutionally intolerable” due to changes in circumstances, and “the lawmaker has nonetheless remained inactive” or adopted “manifestly erroneous revision measures” (BVerfGE 56, 54, 81).
- 18.
Although the term ‘monitoring’ is not mentioned, the commission of research, the appointment of expert boards or the elaboration and discussion of governmental reports amounted to due monitoring of legislative facts (BVerfGE 56, 54, 82), whereby the measures passed and planned were seen as due adjustments of the legal framework.
- 19.
BVerfGE 45, 187 (227 ff., 237 ff., 252).
- 20.
BVerfGE 45, 187 (252), referring to the second judgment on numerus clausus, where the Court asserted a duty to amend the law (Änderungspflicht) if evidence arises that there exists a more correct solution (BVerfGE 43, 291, 321).
- 21.
In contrast to Kalkar, the Court noted that in cases of severe infringements of basic rights, it is questionable whether the burden of uncertainty must lie with the citizen (BVerfGE 45, 187, 237–38).
- 22.
BVerfG 88, 203 (203 ff., 251 ff., 269, 308 ff.).
- 23.
BVerfG 88, 203 (262–63).
- 24.
BVerfG 88, 203 (309), referring to its previous decisions on co-determination, Kalkar and donations to political parties; see, respectively, BVerfGE 50, 290 (335 and 352), 56, 54 (78–79) and 73, 40 (94).
- 25.
“The duty to revise does not include, in general, a permanent control of laws (…). Frequently, it becomes patent only when the unconstitutionality of a law is recognized or is at least clearly recognizable” (BVerfG 88, 203, 310).
- 26.
BVerfG 88, 203 (309–311).
- 27.
BVerfGE 90, 145. The 1971 narcotics law was alleged to violate the principles of equality (in that it proscribed cannabis, but not alcohol and tobacco) and proportionality (for imposing an excessive penalty); and human dignity (as cannabis consumers were led to opt for “legal” drugs).
- 28.
BVerfGE 90, 145 (182–83, 177).
- 29.
BVerfGE 90, 145 (212 ff.), where Justice Sommer, on the very same constitutional rationale, claims that lawmakers were already obliged to correct the current legislation (see below Sect. 11.4).
- 30.
BVerfGE 90, 145 (194).
- 31.
Judgment of 10 June 2006, 1 BvR 706/08 et al. (BVerfGE 123, 186).
- 32.
Such as the subject matter and the importance of the legal goods at stake (Judgment of 10 June 2006, para 169). On the variable prognostic and appreciative margins see, in particular, the decisions on codetermination (BVerfGE 50, 202, 332–33), compulsory quotas for severely disabled (BVerfGE 57, 129, 159–60), census (BVerfGE 65, 1, 55–56), abortion (BVerfGE 88, 203, 262), and the federal law on the care of the elderly (BVerfGE 106, 62, 151–52). I turn to this in Sect. 11.3. For a critique of the review intensity scale introduced in codetermination (self-evidence test, plausibility test, and intensified content control) and also used in base tariff, see Bickenbach (2014: 135 ff.).
- 33.
Judgment of 10 June 2006, para 170 and 241.
- 34.
Judgment of 29 January 2003, 1 BvL 20/99 and 1 BvR 933/01, para 73 ff. Those rules had been reformed in 1997 as a result of the 1996 annulment of the provisions allocating custody only on the mother’s side. While the reform was upheld, the lack of a transitional regulation for parents separated before its entry into force was deemed unconstitutional.
- 35.
Zaunegger v. Germany (App. 22028/04), Judgment of 3 December 2009, para 58 ff. The appellant was discriminated against as compared with married parents or unmarried parents who had signed a joint custody declaration.
- 36.
Judgment of 21 July 2010, 1 BvR 420/09, para 18 ff., 24–25, 37 ff., 54 ff. and, especially, 59 ff.
- 37.
BVerfGE 51, 222 (249).
- 38.
BVerfGE 129, 300 (321–22). By 2009 this doctrine on thresholds for local elections had been settled by the BVerfG and several state constitutional courts, and the BVerfG had applied it to other issues of electoral law: cf. BVerfGE 120, 82 (108); 73, 40 (94); 82, 322 (338–39); 107, 286 (294–95), as well as the text accompanying footnote 10.
- 39.
BVerfG, Judgment of 26 February 2014, BvE 2/13 et al., para 36 ff. 47 ff. 56 ff., 70 ff., 83.
- 40.
BVerfG, Judgment of 26 February 2014, para 65 ff., 75–76, 83, as well as para 62-64 (clinging to the justification requirements imposed on the lawmaker and denying that the intensity of the review may be reduced).
- 41.
“Rule change in the light of the duty of retrospection goes hand-in-hand with the duty of fact finding on a renewed basis. The achievement of the intended state of affairs (…) must be assessed, and this assessment is, in turn, a matter of fact finding”, which may reveal “that a refinement of the problem formulation” is needed; “on this point, the duty of problem formulation and the duty of retrospection are consistent with one another” (Wintgens 2012: 303).
- 42.
Including e.g. the assertion of the duties with regard to non-existing legislation which the Court requires lawmakers to pass: so the 2006 decision on the absent statutory regulation of juvenile justice (BVerfGE 116, 69, 90–91); in subsidies to the agrarian market (BVerfG, Judgment of 14 October 2008, 1 BvF 4/05, para 121–22), there even seems to be two joint addressees of the duties, namely German and European Union lawmakers.
- 43.
Note that I limit the scope of the doctrine to cases where there has been a previous move on the Court’s side (which excludes the possibility of the doctrine being enforced without having been asserted before). It will be objected that this depiction does not square with barrier clause, where no mention was made of the post-legislative doctrine at R1 (1979), and this was applied directly at R2 (2011). Yet, the doctrine was indirectly asserted in the meantime in other electoral threshold cases: all-German elections (BVerfGE 82, 322, 338–39) and local elections in Schleswig-Holstein (BVerfGE 120, 82, 108–09, and 107, 286, 293: while this latter case was repealed for formal reasons, the Court noted that in view of the reform introducing the direct election of mayors and administrative officers in 1995, the prognostic assumptions sustaining the barrier clause could have possibly become unsustainable, which could have been generated “a duty to check and revise”). Nor was the doctrine invoked at R1 in surviving dependents (BVerfGE 39, 169, 181 ff. and 193 ff.), but ten years later (i.e. at R2), when the Court identified factual changes calling the initial legislative assumptions into question, and suggested that the law was drifting into unconstitutionality (in Richtung auf die Verfassungswidrigkeit). Yet, instead of voiding the law, the BVerfG required lawmakers to legislate again in the light of such changes, for which these were granted a long period of time (“by the end of legislature period after the next one”) because of the complexity of the subject matter—this has been called a “preventive” or “prophylactic” revision duty (Mayer 1996: 180).
- 44.
To safeguard, for instance, the principles of democracy and separation of powers (Kalkar), or the right to (judicial) due process as to the collection of criminal evidence, as in the 2005 GPS case (BVerfGE 112, 304, 316–17). Stressing the link between monitoring (and revision) and the mandate of determinacy , see Albers (2006: 31). Notice that I limit myself to interferences with fundamental rights. Further constitutional goods such as subsidiarity may also be protected by the post-legislative doctrine: see e.g. the third decision on stores closing time (BVerfGE 111, 10, 42).
- 45.
Despite some overlap (e.g. as to the criterion of self-evident or manifest violation: see Sect. 11.4), the post-legislative doctrine must be distinguished from that of legislative omission , which refers only to protection rights —besides, the former presupposes a previous valid law, so that a total or absolute legislative omission is excluded at R1.
- 46.
Notably, in cases involving the quantification of benefits (Hartz IV ) or wages (professorial salaries), where the weakness of the substantive criteria to assess legislative results leads the Court to focus on the lawmaking process: BVerfGE 125, 175 (para 139 ff.) and 130, 263 (para 163 ff.).
- 47.
The idea of a dynamic (and process-oriented) proportionality test is clear in census: “the lawmaker must (…) account for uncertain impacts (…) by exhausting the knowledge sources (Erkenntnisquellen) available” in order to assess such potential impacts “as reliably as possible”; afterwards it must likewise examine “the available material” to see whether a total survey (Totalerhebung) “still remains proportional” despite eventual progresses in statistical and social-scientific methods; in this regard, “the lawmaker” will have e.g. “to attentively follow” national and international debates as to whether such a total survey may be replaced with less intrusive measures (BVerfGE 65, 1, 55–56).
- 48.
As stated in fighting dogs (BVerfGE 110, 141, 158 ff.), lawmakers passing a regulation may not be able “to form a sufficiently reliable opinion” on its factual premises or impacts, for they have to assess complex risk situations about which no reliable scientific evidence exists—but the prognostic uncertainty must be “significant” (erheblich).
- 49.
On certain occasions what is in doubt is not whether but to what extent new legislative facts will emerge (e.g. variations in the cost of living will occur, but can be quantified only ex post), in which case the Court calls for constant legislative fact-finding . In asylum seekers , this came to a “duty of actualization” or updating (BVerfG Judgment of 18 July 2012, 1 BvL 10/10, para 105), albeit that the appellants framed the complaint in terms of due monitoring and revision (para 82).
- 50.
So e.g. in Kalkar (BVerfGE 49, 89, 131), the Court decided not to conduct any further fact-finding in the conviction that this would not remove the uncertainty.
- 51.
“If the lawmaker were allowed to decide freely” on probability degrees, the judicial control of “legislative prognostic decisions including their factual foundations” would be “impossible” (BVerfGE 129, 300, 323, EU barrier clause). In care of the elderly (BVerfGE 106, 62, 151–52), the Court recalled that: unconstitutionality may respond to “defective fact-finding” or to defective “fact-finding taken as a basis for prognostic decisions”; uncertainty about “future developments” does not open an “entirely control-free decisional space”; “prognostic judgments rely on fact-finding which are in turn susceptible to review and assessment”; as with past or present states of affairs, the Court controls “whether the lawmaker has based its decision on investigations which are as comprehensive as possible or has overlooked relevant facts”; “under certain limits”, it is up “to the lawmaker how to investigate” such facts”. Yet, as far as prognostic uncertainties can be eliminated “through firm empirical data and reliable experiential knowledge, the prognostic margin” vanishes.
- 52.
So e.g. in fighting dogs (BVerfGE 110, 141, 160).
- 53.
BVerfGE 50, 290 (332–33). In care of the elderly, the Court recalled that, “when events evolve differently as assumed, as often happens”, the risk is just actualized which is “typical for prognoses and inherent to any estimation” about complex facts in the future; “wrong prognoses cannot be excluded even if the utmost prognostic care has been taken”. A lawmaker “who cannot do without prognoses must be allowed, within certain limits, to take this risk without having to fear a negative constitutional assessment. The fixation of a prerogative of appreciation in case of prognoses” responds “to the empirical and normative presuppositions under which legislation takes place. There can be no unitary (…) answer, but only differentiated solutions. What criterion is adequate in the concrete case depends, especially, on the particularities of the state of affairs and the prognostic difficulty, whereby a sharp demarcation is barely possible”; the prognostic margin can be ascertained only after an overall consideration of “the subject matter” in the light of “the interests which are to be protected, without ignoring the extent to which the expectations underlying the law” can be said to be objective and rational (BVerfGE 106, 62, 151–52); cf. also junior professorship (BVerfG 111, 226, 255).
- 54.
“Insecurity and uncertainty stand at the beginning of the prerogative of appreciation . The duty to monitor and to eventually intervene stand at the end. As a provisional right of the lawmaker to take the final evaluative decision, “the prerogative of appreciation (…) is the connecting link” (Bickenbach 2014: 159).
- 55.
For instance, in Mutzenbacher this prerogative was granted as to the impact assessment of pornographic novels on minors, but no specific monitoring was due (BVerfG 83, 130, 140–41); in genetic engineering (BVerfG Judgment of 24 November 2010, 1 BvF 2/05, para 123 of the English version, para 142 of the German version), the Court stated that when “scientific knowledge is uncertain”, the legislature has a prerogative “to assess the potential dangers and the risks”, which “does not require any empirical scientific evidence” of the potential danger of GMOs, “particularly since the protected legal interests are enshrined in the Constitution and carry great weight” (that this act was a precautionary one seemed to make monitoring and revision unnecessary); in the incest case (BVerfGE 120, 224, 244–45), the prospect that relationships between brothers and sisters provoke “severe detrimental effects on families and society” is deemed plausible despite the difficulties in ascertaining such impacts, but no monitoring duty is set as to the criminal ban on those relationships; or, in hoof supply (BVerfGE 119, 59, 86), the Court recognized a prerogative of appreciation with regard to the necessity test, but thought it unreasonable to call on the lawmaker for a “strict surveillance” and a “comprehensive preventive control” because of the extreme costs involved—the act, nevertheless, was held disproportionate and voided. See also the 2002 decision on barrister registration at the Federal Supreme Court (BVerfG 106, 216, 222).
- 56.
In the theory of formal principles, the compensatory function and the dynamic aspect of the post-legislative doctrine seem to go unnoticed: cf. e.g. Alexy (2014: 520 ff.), elaborating precisely on the cannabis case.
- 57.
Prognostic failures triggering the duty to revise may be total or partial. As recalled in fighting dogs (BVerfGE 110, 141, 166), legislators must collect evidence as to the risks involved and their causes, and will have to adapt the law if their prognostic appreciation “is not or not entirely confirmed”.
- 58.
- 59.
See, respectively, BVerfG Judgment of 13 March 2013, 2 BvR 2628/10, para 64 and 121; BVerfGE 65, 1, 55–56; and Judgment of 10 June 2006, 1 BvR 706/08 et al., para 170 and 241.
- 60.
BVerfGE 88, 203 (310–11). In juvenile justice, the Court remarked that: “in view of the particularly high weight” of the rights affected by the confinement of minors, “the lawmaker is obliged to monitor and to revise [the law] according to the monitoring results”; it “must assure itself” and the involved authorities of “the chance to learn from experiences” about the way in which “legislative provisions are applied” and from the comparison with experiences outside its own territorial area of competence. So, the lawmaker must collect “informative” (aussagefähig) and comparative data which make it possible “to ascertain and assess the successes and failures” in the execution of juvenile criminal sanctions, and to conduct a “specific investigation of the factors” bearing on the legislative impact (BVerfGE 116, 69, 90–91).
- 61.
In co-determination , upon endorsing legislative fact-findings and prognoses as plausible, the Court recalled that it only examines whether the challenged provisions are constitutionally permissible, whereas it is solely incumbent on the lawmaker “to improve technically the act upon scrutiny, to regulate open questions, and soften eventual frictions” which may emerge in the future (BVerfGE 50, 290, 335–36).
- 62.
Process requirements appear already in the 1958 chemistries decision (BVerfG 7, 377, 411–12), but the starting point for (semi-)procedural review is usually placed in mills structure act (1975) and codetermination (1979). See further Schwerdtfeger (1977: 173), as well as the pieces by Waldhoff, Gzreszick and Meßerschmidt in this volume.
- 63.
BVerfGE 119, 181, 236 (broadcasting fees).
- 64.
An outstanding example is the 2010 Hartz IV decision on social benefits (BVerfGE 125, 175, para 139 ff.). As elaborated in the 2012 ruling on professorial salaries: “to a particularly high extent”, a change of the wage system “is marked with uncertainties and exposed to prognostic mistakes”, and therefore “it is the observance of procedural requirements” that matters, with these operating as a “second pillar” of protection that flanks and reinforces the limited material control (manifest unconstitutionality test) exerted on the legislative results (BVerfGE 130, 263, para 163–64).
- 65.
BVerfGE 50, 292, 333 (codetermination ).
- 66.
BVerfGE 50, 292, 332 ff.
- 67.
Hartz IV and professorial salaries illustrate well this intertwinement. In the former case, the Court recalled that the factual estimations of the lawmakers must respond to a proper fact-finding method transparently and consistently applied, whereby the results of such a method “must be checked continuously and further developed”: “the lawmaker has to take measures which topically (zeitnah) react to changes in economic conditions, such as increases of prices or consumer taxes, in order to assure that the current [existential] needs are met” (BVerfGE 125, 175 para 140). In professorial salaries, we read: “procedural requirements in the form of justification, checking and monitoring duties” particularly apply to structural changes in the regulatory model; since the impacts of such changes can be known only as time lapses, the lawmaker is granted a “prognostic and appreciative margin”, but, “in return for that”, is subjected, “in addition to the justification duty, to the duty to monitoring and eventual revision”, being “obliged to undertake corrections” if actual and prognosticated developments considerably deviate from one another (para 165). Even where no method review is apparent, like in aircraft noise, due legislative care played its part.
- 68.
BVerfGE 116, 69, 90–91 (juvenile justice).
- 69.
The monitoring duty is a “pro futuro complement” to the margin of appreciation “which temporarily extends the maintenance of procedural requirements” (Augsberg and Augsberg 2007: 292–93); as Bickenbach (2014: 159) notes, “the burden of justification (Darlegungslast) and the duties to monitor and revise clearly behave in a complementary manner with regard to prognostic legislative decisions under uncertainty”. In the early 80s, Kloepfer (1982: 90) had similarly argued that “legislators’ duties of adequate fact-finding” and “rational prognosis ” transform “into an ongoing duty to control the success” of the law after enactment. On such dynamization, Huster (2003: 12); cf. Höfling and Engels (2014: 860).
- 70.
Asserting the doctrine irrespective of the quality of the lawmaking process viz. the method of legislative justification seems contradictory: retrospective exigencies are a meaningful complement to, not a substitute for, due legislative care. Yet, even if the Court finds fault with the legislative process, lawmakers may defend the reliability of their prognoses within the constitutional proceedings. For the Court, prognoses must be based on factual assumptions which have been carefully investigated “or at least can be confirmed in the framework of the judicial examination”, and the prognostic result must be controlled as to whether the viewpoints sustaining it were revealed with sufficient clarity “or at least it is possible to reveal them in the review proceedings” (BVerfGE 106, 62, 151–152, care of the elderly). This might open up the gate to impact review . In this vein, the ECtHR , in Zammit Maempel v Malta, reproaches careless lawmakers for not having conducted “any impact assessment studies”, but welcomes that they allowed for monitoring through the appointment of a group of experts (App. 24212/10, Judgment of 22 November 2011, para 70); cf. below, Sect. 11.5.
- 71.
Criticism may be levelled at the doctrine as such or at the way it is handled by the Court, with the latter being my concern now. Problems may appear in different proportions or intensify in some cases or with regard to one or other of the duties, but I confine myself to an overall appraisal. Roughly, these difficulties are concretizations of classical objections against judicial review: the first two point at features that judicial doctrines are expected to have (predictability , coherence, precision); the third has to do with the under-protection of rights, and the fourth with the disruption of the policy process.
- 72.
Mayer (1996: 155) connects the duty to revise to a supra-positive restitution principle which also applies in constitutional law.
- 73.
The once dominant view that “the lawmaker owes nothing but the law as such” (Geiger 1979: 141) no longer holds without more ado. In view of the case law, lawmakers may owe something more. While no general duty to a legislative due process of justification (at least, no definitive rule) can be claimed to exist, it is undeniable that process requirements apply to certain cases or to “constitutionally special situations” (Schlaich and Korioth 2012: § 343).
- 74.
Pabst (2012: 401) speaks of an “unspecific duty” which is actualized upon assertion by the Court.
- 75.
If the source of a post-legislative due process is the Basic Law, with the Court being a mere admonisher (not a duty-giver), it might be claimed that the content, scope and occasion of the doctrine should be extended to issues not covered by the Court’s interpretation. On this dogmatic viewpoint, see Tekin (2013: 13 ff., 86–87).
- 76.
With cases involving e.g. professional freedom (base tariff), the right of public servants to an adequate wage (professorial salaries) or, to name just two further examples, the freedom of science (BVerfGE 111, 333, 360, University Act of Brandenburg), or the right to property—which was allegedly affected by the cost of extra-judicial requests for IPR protection (BVerfGE, Judgment of 20 January 2010, 1 BvR 2062/09, para 22–23).
- 77.
What a “complex” state of affairs is “remains practically within the discretion (Belieben) of the constitutional judges” (Mayer 1996: 131–32). Probably, the notion of regulatory (non-)complexity can only be stipulated: cfr. Vanberg (2005: 104), basing this notion on how easily legislative decisions can be monitored.
- 78.
For Justices Mahrenholz and Sommer, the duty to protect unborn life was also constrained by the iusfundamental status of the woman—whose rights to dignity, personal integrity and personality were undervalued by the majority (BVerfGE 88, 203, 339–340). While this dissenting opinion does not go into the duties to monitor and revise, it can be assumed that, if it is incumbent on lawmakers to balance all competing interests, then the effects of the law on all these interests should also be monitored. On the biased scope of the doctrine in this judgment, see Tekin (2013: 112 ff.).
- 79.
In his view, the judgment should have been based on “a wider, updated and hence more convincing factual basis”; the Court did not require “any further explanations” from the lawmaker about how it complied with that duty nor call for a hearing of evidence in order to obtain a “wide enough” and “updated factual basis” for its decision (BVerfGE 90, 145, 216–17, 219 ff.). On Justice Sommer’s dissenting vote, see Hillenkamp (2009: 305–06); on the—missing—link between due legislative and due post-legislative process , see note 70.
- 80.
For the opposite view, Hillenkamp (2009: 308): “how the monitoring and revision duty is to be met is easy to answer”.
- 81.
Upon noting that the Court is unclear as to the whole due evaluation process (actors, methods, processing of results…), Gusy and Kapitza (2015: 25 ff., 35) hold that the legislature’s operative incapacity to retrospection does not imply that monitoring be necessarily made by the government. Referring to Hartz IV and asylum seekers , these authors further note that in mandating the evaluation of the law, the Court leaves open who should conduct it, but the parliament is not the envisaged actor: extra-parliamentary and even non-official evaluations may be resorted to, in which case it should be granted that legislators assess them “objectively and non-arbitrarily”, and duly justify differentiations or deviations. Governmental monitoring might further distort institutional roles, for “it is no longer the executive who is bound by the law, but the parliament who seems bound by the executive’s evaluation”. The problem of “who evaluates the evaluators” worsens if evaluation is “privatized” by the hiring of consulting firms, which raises “potential conflicts of interests”. Probably, the point is to assure some parliamentary supervision of evaluation: non-parliamentary instances may well monitor, but at least the basic decisions on criteria, guidelines and methods, as well as the assessment of the findings are incumbent on the legislature, i.e. the results of extra-parliamentary monitoring can have just an informative value for elected lawmakers (cf. Albers 2006: 34 ff.; Morand 1994: 133). Finally, one wonders whether independent or academic evaluation research qualifies as due monitoring by the lawmaker (see Tekin 2013: 74 ff.).
- 82.
On the so-called “evidence clause”, Meßerschmidt (2000: 1009 ff.), Mayer (1996: 141 ff., 171 ff.) and Bickenbach (2014: 353 ff.). As mentioned in Sect. 11.1, the assessment of evaluation findings is often highly controversial, even for the judges themselves—a striking instance is provided by the dissenting opinions of the ECtHR ’s Judges Jungwiert and Borrego in D.H. v. the Czech Republic (App. 57325/00, Judgment of 13 November 2007, para 194–95).
- 83.
Unless the Court, instead of asserting the doctrine in general, graduates it depending on the gravity of risks and the weight of legal goods, it may be pointless: thus Nagel (2010: 275), calling for a “differentiated monitoring duty”.
- 84.
- 85.
See Bundestag official printed record (BT-Drs.) 14/4830 (11 June 1996) and 16/5515 (14 June 2007). Tekin (2013: 76 ff.) argues that “the deficit of data” and the “unsatisfactory answer of the federal government possibly respond” to the conviction that it is “not obliged to collect evidence”. See further Hillenkamp (2009: 315–316). Meßerschmidt (2000: 1040) reproaches the Court for not having settled this issue in 1977, and denies that the doctrine was even asserted as a “dilatory” formula; in his view, the BVerfG’s “empirical reservations should be examined carefully to detect to what extent they are seriously meant or just serve to avoid clear constitutional statements”.
- 86.
Lacking monitoring or revision may lead to an unconstitutional situation, in which case the BVerfG may pronounce the law unconstitutional in the framework of a new review (Höfling and Engels 2014: 862). For Pabst (2012: 397), if the law relied on prognoses which are shown to be wrong afterwards, then it was already unconstitutional when it was conditionally upheld—i.e. at R1.
- 87.
Cases like barrier clause, however, provide the exception.
- 88.
See above Sect. 11.2, and also BVerfG, Judgment of 18 July 2012, 1 BvL 10/10, para 103 ff. (asylum seekers ).
- 89.
There are good reasons (related e.g. to legal certainty ) for a limited enforcement of time-tied constitutional doctrines. On the problems posed by an eventual annulment of the law at R2, see e.g. Mayer (1996: 174 ff.).
- 90.
Decision of 29 June 2004, 2 BvL 8/02, request submitted by the local court of Bernau. For this court: “the prerogative of appreciation and hence the legislative margin of configuration attached to it reduces to zero” if—as it was claimed—it is “scientifically demonstrated that cannabis [use] results solely in low risks for only a few people” (para 23). For a critique of the BVerfG’s refusal to re-examine the law, see Hillenkamp (2009: 316–317) and Tekin (2013: 126 ff.).
- 91.
Pabst (2012: 399–400) even suggests suppressing the one-year period to lodge an individual constitutional complaint (Art. 93 GG) and makes a statistical estimate about the bearing of this suppression on the Court’s workload.
- 92.
Since the monitoring duty is not always set “as a correlative of all or at least certain legislative prognostic decisions” and there is neither a procedural way to enforce it nor a sufficient institutionalization of ex post evaluation , this doctrine “appears to be toothless” (Augsberg and Augsberg 2007: 308, arguing further that, since no clear parameters exist to identify ex post unconstitutionalities, the duty to revise also remains within political discretion).
- 93.
See e.g. the third ruling on stores closing-time (BVerfGE 111, 10, 42–43). On these “pragmatic” functions of the doctrine, see Huster (2003: 24–25).
- 94.
As stated in juvenile justice, due monitoring does not only contribute “to scientific and political knowledge-building, as well as to a public debate that fosters the search for the best solutions”, but also reinforces “democratic responsibility” and accountability (BVerfGE 116, 69, 90–91).
- 95.
BVerfG, Judgment of 24 April 2013, 1 BvR 1215/07, para 221–22.
- 96.
For example, in Arcelor, the ECJ (Case C-127/07, Judgment of 16 December 2008, ECR 1-9895, para 61–62) argued: “in view of the novelty and complexity of the scheme, the original definition of the scope of Directive” and “the step-by-step approach taken, based in particular on the experience gained during the first stage of its implementation” were within the lawmakers’ discretion; while “the legislature could lawfully make use of such a step-by-step approach”, it was obliged “to review the measures adopted (…) at reasonable intervals, as is moreover provided for” in the Directive in question. See Keyaerts (2013: 284), who also refers to the opinion of Advocate General Maduro in Vodafone and others (Case C-58/08, Judgment of 8 June 2010, ECR 1-4999, Opinion delivered on 1 October 2009, para 42): “the existence of a sunset clause reduces” the “impact on the rights of the economic operators” and makes the interference “more readily acceptable” by ensuring that the legislature “will periodically reassess its interventions in areas (…) that are undergoing rapid social and economic change”. Similarly, for the ECtHR’s case law, Popelier (2013: 261, 254), referring to the Grand Chamber’s decision on aircraft noise in Hatton v. UK, App. 36022/97, Judgment of 8 July 2003.
- 97.
BVerfGE 25, 1 (12–13).
- 98.
As mentioned earlier in connection with aircraft noise (Sect. 11.2), the doctrine about relative legislative omissions and the under-protection ban lead the Court to assume an ex post perspective and to assess forgoing legislative fact-findings (monitoring) and adjustments in order to determine whether the duty to revision was violated—the Court acted similarly in Kalkar.
- 99.
But even then the Court notes that “observations made in retrospect” (nachträglich getroffene Feststellungen) are “not decisive for the constitutional assessment” of prognoses: it all depends, rather, on the state of knowledge at the moment of legislative decision, ex ante; however, now the question is “whether both the substantive and the procedural requirements” on the deviation from the findings of the independent commission have been met, whereby “it is not clear what the basis of the prognosis was”; when “the prognosis , with hindsight, proves to be that grossly erroneous” (derart grob unzutreffend), this can be “a complementary sign” (ein ergänzendes Indiz) that “the lawmaker, ex ante, had no constitutionally sufficient technical (fachlich) foundation for its prognosis ” (BVerfGE 119, 181, 236).
- 100.
ECJ, Judgment of 15 October 1994, Crispoltoni and Others (C-133/93, ECR I-4863) para 43; Judgement of 12 July 2001, Jippes and Others (Case C-189/01, ECR I-5689), para 84; and, more recently, Judgment of 17 October 2013, Billerud v Naturvårdsverket (Case C‑203/12), para 37.
- 101.
Whenever it is possible for the Court to determine “that the lawmakers’ expectations were misguided”, there exists a good argument to void legislation; “certainly, the lawmaker can be demanded to make only a rational prognosis ”, yet, if the prognosis fails, “it can no longer count as rational”, not even “if it was methodologically” correct at the time of enactment: as soon as the prognosticated events are no longer likely to occur due to changing factual or legal conditions, “an unconstitutional state of affairs emerges which deprives the regulation of its justification”, and the lawmaker, “behaves unlawfully” if it leaves this state of affairs uncorrected (Bickenbach 2014: 502–503, see also 497–498).
- 102.
As for the ECtHR , see Popelier (2013: 263 ff.), arguing that evaluation arguments may put the burden of proof on the lawmaker’s side e.g. in cases of suspect differentiations: “if the applicants give sufficiently reliable and significant evidence to give rise to a strong presumption of indirect discrimination, the burden of proof shifts to the Government, which must give evidence that the difference in the impact of the legislation was the result of objective factors” (referring to D.H. v. the Czech Republic, App. 57325/00, Judgment of 13 November 2007, para 194-95). Moreover, “monitoring and evaluation reports are helpful to convince the Court of the proportionality of legislation which has become the target of criticism after a specific incident”, as happened with the Italian law providing for a progressive social reintegration of detainees: the government provided the Court with (ex post) statistical evidence to demonstrate that the percentage of crimes committed by prisoners subject to a semi-custodial regime was very low (Mastromatteo v. Italy, App 37703/97, Judgment of 24 October 2002, para 49, 72).
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Oliver-Lalana, A.D. (2016). Due Post-legislative Process? On the Lawmakers’ Constitutional Duties of Monitoring and Revision. In: Meßerschmidt , K., Oliver-Lalana, A. (eds) Rational Lawmaking under Review. Legisprudence Library, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-33217-8_11
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