The Proportionality Test is of significant importance to the legal realm, as it is the most prominent method to solve problems involving fundamental rights. The technique is widely used in cases involving fundamental rights by the most relevant constitutional courts of the world. Through its application, it is possible to verify, clearly and rationally, the lawfulness of public measures that infringe fundamental rights. The test is used to check whether a public act violated these rights. In the context of the COVID-19 pandemic, for instance, public measures are subject to the proportionality test. Thus, proportionality can clarify whether a specific restriction was made excessively or adequately in a particular place and time. Therefore, in order to verify the validity of such lockdown measures or, e.g. green pass requirements, to name another COVID-related issue that has to be seen in the light of proportionality, public actors - especially courts - need to undertake a careful procedure that involves three subtests and an elaborate argumentative process.
Every governmental measure needs to be founded on certain requirements in order to be considered proportionate; the first one is the legitimate aim. Aims are legitimate if they pursue the protection of a fundamental right or another constitutional principle. This is necessary because when governmental actors create public measures, they cannot implement them for any reason. Instead, such measures must serve the public good, which is expressed, e.g., by human rights. But even governmental measures which pursue a legitimate aim may be disproportionate. In addition, three subtests are needed in order to find out whether a measure is or is not proportionate. These subtests are, first, suitability, which asks if the measure furthers the aim. The second subtest, necessity, asks if the chosen governmental action is the one that least restricts the other fundamental rights or principles at stake. Finally, one needs to verify if what is gained is worth what is lost, by means of the balancing subtest.
Considering the vast acceptance of the proportionality test by courts, research on such a topic is highly important for two significant reasons. “Courts do not always apply the proportionality test in the same way. Some courts apply it incorrectly. The European Court of Justice, for instance, often does not balance - the test's last step -, leaving proportionality incomplete,” explains Matthias Klatt, Professor of Legal Philosophy, Legal Sociology and Legal Policy at the Institute of the Foundations of Law of the Faculty of Law in Graz. “Other courts do not adequately distinguish between suitability and necessity or ignore the independent function of the legitimate aim test,” he adds.
We see a massive expansion of the proportionality test around the world. More and more courts are switching from the US decision model, which employs a system of scrutiny and other review standards instead of proportionality, to one that fits proportionality's demands.
Last year in September, the Mexican Supreme Court, which is one of the three most relevant Constitutional Courts in Latin America - together with Brazil and Colombia - organised the international conference “Conservatório Internacional Sobre el Test de la Proporcionalidad”. Professor Klatt, internationally renowned for his outstanding research on the proportionality test, was invited to give the opening talk at this conference. His talk “Balancing principles, or how to infringe rights without violating them” was watched by an audience of 1,400 people worldwide. Other highly distinguished international scholars such as Virgílio Afonso da Silva, Professor of Constitutional Law at the University of São Paulo (Brazil), Katherine Young, Professor of Law in the Boston College Law School (USA), João Andrade Neto, Professor of Electoral Law at the Pontifical Catholic University of Minas Gerais (Brazil), Juan Antonio García Amado, Professor of Legal Philosophy in the University of León (Spain), David Duarte, Professor of Law in the University of Lisbon (Portugal), and Mattias Kumm, Professor of Law in the New York University School of Law (USA) participated in the event.
Click here to watch Professor Klatt’s conference talk on the proportionality test.
Intriguing insights into proportionality test’s last step, i.e. balancing, are provided in Klatt’s recent article “Balancing Rights and Interests. Reconstructing the Asymmetry Thesis”. There, the constitutional theorist discusses an alleged asymmetry in the context of balancing. Many scholars claim that, while we could balance interests against each other, we could not do so with rights, lest we destroy their unique normative status. The article was published in the Oxford Journal of Legal Studies 2021 (click here). It sees an overwhelming international response and will soon be published in Spanish, Portuguese and Chinese.
For more information on Professor Klatt and his research, click here.