On April 3, 2014, the Frankfurter Allgemeine Zeitung, one of the leading German daily newspapers, published a small note. The journalist reported from a meeting of the German Federal Minister of the Interior with a few selected public law professors at an Italian restaurant in Berlin. The topic of the discussion: the reform of the German Federal Constitutional Court, the Bundesverfassungsgericht. In the three years that have passed since this meeting, no serious proposals for a reform of the Court have emerged. Nor has the topic been openly discussed in political circles. Instead, the very purpose of the meeting was to leak the information about it to the press.

The reason was a couple of controversial decisions that the Constitutional Court had taken in the first quarter of 2014. First, the Court had voiced concern regarding a program of the European Central Bank (ECB) that allowed the ECB to purchase Member States’ bonds on the secondary market in order to stabilize the Euro. The judges in Karlsruhe argued that the program violated the competencies of the ECB and referred the case to the European Court of Justice. Second, the Court struck down a 3%-minimum-vote threshold for elections to the European Parliament. Both decisions ran counter to the interests of the political elites. The dinner meeting in Berlin, therefore, was a signal to Karlsruhe not to go too far.

And Karlsruhe understood. On July 15, 2015, the Court handed down a decision that concerned the indirect financing of political parties through public funds. There was evidence that political parties circumvented restrictions on the public financing of political parties by channelling money to political foundations or parliamentary support staff. Evidently, the stakes for the established political parties were huge. But the Constitutional Court did not give them reason to worry. Without much fanfare, it rejected the constitutional complaint as inadmissible. One can argue whether the reasoning of the Court is convincing. Considering the established legal doctrine on the matter, the Court could have decided otherwise. Institutionally, however, the Court probably did not have any other choice if it did not want to jeopardize its own position.

Proportionality and Judicial Activism is a book about how such institutional constraints shape the jurisprudence of apex courts. It looks at one particular doctrine: the proportionality test. Many apex courts use proportionality as the central instrument of their fundamental rights doctrine. Yet, proportionality also has many critics claiming that it is a Trojan horse enabling political activism of courts. While the structure of proportionality indeed affords a large amount of discretion to judges, the book shows that courts exercise self-restraint when applying proportionality. It is the shadow of potential institutional sanctions that prevents judges from overstepping the often ambiguous boundary to overt political decision-making.

Watch Niels Petersen’s video interview on the background, methodology and findings of the legal study here: Do Constitutional Courts Use Balancing to Promote Judicial Activism?

Niels Petersen’s book, Proportionality and Judicial Activism, is now available on Cambridge Core.

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