Assessment prerogatives

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As a prerogative of assessment which is prerogative of the legislature referred, on the appropriateness and necessity to decide last binding a particular statutory scheme for achieving a legitimate aim. The decision of the legislature can only be examined to a limited extent by the Federal Constitutional Court . Due to the priority of assessment and assessment, the examination is limited to obvious violations. The means used are constitutionally objectionable only if they are objectively unsuitable or simply unsuitable. It is primarily up to the legislature to decide which measures to take in the interest of the common good, taking into account the factual laws of the subject area concerned.

The prerogative of assessment follows from the principle of the separation of powers and means the legislature's final decision-making power in relation to case law, which is exceptionally permissible with regard to effective legal protection .

However, the greater the unequal treatment of persons or circumstances through a legal regulation can have a negative impact on the exercise of freedoms protected by fundamental rights, the narrower the limits are set to the legislature's scope for action. The varying scope of the legislative scope corresponds to a graduated control density in the constitutional review, for example in the context of a constitutional complaint or a norm review .

If the facts of the case are (partially) removed from the control of the courts by administrative bodies, for example when interpreting vague legal terms , one speaks of discretion .

As far as the distribution of competences between the federal government and the federal states, i.e. between two legislators, is concerned, there is no legislative scope of assessment that is free from constitutional control. For example , the Federal Constitutional Court has to check in full whether the requirements of Article 72 (2) GG are met.


Individual evidence

  1. BVerfG, decision of January 27, 2011 - 1 BvR 3222/09 , Rn. 40.
  2. BVerfG, decision of March 26, 2007 - 1 BvR 2228/02 , Rn. 38 ff.
  3. BVerfG, decision of September 29, 2010 - 1 BvR 1789/10 , Rn. 18th
  4. Otto Bachof : Scope of judgment, discretion and indefinite legal concept . JZ 1955, 97 (98)
  5. BVerfG, decision of January 26, 1993 - 1 BvL 38, 40, 43/92 , Rn. 35 f.
  6. BVerfGE 110, 141 <175>; BVerfG, judgment of December 17, 2014 - 1 BvL 21/12 -, juris, Rn. 111
  7. cf. BVerfG, judgment of July 21, 2015 - 1 BvF 2/13 B II. 2. c) cc) (1)