It comes into play in the review of fundamental rights , in the legislative process and in the administrative review of administrative actions (in particular: discretionary review ). It describes the relationship between a means used and a purpose sought.
A remedy is needed exactly when it is
- is suitable to achieve the intended purpose and
- among equally suitable means represents the mildest means to achieve the end sought.
Necessity as legality requirement
Official action is required if it represents the least possible interference with the gentlest means. Thus the principle of necessity is an expression of the administrative law prohibition of excess . When checking the legality and effectiveness of an administrative act , it is dogmatically classified in the general legality requirements that are placed on the substantive legality of administrative acts. Thereby secondary roles play, the suitability of the action to be able to achieve the desired success at all and appropriateness , which acts as a yardstick for weighing up the advantages and disadvantages of the administrative measure taken. " Necessity ", " suitability " and " appropriateness " characterize the so-called proportionality of the administrative act (for example in the case of connection and use compulsory ).
The review of an encroachment on the protection area of a fundamental right is very similar. Within the framework of the limits of fundamental rights, laws restricting the fundamental right are lawful if they are compatible with Basic Law and the general constitutional principles within the meaning of Basic Law. The means used sparingly can justify the purpose pursued if proportionality is maintained. A law on the fight against terrorism, for example, can only restrict the freedom of the press if the use of funds and purposes does not undermine the fundamental right.
Depending on the area of law, suitability is sometimes seen as part of the necessity or as an independent examination point (often in police law ), in the second case, necessity is understood to mean the use of the mildest and most effective means. However, a suitable and necessary intervention may not be carried out if the associated damage is grossly disproportionate to the intended purpose (proportionality in the narrower sense).
The criterion of necessity is the result of the principle of the least possible interference (in the rights of citizens). It is part of every examination of violations of fundamental rights . It therefore applies both to legislation itself and to all administrative action. It is particularly important to pay attention to the grounds for justification in criminal law, such as self-defense and emergency aid .
The principle of proportionality and thus the requirement of the necessity of administrative action result from the rule of law anchored in GG . The principle of the least possible intervention is thus covered by the eternity guarantee.
- Christoph Degenhart : Staatsrecht 1. State objectives, state organs, state functions. (= Priorities. 13). 11th edition. Müller Verlag, Heidelberg 1995, Rn. 326 and 329.
- Reports on the threat of terrorism - CDU man wants to restrict freedom of the press. In: Spiegel Online , November 23, 2010.
- Gerrit Manssen : Staatsrecht I. Grundrechtsdogmatik. Vahlen, Munich 1995, ISBN 3-8006-1991-1 , Rn. 629 ff.
- Dieter Hesselberger : The Basic Law. Commentary for political education. 12th edition. Hermann Luchterhand Verlag, Neuwied 2001, ISBN 3-89331-427-X .