Equality principle

Police headquarters in Düsseldorf : The triangle in front of the imperial eagle indicates the state's legal obligation to comply with the principle of equality.

The principle of equality ( Latin ius respicit aequitatem , "The law pays attention to equality ") is a principle in constitutional law .

introduction

The Universal Declaration of Human Rights of the United Nations proclaims in Art. 1 Clause 1:

All people are born free and equal in dignity and rights.

The right to equality before the law (among full citizens of a polis) can already be found in ancient Greece. From the Jewish and Christian ideas of “equality before God” and the concept of man's image in the image of God ( Genesis 1.26-28  EU , idea of ​​equality in John Locke ) , the idea of ​​equality developed, especially since the Enlightenment , into the demand for “equality the law". The United States' Declaration of Independence summarized this idea in the words "all men are created equal" and thus denied the divine right of the British crown. In the French Revolution , the ideal was also elevated to a political principle. It was intended to promote the elimination of feudalism and unjustified social hierarchies.

The principle of equality is the natural law principle of treating all people equally if unequal treatment cannot be justified by an objective reason. At the level of the European Communities, the principle of equality is anchored in Art. 18 Para. 1 and Art. 157 of the TFEU . In addition, Title III of the EU Charter of Fundamental Rights (“Equality”) contains several articles (in particular Art. 20) to ensure the principle of equality.

Germany

overview

There is one general principle of equality and various special principles of equality in German constitutional law. The general principle of equality under Art. 3 , para. 1 GG obliges the public authority, factually similar cases on the legal consequences to be treated equally. "The same cases should meet the same rules" ( Konrad Hesse ) or: "What is essentially the same is legally the same and what is essentially unequal is to be treated legally differently in accordance with its individual character" ( Federal Constitutional Court ). The special equality clauses stipulate in which cases, according to their nature, different things are nevertheless to be treated legally equally, e.g. B. the equality clauses in Article 3 of the Basic Law for the Federal Republic of Germany .

The principles of equality do not prohibit unequal treatment or discrimination in general. They only demand that unequal treatment must be justified by an objective reason.

According to the case law, a graded proportionality test must be carried out in order to examine the constitutional justification of unequal treatment, ranging from the prohibition of obvious arbitrariness to strict commitment to proportionality requirements ( see below ). Differentiations and distinctions can therefore be made within this framework.

Historically, it is a relatively new development that “equality before the law” also includes equality before the legislature, so the principle of equality not only obliges the administration but also the legislature. Such a comprehensive binding was already provided for in the Paulskirche constitution , but after its failure it was denied for decades by the prevailing opinion in science and state practice. The Constitutional Convention on Herrenchiemsee was forced to clarify the old issue by including the paragraph “The principle of equality also binds the legislature” in the draft constitution (Art. 14 Para. 2 ChE). Today, the legislature is bound by Article 1, Paragraph 3 of the Basic Law.

In addition to the so-called third - party effect of the fundamental rights , the general principle of equality is also exceptionally applicable between private individuals, especially in labor law.

Examination of equality rights in contrast to freedom rights

Fundamental rights are divided into freedom , participation and equality. In contrast to civil liberties, the latter are not examined in three steps ( protection area , interference , constitutional justification ), but only in two steps:

• First of all, it must be determined whether two comparable cases have been treated differently (or equally) by the same public authority in a specific situation.
• The question then arises as to how this (un) equal treatment can be justified under constitutional law.

The term "protection area" for the first of the two test steps, which has been used in the literature for this in part, has not yet caught on.

General principle of equality

Comparison pair

For the applicability of the general principle of equality ( Article 3, Paragraph 1 of the Basic Law), a comparative pair must first be available. This is the case when the things to be compared have a common next generic term ( genus proximum ) and are comparable third parties ( tertium comparationis ).

Example: apple and pear. Both are fruit (next generic term). The pear is different from the apple (third), but is comparable to it because both are fruit.

Equal / unequal treatment

The general principle of equality is relevant in cases of equal or unequal treatment of facts or of persons (groups). Unequal treatment exists when the public authorities treat comparable cases according to different principles.

Examples of this would be the use of compulsorily insured persons in statutory health insurance according to their income at different levels of contributions, the regulations on voluntary disclosure and the entry of the academic degree "Dr." according to the passport or identity card law ( § 1 and § 4 ).

Constitutional justification

The Federal Constitutional Court worked out in the "Unemployment Assistance Judgment" of November 17, 1992:

“The principle of equality in Article 3, Paragraph 1 of the Basic Law prohibits a group of norm addressees from being treated differently compared to other norm addressees, although there are no differences of such a nature and weight between the two groups that they could justify the unequal treatment. The legal distinction must therefore find sufficient support in factual differences. "

According to recent case law, the constitutional justification is based on different criteria, depending on whether it is simply the unequal treatment of facts or the unequal treatment of people or groups of people.

In any case, there must be an “objective reason” for the unequal treatment. In the above-mentioned case of collecting social security contributions according to the income of the insured person, this would be, for example, the different performance levels of the person concerned, whereby social aspects such as the number of children of the person concerned can also play a role.

The more recent jurisprudence differentiates further according to the type of unequal treatment: Different criteria are used, depending on whether it is a simple unequal treatment of facts or of persons according to "personal criteria".

Unequal treatment of facts / prohibition of arbitrariness

In the case of simple unequal treatment of facts, the general prohibition of arbitrariness applies ( Article 3, Paragraph 1 of the Basic Law)

The state may not arbitrarily treat what is essentially the same unequal or what is essentially unequal. There must be a differentiation criterion for this. According to a formula that is often used in case law, this is missing if a reasonable reason, arising from the nature of the matter or otherwise objectively plausible, cannot be found for the state measure.

So it is arbitrary if the authority wants to move away from self-set decision criteria from the past in an individual case when applying a standard . The administrative practice of the past with the completion of room for maneuver ( discretion ) also binds the administration for the future. The principle of equal treatment gives every citizen a right to the same treatment according to these decision criteria. His case must not be handled differently from the previous case (s).

It should be noted that the legislature has a wide range of political leeway (legislative discretion):

• The legislature initially has a purpose-setting competence when choosing the goal to be pursued,
• and he has a prerogative of judgment in choosing the right means of pursuing the goal he is striving for.

The constitutional giver also has a “constitutional discretion”, which is, however, much narrower because the formal legislature is bound by the constitutional order according to Article 20 (3) of the Basic Law, while the constitutional giver executes the law. The articles of association must always comply with the authorization given by the formal legislature. Further obligations of the formal legislature result from the so-called materiality theory in the case of sub-statutory legislation .

As far as the respective scope for discretion and assessment is sufficient, the court no longer reviews the decisions of the legislature or the statutes. In this respect, the density of judicial controls is limited.

Self-commitment of the administration

If the state administration has a margin of discretion or a margin of assessment , the principle of equality extends to the so - called self - commitment of the administration . An authority must therefore, insofar as an administrative practice has developed, actually treat the same cases in the same legal manner. A general change in administrative practice in general for the future remains possible.

In order to be able to speak of equal treatment in “administrative practice” at all, either at least two comparative cases or a corresponding administrative regulation are necessary, which are often issued in the context of indefinite legal terms.

An administrative regulation only has no factual external effect if administrative practice deviates from it. Likewise, there is no external effect if the administrative regulation is unlawful.

If the administrative practice practiced by the authority is also illegal, then due to the authority's obligation to apply the law correctly , which follows from Article 20.3 of the Basic Law, equal treatment in the wrong is not lawful and the authority is not bound. Citizens can never successfully plead that other cases have also been unlawful.

Unequal treatment of groups of people - "New Formula"

In the case of unequal treatment of groups of people, however, the Federal Constitutional Court has applied the so-called “New Formula” since the decision on preclusion in civil proceedings (also called “Katzenstein Formula” after the reporter in the proceedings). According to this, there must be a “reason of such nature and weight” for the unequal treatment “that it can justify the unequal treatment”.

A strict commitment to the principle of proportionality is assumed. First of all, the person concerned has to adjust to a differentiation that the legislature generally prescribes; he has to adapt to the prevailing conditions, which the legal system formulates "generally abstract" for everyone. But the more intense the interference with his basic rights, the less he is able to evade, the stricter the state's commitment to the principle of proportionality. The Federal Constitutional Court speaks of a graduated density of judicial controls . In the case of personal differentiations, strict binding of the legislature and the administration can be assumed.

Examples from case law are the ruling on the Transsexual Act or the decision to ban night work .

In particular, typifying regulations

Typifying and flat-rate regulations are those norms that base a differentiation between addressees of norms on only one characteristic, for example taxation according to a specific, flat-rate tax rate. Such regulations are generally permissible. Hardship in individual cases is generally to be accepted. The Federal Constitutional Court sees the limit reached when hardships occur not only in isolated cases, but typically in certain cases and when they are not only of insignificant scope.

The application of Art. 3 Para. 1 GG between private individuals

In the normal case, the general principle of equality is generally not applicable between private individuals. For example, a tenant cannot invoke Article 3 (1) of the Basic Law against the landlord if, like the neighbor, he wants to keep a pet, which the landlord has refused to do. In general, it can be said that the basic rights of Art. 1 to Art. 19 GG represent the citizens' rights of defense against state power. For this reason, a citizen can only make claims from these articles against the public sector.

In labor law in particular, however , the Federal Labor Court - going back to its former President Nipperdey - previously accepted the direct third-party effect of Art. 3 GG between employer and employee in the existing employment relationship as well as between the parties to the collective bargaining agreement .

Special theorems of equality

In addition to the general principle of equality in Article 3, Paragraph 1 of the Basic Law, there are a number of special principles of equality that take priority:

• Article 3, Paragraph 2 of the Basic Law: Equal rights for men and women;
• Article 3, Paragraph 3 of the Basic Law: Prohibition of discrimination on the grounds of sex, descent, alleged belonging to a “race”, language, homeland and origin, belief, religious or political beliefs or a disability. A ban on discrimination based on property in accordance with Article 2.2 IPwskR hasnot yet been implementedin Germany ;
• Article 6, Paragraph 1 of the Basic Law ( protection of marriage and family ): Prohibition of putting parents or single parents in a worse position than those who are childless;
• Article 6 (5) of the Basic Law: Right of illegitimate children to equality with legitimate children;
• Art. 11 GG: Freedom of movement for Germans in the federal territory, partly justifies equal subjective rights;
• Art. 21 GG: Right to equal treatment of political parties in political competition and in political work;
• Article 33.1 of the Basic Law: Equal civil rights and duties for all Germans ;
• Article 33 (2) of the Basic Law: right of all Germans to equal access to every public office according to suitability, qualifications and professional performance;
• Article 33.3 of the Basic Law: Equal civil and civic rights, regardless of religious belief;
• Article 38.1 sentence 1 GG: generality and equality of elections not only of the Bundestag but of all regional authorities .

Also under discussion is the inclusion of the characteristic of “ sexual identity ” in the catalog of protection of Article 3 (3) of the Basic Law.

Effects of the violation of an equality law

The effect of a violation of a principle of equality is generally not the nullity of the relevant legal norm. Only for the sub-statutory regulation, there is a rejection of competence in the specialized courts can be canceled while formal laws only by the Federal Constitutional Court.

The Federal Constitutional Court "cashes" a law that violates Article 3 GG, but it declares the law in question to be incompatible with Article 3 GG and, according to the principle of the separation of powers, basically leaves it to the legislature to make another constitutional regulation . In this way, the court respects the legislature's competence to set purposes and the prerogative of assessment, which the court is not entitled to. However, the court can set a deadline for the new regulation and a transitional regulation for the meantime. The problem here is how detailed the requirements of the court may be (so-called judicial self-restraint ). The incompatibility of the provision is announced in the Federal Law Gazette.

Only in very exceptional cases is the Federal Constitutional Court entitled to set a regulation instead of the statutory regulation, namely if there is only one possibility of the new regulation being considered.

Austria

In Austrian constitutional law, the principle of equality is anchored in Art. 7 of the Federal Constitutional Law (B-VG) and Art. 2 of the Basic Law of 1867 as citizenship. It obliges the state, roughly speaking, to treat "like equals, unequal unequal".

For ordinary legislators, this means the prohibition of objectively unjustified preferential treatment or disadvantage of certain persons (groups). The administration and the courts have to implement the legal norms objectively and without arbitrariness. Violations of the principle of equality can be asserted by those affected in administrative matters by filing a complaint with the Constitutional Court (VfGH). In matters that are dealt with by ordinary courts, those affected cannot currently appeal to the Constitutional Court themselves, except in those cases in which the judicial process is unreasonable (e.g. due to the threat of punishment). There is since 1 January 2015, the possibility of a Subsidiarantrages (also party application called): It can be any person who as a party a decided by a court of first instance case for application of an unconstitutional or unlawful general norm violates their rights alleged to be, on the occasion of an appeal brought against this decision to apply to the Constitutional Court to review the relevant norm (Art. 139 para. 1 no. 4 B-VG and Art. 140 para. 1 no.1 lit. d B-VG) . A decision of the Constitutional Court in this matter (e.g. repeal of the unconstitutional norm) then binds the appellate authority in its decision.

The principle of equality of arms is viewed as a special embodiment of the principle of equality in civil proceedings. It means that both parties in the process must have equal opportunities to prosecute.

Switzerland

In Switzerland, legal equality is anchored in Article 8 of the Federal Constitution as a fundamental right: “All people are equal before the law”. However, this principle does not apply without restrictions. Article 36 of the Constitution also provides for restrictions on fundamental rights in the public interest, provided that they have a legal basis.

Liechtenstein

The general principle of equality is guaranteed by Art. 31 Para. 1 Clause 1 LV ( Constitution of the Principality of Liechtenstein of October 5, 1921). It reads: "All nationals are equal before the law."

United States

The general principle of equality is enshrined in the 14th Amendment to the United States Constitution.

See also

• General Equal Treatment Act, prohibition of discrimination
• Equal Treatment Directive of the European Union

literature

• Lerke Osterloh : Commentary on Art. 3 GG. In: Michael Sachs (Ed.): Basic Law. Comment. 3rd edition, Beck, Munich 2003, ISBN 3-406-49233-9 .
• Michael Sachs: The standards of the general principle of equality - prohibition of arbitrariness and the so-called new formula. In: Legal Training . 1997, ISSN  0022-6939 pp. 124-130.
• Simon Kempny, Philipp Reimer : The Laws of Equality. Attempt of an overarching dogmatic description of their facts and their legal consequences. Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-152230-7 .
• Reinhold Zippelius , Gerhard Müller: The principle of equality. In: Publications of the Vereinigung der Deutschen Staatsrechtslehrer , 1989, pp. 7 ff., 37 ff. (Pp. 7 ff. Also in: Zippelius, Law and Justice in the Open Society, 2nd Edition, 1996, Chapter 26) .

Web links

Wiktionary: Equality law  - explanations of meanings, word origins, synonyms, translations

• Art. 3 GG (dejure, with jurisdiction)

Individual evidence

1. ↑ Kurt Raaflaub: Discovery of Freedom , 1985, p. 115 f.
2. ↑ Barbara Lich: The History of Equality ( Memento from May 8, 2016 in the Internet Archive ). Article from January 15, 2007 in the fluter.de portal (magazine of the Federal Agency for Civic Education ), accessed on January 3, 2014
3. ^ Simon Kempny: The state financing after the Paulskirche constitution. An examination of the financial and tax constitutional law of the constitution of the German Empire of March 28, 1849. Tübingen 2011, ISBN 978-3-16-150814-1 , pp. 35 ff., 182 ff.
4. ↑ Jarass, in: Jarass / Pieroth, GG, commentary on Art. 3 GG
5. ↑ ^{a b} General Equality Principle, Art. 3 I GG , Jura Online, June 11, 2016, accessed on April 2, 2020.
6. ↑ BVerfG, judgment of the First Senate of November 17, 1992, Az. 1 BvL 8/87, BVerfGE 87, 234 (255) .
7. ↑ ^{a b} BVerfG, decision of October 7, 1980, Az. 1 BvL 50, 89/79, 1 BvR 240/79, BVerfGE 55, 72 - Preclusion I.
8. ^ Fritz Ossenbühl : Articles of Association. In: Josef Isensee , Paul Kirchhof (ed.): Handbook of the constitutional law of the Federal Republic of Germany. (HbStR). Volume 5: Legal Sources, Organization, Finances. 3., completely reworked. u. exp. Ed., CF Müller, Heidelberg 2007, ISBN 978-3-8114-5522-1 , § 105, pp. 353-384 (377 ff.).
9. ↑ Dr. Angelika Günzel / University of Trier / Sketch of the solution to the exercise exam from January 27, 2010, a. a. on Article 3 I GG, self-commitment of the administration, problem of "administrative practice" / page 6
10. ↑ Lars Wiesehahn: European telecommunications law and its implementation in Germany. LIT Verlag Münster, 2008, ISBN 978-3-8258-1471-7 , p. 103 ( limited preview in Google book search).
11. ↑ BVerfG, decision of January 26, 1993, Az. 1 BvL 38, 40, 43/92, BVerfGE 88, 87 - Transsexual II.
12. ↑ BVerfG, judgment of January 28, 1992, Az. 1 BvR 1025/82, 1 BvL 16/83 and 10/91, BVerfGE 85, 191 - ban on night work.
13. ↑ Dieter Fabisch: The direct third-party effect of the basic rights in labor law . Lang, Frankfurt am Main 2010, ISBN 978-3-631-61288-0 , p. 188 ( limited preview in Google Book search).
14. ↑ BVerfG, decision of March 16, 2005 , Az. 2 BvL 7/00, BVerfGE 112, 268 (279) : "Art. 6 Para. 1 GG contains a special equality clause which forbids treating parents or single parents in a worse position than childless persons (cf. BVerfGE 99, 216 (232) ). "
15. ^ Karl Marxen: But not in public! Protection of sexual identity in the Basic Law (PDF), Forum Recht, 2009, issue 4, pp. 126–128.
16. ↑ Deixler-Huebner / Klicka: civil proceedings. LexisNexis ARD Orac, 4th edition, p. 10.

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