Practical concordance
The principle of practical concordance (dating back to lat . Concordare "match") is a legal concept of German constitutional law .
The principle is used to search for solutions in cases in which constitutional norms of the same rank collide with one another, but one norm should not take a back seat to the other (so-called clash of principles). For the conflicting constitutional assets, the aim is to achieve a balance that is as gentle as possible. Since a concrete legal situation has to be clarified, the legal interests must be interpreted in the light of the constitution so that a conditional priority relation can be created. It is a method of resolving conflicting standards and thus a conflict rule .
Constitutional principles are therefore fundamentally subject to legal considerations. However, the practical concordance is not applicable in cases of collision with higher-ranking norms or more specific norms that oppose general legal norms. The pushed back rule remains outside any application in these cases.
Original meaning according to Konrad Hesse
The term was coined by Konrad Hesse , who established it in the constitutional discussion. According to Hesse, the principle means:
“ Constitutionally protected legal interests must be assigned to one another in problem solving in such a way that each of them becomes reality. [...] limits must be set for both goods so that both can achieve optimum effectiveness. "
The principle is applied in particular between holders of fundamental rights (especially between citizens) in the event of a collision between one fundamental right and another. One of the fundamental rights must not be realized at the expense of the other in the sense of a hasty weighing of interests . Rather, according to Hesse, the principle of the unity of the constitution is the task of simultaneously optimizing both legal positions.
Application of the principle in teaching and practice
The principle of practical concordance has received much approval in the constitutional discussion. It is now generally recognized that the aim of a constitutional weighing process must be to bring conflicting fundamental rights positions into practical concordance. The Federal Constitutional Court has also called for concordance to be established in the event of conflicts of fundamental rights. For example, in the so-called Mutzenbacher decision regarding the collision between the protection of minors and freedom of art :
“If artistic freedom is in conflict with another right of constitutional status, rather both must be brought to an appropriate balance with the aim of optimization. The principle of proportionality is of particular importance [...]. When establishing the required concordance, it must therefore be taken into account that the artistic freedom of exercise and scope of the competing constitutional property itself draws limits (cf. BVerfGE 77, 240 [253]). All of this requires weighing up the conflicting concerns and forbids giving priority to any one of them in general - even if only for a certain type of font. "
The principle of practical concordance is often only mentioned in cases of collision with fundamental rights that are guaranteed without reservation . In principle, however, it is applicable to all types of fundamental rights clashes and conflicting aspects of constitutional principles. It is disputed whether the application of the principle of practical concordance in the sense of a systematic interpretation can lead to a limitation of the scope of protection of an unconditional fundamental right, or whether the conflicting constitutional law represents an immanent barrier and thus justifies interventions if the collision is in the sense of practical concordance is balanced. Constitutional case law is not always uniform on this dogmatic question.
Establishing "reasonable compensation"
The same idea that lies behind the principle of practical concordance is also behind the demand raised by Peter Lerche for an appropriate balance of conflicting, constitutionally relevant protected interests as a model and legitimation reservoir for restrictions on fundamental rights. According to Lerche, this should be used in particular when conflicting constitutional goods come together; if, in the absence of express authorizations to restrict fundamental rights, “there is a need for compensation by virtue of constitutional legitimation ”.
International recognition
The principle of practical concordance developed in Germany has been adopted by many constitutional orders, for example in France and Portugal , where it has been adopted word for word in literature and jurisprudence. The Swiss Federal Supreme Court also applies the principle in its case law.
Individual evidence
- ↑ The concept of the “conditional priority relation” was introduced by Robert Alexy and deserves his descriptive preference by allowing the weighing work to be understood as a process; see. in this respect: Robert Alexy: Theory of Fundamental Rights , Frankfurt a. M. 1994 (first edition 1986) ISBN 3-518-28182-8 . P. 81.
- ↑ a b Martin Morlok , Lothar Michael : Staatsorganisationsrecht , Nomos, Baden-Baden, 4th edition 2019, ISBN 978-3-8487-5372-7 . § 3 Rn. 94.
- ↑ Peter Lerche : Excess and Constitutional Law. To bind the legislature to the principles of proportionality and necessity. , at the same time: Habilitation thesis, University of Munich, Heymann, Cologne [u. a.] 1961. p. 125 ff.
- ^ Konrad Hesse: Basic features of the constitutional law of the Federal Republic of Germany . CF Müller GmbH, 1999, ISBN 978-3-8114-7499-4 ( google.de [accessed on December 2, 2017]).
- ↑ BVerfGE 41, 29 , 51; BVerfGE 77, 240 , 255; BVerfGE 81, 298 , 308.
- ↑ BVerfGE 83, 130 , 143.
- ↑ Conseil constitutionnel, Décision n ° 94-352 of January 18, 1995
- ↑ BGE 139 I 16 E. 4.2.2 p. 24
literature
- Konrad Hesse : Basic features of the constitutional law of the Federal Republic of Germany. Reprint of the 20th edition. Müller, Heidelberg 1999, ISBN 3-8114-7499-5 (the explanations on practical concordance can be found in marginal number 72).
- Peter Lerche : Excess and Constitutional Law. To bind the legislature to the principles of proportionality and necessity. Heymann, Cologne [a. a.] 1961.
- Andreas Fischer-Lescano , Critique of Practical Concordance . 2008 KJ, 166-178.
- Gertrude Lübbe-Wolff : The principle of practical concordance . In: Dirk Herrmann / Achim Krämer (eds.), Festschrift for Christian Kirchberg on his 70th birthday. Boorberg, Stuttgart 2017, pp. 143–154.
