The principle of equal treatment
As described in Chapter 2, any experiment implies distinguishing between two separate groups: the control and the sample groups. Experimental laws and regulations should share this characteristic with natural science experiments, if their results are intended to be valid. While a differentiation may easily threaten the idea that all citizens should be equal before the law, it is a more complex issue to claim that experimental legislation discriminates against a group of citizens. It is thus important to understand whether sunset clauses, and particularly experimental legislation, can imperil the principle of equal treatment. The first step in this analysis requires a study of the meaning(s) of this principle in light of the literature and case law of the jurisdictions under analysis and, where relevant, the influence of the European Court of Justice (CJEU) and European Court of Human Rights.
MEANING(S) OF THE PRINCIPLE OF EQUAL TREATMENT
The principle of equal treatment (equal protection or equality) has been described as ‘the standard’ of the Dutch Constitution. Article 1 imposes the equal treatment of all inhabitants and forbids discrimination on any subjective ground. This is far from being a specificity of the Netherlands: the principle of equal treatment must be of cardinal importance for any state that wishes to qualify itself as a Rechtsstaat. In the United States, the equal protection clause constitutionalized in the Fourteenth Amendment of the United States Constitution also safeguards ‘equality’. This ‘equality’ has traditionally been defined in the literature as the ‘theory ... that every man’s civil liberty is the same [as] that of others - that all men are equal before the law in rights, privileges, and legal capacities’. Article 3 of the German Constitution also defines ‘equal treatment’ as the equality of all persons before the law.
Despite the central place in the constitutions under analysis, the principle of equal treatment is a relatively recent creation of law. In 1789, article 1 of the Declaration of the Rights of the Man and the Citizen granted a central place to the idea of ‘equality’. In the United States, the ideas about equality of rights started to be discussed in the midnineteenth century, where they ‘[coexisted] with ideas about rights derived from natural law or from the nature of republican society’.
However, it was during the twentieth century that the principle of equal treatment acquired particular importance due to the civil rights movement.
More recently, it has been argued in the Dutch literature that the principle of equal treatment acts at three levels: first, it constitutes an abstract framework which binds the legislator; it is a horizontal principle which constrains public administration; thirdly, it is regarded as a fundamental right of any citizen. Although the Aristotelian formula ‘treat equals equally and unequals unequally’ is still today widely accepted as a general formulation of the principle of equal treatment, it is too vague to truly reflect the meaning of this principle. Treating citizens ‘equally’ is a relative concept. First, it depends on the context and point of view from which one is looking, and secondly, it implies a clear definition of what can and should be understood as ‘equal’. The legal concept of ‘equality’ refers to the ‘similarity of relevant conditions or circumstances’. Whenever the latter is verified, the principle of equal treatment must be applied.
The German Constitutional Court has explained on several occasions that the principle of equal treatment is applicable both to the imposition of ‘unequal burdens and [grant of] unequal privileges’. This principle prohibits ‘any exclusion of privileges contrary to equality, which grants a preferential treatment to a group of people, while depriving another one’. Equal protection may imply ‘a challenge to laws that allocate benefits or impose burdens on a defined class of individuals’.
The principle of equal treatment cannot be understood as a simplistic imposition of general equality, because not only do most laws or regulations imply the classification of individuals but they also apply a different treatment of different persons or things, and the distinguishing of different circumstances is inherent to lawmaking. Instead, it is important to distinguish between (a) lawful unequal treatment, and (b) discrimination. The latter will generally constitute a violation of the principle of equal treatment, while the first may not only be legal but also necessary to guarantee the compliance with this principle (different treatment for different situations).
Since German legislators are bound by the prohibition of arbitrariness in the context of the principle of equal treatment, any differentiation here must be objective and equitable. The complexity of discovering whether there is a violation of the principle of equal treatment lies in tracing the thin line between permissible differentiation and impermissible differentiation. The grounds for differentiation will be accepted if they are clearly objective and in line with the concrete circumstances. In addition, a lawful differentiation implies placing oneself in the position of the legislator and consider the underlying objectives of this differentiation as well as the means used to attain it.
In the United States, legal classifications and differentiations will not violate the equal protection clause if they are ‘reasonable in relation to the objectives of the law’. The ‘reasonableness’ of this differentiation can be explained in light of several factors which appear in the literature and jurisprudence of the three countries under analysis. First, considering the German Constitutional Court case law, the differentiation made by legislators can only be justified and accepted by those who are treated unequally if it is proportional. Secondly, the criteria or terms on which legislators differentiate must have a strict relationship with the objective for which it is carried out. Hence, lawful differentiations are also dependent on the relevance of the differentiation criteria and must observe the principle of proportionality. In general, this assertion is dependent on a casuistic analysis.
Temporary differentiations, in the sense of affirmative action (or positive discrimination), have been widely accepted and put into practice in several countries as a means to promote opportunities for participation in society of under-represented groups. Temporary differentiations are tools to achieve full equality in the long run. This is not, however, the challenge posed to equal treatment by sunset clauses and particularly experimental legislation. The primary goals of this legislative instrument do not necessarily include achieving a common level playing-field, but rather observe the effects of the implementation of different rules for two groups of citizens. At first sight, experimental legislation goes against the perception of equal treatment as equality before the law. It does so in principle for a good reason (see Chapter 2), but the difficulty lies in examining whether the experimental differentiation is always ‘good enough’ to be qualified as a lawful differentiation. Since the implementation of sunset clauses does not imply a different treatment of citizens, the relationship between this legislative instrument and the principle of equal treatment will be very briefly analyzed in the following paragraphs. Greater attention will be paid to experimental legislation.