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At first sight, objective, temporary and proportionate differentiations required by the implementation of experimental legislation do not infringe the principle of equal treatment. However, additional attention should be paid whenever the division between the sample and control group may lead to (or conceal) an indirect discrimination on the grounds of gender, race, ethnic background, sexual orientation or any other ground mentioned in the constitutional dispositions of the countries under analysis. The German Constitutional Court has pointed out that the authorization of differentiations between groups of citizens should be stricter whenever the unequal treatment can lead to discrimination against a minority.[1] This occurs in the case of regulations on part-time employment which often affect more women than men, and can thus uncover indirect discrimination against that group.

Moreover, the argument that an experimental differentiation should be allowed because it aims in abstract to enhance fairness or justice does not substantiate a solid ground of justification. The objectivity and proportionality of the differentiation do. The German Constitutional Court has established that one of the most important boundaries of differentiation is the prohibition of arbitrariness. Any differentiation must be objectively justified and should only be allowed if it results from a casuistic (and not abstract) analysis that this differentiation is proportionate.[2] Legislators should objectively justify any experimental differentiation by the learning objectives of the experimental regulation and by its nature. Still, a relevant and intricate question arises in respect of the issue of ‘proportionality’, which may imply examining the concrete unequal treatment at stake and the potential detriment for those citizens submitted to the experimental regulation or those omitted from it. The following chapter is devoted to the principle of proportionality.

  • [1] Judgment of the German Constitutional Court, 2 BvR 1397/09, 19 June2012, para. 57.
  • [2] German Constitutional Court, 2 BvR 1397/09, 19 June 2012, paras 54 and55; German Constitutional Court, 2 BvL 5/00, 8 June 2004, para. 58: ‘NahereMaPstabe und Kriterien dafur, unter welchen Voraussetzungen im Einzelfall derallgemeine Gleichheitssatz durch den Gesetzgeber verletzt ist, lassen sich nichtabstract und allgemein, sondern nur bezogen auf die jeweils betroffenen unter-schiedlichen Sach- und Regelungsbereiche prazisieren’. [‘Other measures andcriteria for this, under which the principle of equality is violated by thelegislature in a specific case, cannot be abstract and general, but rather relativeand specific to each affected case and areas of regulation’.]
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