Definition and Basics of the Prohibition of Excess
Das Prohibition of Excess is a central principle of German constitutional and administrative law and represents a specific manifestation of the general rule-of-law principle of proportionality. It requires that sovereign action does not interfere with fundamental rights beyond what is necessary to achieve a legitimate objective. The prohibition of excess is one of the most important obligations for public administration and legislation and serves to protect individual freedom against unduly burdensome state measures.
Legal Classification and Constitutional Position
The prohibition of excess is directly linked to the principle of proportionality, which is enshrined in Article 20(3) of the Basic Law (Grundgesetz, GG). The state is obliged by the rule-of-law principle to limit all measures to the necessary extent. The prohibition of excess concretizes this principle for administrative matters, especially when it comes to infringements of fundamental rights under the Basic Law.
Alongside the prohibition of excess stands the prohibition of insufficiency; together, they form the so-called prohibition of improper measures or the requirement of proportionality. While the prohibition of excess forbids excessive interventions, the prohibition of insufficiency requires that effective protection of fundamental rights is guaranteed, meaning that the state must not fall short of what is necessary.
Structure and Elements of the Prohibition of Excess
Principle of Proportionality as the Foundation
The prohibition of excess should systematically be viewed within the framework of the principle of proportionality . This consists of three or four sub-aspects, which are outlined below:
1. Legitimate Objective
Every sovereign measure requires a legitimate, constitutionally recognized goal. The prohibition of excess presupposes that measures are only permissible if they serve such a purpose.
2. Suitability
The measure must be suitable for promoting the intended goal. If a measure is inherently incapable of achieving the goal, it violates the principle of proportionality and thus also the prohibition of excess.
3. Necessity
The measure must not go further than necessary to achieve the objective. The least restrictive equally effective means must be chosen. The prohibition of excess thus requires a careful weighing of all available alternatives.
4. Appropriateness (Proportionality in the narrower sense)
The burden on the individual caused by the measure must not be disproportionate to the intended purpose. The prohibition of excess requires a careful balancing of the individual interests affected and the general interest.
Scope of Application of the Prohibition of Excess
The prohibition of excess applies in various areas of public law:
- In police law (e.g. prohibition of excessive police coercive measures)
- In building law (e.g. prohibition of structural use only as far as necessary)
- In social law (e.g. entitlement to subsistence-level benefits)
- In regulatory law (e.g. restricting demonstrations only to the extent necessary)
- In criminal law (e.g. the requirement of appropriateness for criminal sanctions)
Prohibition of Excess in Administrative Action and Legislative Procedures
Binding Effect on the Administration
The administration is directly bound by the prohibition of excess. Administrative acts that interfere with fundamental rights beyond what is necessary are unlawful and can be revoked by the courts. Authorities must observe the prohibition of excess in every measure within the framework of their discretionary decisions.
Binding Effect on the Legislature
The legislature is also not permitted to enact provisions that foresee excessive infringements of fundamental rights. Constitutional court review regularly focuses on the proportionality of new laws and checks whether the legislature has observed the prohibition of excess.
Prohibition of Excess in Case Law
The Federal Constitutional Court has clarified the prohibition of excess in numerous decisions and developed it into a fixed component of German jurisprudence. It particularly emphasizes that any restrictions of fundamental rights must always be proportionate and that the state must not create obviously excessive burdens.
In practice, compliance with the prohibition of excess is reviewed by the competent courts, such as administrative courts. In this process, all components of proportionality are comprehensively assessed.
Distinction from Other Constitutional Constraints
The prohibition of excess is closely intertwined with other constitutional obligations, in particular with
- the principle of equality (Art. 3 GG),
- the rule-of-law principle (Art. 20(3) GG),
- the doctrine of materiality,
- and specific fundamental rights limitations.
However, the prohibition of excess is always to be understood as a cross-cutting principle relating to fundamental rights.
Significance in the European Human Rights Order
In an international context, similar standards are provided in the European Convention on Human Rights (ECHR) as well as in the law of the European Union. Proportionality and the prohibition of excess serve as a common foundation for reviewing interferences with protected rights.
Conclusion
The prohibition of excess is a fundamental component of the German constitutional state. It ensures that governmental measures always remain proportionate and thus secure the best possible balance between the general interest and individual freedoms. Thus, the prohibition of excess represents an indispensable safeguard for the limitation and controllability of state power and is an integral part of any rule-of-law review of sovereign interventions.
Frequently Asked Questions
What role does the prohibition of excess play in administrative law?
The prohibition of excess is a central manifestation of the principle of proportionality in administrative law. It obliges administrative action to interfere with the rights and freedoms of citizens only to the extent that is necessary and appropriate for achieving the intended goal. Authorities must therefore ensure that state measures do not impose greater burdens on affected persons than absolutely necessary. This applies in particular to administrative acts, regulatory measures, or enforcement measures, whose intensity must always be aligned with the pursued purpose. The precise legal assessment requires a balancing of the public interest in the measure and the adverse effects for those affected. In the case of a disproportionate intervention, the measure is null and void or unlawful.
In which areas of law does the prohibition of excess apply?
The prohibition of excess is primarily relevant in public law, especially in administrative law, police law, regulatory law, and building law. However, it also applies in other areas, for example in criminal procedure law with coercive measures such as searches or seizures. It is also relevant in public economic law, for instance in the regulation of fundamental rights through conditions or restrictions. It is especially significant in the context of administrative intervention, where decisions by governmental authorities must be examined for necessity and appropriateness.
What standards does case law apply to the prohibition of excess?
The case law, especially that of the administrative courts and the Federal Constitutional Court, applies a three-stage test to the prohibition of excess: suitability, necessity, and appropriateness of the measure. First, the measure must be suitable for achieving the pursued objective. It must also be necessary, i.e. there must be no equally effective and less restrictive means available. Finally, an appropriateness review (in the narrower sense) is conducted to determine whether the gravity of the intervention is disproportionate to the intended purpose. In particular, the balancing stage is carried out in great detail in individual cases, taking into account the intensity of the intervention and the weight of the public interest.
What are the legal consequences of a violation of the prohibition of excess?
A violation of the prohibition of excess generally results in the unlawfulness of the relevant administrative measure. If the measure also constitutes an infringement of a fundamental right, this may also result in the violation of the affected fundamental right, especially the general freedom right under Art. 2(1) GG. The legal consequence of unlawfulness is that the measure must be revoked or – in the case of measures not yet enforced – must not be carried out. Furthermore, a person affected by an unlawful intervention may, under certain circumstances, have a claim for compensation, restitution, or to prevent further interventions.
How does the prohibition of excess differ from the prohibition of insufficiency?
The prohibition of excess and the prohibition of insufficiency are constitutional limitations on state action that mirror each other. While the prohibition of excess limits state action particularly with regard to overly broad, disproportionate interventions, the prohibition of insufficiency obliges the state not to fail to take necessary protective measures for fundamental rights or to exercise them inadequately. Thus, the prohibition of excess deals with “too much” state interference, while the prohibition of insufficiency concerns “too little” state protection or hazard prevention.
What examples of violations of the prohibition of excess can be found in case law?
Case law regularly addresses violations of the prohibition of excess in the context of overly strict conditions for demonstrations, overly broad bans on assemblies, or excessive hazard prevention measures by police authorities, such as searches or arrests of persons. In building law, demolition orders or prohibitions on use are often examined for disproportionate interventions and occasionally assessed as excessive. A classic case also arises when an authority applies several enforcement measures simultaneously or without regard to less severe alternatives.
What requirements apply to the depth of reasoning for administrative decisions with respect to the prohibition of excess?
Administrative authorities are obliged, within the scope of their duty to give reasons (§ 39 VwVfG), especially for burdensome measures, to disclose to what extent they have observed the prohibition of excess within their discretion. This means they must explain why the chosen measure is suitable, necessary, and appropriate, and that no equally effective but less restrictive means were available. An inadequate statement of reasons does not necessarily imply a violation of the prohibition of excess, but may, within the framework of judicial review, lead to the unlawfulness of the decision, especially if discretion concerning proportionality was not exercised or was exercised incorrectly.
