Proportionality in the PSPP and Weiss judgments : comparing two conceptions of the unity of public law

Abstract

This article compares the conceptions of proportionality in the Weiss judgment of the Court of Justice of the European Union (ECJ) and the PSPP judgment of the German Constitutional Court (GCC). It will be pointed out that the two courts embrace a quite similar view when it comes to the structure of the test for proportionality, but a different one on the intensity of review. While the ECJ accepts a minimalist 'manifest error' standard of review, the GCC performs a more demanding scrutiny. As a result, the two judgments expose different conceptions of the "unity" of public law: all decisions by public authorities can become the subject of judicial scrutiny through a proportionality assessment, but the intensity of review can vary greatly. This, in turn, brings about serious consequences for the relations between reviewing and reviewed authorities. Finally, it will be claimed that the inner limitations of proportionality make strong views on the "correct" method for carrying out the test problematic.