ECtHR Really Applies Less Restrictive Alternative: Saint-Paul Luxembourg S.A. v. Luxembourg

The structured proportionality test, as utilised by the German Constitutional Court (among others) and championed by Robert Alexy and his followers, subjects limitations of fundamental rights to a three-pronged test. The test is intended to examine – step by step – a measure’s (i) suitability, (ii) necessity and (iii) proportionality stricto sensu. Correct application of the test demands, according to Alexy and his followers, the examination of each of these three elements in order. As soon as a measure fails one of the steps, it is unconstitutional and there is thus no need to examine the next step(s).

Scholars who advocate this structured version of the proportionality test often lament its poor or wrongful application by courts, including the European Court of Human Rights. The ECtHR has, by and large, indeed not developed nor applied such a strictly ordered version of the proportionality test. It is particularly rare for the Court to apply the necessity test as separate from the proportionality stricto sensu test (also known as balancing). Instead, the Court has generally looked at the existence of less intrusive measures as an element to consider in the balance or it has continued to examine a measure’s proportionality in the strict sense after having indicated that less restrictive measures were available.

Not so in the recent case of Saint-Paul Luxembourg S.A. v. Luxembourg. In its judgment in that case, the ECtHR has – to my knowledge in a very exceptional move – applied the less restrictive alternative test as Alexy intended it to function, much to the satisfaction of the proponents of a structured proportionality test, I imagine.

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