Grundrechtskonkurrenz oder Schutzbereichsverstärkung? Die Rechtsprechung des Bundesverfassungsgerichts zum »additiven« Grundrechtseingriff

Many cases lodged before the German Federal Constitutional Court touch upon not only one, but a variety of fundamental rights (Grundrechte). More often than not, such a plurality poses considerable challenges to constitutional law theory. In particular, demarcation between the distinct fundamental rights that protect civil liberties such as freedom of opinion (Art. 5 (1) Grundgesetz – Basic Law), the right to demonstrate (Art. 8 (1) Basic Law), or the freedom of religion (Art. 4 (1) Basic Law) tends to be precarious since these and other rights may overlap prima facie. However, after more than 50 years under the current German Constitution, the Court and legal scholars have managed to resolve most of the crossovers that are relevant in practice. The paper focuses, though, on one highly controversial approach of the Federal Constitutional Court. In a number of recent opinions, the Court applied a combined protection of two or more fundamental rights that entailed a fortified shield against state intervention or private impairment. It is argued here that the jurisdiction of the Court can be construed as a particular application of the principle of proportionality. The analysis recognizes two different functions of that principle. Firstly, it guides public decision-making ex ante by giving administrative bodies and other public authorities orientation about how to secure certain standards of rationality. In this regard, accepting a fortification in favour of the plaintiff implies a holistic approach including the (public or private) interests that may justify the intervention. Secondly, the principle of proportionality serves as a standard of judicial review (»ex post«). The paper concludes by suggesting that in some cases, the jurisdiction of the Federal Constitutional Court should be complemented by a specific test that requires public decisions to be beneficial to society based on an analysis of the totality of (individual) rights and (public) legitimate interests.