Alignment as a Means of Eliminating the Defects of Unconstitutional Differentiated Regulation

Abstract

This article analyzes leveling as the final stage of the equality methodology applied by constitutional courts in resolving cases that raise questions regarding the constitutionality of legal regulations in light of the constitutional principles of equality and non-discrimination. It is noted that the constitutional review body carries out leveling if it concludes that the regulation in question is unconstitutional, and there are two types of leveling at its disposal: leveling up and leveling down. At the same time, as a general rule, leveling up is considered the preferred means of eliminating defects in unconstitutional classifications. However, in certain situations, leveling down may prove more appropriate — in particular, due to the resource-intensive nature of social rights and the constitutional review body’s considerations regarding its own institutional role in the context of the principle of separation of powers. These considerations may also justify the legislature’s ability to remedy violations of the principle of equality in a different manner, even if it disagrees with the constitutional court regarding the means of eliminating the defect in a legal provision. In this context, institutional dialogue between the constitutional review body and parliament appears to be particularly important, supported primarily by individual judges publishing their (concurring) opinions. Furthermore, the article emphasizes that leveling is a separate stage in the equality methodology — this means that considerations regarding the complexity of leveling cannot be taken into account when determining whether the regulation in question complies with the principle of equality