The revised version of the Luxembourg Constitution entered into force on 1 July 2023. Of the four sections it includes, that which resulted from Bill No. 7755 reformed Chapiter II., entitled "Rights and Freedoms", and more specifically, Section 3. thereof – "Civil Liberties".
The new Art. 11 paragraph (1) henceforth provides that "Luxembourgers1 are equal before the law" and that "the Law may provide a difference of treatment which stems from an objective disparity that is rationally justified, adequate and proportionate to its purpose."
Also, the new Art. 37 stipulates that "Any limitation on the exercise of civil liberties must be provided for by law and respect their essential content. In accordance with the principle of proportionality, limitations may only be imposed if they are necessary in a democratic society and effectively meet objectives of general interest or the need to protect the rights and freedoms of others."
The introduction of these fundamental principles into the text of the Constitution is to be welcomed, although it should be noted that they are not entirely new: the same principles are to be found in Article 52, paragraph 1 of the Charter of Fundamental Rights of the European Union and in Article 18 of the European Convention on Human Rights. In addition, the principle of proportionality has been enshrined as a general principle of law with constitutional value in a number of decisions handed down by the Luxembourg Constitutional Court, as well as by the country's other courts, notably the administrative courts.
By judgment number 146 of 28 May 2019, as well as the judgment of 19 March 2021 in the same case, the Constitutional Court recognized that the fundamental rules of the rule of law and legality are implicitly, but necessarily, enshrined in the Constitution.
Article 16 of the Constitution2 of course allows the Law to establish restrictions on the protection afforded to persons and property.
However, the fundamental protections derived from the Constitution are not at the free disposal of legislators, and to be consistent with the Constitution, exceptions and restrictions must be rationally justified, adequate and proportionate to their purpose.
Referring specifically to the principle of proportionality, the Constitutional Court ruled that "The balance to be struck must be the result of a fair balancing act, the principle of proportionality being a principle of constitutional value."3
Clearly, the task of balancing different and often conflicting interests is not an easy one.
The legislative process is complex and necessarily influenced by political convictions and motivations, particularly in relation to economic or social issues, which evolve over time to reflect changes in society, technology and the world in general.
Administrations, for their part, are required to apply laws, often supplemented by grand-ducal regulations.
For their application, non-contentious administrative procedure is regulated by the Law of 1 December 1978 and the implementing Grand-Ducal Regulation of 8 June 1979 on the procedure to be followed by State and municipal administrations, which imposes, in particular, the obligation on administrations to give reasons for the administrative and regulatory acts they issue.
Thus, the principle of proportionality is as important in the legislative process as it is in the development of a regulatory or individual administrative act, and this in all areas of law: criminal, civil and public.
Today, it is clear that simply referring to the notion of "general interest" cannot be considered sufficient to justify incisive restrictions on individual rights. In other cases, we may find that the general interest is not monolithic, and that the combination of several elements of the general interest requires a differentiated approach.
The explicit incorporation of the principle of proportionality into the Constitution in 2023, the recent case law of the Constitutional Court, and also the case law of the administrative and ordinary courts, give us hope that this fundamental principle will be all the more present in the legal and administrative practice of the rule of law.
Footnotes
1 It should be noted that Art. 11 bis provides that "Any non-Luxembourger who is in the territory of the Grand Duchy, enjoys the protection afforded to people and property, with the exception of exceptions established by law."
2 As prior to the constitutional reform, Article 11, paragraph 6, indentation 1 of the Constitution.
3 Judgment of 22 January 2021, Docket no. 152; Judgment of 19 March 2021, Docket no. 146.
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