The principle of equal treatment
As described in Chapter 2, any experiment implies distinguishing between two separate groups: the control and the sample groups. Experimental laws and regulations should share this characteristic with natural science experiments, if their results are intended to be valid. While a differentiation may easily threaten the idea that all citizens should be equal before the law, it is a more complex issue to claim that experimental legislation discriminates against a group of citizens. It is thus important to understand whether sunset clauses, and particularly experimental legislation, can imperil the principle of equal treatment. The first step in this analysis requires a study of the meaning(s) of this principle in light of the literature and case law of the jurisdictions under analysis and, where relevant, the influence of the European Court of Justice (CJEU) and European Court of Human Rights.
MEANING(S) OF THE PRINCIPLE OF EQUAL TREATMENT
The principle of equal treatment (equal protection or equality) has been described as ‘the standard’ of the Dutch Constitution. Article 1 imposes the equal treatment of all inhabitants and forbids discrimination on any subjective ground. This is far from being a specificity of the Netherlands: the principle of equal treatment must be of cardinal importance for any state that wishes to qualify itself as a Rechtsstaat. In the United States, the equal protection clause constitutionalized in the Fourteenth Amendment of the United States Constitution also safeguards ‘equality’. This ‘equality’ has traditionally been defined in the literature as the ‘theory ... that every man’s civil liberty is the same [as] that of others - that all men are equal before the law in rights, privileges, and legal capacities’. Article 3 of the German Constitution also defines ‘equal treatment’ as the equality of all persons before the law.
Despite the central place in the constitutions under analysis, the principle of equal treatment is a relatively recent creation of law. In 1789, article 1 of the Declaration of the Rights of the Man and the Citizen granted a central place to the idea of ‘equality’. In the United States, the ideas about equality of rights started to be discussed in the midnineteenth century, where they ‘[coexisted] with ideas about rights derived from natural law or from the nature of republican society’.
However, it was during the twentieth century that the principle of equal treatment acquired particular importance due to the civil rights movement.
More recently, it has been argued in the Dutch literature that the principle of equal treatment acts at three levels: first, it constitutes an abstract framework which binds the legislator; it is a horizontal principle which constrains public administration; thirdly, it is regarded as a fundamental right of any citizen. Although the Aristotelian formula ‘treat equals equally and unequals unequally’ is still today widely accepted as a general formulation of the principle of equal treatment, it is too vague to truly reflect the meaning of this principle. Treating citizens ‘equally’ is a relative concept. First, it depends on the context and point of view from which one is looking, and secondly, it implies a clear definition of what can and should be understood as ‘equal’. The legal concept of ‘equality’ refers to the ‘similarity of relevant conditions or circumstances’. Whenever the latter is verified, the principle of equal treatment must be applied.
The German Constitutional Court has explained on several occasions that the principle of equal treatment is applicable both to the imposition of ‘unequal burdens and [grant of] unequal privileges’. This principle prohibits ‘any exclusion of privileges contrary to equality, which grants a preferential treatment to a group of people, while depriving another one’. Equal protection may imply ‘a challenge to laws that allocate benefits or impose burdens on a defined class of individuals’.
The principle of equal treatment cannot be understood as a simplistic imposition of general equality, because not only do most laws or regulations imply the classification of individuals but they also apply a different treatment of different persons or things, and the distinguishing of different circumstances is inherent to lawmaking. Instead, it is important to distinguish between (a) lawful unequal treatment, and (b) discrimination. The latter will generally constitute a violation of the principle of equal treatment, while the first may not only be legal but also necessary to guarantee the compliance with this principle (different treatment for different situations).
Since German legislators are bound by the prohibition of arbitrariness in the context of the principle of equal treatment, any differentiation here must be objective and equitable. The complexity of discovering whether there is a violation of the principle of equal treatment lies in tracing the thin line between permissible differentiation and impermissible differentiation. The grounds for differentiation will be accepted if they are clearly objective and in line with the concrete circumstances. In addition, a lawful differentiation implies placing oneself in the position of the legislator and consider the underlying objectives of this differentiation as well as the means used to attain it.
In the United States, legal classifications and differentiations will not violate the equal protection clause if they are ‘reasonable in relation to the objectives of the law’. The ‘reasonableness’ of this differentiation can be explained in light of several factors which appear in the literature and jurisprudence of the three countries under analysis. First, considering the German Constitutional Court case law, the differentiation made by legislators can only be justified and accepted by those who are treated unequally if it is proportional. Secondly, the criteria or terms on which legislators differentiate must have a strict relationship with the objective for which it is carried out. Hence, lawful differentiations are also dependent on the relevance of the differentiation criteria and must observe the principle of proportionality. In general, this assertion is dependent on a casuistic analysis.
Temporary differentiations, in the sense of affirmative action (or positive discrimination), have been widely accepted and put into practice in several countries as a means to promote opportunities for participation in society of under-represented groups. Temporary differentiations are tools to achieve full equality in the long run. This is not, however, the challenge posed to equal treatment by sunset clauses and particularly experimental legislation. The primary goals of this legislative instrument do not necessarily include achieving a common level playing-field, but rather observe the effects of the implementation of different rules for two groups of citizens. At first sight, experimental legislation goes against the perception of equal treatment as equality before the law. It does so in principle for a good reason (see Chapter 2), but the difficulty lies in examining whether the experimental differentiation is always ‘good enough’ to be qualified as a lawful differentiation. Since the implementation of sunset clauses does not imply a different treatment of citizens, the relationship between this legislative instrument and the principle of equal treatment will be very briefly analyzed in the following paragraphs. Greater attention will be paid to experimental legislation.
-  Grondwet voor het Koninkrijk der Nederlanden, text as of the version ofthe Statute of 27 June 2008 (Stb. 272) and Statute of 27 June, 2008 (Stb. 273).Dutch Constitution, art. 1 reads: ‘Allen die zich in Nederland bevinden, wordenin gelijke gevallen gelijk behandeld. Discriminatie wegens godsdienst, levens-overtuiging, politieke gezindheid, ras, geslacht of op welke grond dan ook, is niettoegestaan’. [‘All persons in the Netherlands shall be treated equally in equalcircumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.]P.W.C. Akkermans, C.J. Bax and L.F.M. Verhey, Grondrechten: grondrechten engrondrechtsbescherming in Nederland (W.E.J. Tjeenk Willink, 1999) 50: theprinciple of equal treatment is depicted as the ‘standard of the new Constitution’.
-  A.D. Belinfante and J.L. De Reede, Beginselen van het NederlandseStaatsrecht (Kluwer, 2012) 263.
-  Section 1 of the Fourteenth Amendment of the United States Constitutionreads: ‘All persons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the State whereinthey reside. No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, without due process of law; nordeny to any person within its jurisdiction the equal protection of the laws’.
-  Thomas M. Cooley and Andrew C. McLaughlin, The General Principlesof Constitutional Law in the United States of America (Little, Brown andCompany, 1898) 247.
-  Basic Law of the Federal Republic of Germany, art. 3(1).
-  See Declaration of the Rights of Man and Citizens of 1789, art. 1, whichreads: ‘Les hommes naissent et demeurent libres et egaux en droits. Lesdistinctions sociales ne peuvent etre fondees que sur l’utilite commune’. [‘Menare born and remain free and equal in rights. Social distinctions may be basedonly on considerations of the common good’.] A few years later, the idea of‘equality’ reacquired a central dimension with art. 3 of the Declaration of theRights of Man and Citizen of 1793, which reads ‘Tous les hommes sont egauxpar nature et devant la loi’. [‘All men are equal by nature and before the law’.]
-  W. Nelson, The Fourteenth Amendment: From Political Principle toJudicial Doctrine (Harvard University Press, 1988) 13.
-  T. Loenen, Het gelijkheidsbeginsel (Aers Aequi Libri, 1998) 9.
-  G.H. Addink, Algemene beginselen van behoorlijk bestuur (Kluwer, 1999)153.
-  J.H. Gerards, ‘Het gelijksheidsbeginsel in het bestuursrecht’ in R.J.N.Schlossels, A.J. Bok, H.J.A.M. van Geest and S. Hillegers (eds), In beginsel:over aard, inhoud en samenhang van rechtsbeginselen in het bestuursrecht(Kluwer, 2004) 45.
-  Akkermans, Bax and Verhey, Grondrechten: grondrechten en grondrechts-bescherming in Nederland, n. 1 above, 49.
-  In Germany, see the interpretation of the principle of equal treatment bythe German Constitutional Court, for example, 1 BvR 1239/85, 11 October 1988(BVerfGE 79, 1), para. 17, 2 BvR 1397/09, 19 June 2012, para. 53; ‘Derallgemeine Gleichheitssatz des Art. 3 Abs. 1 GG gebietet, alle Menschen vordem Gesetz gleich zu behandeln sowie wesentlich Gleiches gleich und wesent-lich Ungleiches ungleich zu behandeln’. [‘The general equal protection clause ofarticle 3, paragraph 1 of the German Constitution states that before the law allmen should be equally treated, treating equals equally and unequals unequally’.]In the Netherlands, see Bart van Klink, De wet als symbool: over de wettelijkecommunicatie en de Wet gelijke behandeling van mannen en vrouwen bij dearbeid (W.E.J. Tjeenk Willink, 1998) (dissertation) 184.
-  Loenen, Het gelijkheidsbeginsel, n. 8 above, 23.
-  A.D. Belinfante and J.L. De Reede, Beginselen van het NederlandseStaatsrecht, n. 2 above, 263.
-  German Constitutional Court, 2 BvL 5/00, 8 June 2004, para. 56: ‘Derallgemeine Gleichheitssatz des Art. 3 Abs. 1 GG ... gilt fur ungleiche Belast-ungen wie auch fur ungleiche Begunstigungen’. [‘The general equal protectionclause of article 3, paragraph 1 of the German Constitution is valid for unequalburdens as well as for unequal privileges’.]
-  German Constitutional Court, 2 BvR 1397/09 19 June 2012, para. 53:‘Verboten is daher auch ein gleichheitswidriger Begunstigungsausschluss, beidem eine Begunstigung einem Personenkreis gewahrt, einem anderen Personen-kreis aber vorenthalten’. [‘An exclusion of privileges is therefore also contrary toequality and forbidden, whenever a privilege is granted to a group of people, butdenied to another one’.]
-  Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V.Tushnet and Pamela S. Karlan, Constitutional Law (Aspen Publishers, 2005)251.
-  Jerome A. Barron and C. Thomas Dienes, Constitutional Law in a Nutshell(Thomson/West, 2005) 274.
-  Akkermans, Bax and Verhey, Grondrechten: grondrechten en grondrechts-bescherming in Nederland, n. 1 above, 50.
-  H.D. Horn, Experimentelle Gesetzgebung unter dem Grundgesetz(Duncker and Humblot, 1989) 317.
-  Stone et al., Constitutional Law, n. 17 above, 501.
-  Barron and Dienes, Constitutional Law in a Nutshell, n. 18 above, 274-5.
-  Horn, Experimentelle Gesetzgebung unter dem Grundgesetz, n. 20 above,318. See also the Decision of the German Constitutional Court of 20 December1961 BVR 320/57, BVerfGE 21, 12, 27 (Allphasenumsatzsteuer): ‘Die ...Vorteile der Typisierung mussen im rechten Verhaltnis zu der mit der Typisierungnotwendig verbundenen Ungleichheit der ... Belastung stehen. Nur dann ist dieseUngleichheit von den Betroffenen hinzunehmen’. [‘The advantages of thetypification must have a direct relationship with the inequality of burden inquestion. Only then will this inequality be accepted by all those affected’.]
-  See Treaty on the Functioning of the European Union, Art. 157(4) where itis explicitly stated that ‘with a view to ensuring full equality in practice betweenmen and women in working life, the principle of equal treatment shall notprevent any Member State from maintaining or adopting measures providing forspecific advantages in order to make it easier for the underrepresented sex topursue a vocational activity or to prevent or compensate for disadvantages inprofessional careers’.