THE NECESSITY TEST IN THE PRACTICE OF THE CZECH CONSTITUTIONAL COURT: BETWEEN THE DEVIL OF JUDICIAL ACTIVISM AND THE DEEP BLUE SEA OF JUDICIAL RESIGNATION

The proportionality analysis is the dominant method of constitutional review throughout the world, and this is also the case in the Czech Republic, where its application took hold not long after the re-establishment of the Constitutional Court in the early 1990s. This paper analyses the Czech Constitutional Court’s jurisprudential approach to one of the sub-tests of the proportionality analysis, the necessity test. Building on comparative and theoretical foundations, the text first presents the general theoretical background of the necessity test before moving on to a summary of the variations of the abstract definition of the necessity test and its content in the practice of the Czech Constitutional Court. Subsequently, the application of the variants is compared and evaluated using case-studies of individual cases ruled upon by the Czech Constitutional Court. Finally, the paper concludes with a normative assessment of the variants of the necessity test which paves the path for judicial practice to evade the devil of judicial activism and the deep blue sea of judicial resignation, two structural pathologies that threaten its practical application.