How far reaches of discretion legislature: the concept of SD EU and the German Federal Constitutional Court

This article deals with the limits of judicial review of legislative acts. Attention is focused on the review of the factual bases of the legislator and the review of proportionality of adopted measures. These issues are described on the selected case law of the European Court of Justice (ECJ) and the German Federal Constitutional Court (BverfG). It discusses in more detail the judgments of the ECJ of 11 July 2007 in case F-105/05 Wils v Parliament and of 17 October 2013 in case C-101/12 Herbert Schaible and the decision of the BverfG of 16 March 2004 in case Nr. 1 BvR 1778/01 Kampfhunde. The paper concludes that both courts admit broad discretion to legislator in assessing social risks and finding appropriate measures. However, the ECJ connects this discretion with the obligation to take into consideration all relevant factors and circumstances of the situation that the act was intended to regulate. On the other hand, the BverfG considers as sufficient if it can find a rational reason for the adoption of the contested measures. Nevertheless, this apparently liberal approach of the BVerfG is balanced by the additional duty of lawmaker to evaluate the compliance of the legislation with the Constitution even after its entry into force and in case of necessity to revise it.