How can the harmonization process of the EU Law become more responsive to the principle of proportionality? (original) (raw)
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The Principle of Proportionality in European Union Law: Conceptual Framework and Application
This study aims to provide an overview of the concept of the principle of proportionality within the EU law and give a brief summary about the process of its application. Besides elaborating on question such as what the proportionality principle is and how it works the study aims to cover the golden question asked when it comes to the intensity or nature of the Union’s action.
2015
In this paper the author will assess and analyze the proportionality principle in EU law from a legal perspective of the Treaties of the EU and in particular from the perspective of the jurisprudence of the Court of Justice of the European Union (the Court) with the aim of discovering the role of the Court on the interpretation and determination of this principle. The Court with its jurisprudence has played a pivotal role regarding the principle. From its early decisions the Court has referred to proportionality and then has recognized proportionality as a general principle of EU before it was set up in the European Community Treaty (ECT). In determining the elements of the observance over proportionality the Court has referred to Member States’ law, especially Germany, distinguishing three elements required to pass the proportionality test and sometimes only two of them are needed. In analyzing the jurisprudence of the Court the article will distinguish two major groups of cases: c...
Principle of Equivalence and Effectiveness in the European Union Law
Abstract of the Doctoral Dissertation, 2020
The dissertation provides a theoretical view of the practice of the principle of equivalence and effectiveness. In respect of the equivalence criteria I will examine – among others – the way two procedural provisions could be equivalent. What can be compared and by which criteria should the matter be evaluated? What makes a procedural rule less favourable? The principle of effectiveness also needs more evaluation: what makes the enforcement of EU law impossible in practice and excessively difficult? What kind of – subjective and objective – criteria should be examined to assess the issue? What is the role of the national judge in this matter? Are there any limits to the enforcement of EU law, and if so, what are they?
Rethinking the Method and Function of Proportionality Test in the European Court of Human Rights
Strasbourg's application of proportionality test has some unique features. Due to the Court inherent subsidiary role, it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union (CJEU) in the complete sense. Consequently, the Strasbourg application of the proportionality has been depicted as a " mysterious house " for the reason that it lacks of certainty. Therefore, some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law. Generally , the proportionality test has two internal functions for the Strasbourg judges: (1) strike fair balance between/among the competing interests; (2) testing on the reasonableness and appropriateness between the measures employed and aim pursued. In the first category, the primary task of the Court is to protect the scope of " essence " of the Convention rights from the interference of collective goods relying on the interest-based rights theory. Beyond this scope, the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities. In some sensitive judgments, the Strasbourg Court tends to impose the onerous responsibility of " burden of proof " to the State authorities, or strategically defers to the domestic decisions unless they will be found " manifestly unreasonable ". Secondly, the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued, and then it has to decide whether a less intrusive alternative existed or will possibly be found or not. Sometimes, the Court might impose state authorities an obligation looking for a new alternation. However, due to subsidiarity characteristic of the Strasbourg Court, the task of the assessments sometimes is complicated and time-consuming, so the Court are not capable of evaluations in all occasions. Finally, the Court could strike down the " chilling consequence " caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order. Keywords: proportionality principle u subsidiary role u margin of appreciation u balance between competing interest u " means-ends " test u chilling effects u burden of proof
Proportionality enjoys the distinction of being one of the most important principles in today’s Constitutional and Administrative Law. The modern conception of the proportionality principle has gained uncommon prominence in the Western World, and its importance in jurisprudence is possibly superior to that of the principle of equality, if their respective spheres of action and influence are taken into account. In Europe, it is invoked by litigants more often than any other general principle of Law. It has been analyzed by scholars from all over the world in the last three decades, much more than many others topics. It should be kept in mind that any interference or intervention in the rights granted by Treaties, national Constitutions or even regular statutes is susceptible to revision in its light. Moreover, according to statistics, the number of resolutions in which the court has found the case in question to be disproportionate and consequently inconsistent with the norm (Treaty, Constitution or statute) is enormously greater than those found to be discriminatory on grounds of equality. The proportionality principle is even more relevant than the equality principle in the development and reform of national, European and international Administrative Law. Nonetheless, perhaps because of the inherent complexities and risks involved, the principle of proportionality, in its application to the field of fundamental rights, is often more polemic and difficult than the principle of equality. The proportionality principle is embedded in almost every national legal system and underlies the international legal order. A general prohibition of disproportionate limitations on constitutional and legal rights and freedoms has developed in democracies around the world. It is also a fundamental principle of European Law (European Union, European Convention on Human Rights). A principle of proportionality now flourishes across the broad spectrum of legal systems and has begun to expand further into the previously foreign territory of common law jurisdictions. Among the schools of thought which have shaped the historical development of proportionality, the principles of retributive and distributive justice should be highlighted on the one hand and the notion of the liberal state, on the other. In any case, its roots are as old as the very idea of justice. Proportionality captures a kind of common sense view of justice. A proper means-ends relationship constitutes the oldest genuine basis to control public powers. The concern to achieve a “fair balance” between the demands of the general interest of the community and the requirement to protect the rights of the individual is reflected in the proportionality principle: there must be a reasonable relationship between the means employed (the forfeit of interference in freedoms and rights) and the aim sought (a fully legitimate and lawful end). This relationship has evolved to be one of the criteria that a law along with its posterior application and interpretation must satisfy in order to be considered a reasonable limitation of individual rights and freedoms in a democratic society. Proportionality is not only a criterion of control; it also serves as a criterion for the actions carried out by the Administration. Proportionality, as well as the rest of the criteria or parameters of administrative action (equality, efficiency, etc.), does not come to an endin as much as it can be judicially reviewed.
The principle of proportionality analysed through the lens of a comparative perspective
2006
The development of the EU principles, particularly of the subsidiarity principle and of the proportionality principle, follows different directions, according to the different legal systems of Member States. In Germany, where the principles took origin, the structure of the Constitution itself has been deeply transformed. In Italy, even if less strongly than in German system, the devolution of powers from the State to the Regions is inspired to the same criteria. The Constitutional Courts of both the Member States are becoming familiar with these principles as well, in order to satisfy the needs of their effectiveness. The possibility of a judicial review, technical and impartial, may be used as a fundamental tool to trespass the threshold of “discretionary power” and to make the subsidiarity principle more enforceable.
This article shows how the substantive bias at the core of the present socioeconomic constitution of the European Union is directly related to the characterization of economic freedoms (crucially, the right to freedom of establishment of corporations and the free movement of capital) as the key yardstick of European constitutionality. An empirically grounded reconstruction of the way in which the European Court of Justice applies the proportionality principle shows that the Luxembourg judges (1) assign the argumentative benefit to the holders of economic freedoms, (2) construct all other constitutional goods in the semblance of economic freedoms, and (3) use asymmetric proof standards when having to justify the adequacy and necessity of economic freedoms and other constitutional goods. As a result, under the cloth of projecting the way in which national constitutional courts review the constitutionality of legislation to the supranational level, the European Court of Justice has radically altered the substance of European constitutional law. In particular, the right to private property and entrepreneurial freedom (as operationalized through the four economic freedoms and the principle of undistorted competition) have been assigned an abstract and a concrete constitutional weight that places key public policies (social policies, tax policies, regulatory policies) off the realm of what is constitutionally possible. As a result, some of the collective goods at the core of the Democratic and Social Rechtsstaat have become extremely vulnerable. Focusing on the proportionality as practice by the European Court of Justice does not only provide us with insights into the nature and substance of European law, but also contributes to the general theoretical understanding of the principle of proportionality itself, in particular to a more detailed reconstruction of the relevant steps in proportionality review.