The Principle of Proportionality in EU Law: An Interest-Based Taxonomy
Forthcoming, J. Mendes, EU Executive Discretion and the Limits of Law, (Oxford University Press), 2019
21 Pages Posted: 2 May 2019
Date Written: April 9, 2019
The fact that there exists proportionality as a free-standing heading of judicial review in EU law (free-standing proportionality) makes it difficult to identify what interest it serves. Yet that identification is crucial in trying to understand what role proportionality plays in EU law overall, especially knowing that the principle applies to any type of EU action, including that of the EU executive. This contribution seeks to bring some clarity on this matter. Taking as a starting point the idea that proportionality is concerned with balancing two conflicting interests – a legitimate objective that an action pursues and some other interest deserving of legal protection under EU law – it focuses on this latter protected interest, ‘too much’ interference with which would render any Union action unlawful. This contribution provides a taxonomy based on that criterion. The taxonomy shows that there are three essential forms of proportionality applicable to any type of Union action: rights proportionality, subsidiarity-proportionality, and burdens proportionality. Any of these forms of proportionality can be employed, however, in the form of free-standing proportionality, without it being always obvious which of the three substantive categories is at stake in judicial reasoning or invoked by the parties. This is already causing confusion. That confusion is exacerbated by the fact that free-standing proportionality’s ambiguity on the protected interest leaves room for, intentionally or not, misapplying it. This is exemplified by the Gauweiler case.
Keywords: EU Law, Three Functions of Proportionality, Free-Standing Proportionality, Protected Interests
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