Federal Proportionality Review in EU Law: Whose Rights are they Anyway?

Nordic Journal of International Law, Issue 3-4 (Nov 2020)

20 Pages Posted: 29 Jun 2021

Date Written: November 17, 2020


The principle of proportionality began its life in the EU legal order as a ground of judicial review aimed at protecting natural and legal persons from excessive uses of public power. It was therefore intended to protect “liberal values” by preventing the EU institutions from disproportionately restricting fundamental rights or economic interests. Following the insertion of proportionality alongside the principles of conferral and subsidiarity in the EU Treaties, the principle also took on a novel, federal dimension. In this guise, proportionality’s role is to limit the intensity of EU intervention in order to protect national regulatory autonomy.

In recent years, the CJEU has come to develop its reasoning vis-à-vis the federal dimension of proportionality. EU legislation has been contested on the grounds that it imposes disproportionate social and economic costs in particular Member States, or that the EU legislation in question failed to sufficiently account for the particular situation in a given Member State. In response, the Court has, in somewhat opaque language, sought to strike a balance between the different interests involved i.e. the pursuit of EU objectives in the general interest and the impact that the pursuit of such objectives has upon the Member States.

Against this background, this paper considers whether individuals can challenge EU legislation (almost always indirectly through the preliminary reference procedure) on the grounds that such legislation constitutes a disproportionate interference with the regulatory autonomy of the Member States? Taking inspiration from US federalism, it is argued that individuals are actually articulating “Member States’ rights” in such cases. By conceptualising challenges of this nature in this way, attention is drawn to the question of whose rights and interests are really being articulated and balanced by the CJEU in these disputes.

Keywords: EU Law, Proportionality, Federalism

JEL Classification: K

Suggested Citation

Harvey, Darren, Federal Proportionality Review in EU Law: Whose Rights are they Anyway? (November 17, 2020). Nordic Journal of International Law, Issue 3-4 (Nov 2020), Available at SSRN: https://ssrn.com/abstract=3868925

Darren Harvey (Contact Author)

King's College London ( email )

London, England WC2R 2LS
United Kingdom

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