Towards Process-Oriented Proportionality Review in EU Law
European Public Law (2017) 23
29 Pages Posted: 29 Jun 2021
Date Written: 2017
This article provides an analysis of contemporary case law and subsequent academic commentary which suggests that a more process-oriented approach to proportionality review has recently been taken by the Court of Justice of the European Union. It argues that the manner in which process-oriented review has been utilized gives rise to a fundamental reconceptualization of the nature of the proportionality test at the EU level; moving away from a substantive, merits based concept of review towards something more akin to a procedural obligation to state the reasons which underpin a contested measure. The article highlights some of the problems that have arisen from this shift in approach from both a doctrinal and a theoretical perspective, whilst demonstrating the inconsistent way in which the Court has formulated and applied process-oriented proportionality review to date.
Keywords: EU law, Proportionality, Judicial Review
JEL Classification: K
Suggested Citation: Suggested Citation