Proportionality review in European law

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by J.H. Gerards

Contents

Introduction

As a constitutional principle and as a general principle of administrative law, the principle of proportionality requires each decision and measure to be based on a fair assessment and balancing of interests, as well as on a reasonable choice of means. This general meaning of the principle is not only valid for national law, but also for European law. Indeed, the (unwritten) principle of proportionality plays a central role in the case-law of the European Court of Justice (hereinafter: ECJ or Court).1 Regardless of whether a case concerns agricultural issues, free movement of goods, state aid or citizenship, the Court requires that all administrative acts or decisions and all legislation be in conformity with the general principle of proportionality.2 The wide range of application of the proportionality principle necessitates certain restrictions when describing its operation in European law. In particular, differences in application are visible between proportionality in relation to penalties or financial burdens and proportionality in relation to discretionary policy choices. The test applied to penalties or other financial burdens is mainly a test of excessiveness: the essence of the proportionality argument in these cases is mostly that the penalty was too drastic in relation to the aim of the measure in question.3 Although this test of excessiveness may raise many interesting questions, its application in European law is relatively uncontroversial. For that reason, this entry only deals with proportionality as a general principle for discretionary policy decisions.4 This entry first provides a characterisation of the European proportionality test as it is applied by the ECJ (section 2). The various requirements and subtests used by the Court will be discussed in section 3. Finally, some attention will be paid to the intensity of the Court’s proportionality review (section 4).

Characterisation of the ECJ’s Proportionality Review

In particular in German legal literature and practice, the general test of proportionality is subdivided in three different tests or requirements.5 To meet the requirement of proportionality, a measure or decision must constitute an effective means to realise the aims pursued by the measure or decision (test of effectiveness). Further, the measure or decision must be necessary to achieve the relevant aims, which means in particular that no alternative and less intrusive measures are available (test of necessity and subsidiarity). Finally, even if it is clear that a certain act or measure is an effective and necessary means to further legitimate government interests, an act, decision or measure can still be disproportionate if no reasonable or fair balance is struck between the aims pursued and the interests harmed (test of proportionality in the strict sense or proportionality stricto sensu).

Although these three “sub-tests” are also widely used and recognised in European law, the ECJ appears to be rather ambiguous as regards their application. In fact there is no single formula the Court systematically and consistently uses in its proportionality review. Rather, the Court disposes of a variety of different formulas, seemingly rather arbitrarily choosing one or the other depending on the circumstances of the case.6Sometimes the Court focuses on just one or two of the three distinct tests; in other cases it applies a general test of arbitrariness or reasonableness; and it even sometimes uses a completely different formula, for instance stating that a decision should not impair the very substance of the right at hand.7

The confusion created by the Court’s proportionality case-law is mitigated somewhat by the efforts of legal scholars to analyse and describe the Court’s approach as much as possible in accordance with three different tests that are characteristic for the German proportionality concept.8 For purposes of analytical clarity, section 3 will therefore discuss the ECJ’s proportionality review on the basis of the three distinct elements of effectiveness, necessity and proportionality in the strict sense. It is important to remember, however, that the Court only seldom applies all of these tests in one single judgment.

The Elements of the Proportionality Review by the ECJ

Effectiveness or suitability

When applying the general principle of proportionality, the ECJ frequently states that the principle requires an act or measure to be “suitable” to achieve the aims pursued, or it rather concludes that a decision is disproportionate because it is “manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue”.9 In practice, however, the requirement of suitability appears to be quite unimportant in comparison to other elements of the proportionality test.10 The Court only rarely tests the effectiveness of the measure or decision at hand and it has developed hardly any criteria or standards to do so. However, from the scarce case-law available, it may be derived that the Court – when applying a marginal test (see section 4) – in general does not require complete effectiveness. If a certain measure only partly contributes to the realisation of certain goals, this generally seems to be sufficient.11 Furthermore, the Court’s case-law in agricultural cases shows that “the criterion to be applied is not whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate”.12 When applying a marginal test the Court generally relies on retrospective, rather than ex nunc review: “Where the Community legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question.”13 Finally, the Court has stressed in many cases that the assessment of suitability is strongly related to the facts and circumstances of the case. For that reason, it usually leaves this assessment to the relevant Community or national authorities or, in preliminary proceedings, to the national courts.14

Necessity and subsidiarity

The requirements of necessity and subsidiarity constitute the core of the ECJ’s proportionality review. They are mentioned in almost all cases in which the principle of proportionality is applied.15 Nonetheless, the Court has only rarely explained the precise meaning of these requirements. This is true in particular for the test of necessity. Although this test evidently concerns the need to choose a certain act, measure or decision as a means or instrument to realise a certain goal, it is far from clear what exactly “necessary” means. Does it mean that the chosen measure or act is really indispensable, in the sense that the aims could not be achieved but for this particular measure or decision? Or does it rather mean that the measure is relatively useful and, to say the least, not superfluous? In practice, the standards the ECJ uses in assessing necessity appear to depend strongly on the circumstances of the case and the relevant area of Community law. As regards the freedom to provide services, for example, the Court has developed special standards to test the need for specific quality requirements for providers of services based in other member states.16 The Court has also established an elaborate line of case-law with respect to the principle of precaution that is sometimes invoked in justification of trade barriers, such as measures limiting the import of foodstuffs containing artificial additives such as vitamins. In these cases the Court requires the authorities of the member states to demonstrate on basis of recent and convincing scientific data that the perceived risks of certain goods to public health or to the environment are actual, concrete and real. Only if these risks are sufficiently evaluated and demonstrated on the national level, the ECJ will consider restrictive measures to meet the requirement of necessity.17

The test of subsidiarity can be regarded as a subspecies of the requirement of necessity. It means that the principle of proportionality is infringed when drastic means were chosen whilst less intrusive instruments were available that would have had similar effect. When applying a marginal test, the Court mostly demands that the applicant party show that less intrusive (but equally effective) measures were available, which has the advantage that it does not have to search for suitable alternatives.18 In other cases the ECJ itself has suggested possible alternatives, for example basing itself on solutions that it has found in national or Community law or on suggestions that have been made by the Advocate-General.19 In these cases a well-reasoned assessment of the effectiveness of such alternative suggestions is mostly omitted.20

Proportionality stricto sensu

The ECJ does not often expressly apply the test of proportionality stricto sensu.21 It is not entirely clear why the Court pays so little attention to the test, but an important reason might be found in the difficulties related to judicial review of balancing exercises carried out by government authorities in the exercise of their discretionary powers. It would seem to be more difficult to determine objectively if it is reasonable and appropriate to prefer the furtherance of specific public interests over other interests, than it is to determine the factual suitability or necessity of the choice for certain instruments or measures.22  Even so, it is possible to trace some elements of the test of proportionality in the strict sense in the Court’s case law. In particular the Court almost always determines the interests that are being served by the contested measure or decision and it often evaluates whether the measure or decision impairs the interests protected by the EC Treaty. In this respect, the Court also demands that the relevant national or Community bodies have established the presence of such interests in the decision-making process: the authorities should “… take into account all the protected interests involved”.23 In addition it has made clear that certain interests cannot constitute legitimate government aims, which means that furtherance of such interests is never in conformity with the principle of proportionality. For example, restrictions of the free movement of goods can only be justified by one of the aims mentioned in Article 30 EC or flowing from the “rule of reason” established in the Cassis de Dijon case.24An assessment of the weight of the respective aims and interests and the seriousness of the harm done is also frequently visible in the Court’s case-law.25 In determining the importance and weight of the relevant interests, the Court often relies on the arguments of the parties to the case or on determinations made by national or Community bodies in the exercise of their discretionary powers.26 As to the seriousness of the interference the Court has formulated a number of general standards. Regarding complete prohibitions on certain goods or services the Court has stated, for example, that this is the most intrusive measure thinkable, which means that it must be justified by very weighty and compelling interests. In such cases, it must be demonstrated that “… there is a genuine and sufficiently serious threat to a fundamental interest of society” that is being combated by the interference.27 Purely administrative, practical or financial considerations will never suffice to constitute such fundamental interests.28 Finally, the existence of procedural safeguards and transitional measures seem to be of some importance to the Court’s proportionality assessment. If such safeguards are provided the Court usually considers the resulting interference with individual interests to be less serious and, consequently, it less easily finds an infringement of the principle of proportionality.29

Intensity of the ECJ’s proportionality review

The cases in which the European principle of proportionality is invoked mostly concern the exercise of discretionary powers by national or Community bodies. In these cases the Court usually applies a highly deferential or marginal test, examining whether a certain decision or measure is “manifestly inappropriate” or is “vitiated by a manifest error”, or investigating whether the relevant authority “manifestly exceeded the bounds of its discretion”.30 In certain other cases, however, the Court opts for a much stricter test, making high demands on the demonstration of necessity of the chosen instruments and the importance of the aims pursued or even requiring “fundamental interests of society” to be shown in justification of an interference with Community freedoms.31 It is evident that it is much more difficult to satisfy the test of proportionality if such a strict test is applied than if the Court applies deferential or marginal review.

The choice for a deferential or intensive proportionality review is determined by a variety of factors. In the first place, the nature and extent of the powers granted to the relevant authorities (both on the national and the Community level) is important to the intensity of the Court’s proportionality review. If the bounds of a normative or executive power are widely drawn, or if decision-making requires difficult political choices or complex assessments of social and economic factors to be made, the Court usually considers that marginal review is appropriate.32 The primary reason for this is that the national and Community authorities are generally better placed than the Court to make such choices.33 Secondly, the Court appears to attach much weight to the nature of the interests concerned in a particular case in order to determine the intensity of its review. Of first and foremost importance in this regard is the nature of the interests that are being interfered with. If an important Community interest has been impinged upon, such as the free movement of goods or persons, the Court’s review is usually very strict because of the importance of these freedoms for the smooth operation of the European Union.34 This will only be different if the interference serves a national interest about which there does not appear to be a European consensus, for example when certain services or goods have been prohibited in order to protect human dignity.35 If the individual interest harmed by the contested measure or decision is a fundamental right, the Court’s review will also be strict.36 Once again, however, this rule is not absolute, since not every individual fundamental right is considered to be of like importance. For example, the Court sees less reason to apply a strict test in a case concerning restrictions of commercial expression than in cases concerning interferences with press freedom.37 Furthermore, the ECJ will only apply a strict test if a measure restricts the exercise of a fundamental right. If, by contrast, a certain measure is aimed at protecting fundamental rights and interests, the Court will commonly show deference.38 Finally, if the impaired interest is not a Community interest, but rather a national or individual interest (not being a fundamental right), the Court’s review is generally deferential.39 This is true in particular if the measures or decisions at hand aim to protect Community interests or have been taken to implement Community law, as will often be the case with agricultural or environmental measures. Whether such measures have been taken by Community institutions or national authorities appears to be of less relevance to the intensity of the Court’s review – it is mainly the nature of the relevant interests that determines the amount of discretion that is left to the authorities.40

Conclusion

The principle of proportionality is often mentioned and applied in Community law. In applying the principle the Court uses a wide variation of definitions of the principle. It does not systematically and consistently apply the three main elements of proportionality review, i.e. the tests of effectiveness or suitability, necessity or subsidiarity, and proportionality in the strict sense. Furthermore, strong variations in the Court’s application of the three elements of the principle of proportionality are visible. Most of these variations can be explained by the variation in the intensity of its proportionality review and by the highly different contexts in which the principle may be applied. The precise standards to be applied in assessing the proportionality of a certain measure may vary, depending on whether intensive or deferential review is applied. The intensity of the Court’s proportionality review itself appears to depend on a number of factors, of which the nature and specificity of the discretionary powers and the nature of the affected interests seem to be the most important. It is difficult, however, to pinpoint one single element as determinative for the strictness of the Court’s review.41

References

1 Cf. Schwarze 2006, p. 677; see also p. 718-26 (considering that there are reasons to state that, in the area of European law, the principle has constitutional status or even the status of a fundamental right). See also Jans et al. 2007, p. 146, stating that the principle has “Treaty status”.

2 Tridimas 2006, p. 137 (also mentioning some exceptional situations in which the proportionality principle has not been applied by the ECJ); see also Schwarze 2006, p. 861.

3 Craig 2006, p. 681.

4 In this regard, no distinction is made in this entry between legislation and individual administrative decisions. Although there are some differences in application between the principle of proportionality as a general legislative principle and as a principle of reasonable decision-making, it can be maintained that the applicable standards are generally similar (see also Schwarze 2006, p. 861). For a more detailed analysis of the application of the principle to both categories of discretionary measures, see e.g. Schwarze 2006, p. 726ff and Craig 2006, p. 658ff.

5 Koch 2003; Jacobs 1999.

6 For an overview of the various formulas that seem to be in use, see Koch 2003, p. 199 ff. See also Jans et al. 2007, p. 148 and Tridimas 2006, p. 139.

7 The “core”-formula seems to be used primarily in cases relating to property rights. See e.g. Case 280/93, Germany / Council (bananas) (1994) ECR I-4973, para. 78 and Case 5/88, Schräder (1989) ECR 2609, para. 18.

8 Cf. also Schwarze 2006, p. 855 and Tridimas 2006, p. 139ff.

9 Case C-189/01, Jippes (2001) ECR I-5689, para. 82; see also Case C-350/96, Clean Car Autoservice (1998) ECR I-2521, para. 35 and Case C-309/02, Radlberger Getränkegesellschaft mbH & Co. (2004) ECR I-11763, para. 78.

10 Cf. Schwarze 2006, p. 856.

11 Case C-434/04, Ahokainen and Leppik (2006) ECR I-9171, para. 39.

12 Case C-189/01, Jippes (2001) ECR I-5689, para. 83.

13 Case C-504/04, Agrarproduktion Staebelow GmbH (2006) ECR I-679, para. 38. See also e.g. Case 43/72, Merkur (1973) ECR 1055, para. 24 and Joined Cases C-133/93, C-300/93 and C-362/93, Crispoltoni (1994) ECR I-4863, para. 43. Cf. also Tridimas 2006, p. 144.

14 E.g. Case C-67/98, Zenatti (1999) ECR I-7289, para. 37; cf. also Tridimas 2006, p. 239.

15 See Schwarze 2006, p. 857 and Tridimas 2006, p. 143.

16 E.g. Joined cases 110 and 111/78, Van Wesemael (1979) ECR 35, para. 30; see also Snell 2002, p. 199

17 E.g. Case C-41/02, Commission / the Netherlands (vitamins and minerals in foodstuffs) (2004) ECR I-11375, paras. 46, 47, 52 and 54; also Craig 2006, p. 690 and Tridimas 2006, p. 148.

18 Which is very difficult indeed; see Schueler 2008, p. 233. He also explains that the Court sometimes (when applying a strict test) solves the problem by requiring that the national authorities investigate alternative measures, thus translating the requirement of proportionality into a procedural duty of careful administrative decision-making (at p. 238).

19 E.g. Case C-350/97, Monsees (1999) ECR I-2921, para. 30 and Joined cases C-369/96 and C-376/96, Arblade (1999) ECR I-8453, para. 78

20 But see Case C-131/93, Commission v. Germany (Crayfish) (1994) ECR I-3303, in which the method was applied much more carefully; see Schueler 2008, p. 238-9.

21 Cf. Craig 2006, p. 670; for an example, see Case C-28/05, Dokter (2006) ECR I-5431, paras. 74-76

22 Jans 2000, p. 241; De Búrca 1993, p. 107; Snell 2000, p. 50/51.

23 E.g. Joined cases C-96/03 and C-97/03, Tempelman (2005) ECR I-1895, para. 48 and Case 504/04, Agrarproduktion Staebelow GmbH (2006) ECR I-679, para. 37. See generally on this requirement also Schueler 2008, p. 237.

24 Case 120/78, Rewe Zentral (1979) ECR 649, para. 8; see also Poiares Maduro 1998, p. 51. For an example of impermissible interests outside the context of free movement of goods, see e.g. Case C-67/98, Zenatti (1999) ECR I-7289, para. 36.

25 Koch 2003, p. 260/261.

26 E.g. Case C-76/90, Säger (1991) ECR I-4221 and Joined cases C-453/03, C-11/04, C-12/04 and C-194/04, ABNA (2005) ECR I-10423, para. 82.

27 E.g. Case C-54/99, Église de scientology (2000) ECR I-1335, para. 17 and Case C-36/02, Omega Spielhallen (2004) ECR I-9609, para. 30.

28 E.g. ECR C-18/95, Terhoeve (1999) ECR I-345, paras. 44 and 45; see also Snell 2002, p. 174.

29 Cf., mutatis mutandis, Case C-463/01, Commission / Germany (German bottles) (2004) ECR I-11705, paras. 80-82 and Joined cases C-154/04 and C-155/04, Alliance for Natural Health (2005) ECR I-6451, paras. 72ff. See more specifically Prechal 2008.

30 E.g. Joined cases C-154/04 and C-155/04, Alliance for Natural Health (2005) ERC I-6451, para. 52, Joined cases C-453/03, C-11/04, C-12/04 and C-194/04, ABNA (2005) ECR I-10423, para. 69 and Joined Cases C-248/95 and C-249/95, SAM Schiffahrt (1997) ECR I-4475, para. 69.

31 E.g. Joined cases C-369/96 and C-376/96, Arblade (1999) ECR I-8453, para. 78.

32 Case T-19/01, Chiquita Brands International, Inc. (2005) ECR II-315, para. 228 ; see also Joined cases C-184/02 and C-223/02, Spain and Finland / EP and Council (independent drivers) (2004) ECR I-7789, para. 56. Cf. Schwarze 2006, p. 861; Tridimas 2006, p. 142-3; Craig 2006, p. 668.

33 Cf. Craig 2006, p. 658.

34 E.g. Case C-350/97, Monsees (1999) ECR I-2921 and the analysis of this case by Jans 2000, p. 253; see also Tridimas 2006, p. 138 and 193; Craig 2006, p. 689ff.

35 E.g. Case C-36/02, Omega Spielhallen (2004) ECR I-9609; see also Case C-275/92, Schindler (1994) ECR I-1039, para. 6, Case C-124/97, Läärä (1999) ECR I-6067, paras. 36-39 and Case C-434/04, Ahokainen and Leppik (2006) ECR I-9171, para. 31; see also Craig 2006, p. 709.

36 See e.g. Case C-368/95, Familiapress (1997) ECR I-3689, para. 24; cf. also Craig 2004, p. 343 and Craig 2006, p. 672.

37 E.g. Case C-71/02, Karner (2004) ECR I-3024, para. 51.

38 E.g. Case C-112/00, Schmidberger (2003) ECR I-5659, paras. 82 and 93.

39 Cf. Tridimas 2006, p. 138.

40 Cf. De Búrca 1993, p. 125 and see e.g. Case C-292/97, Karlsson (2000) ECR I-2737, para. 60.

41 Craig 2004, p. 339.

Bibliography

- Craig, P. (2004) ‘Judicial Review, Intensity and Deference in EU Law’, in: D. Dyzenhaus, The Unity of Public Law, Oxford: Hart 2004, p. 343

- Craig, P. (2006), EU Administrative Law (Oxford: OUP 2006)

- De Búrca, G. (1993), ‘The Principle of Proportionality and its Application in EC Law’, Yearbook of European Law 1993, p. 105

- Gerards, J.H. (2007), ‘Het evenredigheidsbeginsel van art. 3:4 lid 2 Awb en het Europese recht’, in: T. Barkhuysen, W. den Ouden and E. Steyger, Europees recht effectueren (Alphen a/d Rijn: Kluwer 2007), p. 73-114

- Jacobs, F.G. (1999), ‘Recent Developments in the Principle of Proportionality in European Community Law’, in: E. Ellis, The Principle of Proportionality in the Laws of Europe (Oxford: Hart Legal Publishers 1999), p. 1-22

- Jans, J.H. (2000), ‘Proportionality Revisited’, Legal Issues of European Integration 27(3), 2000, p. 239-265

- Jans, J.H., De Lange, R., Prechal, S. and Widdershoven, R.G.J.M., Europeanisation of Public Law (Groningen: Europa Law Publishers 2007)

- Koch, O., Der Grundsatz der Verhältnismaßigkeit in der Rechtsprechung des Gerichtshofs der Europäische Gemeinschaften (Berlin: Duncker & Humblot 2003)

- Poiares Maduro, M. (1998), We, the Court. The European Court of Justice & the European Economic Constitution (Oxford: Hart 1998)

- Prechal, S. (2008), “Free Movement and Procedural Requirements: Proportionality Reconsidered”, 35 Legal Issues of Economic Integration 201 (2008)

- Schueler, B. (2008), “Methods of Application of the Proportionality Principle in Environmental Law”, 35 Legal Issues of Economic Integration 231 (2008)

- Schwarze, J. (2006), European Administrative Law, Revised 1st Ed. (London: Sweet & Maxwell 2006)

- Snell, J. (2000), “True Proportionality and Free Movement of Goods and Services”, European Business Law Review 2000

- Snell, J. (2002), Goods and Services in EC Law. A Study of the Relationship Between the Freedoms (Oxford: OUP 2002)

- Tridimas, T. (2006), The General Principles of EC Law (2d Ed., Oxford: OUP 1999)

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