The Function of the Proportionality Principle in EU Law

• Date: 01 March 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00502.x
• Published date: 01 March 2010
• Author: Tor‐Inge Harbo

eulj_502158..185

The Function of the Proportionality

Principle in EU Law

Tor-Inge Harbo*

Abstract: In this article the author assesses the proportionality principle in EU law from

a legal theoretical and constitutional perspective with the aim of discovering the function

of the principle. Having f‌irst discussed the implications of the proportionality principle

being a general principle of law, and what function it has—namely to secure legitimacy for

judicial decisions—the author suggests that there are several ways in which the principle

can be interpreted. There is, nevertheless, a limit to this interpretation determined by the

proposed function of the principle. In the third part of the article, the European Court of

Justice’s (ECJ’s) interpretation of the principle is assessed. The assessment clearly shows

that the ECJ is interpreting the principle in different distinguishable ways. The question

could, however, be raised as to whether the ECJ in some areas is interpreting the principle

in a way that undermines the very function of it.

I Introduction

The proportionality principle is widely perceived as the preferred procedure for man-

aging disputes involving an alleged conf‌lict between two rights claims, between a rights

provision and a state or public interest (constitutional law), or between a private

interest and a state or public interest (administrative law). Originating in continental (in

particular German) administrative law it has more recently been described as intrinsi-

cally connected to the new wave of (liberal) constitutionalism, which has defused

around the world since the Second World War.1The essence of the proportionality

principle is that it makes it possible to combine a liberal rights-based constitutional

rationality with a strong commitment to a welfare state. The proportionality principle,

one could say, is a necessary side-effect of implanting the Anglo-American liberal

constitutional concept of a ‘Bill of Rights’ into continental European republican con-

stitutions. The proportionality principle has also been adopted by international or

supranational courts, notably the European Court of Human Rights (Court of Human

Rights) and, more relevant to this article, the European Court of Justice (ECJ).

* Tor-Inge Harbo has a Norwegian law degree, MA and a PhD from FU Berlin. Currently, he is researching

at the EUI, Florence, and is teaching at the Faculty of Law, Oslo. The author would like to thank Svein

Eng, Giovanni Sartor, Bruno de Witte and two anonymous referees for helpful comments to the article.

The usual disclaimer applies.

1See for example Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitu-

tionalism’, in Giorgio Bongiovanni (ed), Reasonableness and Law (Springer, 2009), 173–214.

European Law Journal, Vol. 16, No. 2, March 2010, pp. 158–185.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

According to the ECJ, the proportionality principle is a general principle of EU law.

The word ‘general’ in general principle of law refers, f‌irst, to the fact that the respective

principle of law is inherent in a series of inf‌inite applications of the law.2It is reasonable

to draw the conclusion that it is this particular feature—the indecisiveness with regard

to the quantity and quality of the cases to which the principle can be applied—which

distinguishes a general principle of law from merely a principle of law. A general

principle of law is, in comparison with a principle of law, of a more general character,

applicable to a greater variety of different cases.

Second, the word ‘general’ refers to the fact that the principle of law must be

perceived as having some universal quest. What makes a principle of law general or

universal in the context of EU law is, in other words, the fact that the principle of law

is also present in other national or international systems of law. When the ECJ holds

that the proportionality principle is a general principle of law it means that the pro-

portionality principle is also part of other systems of law and, in that respect, tran-

scends the barriers of contextuality erected between them. More concretely, the ECJ

has found support for its proposition that proportionality is a general principle of law

with reference to (some of) the Member States’ legal orders. The proportionality

principle can thus be found both in German and French administrative law, and

German constitutional law.

A ‘principle’ of law, one would assume, is something different from a rule (of law).

When one refers to a rule, one often refers to a norm providing some rights or imposing

some duties on the subjects of the law, which in turn can be invoked by physical and

legal persons before the Courts.3A principle of law is, on the contrary, a rule in the

meaning of a rule-of-law, which represents an ideal of reason and/or of justice, which

(accords with the permanent basis of human nature and) is presumed to form the basis

of the very institution of law.4

On the other hand, a principle of law differs from methodological rules in that it is

more explicitly stated in the premises of a court decision.5The explicitness of the

principle of law implies that it is made part of the reasoning of a court decision—the

ratio decidendi. Principles are thus made public, which again means that they can form

the basis of expectations as to how the court will solve similar cases in the future. True,

the precedent effect of a court decision f‌irst of all encompasses the conclusion.

However, the outcome of a case is diff‌icult to determine without any reference to the

reasoning of which the outcome is a result. Thus, one could argue that the ratio

decidendi of a case must have precedent effect in cases where the outcome of the case

has such effect. This would imply that the court is bound not only by the result but also

by the fact that all cases that are of the same nature would have to be decided in the

same way. One could also claim that the court is bound as to how it reaches the result.6

2Nicholas Emiliou, The Principle of Proportionality in European Law: A Comparative Study (Kluwer, 1996),

115.

3H.L.A. Hart in The Concept of Law (Oxford University Press, 2nd edn, 2004) refers to f‌irst and second

order rules, the latter being what I just described, the former being rules of competence.

4François Gény, Méthodes d’interprétation et sources en droit positif, vol 1 (Librairie générale de droit et de

jurisprudence, 1970) quoted in Emiliou, op cit n2supra, 115; on the rule of law see also A. V. Dicey,

Introduction to the Study of the Law of the Constitution (Macmillan, 1897).

5Dworkin’s arguments of principle (and arguments of policy) must be perceived as methodological features,

see Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977).

6This view can be contested. Thus, one could hold, as Neil MacCormick, ‘Why Cases have Rationes and

what these are’, in Lawrence Goldstein (ed), Precedent in Law (Clarendon Press, 1987), 155–182, at 162,

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