The Function of the Proportionality Principle in EU Law

Date01 March 2010
Published date01 March 2010
AuthorTor‐Inge Harbo
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),
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,
March 2010 Proportionality Principle
© 2010 Blackwell Publishing Ltd.

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