The Resilience of the Principle of Proportionality

The principle of proportionality is one of the key elements of a constitutional order and, as German legal doctrine teaches us, it is often employed by courts to achieve coherence and uniform application in a legal system.  The essential idea behind proportionality is the need to balance between conflicting rights and interests. The reason for this is that most constitutional rights by their nature enjoy only limited protection. Often, proportionality is portrayed as a test to determine the proper relation between aims and means and consists of three elements: a) suitability of a given measure to achieve its purpose, b) necessity and c) proper relation between the benefit deriving from achieving a specific purpose and the “cost” associated with the means adopted. Problems may emerge in the application of this test, typically when a constitutional right is affected by another constitutional right. In these cases, the same norm that confers a right may also, under specific circumstances, take it away. The application of proportionality may be particularly problematic in EU law, especially whenever the balancing operation concerns socio-economic rights, “imperative reasons of national security” or collective and individual rights and interests.

This paper undertakes a critical examination of the ideas of proportionality and balancing in the area of freedom, security and justice and in the area of the internal market/citizenship. It aims to show how in some key cases flaws and gaps may be detected in the reasoning of the CJEU and the extent to which alternative solutions are available.