The Principle of Proportionality and its
Application in Ee Law*
GRAINNE DE BURCA
I. Introduction
One of the many ways in which European law has been said to have
influenced domestic law in the United Kingdom is through the reception
into and application in domestic law of certain principles of public law.'
These include principles which are to be found in the law of the European
Convention on Human Rights, and in European Community law, which in
turn derived them from some of the legal systems of the Member States. One
such principle, which has met with varying success when argued before
English courts as a principle which ought to guide administrative decisionmaking and against which such decision-making should be assessed, is the
principle of proportionality.' Very broadly speaking, what the requirement
of proportionality entails is that there be a reasonable relationship between a
particular objective and the administrative or legislative means used to
achieve that objective.
What I propose to do in this article is to examine the nature of the
proportionality principle, and in particular its role in judicial review by the
European Court of Justice. This will be done by first attempting to explain
the confusion which exists over the meaning of the proportionality principle,
and why its application appears to vary in differing cases, and according to
the accounts of different commentators. One thing which is clear is that
application of the principle of proportionality entails an active role for
courts in reviewing administrative and legislative measures. As a result, it
raises questions of justiciability, as well as questions about the degree of
scrutiny to which a court should subject the justification offered for a
measure which is challenged. What I hope to do is to articulate the different
factors which appear to influence the judicial decision, in particular on the
part of the European Court of Justice, as to whether and how rigorously to
examine a measure for proportionality. It will be seen that these factors
include not just the subject matter of the dispute and the nature of the
interests concerned in the case, but also matters relating to the limits of the
* © Grainne de Burca, 1993. Fellow of Somerville College, Oxford.
I am grateful to Murray Hunt for his comments on an earlier draft.
1 See D. Wyatt 'European Community Law and Public Law in the UK' in Martesinis (Ed) The
Gradual Convergence, Foreign Ideas,Foreign and English Law on the Eve of the 21st Century (Clarendon
Press Oxford 1994) 188 at 191.
2 See J. Schwarze, European Administrative Law (Sweet & Maxwell, 1992) Chap 5.
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judicial role and the judicial process. And in the context of the European
Court of Justice, they also include the relationship between the interests of
the Community and those of the Member States.
A. THE NATURE OF THE PROPORTIONALITY PRINCIPLE: PROTECTION FOR
RECOGNIZED INTERESTS
Proportionality is not an independent principle of review, since it refers not
to any particular free-standing substantive value, but rather to a relationship
between other specific and possibly competing substantive interests. The
process of examining whether a particular measure is disproportionate
requires an articulation of the standard which is being used to determine
whether that measure is 'excessive' in relation to its proposed objective. If it
is said that a measure is disproportionate when it goes 'further than is
necessary', in that it has many other effects besides those which were its
specific objective, this may be a statement that it is therefore a wasteful
measure, an example of bad public administration. Or it may be a statement
that the measure is disproportionate because the effectsit has are impinging
upon or restricting other interests, to an extent that is not justified when
weighed against the objective of the measure. Both of these formulations of
the proportionality principle are clearly strongly evaluative. They involve
examining a measure to see whether its effectsare in proportion to, and thus
whether they are justified in the light of, its declared aim. But in the first
formulation, the assessment focuses on the interests of good administration
or good legislative policy, i.e. on what is considered to be a general public
interest. In the second formulation, the focus is more on specific articulated
interests, generally interests of an individual nature.?
To take the example of a road being built by a public authority," there
could be objections both on the ground that it would run through part ofthe
premises of a psychiatric hospital, and on the ground that it is too expensive
in light of the other needs of the region. The first objection is that the adverse
effects on the hospital, on its patients and its property, are too severe even
having regard to the public interests in building the road. This may also
involve an argument that the road could be built (evenif more expensively or
with more difficulty) in such a way as to avoid passing through hospital
property, or it may be a simple assertion that the interest in having the road
built should yield to that of the patients and the hospital authorities. The
second objection is that the road-building project is excessive and is too
costly even in relation to the advantages it would produce, when considered
in the light of the other needs of the area. This objection does not suggest that
3 Ibid at 726, where the author suggests that proportionality is not itself a fundamental right but a
'guarantor of the substance' of other rights.
4 The example is similar to the French case of Societe CivileSaint-Marie de rAssomption20 Oct 1972,
Receuil des Decisions du Conseil d'Etat 657, cited by S. Boyron in 'Proportionality in English
Administrative Law: A Faulty Translation' (1992) OJLS 237 at 248.
Proportionality in Ee Law
107
the project will interfere excessively with any specific identifiable individual
interest or right and that it is therefore not justified having regard to that
countervailing interest, but rather that it is not justified having regard to the
countervailing interest in sensible public expenditure and planning, given
the existence of other local needs. The second objection, in the form of an
economic evaluation, is one which would generally be categorized as a
'political' choice, not one involving any 'legal' standard upon which a court
could or should decide. The weighing of the merits of one public project as
against another, from the point of view of the public need and the public
expense, is viewed, in most democratic theories, as a political choice for the
elected body to make. On the other hand, the protection for certain
recognized interests-generally those such as traditionally protected civil
liberties and human rights, and other legally acknowledged values and
interests-is generally categorized as a judicial task, something which a nonelected body free from the varying political influences of the moment is best
placed to ensure. Obviously, the more clearly these interests and rights are
articulated in a particular legal system, the less controversial would be
judicial intervention in administrative or legislative action in order to
protect them.
In considering the two kinds of objection above, it can be seen that the
description of the proportionality principle as referring to a 'relationship
between means and end' could mean two different things. On the one hand it
may indicate something which, in most legal systems, is a fairly familiar and
traditionally accepted part of the judicial task, i.e. of ensuring that
administrative or legislative measures do not have an excessively restrictive
or adverse effecton legally protected rights and interests. On the other hand,
it could mean a more controversial role for the courts, i.e. conducting a
general evaluation of the cost-effectiveness, efficacy, or relative importance
of the aim of a particular measure. It is of course possible that certain socalled social and economic interests could increasingly develop into legally
recognized rights, such as a right to basic environmental standards. But in
the absence of some agreed standard, such as the impact on a recognized
right, by which to assess a decision, or in the absence of specialist courts
which are an integral part of the administrative system, judicial review for
proportionality is likely be a controversial practice.
B. PROPORTIONALITY AND THE ROLE OF THE COURTS: PROBLEMS OF
JUSTICIABILITY AND COMPETENCE
A clear understanding of the principle of proportionality, and in particular
of the part it can play in the review of administrative and legislative action, is
often elusive, at least in part because of the various, apparently distinct, ways
in which the principle has been formulated. The nature of proportionality in
French law has been likened by one commentator, for example, to the
application of the principle of unreasonableness in United Kingdom
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administrative Iaw." In a case before the European Court of Justice in 1979,
Advocate General Warner suggested that the proportionality principle was
essentially the same as the concept of reasonableness." It has been argued
that if this is the case, the use of proportionality in judicial review-in
particular in the United Kingdom-would create the same problems of
unrestrained and circular judicial reasoning to which the concept of
Wednesbury unreasonableness gives rise.' Indeed, one of the concerns
frequently voiced with regard to the proportionality principle relates to the
amount of discretionary power which it would confer on the courts. 8 A basic
premise of any democratic theory is that there should be a distinction (even if
it is difficult to maintain) between what representative political decision
makers do in adopting a measure or making a decision, and what courts can
do when considering a challenge to such a decision. The basis of such theory
is that because of its non-representative nature, and because of the
institutional, procedural and evidential limits of the judicial process, a court
is not competent to make the same kind of decision on certain kinds of
subject matter as is a politically accountable decision-making and policymaking body. Other than in the situation where a full appeal from a decision
is provided, a court is not given the task of reconsidering all of the
circumstances and taking the decision again, but rather of examining it for
compliance with recognized legal principles or standards. Obviously the line
between review and appeal is not a clear one, but it can be argued that the
more clearly the agreed standards or grounds of review can be articulated,
the more clearly it can be seen whether a court is genuinely attempting to
apply these in a structured way to the decision taken rather than substituting
its overall judgment as to what would be a better or a preferable decision.
One ofthe concerns over the acceptance into English law, in particular, of
the principle of proportionality is that it would greatly increase the
opportunities for judicial intervention in governmental and administrative
decision-making. If examining the proportionality of a legislative or
administrative measure involves, in reality, no more than a court's
S See Boyron, ibid, where the author claims that the principle of proportionality argued for by Jowell
and Lesterin 'Beyond Wednesbury: Substantive Principlesof Administrative Law' (1987)Public Law368
and 'Proportionality: Neither Novel Nor Dangerous' (1988) New Directions in Judicial Review61 would
only replace the tautologous Wednesbury principleof which they complain, with another similarlyflawed
concept.
6 See Case 34/79 R v Henn andDerby [1979] ECR 3795,where he cited the viewsof Neville Brown 10
this effect, from New Perspectives for a Common Law of Europe (European University Institute, 1978).
7 Boyron, supra n 4 at 255 claims that 'unreasonableness' would be replaced by an equally circular
principle of proportionality, the application of whichshe describes as follows:'did the outcome chosen by
the administration represent a proportionate balance considering the costs and benefits involved in the
case?'
8 See the comment of Schwarze in his discussion of the proportionality principle, supra n 2 at 864:'its
administration is problematic since it has been applied in virtually everylegal fieldand hardly appears to
be measureable in strict terms. In addition, to extend its fieldof application presents the danger of giving
to the courts a quasi-lawmaking power in the field of fundamental rights.' In her discussion of control of
proportionality in French administrative law, Boyron, supra n 4, emphasizes the importance of the fact
that the Conseil d'Etat, unlike English courts, is an integral part of the administration with the relevant
expertise and experience for the task of control.
Proportionality in EC Law
109
assessment of the merits of that measure, without any real constraint from
fairly clearly defined rules or standards, then the development of this
principle in English law would meet with considerable objection. To entrust
courts with an appellate power of this nature would probably be considered
objectionable even in a system of law expressly providing for constitutional
review of legislation. But this would be all the more so in the United
Kingdom where the courts' power of review has largely been limited to
considering administrative action, and where the nature of such review
purportedly excludes examination of the 'merits' as opposed to the 'legality'
of a decision.
In order to gain an understanding of how the concept of proportionality
might actually operate in judicial review of legislative or administrative
action, it is necessary to focus precisely on this question of the reasonable
relationship between an objective and the means used to achieve that
objective. If judicial evaluation of that relationship inevitably entailed the
substitution by a court of its opinion as to a better way of achieving the
objective, then reviewfor proportionality would seem to accord courts a role
indistinguishable from that of legislators and administrators. What is
proposed here is to examine some of the concrete case law of the European
Court of Justice in which the principle of proportionality has been applied,
in an attempt to identify and consider the criteria which that court purports
to use in evaluating measures which are challenged. Bearing in mind the
differencesbetweenjudicial review in a European Community as opposed to
a domestic context, this should nevertheless provide some assistance in
assessing the possible value of proportionality as a principle of review, as
wellas revealing its weaknesses or dangers, either in the way it could obscure
the real basis for a court's review, or might accord too powerful a role to the
judiciary.
Beginning with a general question about the value of the proportionality
principle, what is it that is wrong, to use a more colourful expression of the
proportionality concept, with using a sledgehammer to crack a nut? What
emerges quite clearly from the case-law of the European Court of Justice on
proportionality, is that the disproportionality of a decision or action is
measured in relation to its effect on some pleaded right or interest." Most of
the cases involving proportionality concern a challenge to a particular
measure by an applicant, involving an allegation that some legally
recognized interest or right has been unacceptably infringed. The respondent's answer will generally be that the measure was adopted in pursuit of a
public interest which justifies the restriction on the applicant's interest, and
the court must then decide whether the particular measure was a
proportionate way of achieving its objective. Arguably, on this approach,
judicial review for proportionality does not necessarily involve the
'circularity' or the inevitable substitution by a court of its own opinion for
that of the original decision-maker. If review for proportionality involves
consideration of the impact of a measure serving some public interest, on an
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interest or right claimed by the applicant, a court would have to articulate
the two interests concerned, and to consider whether the aim of the latter
necessitated the degree of interference with the former.
C. HOW STRICTLY IS THE PROPORTIONALITY INQUIRY CONDUCTED?: VARYING
DEGREES OF DEFERENCE
Even given that a court, in applying the proportionality principle, must
articulate the interests concerned in the case, this does not indicate how it
will assess the respective importance of each. Does review for proportionality mean that the court will examine for itself the respective importance of
each interest or right, and that it will consider all of the available alternatives
open to the decision maker, to see whether a measure less restrictive of the
applicant's interest was possible? Or does it mean that the court will accept
the bonafide and reasonable judgment of the decision-maker that this was, in
its view, the most effective or indeed the only possible way of achieving its
objective? The various descriptions which have been given of the way the
proportionality inquiry is conducted, highlight the different approaches
courts take when faced with a challenge to a measure on the ground that it
interferes excessively with another right or interest. In her discussion of the
principle of proportionality in French administrative law, for example,
Boyron describes it as, in most cases, a principle of 'minimal control' and not
generally a principle of strict judicial scrutiny. This she contrasts with the
meaning given to the proportionality principle in German law, which is
apparently that a particular measure must be one which is necessary to
achieve its objective. 10 She also contrasts the definition of proportionality in
French law with which she is dealing, with what she calls a wider approach
'which includes all cases where considerations of proportionality are part of
the reasoning of the courts'. 11 Be that as it may, it is certainly clear that the
use of the principle of proportionality by the European Court of Justice is a
wider notion than that of the minimal of marginal control described by
Boyron, as also is the principle of proportionality applied by the European
Court of Human Rights! 2
This article will focus on examining the nature of the proportionality
principle as it has been used by the European Court of Justice in EC law, to
evaluate and review both action on the part of the Community institutions
and action on the part of the Member States of the European Community.
An understanding of the different contexts in which the concept of
9 This is also evident from the application of the proportionality principle in the case-law of the
European Court of Human Rights.
10 See also the wide-ranging discussion of the principle of proportionality with different legal systems
by Schwarze, supra n 2, chap 5.
II Boyron, supra n 4 at 243, fn 30.
12 For a survey of the use of the principle see M. Eissen. 'The Principle of Proportionality in the
Case-Law ofthe European Court of Human Rights' in: TheEuropean System/or the Protection of Human
Rights (Eds) Macdonald, Petzold, and Matscher (Martinus Nijhoff 1993) 125.
Proportionality in EC Law
111
proportionality arises and has been used by the Court may help to explain
some of the confusion and apparent differences of opinion over the meaning
of the term. Although the principle expresses the idea of a proper
relationship between the aim of a measure and the method by which that aim
is achieved, it is apparent that the courts, in considering the proportionality
of a challenged measure, do not always examine the justifiability of that
measure with the same degree of rigour. A survey of the case-law of the Court
of Justice provides an indication of what that Court treats as relevant factors
in deciding on how strictly it should examine the challenged measure, what
degree of justification it should require of the legislative or administrative
authority, and when it should defer to the discretion of the original decisionmaker. It becomes apparent that in reaching decisions, the Court of Justice is
influenced not only by what it considers to be the nature and importance of
the interest or right claimed by the applicant, and the nature and importance
of the objective alleged to be served by the measure, but by the relative
expertise, position, and overall competence of the Court as against the
decision-making authority in assessing those factors. It becomes apparent
that the way the proportionality principle is applied by the Court of Justice
covers a spectrum ranging from a very deferential approach, to quite a
rigorous and searching examination of the justification for a measure which
has been challenged.
As regards the nature of the interests which may be involved in a case, it
can be seen that a distinction is often drawn between 'political' issuesdecisions which necessarily involve the exercise of discretion in making a
policy choice in a complex area-which are primarily for the administration
or legislature to decide on, and 'legal' issues on which a court is competent to
adjudicate. This would seem to provide some form of explanation for a
court's deference when asked to consider the proportionality of a measure of
the former kind. But the division is far from clear-cut. There are many issues
on which courts decide in the course of adjudication, which involve
controversial and complex moral and political questions, yet they are
carefully scrutinized and considered by the courts when they are challenged.
Courts are generally prepared to adjudicate on issues involving traditionally
categorized individual rights, where interference with a discretionary policy
decision can be explained not on the ground that it is not the most sensible or
effective measure, but on the ground that it unjustifiably restricts an
important legally recognized right, the protection for which is entrusted to
the court. Courts are accepted as having a legitimate role in deciding on civil
liberties and personal rights even in controversial contexts such as
euthanasia, abortion, and freedom of speech. But in certain specific political
contexts, in the case of measures involving, for example, national security,
economic policy or national expenditure concerns, courts tend to be
considerably more deferential in their review. They are more reluctant to
adjudicate if the interest affected is seen as a collective or general public
interest rather than an individual right, and if the interest of the State is a
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mixed and complex one, e.g. in an area involving national economic and
social policy choices. Where a measure of this nature is challenged, it may be
that it does not appear to affect any traditionally characterized individual
right, but rather indirectly affects the interests and welfare of many people.
Or even if it does affect a recognized right, it also concerns many other
interests, both individual and general, over which the policy-maker has
presumably deliberated at length in coming to a decision. It is also possible
that in some cases of this kind, the judgment is likely to have wide financial
implications for the State, e.g. for the organization of a costly national social
policy, 13 which furnishes another reason why the court may wish to adopt a
deferential approach. The ways in which a court might defer in such
circumstances range from deeming the measure to be non-justiciable, to
refusing to look closely at the justification for the restrictive effects of the
measure, to placing the onus of proof on the challenger who is claiming that
the measure is disproportionate. Courts tend to be deferential in their review
in cases which highlight the non-representative nature of the judiciary, the
limited evidentiary and procedural processes of adjudication, and the
difficulty of providing a defined individual remedy in contexts which involve
complex political and economic policies.
Further, in the case ofthe Court of Justice, as opposed to national courts,
it is not just the nature or importance of a measure's objective, or the fact that
it lies within a traditionally 'discretionary' political area, which determines
how closely the court will scrutinize the measure under challenge nor what
level of justification it will require of the decision maker. What is also of
relevance in the context of the Community is what might be termed the
'federalism dimension', i.e. the extent to which the aim of a particular
measure is one which lies primarily within the competence of the Member
State, rather than the competence of the Community institutions. Where the
measure is seen to be primarily within the competence of the State, the Court
is likely to be reluctant, unless a very important Community interest is
adversely affected, to examine the proportionality of the national measure
too closely. It is apparent that there may be different considerations at play
when the Court considers a challenge on grounds of proportionality to a
Community rather than to a state measure. The federalist tensions over the
proper sphere of State versus Community competence are less likely to arise
when Community acts are challenged. But on the other hand, different
tensions might arise since such cases may require the Court of Justice, which
13 Contrast, in this instance, the judgments of the Court of Justice on sex discrimination. It has
afforded the States a 'margin of appreciation', i.e. a laxer standard of review for proportionality, when
they have advanced social and economic policy concerns to justify indirect sex discrimination in social
security schemes-see Cases C-229/89 Commission v Belgium [1991] ECR 1-2205 and C-226/91
Molenbroek [1992] ECR 1-5943. But in cases involving direct sex discrimination which was not
justifiable, and so not subject to review for proportionality, the Court has found against the States
although its ruling necessitated considerable State expenditure and reorganization, such as in Cases
43/75 Defrenne v Sabena [1976] ECR 455,152/84 Marshall v Southampton and South West Hampshire
AHA [1986] ECR 723, and C-208/90 Emmott v Minister for Social Welfare [1991] ECR 1-4269.
Proportionality in EC Law
113
has been one of the principal architects and proponents of the Community's
legislative progress and integration, to interfere in the course of this
progress.
D. THE THREE-PART STRUCTURE OF THE PROPORTIONALITY INQUIRY
It will be seen that the European Court of Justice uses a three-part test,
similar to that used by the European Court of Human Rights, 14 as the basis
for the proportionality inquiry. This test provides a broad structure for
considering the proportionality of a challenged measure, but it becomes
clear that the inquiry undertaken by the Court within this structure differs
from case to case, depending on the context and circumstances of the
measure in question. Broadly, the three parts of the test are as follows. First,
the articulation of the State's interest, i.e. was the measure a useful, suitable
or effective means of achieving a legitimate aim or objective? Secondly, the
articulation of the affected interest, i.e. was there a means of achieving that
aim which would be less restrictive of the applicant's interest. Thirdly, even if
there was no less restrictive means of achieving a legitimate public aim, does
the measure have an excessive or disproportionate effect on the applicant's
interestj!" It can be seen from the structure of this inquiry that it involves an
expression and weighing of different interests, and the closeness of a court's
scrutiny of the measure will depend in the way it applies this test, on how
thoroughly it investigates the existence ofless restrictive alternatives and the
degree of weight it gives to the Community's or the State's assessment of the
importance of the objective allegedly served by the measure.
Whatever way the proportionality principle may be described, either as an
evaluation of the impact of a measure on a civil liberty or human right, or as
a means of ensuring that the severity of a penalty fits the wrong done, or as an
economic-style costs/benefits analysis of a measure, it seems apparent, from
examining a selection ofthe case-law ofthe European Court of Justice, that it
inevitably involves a balancing of interests of some sort. What it is that
differs from case to case, and what seems to explain the formulation, by
courts and commentators, of many apparently different tests for proportionality-such as normal control, minimal control, strict scrutiny, the
costs/benefits analysis, the 'not manifestly inappropriate' test, or the 'no less
restrictive means' test-is that the nature and context of the various interests
at stake will differ. The nature of the interest allegedly affected will differsometimes it will be a personal right of a fundamental nature affected in a
severe way (such as a criminal penalty, or a deportation order), and
sometimes an interest of a less significant kind affected in a less drastic way
14 See the test laid down by the European Court of Human Rights in the case of Sunday Times v UK,
A/30 (1979).
15 This formulation of the test, including the third and possibly more controversial part, can be seen
set out in the opinion of Advocate General Van Gerven in Case C-159/90 SPUCv Grogan [1991] ECR 14685.
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(e.g. property rights being regulated by a temporary restriction on the use to
which land can be put). And the nature of the interest served by the action or
measure in question will also vary, sometimes representing a very pressing or
politically sensitive public interest or a complex policy objective requiring an
exercise of discretion by the decision-maker, and at other times representing
a straightforward and clearly defined administrative objective. Thus the
judicial process of weighing up the different interests involved will differ
considerably from case to case and from context to context. What is always
involved is a balancing process of some kind, but the factors which will affect
the 'nature of review', or the 'degree of control', or 'level of scrutiny' a court
will apply will depend on the respective nature of these interests in the
particular circumstances. Even the form of proportionality which is
sometimes referred to as a costs/benefits analysis is itself a version of this
balancing of interests. The costs are the adverse effects of the measure (on
some interest, whether general or individual) and the benefits are the
objectives of the measure and the results it aims to achieve. But if the nature
of these interests, and the subject matter to which they relate are of a broad
and complex nature, a court in balancing the costs and benefits of such a
measure would be adopting the same sort of role as that of the original
decision-maker, but confined within the narrow procedural and institutional constraints of the judicial process and without any measure of
political accountability. By contrast, the more 'individual' the interest
affected by the measure under review, or the more severely an important
Community interest is affected, the more closely the Court of Justice will be
prepared to look at it. But this will still depend partly on the nature of the
subject matter and the interest which the measure claims to serve. If it is one
which the Court considers to be an important, compound public interest of a
sensitive nature-such as a public security concern, or a social policy
objective--then the Court is often reluctant to say that there were better
alternatives open to the decision-maker.
II. Proportionality in two contexts before the European Court of Justice
The principle of proportionality is most obviously used by the European
Court of Justice in its judicial review function under Article 173 and Article
177 of the EC Treaty.!" Article 173 gives the Court power to review acts of
the Community institutions (in particular the Commission, Council, and
Parliament) for compatibility with Community law. Under Article 177, if a
question arises in proceedings before a national court as to the validity of a
Community measure, the national court can refer that question to the Court
of Justice for a ruling. Over the years in its case-law, the Court of Justice has
developed what it refers to as the 'general principles oflaw'-principles such
.6
It also arises in actions for damages against the Community under Art 215 of the Treaty.
Proportionality in EC Law
115
as protection for fundamental rights,legitimate expectations, legal certainty,
and ofcourse proportionality-as part ofCommunitylaw,and as principles
against which the Court will measure the validity of Community acts.!?
However, in addition to this review function where the Court of Justice
assesses the validityofCommunity action, the Court also indirectly reviews
thecompatibilityof Member State action withCommunitylawunder Article
177. In addition to providinga meansfor national courts to request a ruling
on the validityofa Communityact, this procedureenablesthem to requesta
ruling on the interpretation of a provision of Community law. Seeking a
ruling on the interpretation of Community law is, of course, often a means
for parties before a national court to ascertain whethera particular national
measureis in breach of Communitylaw. Althoughthe Court generally does
not directly declare the specific national measure to be in breach, it will
normally be obvious from its ruling whether or not this is the case.!"
The issue of proportionality arises in a similar way in both contexts,
whether the act under scrutiny is one adopted by the Community or one by
the Member State. In the case ofa challenge to the validity of a Community
act under Article 173 or Article 177, the applicant will normallyclaim that a
decision of the Commission or of the Council affecting that applicant is
excessive in its impact, and goesbeyond what is necessary or appropriate to
achieve its legitimate aim under the Treaty. In the case of an Article 177
ruling on the interpretation of Community law, the issue of proportionality
generally arises in cases such as those involving Member State measures
which restrict the free movement of goods, persons, or services, or which
indirectly discriminate on grounds of sex. Restrictions of this kind can be
justified under Community law if the Member State can show that they are
proportionate, in other words that they are appropriate and necessary to
achieve a legitimate objective. The cases are illustrative in that they show
what the Court ofJusticedoes whenit appliesthe proportionality principle,
what kind ofjustification it requiresin different contexts,and howrigorousit
will be in examining the necessity for a particular infringement of an
applicant's interests or rights.
A. ACTIONS AGAINST THE COMMUNITY
I will begin by looking at a number of illustrative cases involving judicial
review of Community measures under Article 173 and 177. The tensions
inherent in the exercise of judicial review in many Member States, arising
from the division of roles between the judicial and political branches, are
somewhat different in the context of judicial review of EC law. Strict
17 See T. Hartley, Foundations of European Community Law (2nd ed) (Oxford University Press 1989)
Chap 5, and D. Wyatt and A. Dashwood, European Community Law (3rd ed) (Sweet and Maxwell 1993)
88-103.
18 See e.g. the ruling given by the Court of Justice in Cases 325/85 BOlld Vall Adverteerders [1988]
ECR 2085, and more recently in C-169/91 Stoke-on-Trent BevB & Q [1992] ECR 1-6635,where it made
clear its views as to whether the national measure under review was in fact proportionate.
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examination by the European Court of Justice of the conduct of the EC
institutions (and of the Commission, in particular) is generally welcomed in
the Member States, since the Council and the Commission are not popularly
elected bodies and are subject to considerably weaker democratic controls
than are many national Parliaments and Governments. Because of this, a
stringent application by the Court of the principle of proportionality when
reviewing Community action is not necessarily unwelcome to the Member
States. On the other hand, the Community's administrative role is vast, and
it would be expensive, time consuming and burdensome to subject every
regulation to a stringent ex post facto judicial examination, to see whether
alternative methods of achieving the same end were available. It can be seen
from the case-law that the Court of Justice is protective of the institutions'
policy-making and discretionary decision-making powers, and that it does
not readily intervene on the ground of disproportionality, except where the
adverse impact on the applicant appears particularly severe or unfair. 19
One area in which challenges to Community action under Article 173 are
frequently brought, and where the principle of proportionality is pleaded, is
in relation to the Community's agricultural policy. 20 This, no doubt, is
because the Common Agricultural Policy (CAP) is one of the bigger and
more complex European Community policies to administer and it is one
which closely and often adversely affects the interests of many individual
farmers as well as those of agricultural and other related companies." In
many of these agricultural cases, the measures of the Commission and
Council which are challenged tend to have been adopted on the basis of fairly
detailed and often complex economic data collected, and the effect which
they may have on a range of different rights varies quite widely. The basis for
the infringement alleged against the Community institution might, for
example, concern a claim for the loss of an entire livelihood, or a claim of
unequal treatment as against another competitor, or perhaps a claim of
having been caused to lose expected profits. What the Court of Justice is
generally asked to do, when the proportionality principle is invoked, is to
examine the severity of the interference with the interest claimed by the
applicant, and to weigh that against the objective sought to be achieved by
the respondent institution. A fairly recent example of this can be seen in the
case of Fedesa,22 where the principle of proportionality was one of the
arguments invoked by an organization of manufacturers and distributors of
19 See Van Bael'Discretionary powers of the Commission and their legalcontrol in trade and antitrust
matters' in Schwarze (Ed) Discretionary Powers of the MemberStates in the Field of Economic Policies and
their limits underthe EEe Treaty (Nomos: Baden-Baden 1988).
20 For a comment on one branch of this area of EC law, see R. Barents 'The System of Deposits in
Community Agricultural Law' 10 EL Rev (1985) 239.
21 Art 40(3), clause 2, of the EC Treaty, concerning the powers of the Community relating to the
common organization of agricultural markets, sets out a form of the proportionality principle, providing
that 'the common organisation shall be limited to pursuit of the objectives set out in Article 39' and that
measures to be adopted should be 'required to attain the objectives set out in Article 39'.
22 CaseC-331/88 Rv Ministerfor Agriculture, Fisheries andFood,ex parteFedesa [1990] ECR 1-4023.
Proportionality in Ee Law
117
veterinary medicine who were challenging a Council Directive prohibiting
the use in livestock farming of certain hormonal substances.
0) Fedesa
The argument on proportionality made by the applicants provides a good
illustration of the three-part proportionality test 2 2a generally applied by the
Court of Justice. These parts were first, an examination of whether the
challenged measure was appropriate or suitable in achieving its legitimate
objective, focusing on whether it was reasonably effective in achieving its
aim; secondly, an examination of whether the measure was necessary in
order to achieve its aim, focusing on whether there was an alternative and
equally effectivemeans of achieving that objective which interfered less with
the applicant's interest; and thirdly, whether the measure was proportionate
in achieving its aim, which involves weighing the adverse effect on the
applicant's interest against the importance of the aim served in order to
decide whether that adverse effect was justified in the circumstances.
In the Fedesa case, the applicants argued first that an outright prohibition
of the hormonal substances was inappropriate to attain the declared
objectives of protecting public health and allaying consumer anxieties, since
it was impossible to apply in practice and would lead to the creation of a
dangerous black market. In other words, it would not be effectiveto achieve
its stated aim. They argued secondly that the ban was not necessary, in that
consumer anxieties could be relieved by the dissemination of information
and advice, especially since there were divergent views amongst the Member
States as to the safety and quality of the substances in question. In other
words, there was a less restrictive and equally effective means of achieving
the aim sought. The argument on the third part of the proportionality test
was that the ban entailed excessive disadvantage in relation to its alleged
benefits, in that it led to considerable financial losses on the part of the
applicant traders. In other words, any advantages brought about by the
measure were outweighed by their adverse effects upon the applicants'
trading interests and financial position.
Thus the competing interests at play can be clearly seen: the interest ofthe
Council in protecting public health and in responding to different levels of
consumer concern over the safety of particular hormonal substances, as
against the commercial interests of the applicants, in the absence of
conclusive scientific evidence as to the dangerousness of the substances, in
continuing their distribution and sale of these products. The approach of the
Court in applying the proportionality test to the case is interesting to
observe. Since the first part of the test, the 'appropriateness' query, relates
partly to the effectiveness of the measure, the Court was being asked to
examine the applicants' contention that it would be ineffective and would in
fact give rise to a black market in the substances. However, the standard
22.
See supra 113.
118
Grainne de Burca
which the Court applied in assessing the appropriateness of the measure was
not a close examination of the prospects of its success in eradicating the
substance completely from use. Instead the Court adopted a considerably
laxer standard and held that the Council's measure would only fail the first
stage of the test if it was 'manifestly inappropriate' to achieve its aim. The
reason for adopting a less intensive level of review was, the Court said,
explained by the fact that in matters concerning the Common Agricultural
Policy, the Community institutions were given a discretionary power
corresponding to the political responsibilities they bore for agriculture
under the Treaty.P Accordingly, said the Court, its role in reviewing the
exercise of such a discretion by a politically responsible body was limited to
looking for clear ineffectiveness or unsuitability.
Thus, in considering the proportionality of the agricultural regulation in
Fedesa, the Court of Justice under the first part of the proportionality test did
not examine whether it was an effective measure, but simply concluded that
it was not a manifestly inappropriate measure. The Court then described the
second part of the proportionality test-the necessity requirement-as a
requirement that when there is a choice between several appropriate
measures, recourse must be had to the least onerous. However, it repeated
that in an area of this nature where the Council has discretionary power,
even if there was a choice between various appropriate measures (others
being less onerous for the applicants than the measure chosen) the choice
would only be interfered with by the Court ifit was manifestly inappropriate.
The Court apparently decided that the stricter proportionality test of there
being 'no less restrictive means' available would not apply when the
Community's exercise of discretionary powers in the agricultural sphere is
concerned. It is interesting to note, however, that even if the stricter test were
applicable, Advocate General Mischo took the view that a less restrictive
means such as better labelling and consumer information would not have
been as effective as a ban.
In reaching its conclusion on the first two parts of the proportionality test,
the Court did not actually state that the applicants' commercial interest in
continuing to market the contested substances was not, by contrast with the
Council's aim of protecting public health and consumer interests, such a
fundamental right or concern. However, the balance between these two
interests is made clear in the Court's treatment of the third part of the test,
where it held that although some financial loss may have been caused to
some traders, this was not disproportionate when considered in the light of
the aim of the measure. The Advocate General was even more explicit on this
23 For a selection of the many earlier decisions emphasizing this point see Cases 138/78 Stolting v
Hauptzollami Hamburg-Jonas [1979] ECR 713, 179/84 Bozetti v Invernizzi [1985] ECR 2301,265/87
Schrader v Hauptzollamt Gronau [1989] ECR 2237, For a criticism of the Court's similar deference in
applying the principle of proportionality to another area of Community law, see Egger 'The Principle of
Proportionality in Community Anti-Dumping Law' 18 EL Rev (1993) 367 at 384: 'a major point of
criticism concerns the Court's persistent and constant refusal to narrow the limits of discretion of
Community institutions in anti-dumping matters',
Proportionality in Ee Law
119
third part of the test, making clear that he considered any financial harm
caused to the applicants to be readily justified having regard to the aim of
public health and consumer protection:
As regards proportionality in thenarrow sense, that is to say weighing thedamage
caused to individual rights against the benefits accruing to the general interest, it
should be stated that the maintenance ofpublic health must take precedence over
any other consideration. Once theCouncil had taken theview, in thecontext ofits
discretionary power, that it could not ignore the doubts felt by many Member
States, and a large proportion of public opinion, as to the harmlessness of these
substances, it was entitled to impose financial sacrifices onthepersons concerned. 24
The approach adopted in Fedesa and in many other cases involving
agricultural measures.!5 raises a certain presumption that in other areas
involving the exercise of discretionary power for which the Community
institutions bear 'political responsibilty' as under Article 40, the Court will
be deferential in its examination of the proportionality of the measure as
against an interest claimedby an applicant. In the case of Biovilac,26 it was
claimed that a CommissionRegulation,whichhad beenintended to prevent
skimmed milk powder, sold in accordance with earlier Community
measures, from being used as feed for piglets, was ineffective to achieve that
aim and had caused loss to the applicants. The Court, after looking at the
various measures concerned,held that it was clear that the Commissionhad
attempted to reconcile the aim of ensuring a fair standard of living for the
agricultural community with the aim of stabilizing markets. Accordingly,
even if the method chosen to achieve that aim proved later to be partially
ineffective, that would not alter the appraisal of the legality of the legislation
under Article 39ofthe Treaty 'sincethe legality ofa measurecan be adversely
affected only if the measure is manifestly unsuitable for achieving the aim
pursued by the competent Community institution'. Thus, on the first part of
the proportionality test, a discretionaryagricultural measurewouldonly fail
this 'ineffectiveness' hurdle if it was a 'manifestly unsuitable' method of
achieving its aim. However,it is apparent that the existence and exercise of
such discretionary power do not put the action of the Community
institutions effectively beyond review, and that the approach adopted by the
Court will depend on the nature of the applicant's interest and the specific
wayin whichit is affected, as well as on the exact nature of he Community's
interest in adopting the measure.
There have indeed beencasesin the agricultural sphere and in other areas
of discretionary Community power where the Court has been prepared to
declare measures disproportionate, even on the application of this less
rigorous test for proportionality. In such cases, the specific nature of the
applicant's interest and the impact of the Community measure on that
24
25
26
[1990] ECR 4023 at para 42 of his Opinion.
See the cases cited at n 23 above.
Case 59/83 Biovilac v EEC [1984] ECR 4057.
120
Grainne de Burca
interest led the Court to look more closely for justification, and to intervene
more readily to protect that interest. In a series of cases also in the
agricultural sphere but involving forfeiture of deposits (a quasi-penalty),
when contractual or other undertakings were not fulfilled, the Court of
Justice adopted a different approach. Where the sum forfeit was very large,
and the breach or non-fulfilment relatively trivial, then despite the discretion
conferred on the Community institutions in the agricultural sphere, the
Court has been readier to declare such rules disproportionate." 7 The aim or
objective served by such deposit systems is generally to ensure the smooth
functioning of Community agricultural schemes, and to ensure a degree of
commercial certainty in the attempt to regulate the market in particular
goods. The interest of the applicant affected is a clear and direct one-the
immediate loss of a considerable amount of money, somewhat similar in its
effect to a penalty or fine-and the task for the Court in applying the
proportionality principle is to see whether this adverse effect is justified in
relation to the aim of the measure. If the applicant's breach is not a serious
one, e.g. a slight delay or partial non-compliance rather than a complete
failure to undertake what was promised, then automatic forfeiture might not
seem 'appropriate', 'necessary', or the 'least restrictive' means to ensure the
effective working of the Community system. If, on the other hand, the test
applied by the Court was simply to see that the forfeiture was not a
manifestly inappropriate measure, then it would presumably have been less
likely to find the measure in various cases disproportionate.
(ii ) Atalanta
It is clear that the Court has not always applied such a deferential test, but
has found certain instances of forfeiture to be too severe." In the case of
Atalama.i? for example, the validity of various Community regulations was
questioned. By virtue of these regulations, certain deposits lodged by the
Atalanta company with a Dutch intervention agency, as security against the
company's non-performance of specific contractual obligations it had
undertaken, had been subject to forfeiture. The Court of Justice was asked to
consider the validity of a provision of one of the regulations which specified
that a security deposit lodged with the agency would be wholly forfeit if the
obligations imposed by the contract were not fulfilled. The Court ruled in
response that the absolute nature of the regulation was contrary to the
principle of proportionality, in that it did not permit the penalty for which it
provided to be made commensurate with the degree of failure to implement
the contractual obligations or with the seriousness of the breach of those
obligations.
27 See e.g. Case 122/78 Buitoni [1979] ECR 677 where forfeiture of an entire deposit, merely because of
a failure to observe the prescribed period for furnishing evidence of importation or exportation, would be
disproportionate. See also Case 181/84 R v lBAP ex p ED & F Man Ltd [1985] ECR 2889.
28 Many of these cases are discussed by Schwarze, supra n 2 at 727··47.
29 Case 240(78 Atalanta v Produktschap Voor Vee En Vlees [1979] ECR 2137.
Proportionality in Ee Law
121
(iii) Bela-Muhle
Further, in an earlier decision of the European Court concerning another
kind of agricultural measure, not involving forfeiture, it can be seen that the
Court was not so deferential in its consideration of proportionality as it was
in Fedesa. In Bela-Muhle 30 the Court was asked for a ruling on the validity
of a Council regulation on the compulsory purchase of skimmed-milk
powder. The measure was intended to reduce the considerable stocks of
skimmed-milk powder held in intervention, and it offered aid for the
purchase of certain animal-feed products, subject to the obligation to
purchase amounts of skimmed-milk powder which could be used in animalfeed products. The compulsory purchase of this powder, however, was
imposed at a price equal to about three times its value as animal feed. The
applicants-poultry producers who used animal feed---elaimed to have been
seriously affected by the resulting increase in the price of animal feed and
challenged the Council regulation on the ground that it infringed the
principle of non-discrimination between producers as well as the principle of
proportionality. The Court ruled that although the Treaty allowed for a
wide choice of such intervention measures in the setting out of the
Community's agricultural policy, Article 40(3) itself embodied the requirement of proportionality-that measures to be adopted should be 'required
to attain the objectives set out in Article 39' and that they should be limited
to the pursuit of such objectives. The Court concluded that the obligation 'to
purchase at such a disproportionate price' was not only discriminatory, but
it was 'not necessary' in order to obtain the objective of disposing of
skimmed-milk powder. In other words, although the measure pursued a
legitimate aim, its excessively severe effect in imposing such a heavy burden
of cost on the applicants and others went further than was necessary to
achieve this aim. Put in terms of the three-part proportionality test, a less
restrictive alternative-presumably in the form of a cheaper price-would
have been available to the Community institution.
Here then is an intervention by the Court, specifically on the ground of
proportionality, into an area in which the institutions have specifically been
given broad discretionary powers to regulate a varied and complex market.
As was suggested above, one of the objections to the expansion of judicial
review for proportionality is that it is seen as potentially giving courts a wide
power to intervene in decisions which are not suitable for reconsideration by
judicial process. It is clear that this objection or concern has been felt both by
the Court and by various Advocates General, so that when a decision of a
discretionary kind is found to be disproportionate, they are careful to try to
articulate clearly the structure of and limits to the proportionality inquiry.
Advocate General Capotorti in the Skimmed-milk case commented that the
Court had 'no power to evaluate the wisdom of choices of economic policy'
30
Case 114(76 Bela-Muhle v Grows Farm [1977] ECR 1211.
122
Grainne de Burca
made by the Commission or Council, in that it was not for the Court to say
whether 'the Council could have adopted a better provision'. Rather, he held
that the Court must evaluate whether there had been an infringement by the
institutions of the limits of their powers imposed by general principles such
as that of proportionality. 31
His comments display a concern of the Court and the Advocate General
that a clear distinction between the administrative or legislative task, and
that of the judicial body, appear to be maintained. But the distinction is not
easily maintained. Why is what the Court does in deeming the measure
disproportionate in the Skimmed-milk case something other than replacing
the Council's view with that of the Court? The Court itself would say its task
is different because it will not deem a measure disproportionate simply
because it would prefer another more efficient way of accomplishing that
aim, but because when weighed against that aim, the disadvantage to the
applicants commercial interests in the case was clearly excessive, and there
was a means of achieving the aim which was less burdensome. Of course,
even if this is a more 'structured' or 'constrained' review of the measure than
reviewing it simply on the grounds of preference for a different economic
policy, nevertheless the decision as to whether a disadvantage is excessive
will inevitably be an evaluative one.
In Fedesa, at any rate, the Court chose to apply a 'not manifestly
inappropriate' test and not to intervene in the discretion of the Council as to
whether or how to regulate certain hormonal substances. In Atalanta and
Bela-Muhle, on the other hand, the Court concluded that the severity ofthe
impact upon the interest ofthe applicant-the depositor and the animal-feed
purchaser respectively-was not justified having regard to the aim of the
challenged measure. In both cases, the Court appeared to be of the view that
the aim could have been achieved by a less restrictive means. It was not
prepared to ask this question in Fedesa, because the impact on the applicant
was not excessively severe when weighed against the Community's concern
for the protection of public health. Thus, in Fedesa, the decision taken was
based on legitimate public health concerns as against the applicants'
interests in marketing a possibly dangerous substance, whereas in BelaMuhle the me-ans used to achieve the aim of reducing surpluses of skimmed
milk (although an aim legitimately within the discretion of the Community
institutions) imposed an extremely heavy financial cost on one particular
group of agricultural producers as compared with other kinds of producers.
And in Atalanta too, the heavy financial loss imposed on the applicant for
relatively minor contractual non-compliance can more readily be viewed as
a disproportionately severe restriction, when considered in the light the aim
of the forfeiture system. In each of those cases, the applicant's interest was, in
one way or another, its financial position (the ability to trade competitively
in Bela-Muhle, and in Atalanta a specificsum of the applicant's money which
31
Ibid at 1226.
Proportionality in Ee Law
123
would now be forfeit) as against the Community's interest in the efficient
working of the Common Agricultural Policy, either through a deposit
system for ensuring commercial stability and certainty, or through the
reduction of surpluses by a compulsory-purchase requirement. The
Community measures seem in these two cases to have been more strictly
scrutinized by the Court than the regulation adopted in pursuit of public
health concerns in Fedesa, even though the adverse impact on the position of
the applicant companies in the latter case was arguably no less severe. In
Bela-Muhle the very high cost of the compulsory purchase of skimmed-milk
powder imposed a serious financial burden on the applicant; in Atalanta the
forfeiture of the plaintiff's deposit too was a severe response to a relatively
minor contractual breach; in Fedesa the adverse impact on the applicant
companies was the requirement that they should cease producing and
marketing a (presumably lucrative) product which had previously not been
regulated. Thus in all three cases, the financial interests of the applicants
were fairly seriously affected, yet the ban in the Fedesa case was accepted by
the Court on a 'not manifestly inappropriate' standard, apparently because
in view of the importance of the public health interest pursued by the
Community measure the Council could, within its discretion, legitimately
take the view that it was best to ban a substance over which there was a
divergence of scientific opinion and possibly a considerable degree of
consumer and public anxiety.
Thus the 'not manifestly inappropriate' test (which sounds similar to the
test of'Wednesbury unreasonableness' in domestic administrative law of the
United Kingdom) will not automatically be applied in a sphere of
Community discretionary powers, but will depend on the severity of the
impact on the applicant's interest when weighed against the importance of
the Community's interest. If the adverse impact is particularly severe, and
the aim of the Community is a clear and specific one, then the Court seems
prepared to examine whether there are alternative less restrictive means.
But, even where the impact is severe, if the Community's concern is a
pressing one and the applicant's interest is itself a possible threat to that
Community concern, the Court has shown itself to be prepared to accept the
institution's choice unless it is very obviously and clearly disproportionate in
its effect.
(iv) Wachauf
In Wachauf,32 a case which again involved a measure in the sphere of
agricultural regulation, the Court held the measure to be disproportionate in
its impact on a tenant farmer, since it interfered with the 'very substance' of
his right. The case illustrates how the degree and severity of the impact of a
measure on an applicant's interest will lead the Court to look more closely
for a strong justification for the measure, and to be prepared to deem it
32
Case 5/88 Wachaufv Germany (1989] ECR 2609.
124
Grainne de Burca
disproportionate in its impact even if the aim of regulating the market in a
particular area of agriculture is generally treated as one in which the
decision-maker should be left considerable freedom to choose the appropriate measures. In Wachauf, a tenant farmer had applied under German law
for compensation for discontinuing milk production. The German law,
based on a Council Regulation, provided that where the applicant was a
tenant farmer, compensation would only be granted if the applicant had the
written consent of the lessor. Wachauf was refused compensation since he
did not have this consent, and he challenged the refusal before the German
courts. The Court of Justice on an Article 177 reference held that a
Community rule which, upon the expiry of a lease, had the effectof depriving
the lessee, without compensation, of the fruits of his labour and of his
investments in the tenanted holding, would be a disproportionate and
intolerable interference with the tenant's right. It is interesting to note that
the Court did not declare the Council Regulation to be a disproportionate
interference with the tenant's livelihood, but rather ruled that a national
measure (in this case the German law implementing the Council scheme)
which had this effectwould constitute a disproportionate infringement. The
Court stated that the fundamental rights (such as, for example, the right to
property or the right to pursue a livelihood) which it recognized as part of
EC law were not absolute, and that restrictions could be imposed on them in
the light of their social function and the needs of the Common Market. But,
even though the regulation of milk production may be an objective in the
general interest of the Community, any measure adopted in pursuit of that
objective must, according to the Court, be an appropriate means of pursuing
the objective. And the Court clearly felt that the implementation of the
scheme against Wachauf amounted to a disproportionate interference by
impairing the essence ofthe farmer's rights-presumably by denying him the
benefits of any of his investments and work on the land.
So how then, did the Court conduct the proportionality inquiry in this
case, given the generally wide area of discretion in the context of Community
agricultural policy? Was the rule an example of a 'manifestly inappropriate'
method of achieving an agricultural policy aim? It is interesting to note that
the Court did not place responsibility for the disproportionate interference
on the Community institutions, but rather on the Member State for the way
in which it chose to implement the Regulation in question. It ruled that the
regulations left to the national authorities 'a sufficiently wide margin of
appreciation' to enable them to apply the Regulation consistently with the
protection of fundamental rights, either by giving the lessee the opportunity
of keeping all or part ofthe reference quantity ifhe intended to continue milk
production, or by compensating him if he undertook to abandon such
production definitively. Thus the national implementing rule seemed to fail
the second part ofthe proportionality test: it was not necessary to achieve its
aim, since there were alternative less restrictive options available. If the
impact on the tenant's right had been less severe, then the existence of less
Proportionality in EC Law
125
restrictive alternatives would not have rendered the measure disproportionate (this was seen in Fedesa where the Court of Justice was not concerned
with the fact that there may have been alternative options open to the
Council: it would only deem the measure disproportionate if it was
manifestly inappropriate). The severity of the impact of the rule in Wachauf
on the farmer's investment and labour apparently pushed it outside the
notional 'area of discretion', presumably making it a manifestly inappropriate measure. But it would also be interesting to see whether the Court
would have applied exactly the same analysis if the Community Regulation
itself had been responsible for the rule, rather than the German law. In other
words, is the Court possibly less reluctant to interfere when there is an 'area
of discretion' left to Member States than it is to interfere with the actions of
the Community in exercising its discretionary powers to carry out the aims
of the Treaty?33
In examining the approach of the European Court of Justice to reviewing
the acts of Member States for proportionality, it is to be noted that most of
the cases concern derogations from or exceptions to Community rules,
rather than the sort of situation in the Wachauf case where the State measure
was actually implementing a Community rule. Cases brought by the
Commission against the Member State under Article 169, and cases referred
from national courts to the Court of Justice under Article 177 frequently
concern the compatibility with EC law of national measures which restrict or
interfere with a Community interest. By contrast, when it considers
challenges to acts of the Community on the ground of proportionality, the
Court is generally being asked to review Community policy, to review
measures which purport to further the aims of the Treaty. Given this fact, it
might be assumed that the Court would be reluctant to presume too readily
that discretionary measures which implement Community policy are
disproportionate in their impact on other protected interests. On the other
hand, it might be expected that State measures which derogate from
Community rules, such as those requiring freedom of movement or the
abolition of sex-based discrimination, would be closely scrutinized by the
Court, since a central part of the Court's role is to ensure that the Member
States fully observe their obligations under the Treaty. In other words, it
might be expected that the Court would be more deferential in scrutinizing
Community measures for proportionality than it would be when considering
a similar challenge to a national rule. But given that many of the
justifications put forward by the States do indeed appear to embody political
choices in areas which Member States consider to be important matters of
predominantly national concern-s-national security, public health, public
expenditure-related concerns-s-it could equally be expected that the Court of
33 See Egger's comment on the contrast between the Court's approach to Community anti-dumping
measures and its approach to national measures in 18 EL Rev (1993) 367 at 386: 'as concerns national
measures, the Court examines very strictly whether they are in breach of the principle of proportionality
whereas the Court shows great restraint when dealing with anti-dumping measures',
126
Grainne de Burca
Justice would adopt a similarly deferential approach to their review for
proportionality, rather as it did in Fedesa where an important Community
concern was in issue. However, it will be seen that, just as in the case of
review of Community action, what determines the degree of scrutiny to
which the Court will subject a State measure is not solely the kind of national
interest invoked, but also the nature of the individual's Community right or
interest and the degree to which it has been affected by that measure. The
more severe the impact on the Community interest or aim, the lower the
degree of deference to the national measure which the Court will display,
even if the nature of the State's justification for that measure is one which
would generally lead the Court to respect the State's assessment of necessity.
B. ACTIONS AGAINST THE MEMBER STATES
Once the Court of Justice has established that a particular national rule
would constitute a restriction on the free movement of interstate trade,
contrary to Article 30 of the Treaty, the Member State may invoke one ofthe
grounds of derogation set out in Article 36, or one of the grounds of
justification-'mandatory requirements of the public interest'-developed
by the Court within Article 30 itself. In the context of free movement of
persons and services, the similar grounds of derogation are set out in Article
56 and in the case-law ofthe Court. It is clear from the grounds in Article 36
and 56 that they relate to areas of national policy which are primarily of
importance to the Member States, and which are not in themselves within
the scope of EC law except in so far as they touch on or restrict the
functioning of other areas of Community law. But the fact that some of these
may concern areas of national sensitivity where the Member States feel the
Community should have little or no role has not led the Court to treat these
derogations as non-reviewable, nor has it always shown undue deference to
the choice of the State in question. In fact, the approach of the Court has
been to say that the rules on freedom of movement etc. are fundamental
Community requirements, and that any purported derogation from them
will be strictly scrutinized in order to ensure that they do in fact pursue a
legitimate aim within the meaning of the Treaty, and that they are necessary
to achieve this aim.l" In terms of the proportionality test, this sounds like a
rigorous application of the rigorous 'no less restrictive means' inquiry.
However, it will be seen that, just as in the context of judicial review of the
proportionality of Community acts, the level of the Court's review and the
nature of its inquiry into the proportionality of a restrictive Member State
measure varies in the light of the specific circumstances of each case.
The basis of the approach to the proportionality test in every case is, as
was stated earlier, the articulation of the competing interests in the casethat underlying the Community rule on the one hand, and that of the
Member State in derogating, on the other hand. What should determine the
34
See e.g. Case 12/78 Eggers [1978] ECR 1935 at para 30.
Proportionality in EC Law
127
thoroughness with which the Court examines the State's justification, and
the possible existence of alternative measures, is the nature and respective
importance of each of the interests in question, and the severity ofthe impact
of the challenged measure on the adversely affected interest. Further, as
mentioned earlier, what tends also to affect the extent to which the European
Court of Justice is prepared to scrutinize the State's justification is the
broader division of competence within the Community structure. When
matters which are not expressly within the specific jurisdiction of the
Community are invoked by the State, the Court may wish to be careful not
to upset the possibly delicate balance of State/Community competence. And
often this is compounded by factors of a practical nature-that the Court of
Justice, not only because of the limits of any judicial inquiry into the
availability of alternative equally effective measures within a complex
political context, but also because of its distance from the Member State in
question and its relative ignorance of the needs and the functioning of that
State, may not be in a good position to judge the legitimacy of a State's aim
or the necessity for a particular national measure.
A selection of cases will be considered-some of which are very wellknown-where the European Court of Justice has been asked to review the
proportionality of restrictive national measures. The examination will focus
on cases dealing mainly with freedom of movement. 3 5 In some of these the
Court has been deferential in its inquiry, accepting the State's assessment of
the need for a restrictive measure without closer scrutiny, whereas in others
it has been more intrusive, questioning the necessity for a measure even
where it was adopted within a 'sensitive' area of national political concern.
This analysis should help to reveal whether the Court is consistent in its
approach, whether it articulates clearly the reasons for its laxer scrutiny
when it does not look too closely for alternatives, whether in fact the
proportionality inquiry is really capable of being structured in a way that
can prevent a court from becoming a substitute decision-maker, and which
can provide a framework within which the evaluations of the relative
importance of different identified interests can clearly be seen, appraised and
subject to criticism.
(i) Measures adopted on public morality and public policy grounds
One context in which the Court of Justice might understandably be reluctant
to intervene too readily is where a State invokes what it claims to be a
concern of national public policy or morality. It can be seen from various
cases that when the ground of derogation invoked by the State is an interest
on which there is a certain level of agreement or harmonization as between
35 Another fertile source of case-law is that on sex discrimination, since national measures which
indirectly discriminate on grounds of sex can be justified, so long as they comply with the principle of
proportionality. See F. Herbert, in Equality of Treatment between Women and Men in Social Security
(Butterworths 1994), and T. Hervey, Jusufications for Sex Discrimination in Employment (Butterworths
1993).
128
Grainne de Burca
the Member States, the Court of Justice is generally more confident in
examining the national measure to see whether it was really necessary to
protect this interest. The area of public health provides a good example of
this, where once there are international standards and scientific agreement
as to the danger or safety of particular products, the Court will be readier to
look closely to see was the national restrictive measure justified;" But the
area of public morality and public policy is clearly less scientific, less
susceptible to agreed standards than is that of public health. It is likely that
any degree of harmonization amongst the Member States in the public
policy or morality context will be minimal, that there will at best be
agreement on basic matters, leaving considerable divergence between the
Member States. In other words, different States will take a different view as
to what should be regulated or banned, and as to what will threaten its
particular concept of public morality. Its choice as to the nature of the
measures it wishes to adopt should not be interfered with simply because
there was another measure which a different State or a different court might
choose instead. But does this mean that the European Court always shows
deference to the opinion of a Member State that a restriction on Community
freedom of movement is necessary to protect its particular understanding of
public morality? It will be seen that although the Court has, in certain cases,
been reluctant to scrutinize the justification for a national measure of this
kind too closely, it has not automatically accepted 'public morality' as a
reason for reducing the level of its review for proportionality.
(a) Henn and Derby. In the well-known case of Henn and Derby,37 the
defendants had been charged with customs offences on the basis of having
imported Danish pornographic films into the United Kingdom. They
contended that United Kingdom laws on the prohibition of pornography
were in breach of the Article 36 grounds for derogation, in that there was
arbitrary discrimination between imports and domestic products. They
argued that the laws in different parts of the United Kingdom varied
considerably, and that the laws governing importation were actually stricter
than the laws governing possession of pornography within the United
Kingdom. On a reference to the European Court of Justice, the Court held
that the requirements of public morality in its own territory were, in
principle, 'for each Member State to determine in accordance with its own
scale of values and in the form selected by it', so that rules governing the
importation of pornography could fall within the scope of the exceptions in
Article 36.38 The Court decided that a Member State could have a unitary
36 Compare the similar idea of developing 'common European standards' in the case-law of the Court
of Human Rights, so that there will be common basic standards for the protection offundamental rights
on which the Member Slates agree. See R. SI. J. Macdonald, 'The Margin of Appreciation' in The
European Systemfor the Protection ofHuman Rights, Macdonald, Petzold and Matscher (Eds) (Martinus
Nijhoff 1993) 83 at 123.
37 Case 34/79 R v Henn and Derby [1979] ECR 3795.
38 Ibid, para 15.
Proportionality in EC Law
129
concept of public morality in respect of imports, without necessarily having
to ensure that laws are enforced identically within different parts ofthe State.
This did not, in the Court's view, amount to discrimination as between
imports and domestically produced goods, since there was in any case no
'lawful trade' in pornography within the United Kingdom.
It is clear that the Court of Justice was not prepared to be too stringent in
considering the proportionality of the restriction on imports. The Community interest in the free movement of goods was readily accepted as being
subject, under Article 36, to the State's decision to restrict or ban imports of
pornography. What is interesting is that the Court did not accept the
importers' argument that the import ban was arbitrary, in view of the
variable enforcement of obscenity laws within the United Kingdom which
were not as strict as the absolute ban on imports. Put in the language of
proportionality, this argument could be seen as an assertion that the
absolute ban on importing such pornography was not necessary for the
protection of public morality, given that possession of the same material
would not necessarily be unlawful within the United Kingdom. In other
words, the ban went further than the accepted legitimate State interest in
restricting obscene material required, since that State interest clearly (as
evidenced by the variable enforcement oflaws within the United Kingdom)
did not require the possession of pornography perse to be criminalized. The
European Court did not accept the argument, concluding that so long as
there was no lawful trade in pornography within the United Kingdom, the
State was entitled to ban imports even if the same standard was not
uniformly applied within the United Kingdom. It seems that the Court did
not wish to question the policy of the United Kingdom on pornography any
further, especially in view of the fact that different Member States took very
different approaches to the issue of pornography. Advocate General Warner
was more explicit in applying the proportionality test in his opinion, holding
that any discrimination inherent in the restriction on imports was
'reasonable' and not disproportionate to its purpose which could include, he
thought, the avoidance by the State of ,any excessiveadministrative burdens
or public expenditure'.
(b) Van Duyn. In the area of free movement of persons too, in the earlier
case of Van Duyn,39 the European Court of Justice had displayed a similar
readiness to respect the view of the United Kingdom as to what was required
in the interests of 'public policy'. In that case the Court accepted that EC
nationals availing of the Treaty provisions on free movement of workers
could be excluded from the United Kingdom on grounds of public policy.
The specific reason for their exclusion was that they belonged to the Church
of Scientology, which was officially considered to be socially harmful,
although no legal restrictions were placed on British nationals wishing to
become members or employees of that organization. In the Henn and Derby
39
Case 41/74 Van Duyn v Home Office [1974] ECR 1337.
130
Grainne de Burca
and Van Duyn cases, even though the impact on the Community rule on
freedom of movement was stark, being a ban on imports in one case and a
ban on entry of non-nationals into the United Kingdom in the other the fact
that different Member States would have entirely different concepts of public
policy or morality, may have led the Court to be cautious in examining the
proportionality ofthe national measures. The fact that the measures seemed
to go beyond what was required by that admittedly legitimate State aim
(given that comparable restrictions were not imposed on the disapproved
conduct within the United Kingdom) was not sufficient to render them
disproportionate. In other words, something along the lines of a 'not
unreasonable' test was imposed. In cases subsequent to these two, however,
the Court showed itself to be more willing to look closely at the necessity for
the national measure even where the ground was one relating to a national
conception of public morality or public policy.
t
( c) Adoui and Cornaille. In Adoui and Cornaille, 40 the Court shifted from
the more lenient approach it had adopted in Van Duyn, and did not accept
that since Member States could legitimately consider prostitution to be
against the interests of national public policy, they were entitled to adopt
stricter measures against non-nationals than against nationals in the
attempt to further the interests of public policy. In this case the Court
questioned whether the national measure restricting non-nationals could
really be necessary in pursuit of a sufficiently pressing public interest if no
steps were taken against nationals engaging in exactly the same activities
which would threaten that allegedly pressing national interest. The
applicants in Adoui had been refused permits to enter and reside in Belgium,
on the ground that their conduct was contrary to public policy since they
were waitresses 'in a bar which was suspect from the point of viewofmorals'.
Belgian law prohibited keeping a brothel, soliciting, and other activities
related to prostitution, but it did not prohibit prostitution itself. On a
reference to the European Court, one of the questions was whether a State
could deny access to a national of another Member State by reason of
activities which, when engaged in by the former State's own nationals, did
not give rise to repressive measures. Putting this question within the
proportionality framework-s-could a refusal to admit prostitutes from other
Member States be justified in the interests of public policy (presumably the
prevention of prostitution) when no repressive action was taken against
Belgian nationals who were suspected of being prostitutes? Could the ban be
necessary or appropriate to achieve that aim, if no repressive action was
thought necessary to be taken against nationals engaged in the same
activities? The Court ruled that a public policy ground for a derogation
under Article 56, as implemented by Council Directive 64/221, would have
to be a very strong one, which presupposed 'the existence of a genuine and
40 Cases 115 and 116/81 Adoui a'ld Cornaille v Belgium [1982] ECR 1665. See Hall 'The ECHR and
public policy exceptions to the free movement of workers under the EEC Treaty' 16 EL Rev (1991) 466.
Proportionality in Ee Law
131
sufficiently serious threat affecting one of the fundamental interests of
society'."! But this time, although the Court acknowledged the fact that
different Member States would have legitimately different views as to what
was conduct contrary to public policy, it ruled that the public policy ground
could not be sufficiently serious if it did not also require the adoption of
measures against the State's own nationals in respect of that conduct.
(d) Conegate. And subsequently, in the case of Coneqate/" the Court
similarly moved from its stance in Henn and Derby and held that a
prohibition on the importation of obscene objects could not be justified on
public morality grounds unless penal or other serious measures were taken
with respect to the same goods manufactured or marketed within the
Member State.
The Court's attitude in Conegate and Adoui raises the question whether in
fact it considered not just that the measures, in terms of their impact on the
Community freedom, went beyond what was necessary to achieve the stated
public policy aim, but that in fact the Court was questioning whether the
legitimate aim pleaded by the Member States in those cases was not the real
reason for adopting the impugned measures. In other words, the Court may
either have doubted that a total ban on imports or refusal of entry to nonnationals suspected of prostitution was necessary to achieve the State's aim,
or it may have doubted whether the eradication of pornography or
prostitution was the real aim of the State. The cases could also be seen to
contain the suggestion that the aim of the Member States was actually to
prohibit non-nationals from engaging in prostitution, and not really just to
prohibit prostitution; or to ban imported pornography, rather than to
attempt to ban all pornography, domestic and imported.f' It will be seen
from looking at other cases that there may often be an overlap between these
two parts of the proportionality test: if the Court concludes that a measure
seems to have gone beyond what would have sufficed to achieve its
purported legitimate aim, it may be that the Court suspects that that was not
in fact the primary aim of the legislation at all. This can often be seen in free
movement of goods cases, where a Member State claims that a restrictive
marketing rule is intended for the protection of consumers, and the Court
responds by pointing out a less restrictive and equally effective means of
protecting consumers. There may be a suggestion in some of these cases
where the Court of Justice is prepared to use a strict 'no less restrictive
means' inquiry, that the State was not primarily acting to protect consumers,
.1 See also Cases 36/75 Rutili [1975] ECR 1219.48/75 Royer [1976] ECR 497, 30/77 Bouchereau
[1977] ECR 1999,265/88 Messner [1989] ECR 4209.
• 2 Case 121/85 Conegate Ltd v HM Customs and Excise [1986] ECR 1007.
• 3 Contrast in recentcasesthe considerablymoreacceptingattitude oftheCourt ofJusticeto domestic
lawsregulatingpornography wherethereis no suggestionofdiscriminationagainst imports. Rather than
examiningthemas rulesrestrictingthe freemovementofgoods in the interestsofpublicpolicy,the Court
has held that theyfalloutside the scopeof Art 30altogether,so that it has nojursidiction to review them.
See Cases C-23/89 Quietlynn v Southend BC [1990] ECR 1-3059 and C-350/89 Sheptonhurs: Ltd v
Newham BC [1991] ECR 1-2387.
132
Grainne de Burca
but to retain a marketing advantage which domestically produced goods
have on the domestic market or from some other partly protectionist
motive.t" In other words, the State was not pursuing a legitimate aim, under
the first part of the proportionality test.
Thus it can be seen that despite its earlier case-law, and despite the fact
that the aim or interest invoked by the Member State appears to be a
sensitive one of peculiarly national concern, such as domestic public
morality, this will not automatically lead to the Court of Justice applying a
loose proportionality test such at the 'not manifestly inappropriate'
standard used in Fedesa. Not only is the impact of the measure on the
Community rule or interest relevant in deciding how closely the Court will
examine the State's justification, but the Court will also be careful to ensure
that the national interest claimed by the State is in fact the primary interest
being pursued by this measure. If the Court considers that it is not, then
despite the fact that it may not be well placed to consider what a particular
State's concept of public morality actually requires, it can assess whether the
measure under challenge really was designed to further that legitimate public
morality concern in an even-handed way.
(ii) National security
A second area which might be considered to be of primarily national
concern, and into which close scrutiny by a national court, let alone the
European Court of Justice, would be unwelcome to the State, is that of
national security. Despite the provision of the Treaty on European Union
for a common foreign and security policy, it is unlikely that there will be any
great degree of harmonization of national security concerns for some time;"
Courts are generally deferential in their review of national security
measures, partly because the area is seen to be one of considerable political
importance in respect of which a judicial body is not well placed to consider
available alternatives to the measure chosen. This is partly a matter of
knowledge and expertise, i.e. competence, and partly a matter of political
responsibility. From the point of view of competence, a court does not have
all of the necessary information and time available to it which the decisionmaker does nor does it have experience of the needs of national security.
Much of the information available to the political branches may be
confidential, and decisions on national security might have to be made at
short notice, or involve possibly complex judgments in respect of which the
44 Contrast, for example, two cases where the Court considered the proportionality of State measures
restricting the free movement of workers or services on grounds relating to national cultural
requirements: Cases 379/87 Groener [1989] ECR 3967 concerning national linguistic requirements for
certain teaching posts, and C·154/89 Commission v Italy [1991] ECR 1-709 concerning tour guide
licensing.
45 Although part of the Treaty on European Union now provides for the establishment of a common
foreign and security policy, any matter on which joint action is to take place must be agreed by all of the
Member States within the European Council before any act can be adopted by the Council of the EC. The
Member States appear to retain competence in matters of foreign and security policy which are not of
general interest to all of the States.
Proportionality in EC Law
133
arguments for and against may be fairly evenly balanced. It is not so
surprising that a court, and in particular the European Court of Justice,
when considering a challenge to a national measure adopted on the ground
of public security, would be deferential in examining whether the measure
was necessary and not excessive in relation to its aim. In other words, it
might be thought that the Court would largely accept the State's own
assessment as to the necessity and appropriateness of the challenged
measure.
However, as in the case of other measures which are justified by the State
on grounds of sensitive national public policy or morality, the nature of the
State's interest of itself does not exclude review by the Court of Justice, nor
does it necessarily result in the Court showing a considerable degree of
deference to the State's choice. Once again, the nature of the interest of the
applicant which has been infringed by the measure, and the severity of the
infringement will be taken into account by the Court in deciding how closely
it will examine the purported justification for the measure.
(a) Campus Oil. Although the Court has not often had occasion to consider
claims relating to national security, the issue has occasionally arisen in the
area of restrictions on the free movement of goods. In the Campus Oil4 6 case
the European Court ruled that an Irish law, which required importers of oil
to purchase a certain amount of their needs from a refinery in Ireland at
prices fixed according to the costs of operating that refinery, could be
justified on the ground of public security under Article 36. The case is
interesting partly because what is put forward as a public security
justification seems equally to be based on economic concerns, whereas the
Court has ruled that the Article 36 grounds for justifying restrictions on the
free movement of goods cannot be invoked to service economic ends. The
competing interests in the case were, on the one hand, the interest of the
Community in free movement of interstate trade and that of petroleum
importers in being able to buy imported oil without restriction; and on the
other hand the interest of the State in ensuring the survival of the domestic
oil refinery. The method by which the State chose to do so was to impose a
specific purchasing obligation on importers, presumably at a higher cost
than they would be able to secure by buying imports only.
The Court accepted that the security interest pleaded by the Irish State
could be a pressing one, stating that an interruption in a country's supplies of
petroleum products could have very serious consequences, and that the
operation of a refinery could indeed be a measure of protection for a State's
security in the event of an oil crisis."? Thus, in the Court's view, the aim of
ensuring a minimum supply of petroleum products at all times was more
than a purely economic concern and was capable of constituting a public
Case 72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727.
See S. Weatherill and P. Beaumont, EC Law (penguin, 1993) at 404 for a suggestion that this
lenient attitude towards the concept of public security in the case may have been due to a gap in the
development of the Community's energy policy.
46
41
134
Grainne de Burca
security objective within Article 36. This case clearly shows a rather
generous interpretation by the Court of what constitutes a public security
aim, when clearly the measure was as much or more motivated by economic
concerns, which could not be invoked by the State under Article 36. Having
isolated the 'legitimate aim' of the measure (the first part of the
proportionality inquiry), the Court went on to the second stage of inquiry to
ensure that the restrictive measure was no more than was 'necessary' to
achieve that legitimate aim. To apply the 'no less restrictive means' test to a
national security measure seems to imply that the Court was prepared to
look to see what alternative ways the State might have had of ensuring a
continuation of domestic oil supplies. Clearly this could have involved an
inquiry that would be beyond the competence of a court with limited factual
findings before it and little or no knowledge of the Member State market in
question. But the Court did not simply defer to the State's opinion that this
was in fact the least restrictive means and was no more than was necessary to
ensure the national security objective. Instead of conducting a hypothetical
inquiry into other possibilities at the national level, what the Court did was
to lay down certain conditions which, if satisfied, would ensure that the
national purchasing requirement was not excessive in relation to its aim of
ensuring a continuous supply of oil. The conditions imposed by the Court
were that the requirement would be no more than was necessary to ensure a
minimum supply of petroleum products at all times. These conditions were,
for example, that it was not possible to market the refinery's products freely,
and that the quantities required to be purchased by importers should not
exceed the minimum supply requirements of the State without which the
operation of its essential public services and the survival of its inhabitants
would be affected.f"
(b) Richardt. An even clearer application of the proportionality test to a
national measure for which the State invoked the public security derogation
can be seen in the case of Richardt. 4 9 The case concerned the director of a
French company who had made a contract with the Soviet central
purchasing agency for the supply of certain scientific equipment, part of
which was imported from the United States into France. The company had
then obtained French authorization for its export and transport to the
Soviet Union, but due to the cancellation of a flight from France it was
transported to Luxembourg to fly from there instead. The Luxembourg
authorities inspected the goods and decided that the Community transit
48 Contrast the ruling in Case 347/88Commission v Greece [1990] ECR 4747. It is also interesting that
Advocate General Slynn in Campus Oil was sceptical about the public security justification advanced,
and would have required further enquiries and details before concluding tbat the Irish measure was in fact
justified. But despite this, he would have left it ultimately to the national court to determine whether the
price and purchasing requirements were necessary and proportionate. This was apparently because of the
inadequacy ofthe information on the order which the national court had referred to the Court of Justice,
but it may also reflect a reluctance to interfere with the assessment of the Irish Government on the issue
which was clearly of national political importance.
49 Case C·367/89 Richardt [1991] ECR 1-4621.
Proportionality in EC Law
135
declarations-the Tl certificate-accompanying them were inaccurate, and
that they had been completed only to conceal the real nature of the machine
so as to allow its transit to the Soviet Union in breach of Luxembourg law.
The goods were confiscated, and when the confiscation was challenged, the
European Court of Justice was asked under Article 177 whether EC law
required a Member State to recognize a Community transit document
without reservation, or whether the State could require special permission,
on grounds of external security, for goods considered to be strategic
equipment.
The Court of Justice held that Article 36 did in fact also apply to goods in
transit, and that both the requirement of authorization and the confiscation
measure should be examined within the context of this Article. In the Court's
view, the importation, exportation, and transit of goods capable of being
used for strategic purposes could effect the public security of a Member
State, so that it was entitled to invoke Article 36 to protect its legitimate
interest. In order to verifythe nature of goods described as strategic material,
the States could, it held, subject the transit of such goods to the grant of a
special authorization. So the authorization requirement would not be
disproportionate if no other less restrictive means of ascertaining the nature
of the goods was available-the impact of the requirement on the
Community's interest in free movement of goods and on the company's
interest in unrestricted transit was not excessive in view of the security
concern over 'strategic' goods. However, with regard to the second part of
the national measure, namely the confiscation of the goods in question, the
Court took a stricter view. It held that seizure or confiscation could be
regarded as disproportionate if the return of the goods to the Member State
from which they had come would be sufficient to satisfy the State's interest.
This question of whether any particular instance of confiscation went
beyond what was necessary and thus was disproportionate would,
according to the European Court of Justice, be for the national court to
decide. Thus the factual question of the necessity and proportionality of the
penalty for breach of the authorization requirement would be for the
national court, within the guidelines set by the Court of Justice, taking into
account such factors as the nature ofthe goods and whether or not there was
bad faith on the part of the transporter. This again (as in Campus Oil)
suggests a recognition by the Court of Justice that it will not, in many cases,
be the appropriate institution to decide the factual question of the
proportionality of national measures in specific instances, where the
national court has more information about the particular factual circumstances of the case. It does not, however, necessarily indicate deference on
the part of the European Court to the Member State that the Court referred
the proportionality question to the national court, since the guidance given
by the Court of Justice as to what the national court should take into
account in considering this question strongly suggests what the conclusion
of the European Court on the matter would be in those circumstances.
136
Grainne de Burca
What is evident from the ruling in Richardt is that although the State had
invoked a public security concern, to which it might be expected that the
Court of Justice would be deferential, an automatic penalty of confiscation
for any breach of the authorization requirement would probably be deemed
disproportionate. This, presumably, was because such a measure would
interfere in a specificand draconian way with the legally recognized interests
(i.e. the property) of an individual, when a less restrictive measure could
suffice to achieve the same aim. It is clear that the penal nature of the
confiscation, as compared with the requirement of authorization, caused the
Court to question the necessity for the measure more closely-to apply the
proportionality test somewhat more rigorously. This feature was also to be
seen in the case of Atalanta,50 where despite the usual deference shown by
the Court to the Community institutions in agricultural matters, it was
nevertheless prepared to look more closely at a measure of a penal kind, and
so to rule that the forfeiture of an agricultural deposit was disproportionate.
Similarly in Richardt, the confiscation of military equipment, although
pleaded to be in the interests of State security, was considered by the Court of
Justice to be a potentially disproportionate response to the national security
concern involved. Hence, although public interests of primarily national
concern in areas often requiring a degree of specialized knowledge and
experience, as well as the exercise of political discretion are, in principle,
treated with deference by the Court, nevertheless where the measure is
concerned not so much with setting out the policy or the kind of restriction
needed, but with penalizing breaches of that policy or rule, then the Court
seems prepared to intervene more readily and to declare the penalty to be
excessive. Deciding on the proportionality of penal measures is a task which
is generally accepted as an appropriate one for the judicial process, since it
does not usually involve a discretionary choice amongst alternative policy
options, but rather an individual decision in a particular set of
circumstances. 5 1 Thus the Court held in Richardt that the actual
requirement of obtaining special national authorization for strategic goods
in transit through the Community was justified, and it has found
Community licensing schemes to be acceptable even though they restrict
trading freedom, for example by making export-licence grants conditional
upon the export being undertaken for a specific amount and by a specific
date only. Challenges to such policies will generally result in the application
by the Court of the 'not manifestly inappropriate' test, whereas if the
challenge is made to that part of the measure which penalizes an applicant
for breaching the restriction (e.g. for not exporting by the relevant date or for
not obtaining the relevant authorization) then the Court seems to apply the
proportionality test more rigorously, without considering that it is intruding
excessively into the legislative or administrative domain.
30
51
See supra 120.
See also Cases 118/75 Watson & Belmann [1976] ECR 1185 and 265/88 Messner [1989] ECR 4209.
Proportionality in Ee Law
137
(iii) Public health
It has been seen in the Fedesa case 52 that, when the European Court of
Justice was considering the proportionality of a Community measure
adopted in pursuit of the protection of public health, it displayed a degree of
deference to the Community's assessment of the necessity for that measure.
But does the Court show a similar deference, or reluctance to scrutinize too
closely when it is asked to consider State rather than Community measures
which restrict individual and European Community interests on the
grounds of public health? How strictly is the proportionality requirement
applied in cases involving national health issues?
It appears from certain case-law that when the State's derogation is based
on a concern that relates partly to the protection of public health and partly
to a broader public policy issue, the Court of Justice does defer more readily
in accepting the State's assessment of the necessity for the measure. An
example of such a 'mixed' ground for justifying restrictive national measures
can be seen in the Pharmaceutical Society'?" case, where the preservation of
the position of the medical profession vis-a-vis the pharmaceutical
profession was as much the aim of the national measure as the protection of
public health. 53 Similarly, when a national measure which substantially
affects the importation of certain medical products concerns a choice
relating to the organization and financing of a national health service, the
Court of Justice has taken a hands-off approach.P" But when national
measures are based on public health concerns alone, and not also on such
other public policy considerations, does the Court adopt a more searching
inquiry into the proportionality of a national rule which substantially
restricts the Community's interest in free movement of trade?
Different views have been expressed on this question, with Schwarze
arguing that the Court has in fact been deferential in its review.P" whilst a
former Advocate General and Judge of the Court has suggested that, in some
of its case-law, the Court has not in fact given very much weight to the public
health concerns of Member States. 56 Certainly it is clear from many of the
cases that the Court, while allowing Member States to adopt restrictive
measures for the protection of public health, has consistently required that
they do not go beyond what is necessary-such as stating, for example, that
See supra 107.
Case 266/87 R v Royal Pharmaceutical Society of GB, ex parte Association of Pharmaceutical
Importers [1989] ECR 1295.
5J See also the recent ruling on advertising outside pharmacies: Case C-292/92 Hiinermund, [1993]
ECR 1-6787. Here the measure was actually deemed to be outside the scope of Art 30 of the Treaty.
54 Again, it has done this by deeming the national measure to fall outside the scope of Art 30 in the first
place, without having to subject it to any proportionality inquiry at all. See Case 238/82 Duphar v
Netherlands [1984] EeR 523.
55 Schwarze, supra n 2 at 790.
56 See Slynn 'The concept of free movement of goods and the reservation for national action under
Article 36 EEC' in Discretionary Powers of the Member States in the Field of Economic Policies and their
limitsunder the EEC Treaty Schwarze (Ed) (Nomos. Baden-Baden 1988).
52
52.
138
Grainne de Burca
the States must not duplicate nor impose excessive inspection requirements,
nor charge any more for them than their actual cost. Again, as was suggested
earlier of the public policy/morality cases of Adoui'" and Conegate,58 it may
be that the Court is keen to ensure not just that national restrictive measures
do not have adverse effects beyond what their aim requires, but also to
ensure that their aim really is the protection of public health rather than the
preservation of an advantage for domestic goods or some other protectionist
policy.
Schwarze, however, citing cases such as Sandoz and Melkunie,59 argues
that the Court of Justice has allowed the Member States a wide 'margin of
discretion' in relation to derogations on grounds of public health. These
cases involved a national restriction or ban on the use of certain vitamins or
bacteria, at a time when there was scientific uncertainty about their benefits
or harmful effects. In this context, the European Court of Justice held that
Member States could determine the level of protection for public health
which they wished to ensure. One possible difference, in this regard, between
the public policy and public morality grounds of exception and the public
health exception is that the so-called margin of discretion left to the States is
likely to diminish in the public health context as health standards are
increasingly harmonized.r'' not just within the Community but also on an
international level. In the case of public policy and morality, as the Court
acknowledged in Henn and Derby." there is likely to be a considerable
divergence between what is acceptable in different Member States,
depending, amongst other things, on different historical and cultural
traditions; whereas the progress of scientific research and developments in
health care are likely to be of uniform concern and relevance in all Member
States, so that the greater the level of harmonization, the narrower the area
of discretion of the States/" and the more rigorously the test for
proportionality can be applied to restrictive measures/"
(a) German Beer case. Slynn, however, refers critically to decisions such as
the German Beer case,64 where the Court considered certain national
measures to be disproportionate, even though they apparently reflected the
concerns of the Member State over the adverse effects on the public health of
combinations of additives and other substances in respect of which there
See supra 130.
See supra 131.
59 Cases 174/82 Sandoz [1983] ECR 2445 and 97/83 CMC Melkunie [1984] ECR 2367.
60 Seee.g. Cases 28/84 Commission v Germany [1985] ECR 3097,215/87 Schumacher [1989] ECR 617,
C-347/89 Freistaat Bayern v Eurin-Pharm [1991] ECR 1747and Cases C-277,C-318,and C-319/91 Ligur
Carni [1993] ECR 1-6621.
61 See supra 128.
62 See supra n 36, on the similar concept of the developmenl of common standards of protection for
human rights under the Convention on Human Rights.
63 The Court did suggest in Case 94/83 Heijn [1984] ECR 3263, at para 16 that where Community
rules did not cover a particular matter, health concerns might vary from Slate 10 State depending on
conditions of climate, as well as diet, and health of the population.
64 Case 178/84 Commission v Germany [1987] ECR 1227.
57
58
Proportionality in Ee Law
139
were, as yet, no conclusive scientific findings. In the German Beer case, the
Commission brought an enforcement action against Germany, claiming
that its prohibition on the marketing of beer which was lawfully
manufactured and marketed in other Member States, unless that beer
complied with the requirements of the German law on beer duty, was in
breach of Article 30 of the Treaty. The German law provided that only
certain ingredients could be used in the manufacture of beer, and that only
beers manufactured in conformity with the provisions of that law could be
marketed under the name 'bier'. Further, the marketing in Germany of beer
which contained additives was absolutely prohibited. Germany argued in
response to the Commission that the rules were justified under Article 36
since they were vital in order to safeguard public health, and that they were
also necessary in the interests of consumer protection, a 'mandatory
requirement' which had been recognized by the Court in earlier case-law.
The interests in issue in the case then were firstly, the Community's
interest in ensuring the free movement of goods between Member States, and
Germany's interest in protecting public health and protecting consumers.
How were these to be balanced within the proportionality inquiry? With
regard to the restriction of the usage of 'bier', Germany argued that this was
indeed necessary for the protection of consumers, since the designation 'bier'
was inseparably linked in their minds to the beverage manufactured using
the ingredients required by German law. But the Court applied the criterion
of proportionality strictly, saying that 'if the Member State has a choice
between various measures to attain the same objective it should choose the
means which least restricts the free movement of goods'. This 'least
restrictive means' part of the proportionality test is often used by the Court
in the field of free movement of goods when a national measure has the effect
of completely excluding products lawfully marketed in other Member States
from the market of the State in question. In other words, since the impact on
the Community interest is quite severe, the Court requires a stronger
justification from the State. It seems that the Court felt that the aim of
protecting consumers of beer was not one which required a substantial area
of discretion to be left to the State in making a choice of policy, since it was
not satisfied with the identification of an apparently 'legitimate aim', and it
went further than checking whether the rule was 'not manifestly inappropriate'. What it required was a demonstration that no less restrictive way of
pursuing that aim was possible. The Court was clearly neither convinced of
the genuineness of the aim, nor of the necessity for the German rule even if
the aim was a legitimate one. It noted that consumers' conceptions
(presumably of what constitutes a good 'bier') were likely to evolve over time
within a Member State, and that the establishment of the Common Market
was one of the factors which could contribute to that development. But in
any case, the Court indicated that even though it was legitimate to enable
consumers when choosing beer to make their choice in the light of the
specific qualities of different beers, if that really were the objective it could be
140
Grainne de Burca
satisfied by the compulsory affixing of suitable labels indicating the nature
and composition of the product sold.
As to the perhaps stronger ground of justification pleaded by Germany,
the 'protection of public health' ground within Article 36, the Commission
argued that this could not justify an absolute ban on the marketing of any
beers containing additives, since the fact that they were lawfully manufactured and marketed in other Member States was evidence that they did not
constitute a danger to public health. The onus, it argued, would thus be on
Germany to prove that such beers were in fact a danger to health. Germany,
on the other hand, argued that the ban was fullyjustified on the ground of
public health and did not infringe the principle of proportionality. It claimed
that in view of the dangers resulting from the use of additives whose longterm effects were not known, especially as regards their interaction with
other substances, it was necessary to minimize the quantity of additives
consumed, and a ban on additives in beer was particularly desirable given
the large quantities consumed in Germany.
The Court in its response referred to a series of earlier cases/" in which it
had held that EC law did not preclude the adoption by Member States of
legislation subjecting the use of additives to prior authorization, so as to
restrict the uncontrolled consumption of food additives, which was a
legitimate health policy aim. But having begun by setting out its ruling that
'in so far as there are inconsistencies at the present state of scientific research
it is for the Member States, in the absence of harmonization, to decide what
degree of protection of the health and life of humans they intend to assure,
having regard to the requirements of the free movement of goods', the Court
of Justice then proceeded to apply the strict second part of the proportionality test-the 'no less restrictive means' inquiry-to the German ban. The
Member States' competence to prohibit a specific additive on grounds of
public health, it ruled, would not apply once the additive in question was
found by international scientific research-in particular by certain research
bodies approved by the Court 6 5a-not to present a risk to public health but
also to meet a real need, such as a technological need suited to a particular
method of manufacture.
It seems then that the blanket nature of the German ban-applying to all
additives and not just to those in respect of which there was a risk to public
health-and the absence of any less absolute procedure by which traders
could apply for authorization for the use of a specificadditive--eonstituted a
substantial restriction on the Community's interest in freedom of interstate
trade. Presumably on account of this, and despite the fact that Member
States have a strong and legitimate interest in adopting measures to protect
public health, the Court applied a strict proportionality test and inquired
6~ Cases 174/82 Sandoz [1983] ECR 2445, 247/84 Motte [1985] ECR 3887,304/84 Muller [1986]
ECR 1511.
6~. These were the Community's Scientific Committee for Food, the Codex Alimentarius Committee
of the Food and Agriculture Organisation of the United Nations, and the World Health Organisation.
Proportionality in Ee Law
141
thoroughly into the proportionality of the ban and the availability of
alternatives. Again, of course, there may be a suspicion that the Court did
not believe that the only interest was a public health one, and that it also
suspected a certain element of protectionismr'"
It must be emphasized that mere reference to the fact that beer can be manufactured
without additives ifit is made from only the raw materials prescribed in the Federal
Republic of Germany does not sufficeto preclude the possibility that some additives
may meet a technological need. Such an interpretation of the concept of
technological need, which results in favouring national production methods,
constitutes a disguised means of restricting trade between Member States.
It is interesting, in the light of the critical comments made by Slynn, to
contrast this case with the rather similar context of the Fedesa case.?" where
the challenge to a ban on the use of certain substances on grounds of public
health protection was made against a Community measure rather than
against a Member State. It will be recalled that the proportionality test
applied in Fedesa was a deferential one, asking only whether the Community
measure was manifestly inappropriate, whereas the inquiry in the German
Beer case was a strict one, requiring that there be no less restrictive means of
protecting public health from potentially harmful additives in beer. Does
this indicate that the Court will exercise greater deference in considering the
proportionality of Community action in exercising its discretionary powers
to regulate the market in agriculture, than it will in considering the exercise
by Member States of their powers of regulation of the domestic market, even
in the context of public health? Or was the Court prepared to accept the
Community measure in Fedesa since it banned only certain hormonal
substances over which there was doubt, rather than imposing an outright
ban on the use of all hormonal substances, as was the case with the German
law prohibiting additives in beer? The Court did not specify (as the
Commission did) whether, if Germany adopted a system for authorizing the
use of certain internationally approved additives, the onus should be on
Germany to prove that there was a risk to public health from particular
substances or on the applicant to prove that there was no risk. Clearly the
Court permitted the Community institutions in Fedesa to ban substances
when there was conflicting evidence as to their safety, etc. It is not clear from
the German Beer case that the Member States are given the same leeway
when there is no conclusive scientific evidence. As Slynn points out,
Germany was not claiming that all additives were necessarily harmful, but
that the effects of additives in conjunction with other substances such as
alcohol were not fully known, and it had chosen to err on the side of caution
by banning their use altogether.
(b) Aragonesa. In cases concerning national measures restricting certain
kinds of sales promotion and advertising on grounds of public health,
66
67
See at para 51 of its judgment.
See supra 117.
142
Grainne de Burca
however, the Court has been more lenient in examining their proportionality
than it has been in cases concerning substantive restrictions on the content
or method of manufacture of particular products. In A ragonesa,68 the Court
was asked to consider the compatibility with Article 30 of fines which had
been imposed on a company for breaching a Catalan regulation prohibiting
the advertisement in certain places of drinks above a specific alcoholic
strength. The Court accepted that a ban on advertisement as a measure
intended to combat alcoholism did reflect public health concerns within the
meaning of Article 36. In concluding that the ban appeared to be
proportionate to this aim, the Court applied the 'not manifestly unreasonable' test, essentially the same as the 'not manifestly inappropriate' test used
in Fedesa. The reason for the more deferential test seemsto be that the degree
of interference with the Community interest was slight-the Court
mentioned the fact that the measure covered only drinks with an alcoholic
strength of over twenty-three per cent, and prohibited advertising only in
places such as on highways and in cinemas-and that the aim of
discouraging young people and drivers from excessive alcohol was a
particularly important and specific one.
It seems then, that even had the Court chosen to use a more rigorous
proportionality test of whether the measure went beyond what was
necessary to achieve its aim, that test would have been satisfied. But in view
of the minimal impact on the Community interest and the strong competing
national interest in a campaign against alcoholism, the Court chose in any
case to apply a laxer standard of scrutiny to the measure.
( c) Royal Pharmaceutical Society. A similar degree of deference can be seen
in other cases which relate to a national public health interest, this time not
necessarily in cases where the impact on the Community interest is slight,
but rather in cases where the aim of the national measure is only partly the
protection of public health, and partly concerns another public policy
objective. In the Royal Pharmaceutical Society case,69 the British professional body responsible for pharmacy adopted a rule which required a
pharmacist, in fillinga prescription which called for a medical product by its
trade name, to dispense only a product bearing that trademark or
proprietary name. It was argued that this constituted a breach of Article 30
since it had a restrictive effect on the import of parallel pharmaceutical
products, i.e. on identical products produced by the same manufacturer or
by a licenseeof that manufacturer, but imported from another Member State
where a different trademark was used. Parallel imports would sometimes be
used by pharmacists to fill prescriptions using a different brand or trade
name, where those imports were cheaper. Although the Court of Justice
agreed that the rule was capable of hindering intra-Community trade, it
68 Cases 1/90 and 176/90 Araqonesa de Publicidad Exterior SA v Departamento de Sanidad y Seguridad
Social de la Generaiitat de Cataluna [1991] ECR 4151.
69 Case 266/87 R v Royal Pharmaceutical Society of GB, ex parte Association of Pharmaceutical
Importers [1989] ECR 1295.
Proportionality in Ee Law
143
took the view that it would be justified under Article 36 on grounds of public
health. The rule did not go beyond what was necessary to achieve its
legitimate objective, which the Court described as being 'to leave the entire
responsibility for the treatment of the patient in the hands of the doctor'. 70
The Court accepted the arguments of the Pharmaceutical Society about the
possibility of psychosomatic consequences if patients were given differently
branded or trademarked products, despite the contrary argument of the
Pharmaceutical Importers' Association that the products were identical and
the risk of patient anxiety were very remote."
In terms of the proportionality test, the interest infringed was the
Community's requirement of free movement of goods, and more specifically,
the ability of pharmacists to fill prescriptions with a less expensive product
than the identical but differently branded product named therein. The
Member State interest could be viewed either as the protection of public
health-by avoiding potentially adverse psychosomatic consequences for
patients-or as the public policy interest in ensuring that the medical
profession retains exlcusive control over the doctor-patient relationship.
And although the Court appeared to apply a stricter version of the
proportionality test than the 'not manifestly inappropriate' inquiry, what it
actually held was that there was no evidence to show that the rule was not the
means least restrictive of free movement of goods for achieving that aim.
This seems to suggest that where there is a challenge to the proportionality of
a national measure, the onus ofproofis on the applicant to show that there is
a less restrictive means available, and not upon the State to demonstrate that
there was none."! Thus, even though the Court framed the proportionality
test in the 'no less restrictive means' form, the fact that it was prepared to
assume in favour of the State in the absence of conflicting evidence,
nevertheless indicates a considerable degree of deference to the Sate's
judgment. Whereas in cases like the German Beer decision," 3 the Court was
prepared itself to suggest alternative less restrictive means, such as adequate
labelling, it would not do so here where the State's aim involved mixed
objectives relating both to public health and to other public policy concerns.
(d) Duphar. This reluctance on the part of the Court to interfere, when the
justification put forward by the State for a measure restricting imports is
based partly on protection for public health and partly on some other
important domestic policy, can be seen even more starkly in the Duphar
case.?" Here, the Court did not rule that the restrictive measure was
See para 22 of the judgment.
Contrast the statement of the Court in Case 104/75 de Peijper [1976] ECR 613, where it
disapproved of certain national rules which restricted cheaper but identical parallel imports of medicines:
'the effectiveprotection of health and lifeof humans also demands that medicinal preparations should be
sold at reasonable prices'.
72 One possibly less restrictive alternative would have been for a pharmacist filling a prescription to
give the patient a choice of the specifically prescribed brandnamed product or the parallel imported
product.
73 See supra 142.
74 Case 238/82 Duphar v Netherlands [1984] ECR 523.
70
71
144
Grainne de Burca
proportionate, but rather that, despite its undeniably serious restrictive
effect on imports, it did not fall within Article 30 of the Treaty in the first
place. On a reference from the Hague District Court, the European Court of
Justice was asked whether Dutch rules concerning the funding of the
national insurance sickness system were compatible with Community law.
The relevant legislation provided that only the medicinal products it listed
were to be covered by the national scheme. Since eighty per cent of medicinal
preparations in the Netherlands were imported, and seventy per cent of these
were charged to the public insurance scheme, exclusion from the scheme was
clearly a very powerful restriction on importation. So in the case there was
clearly a considerable interference with the Community interest in ensuring
free movement of goods between Member States, which might raise an
expectation that the Court would scrutinize closely the alleged justification
for the measure, and to ensure that it went no further than was necessary.
However, the Court did not do so.
The Dutch Government argued that if the scheme fell under Article 30 of
the Treaty, it was nevertheless justified on grounds of public health under
Article 36. Advocate General Mancini clearly felt that the measure was only
tenuously concerned with protection for public health, suggesting that the
primary aim was economic, namely 'to restore the finances of the social
security bodies'. However, he was prepared to give a wide reading to the
public health ground in Article 36, and he concluded by saying that the
question of the proportionality of the scheme was ultimately one for the
national court to decide. 7 5 He clearly felt that the proportionality inquiry
would be a very difficult one to carry out, given that systems such as the
Dutch scheme were 'delicately balanced' and 'pursue numerous
objectives"."
The Court avoided having to apply the proportionality test at all, by
deeming the scheme, despite its restrictive effect on the Community interest,
to fall outside the scope of Article 30 of the Treaty. Its judgment highlights
the question of competence which underlies many of the cases in which the
proportionality of national measures is in issue: whether the Court, in
examining the proportionality of national public policy, security, or health
measures, is interfering excessively in an area which remains largely one of
State competence under the Treaties. In Duphar, the Court declared that
'Community law does not detract from the powers of Member States to
organize their social security systems and to adopt, in particular, provisions
intended to govern the consumption of pharmaceutical preparations in
75 See also the decisions of thc Court in cases such as 72/83 Campus Oil v Ministerfor Industry and
Energy [1984] ECR 2727,222/84 Johnston [1986] ECR 1651, C-367/89 Richardt [1991] ECR 1-4621,
145/88 Torfaen BC[1989] ECR 3851. and C-260/89 ERT[1991] ECR 1-2925,in which it similarly left the
proportionality issue to the national court to decide, either because it felt that the national court would be
in a better position to appraise factual issues which had not been before the ECJ, or because the issue
concerned a potentially complex and delicate national policy on which the Court did not wish to give a
final ruling.
7fi [1984] ECR 523 at 549-52.
Proportionality in EC Law
145
order to promote the financial stability of their health-care insurance
schemes';" It ruled that since the State was substituted for the usual
consumer in this field of health care, that the scheme could not be regarded
as a restriction on freedom to import within the meaning of Article 30.
However, it did require the scheme to fulfilcertain conditions, such as that of
non-discrimination against imported products, if it was to remain outside
the scope of the Treaty. It is interesting to note that the Court differed from
the Advocate General in concluding that ifthe scheme had come within the
Treaty, it could not have been justified under Article 36, which covered only
measures of a non-economic nature. In the Court's view, the aim of the
Dutch scheme was primarily budgetary. 78
Although the approach of the Advocate General and the Court differed,
both were clearly concerned not to subject the Dutch scheme to a close
degree of scrutiny. The Advocate General chose to categorize it as a measure
restricting imports which could be justified on health grounds, provided that
the national court would carry out the difficult, and, in the circumstances of
the particular measure, 'delicate' proportionality inquiry.?? The Court, in
contrast, chose to avoid this inquiry altogether by concluding that so long as
the scheme, which it considered to pursue primarily economic and
budgetary aims, did not discriminate against imports, it would fall outside
the scope of the Treaty prohibition. Both were clearly concerned not to be
seen to be suggesting alternative ways for the Dutch Government to finance
its health-care insurance scheme, which might have a less restrictive effect on
imports. Although the Community interest was affected by the scheme, the
importance to the State of this particular economic policy objective and the
fact that this was an area of State competence in which the Community had
no role, prompted the Court not even to follow the Advocate General and
leave the proportionality inquiry to the national courts, but rather to deem
the scheme not to be subject to any overt proportionality review at all."?
See para 16 of the Court's judgment.
See also Case 104/75 de Peijper [1976] ECR 613, where the Court ruled that the public health
exception could not be invoked to justify a restrictive rule which was mainly intended 'to lighten the
administration's burden or reduce public expenditure' unless the burden was clearly excessive.
79 Advocate General Mancini did suggest several possibly less restrictive alternatives, such as higher
contributions to the sickness insurance fund rather than lower payments out of it, but he concluded that
there would be little if any support for that in the economic climate of the time in Europe. The Court did
not even mention the question of less restrictive alternatives, clearly considering this to be a matter for the
Member State in which the Community should, at that stage, have no role.
80 See a similar approach in other cases concerning State restrictions on freedom of establishment in
the interests of public health, where the Court, rather than investigate the proportionality of the national
measures, deemed them to fall outside the scope of the Treaty Articles altogether: Cases 61/89
Bouchoucha [1990] ECR 3551 and 221/85 Commission v Belgium [1987] ECR 719, C-292/92 Hiinermund
[1993] ECR 1-6787. See also Case C-159/90 SPUC v Grogan [1991] ECR 4685, where the ECl avoided
the proportionality question in the highly politicized context of abortion. See de Burca 'Fundamental
Human Rights and the Reach of EC Law' [1993] OJLS 283.
77
78
146
Grainne de Burca
III. Conclusion
It is evident from this [selective] analysis of some of the cases in which the
Court of Justice has engaged in review for proportionality that the
proportionality test essentially takes the form of a structured weighing of
interests. Two different contexts in which the Court is called upon to
examine the proportionality oflegislative and administrative measures have
been considered, one in which the legality of acts of the Community is
challenged, and the other where the legality of acts of the Member States is
questioned. In either context, the Court appears to consider the interest of
the complainant which is adversely affected on the one hand, as against the
interest of the Community or Member State in adopting the challenged
measure, on the other. In terms of a broad structure, there appear to be three
stages of the proportionality inquiry, the second of which is most prominent
in the reasoning of the Court of Justice. To recapitulate, these are first,
whether the measure was an appropriate and effective way of achieving its
legitimate aim; secondly whether the measure was a necessary way of
achieving its aim, in that there was no less restrictive alternative; and thirdly
whether, even if the first two stages are satisfied, the adverse effect on the
interest or right affected was disproportionate or excessive when weighed
against the aim of the measure.
The Court's case-law makes clear that regardless of the context in which
the review takes place, a central consideration is the respective importance of
the interests and rights at stake in the case, and the extent to which the
promotion of one adversely affects the other. It seems that when action is
brought against the Community in an area of discretionary policy-making
power, a looser form of the proportionality inquiry is generally used. The
Court begins by asking only whether the measure was a 'manifestly
inappropriate' way of achieving its aim. However, this should not
necessarily entail a suspension of any effective review power by the Court,
nor automatic deference to any broadly discretionary Community measure.
Even given the existence of such discretionary power, if the right or interest
of the applicant is an important one which is seriously affected, or if the
policy is enforced by a severe penalty or exceptionally harsh means, then the
Court is more likely to question the necessity and proportionality of the
measure more closely and to find against it.
In the context of review of Member State measures which have a
restrictive effect on Community interests and rights, these same questions
arise. The Court will balance the interest which the State is claiming by its
measure to promote, against the interest of the Community which is
adversely affected, and the degree of rigour with which the proportionality
inquiry is pursued will depend largely on the nature and importance, in the
Court's view, of the respective interests. The more important the Community interest, and the more restrictive the impact of the measure upon it,
Proportionality in Ee Law
147
the more likely the Court is to look closely for a less restrictive measure, but
this willalso depend on the nature of the State's aim in adopting the measure.
What is important then, for an understanding of the use of the
proportionality principle, is a proper articulation of the various competing
interests or rights in any given case, and a proper articulation of the various
factors which will lead a court to engage in the proportionality inquiry in a
deferential or a rigorous manner.
A. SOME REASONS FOR DEFERENCE
In the case of the Court of Justice, some of the factors which appear to make
it cautious in conducting too close a review of measures which are challenged
can be articulated as follows:
(a) Is the measure challenged one which pursues an important aim?
(b) Is subject matter of the measure one in which the decision-makers are
given broad discretionary powers, and for which they bear clear
political responsibility?
(c) Is the interest or right affected something other than an important,
legally recognized one of a fundamental nature, and is it restricted in a
way which is not unduly severe?
(d) If the measure challenged is a Member State's act, and the interest it
infringes is a basic rule of Community law such as freedom of
movement, does the aim of the State relate to:
(i) a nationally sensitive or ideologically contentious matter which
is not of itself within the sphere of Community competence
except in so far as it affects the operation of other Community
rules (e.g. Sunday trading, access to abortion, regulation of
pornography or prostitution)
(ii) a complex political objective which requires specialized knowledge, experience, and appreciation of varied national requirements (e.g. national security, social policy)
(iii) an area in which there are as yet no harmonized European-wide
or internationaly agreed standards of protection for certain
interests (e.g.public policy and cultural concerns; contrast public
policy/morality with public health concerns)
(iv) an area in which a finding of disproportionality would impose a
considerable financial burden on the State, for instance by
requiring the reorganization of an expensive social policy (e.g.
the national health insurance scheme in Duphar).81
In the case of Member State measures which raise issues of this nature,
even though they may interfere with a Community right or interest, the
Court tends to be deferential in its application of the proportionality
81
See supra n 74.
148
Grainne de Burca
principle. The problems relating to the limits of justiciability-based on the
view that the restricted judicial process is not an appropriate forum for
reaching the best decisions on certain matters which have been the subject of
political debate and consideration, which may involve particular expertise,
or require detailed knowledge and experience-are further exacerbated in
the EC context by the political and institutional distance of the Court of
Justice from the Member States on whose measures it may be called upon to
decide.
There appear to be several ways in which the Court of Justice can show
varying degrees of deference when asked to review measures on the ground
of proportionality. The most deferential of these is for the Court to decide
not to review the measure at all, on the ground that it falls outside the
Community sphere (e.g. Duphar). A somewhat less deferential method than
this is the application of the loose 'not manifestly inappropriate' test, rather
than the more rigorous 'no less restrictive alternative' test (e.g. Fedesa).
Thirdly, even where the Court considers the possibility of less restrictive
alternatives, it can be less intrusive in the way it does this by placing the onus
on the affected party to adduce evidence that there were less restrictive
means (e.g. Royal Pharmaceutical Society). And finally, although this need
not always be an indication of deference to the State's claim, since it may
sometimes be an acknowledgment by the Court of its limited knowledge of
the circumstances of a given case, the Court may leave the final ruling as to
the proportionality of a national measure to the national court (e.g. Campus
Oil, Richardt, ERr).
B. SOME REASONS FOR APPLYING A STRICT PROPORTIONALITY TEST
By contrast, the more important the particular right or the particular
Community interest affected, and the greater the adverse or restrictive
impact on it, the more closely the Court of Justice is likely to search for the
existence ofless restrictive alternatives (e.g. where there is a severe restriction
on the right of free movement such as deportation or refusal of entry into a
State). Thus even though an area such as national security is one in which, in
light of some of the factors listed above, the Court of Justice has shown a
degree of deference to the State's assessment of its security needs even where
they restrict EC rules or interests, this has not prevented it from stating that
excessive penalties for breaching the particular State measures designed to
pursue national security objectives will be closely examined and deemed
unnecessary or disproportionate if there were other less severe means of
enforcing the policy. And similarly if the State's aim is clearly out ofline with
agreed international standards on a specific matter, the Court of Justice is
more likely to declare it to be unnecessary and thus disproportionate.
Further, it seems that where the Court suspects that an alleged State aim is
not in fact the real or primary aim of the restrictive measure, but that the real
Proportionality in EC Law
149
aim is one which is contrary to Community objectives, it will scrutinize the
measure closely and search for other available alternatives.
C. SOME LESSONS FOR THE UNITED KINGDOM?
There may be something to be learnt, from examining the approach of the
Court of Justice, for the future application of the proportionality principle in
the United Kingdom. At present the principle is applicable in the United
Kingdom in the context of judicial review of legislative measures which fall
within the field ofEC law. 8 2 Whether it will be more widely introduced into
the field of judicial review for administrative action outside the sphere of EC
law remains to be seen." What is clear is that if an applicant wishes to
question a measure affecting her or him on the ground of proportionality,
that applicant must be able to point to a specific legally recognized right or
interest which is adversely affected by the measure.t" This raises questions
about whether there needs to be a clearer articulation of which rights and
interests are in fact protected-at common law and otherwise." It also
raises questions about whether review for proportionality of a measure
should be restricted to cases involving an interest or right of a fundamental
or constitutional nature.
In conclusion, there are obviously concerns over the adoption and
expansion of the proportionality principle as a standard ofjudicial review. It
clearly gives courts the power to interfere substantially with legislative and
administrative measures, and to engage in an overt process of assessing
different and competing interests. It raises questions over the kinds of rights
and interests which can be said to be legally recognized and protected, and it
raises questions ofjusticiability. But an important feature of the proportionality inquiry, which can be seen from the case-law of the Court of Justice, is
that it requires a court to articulate the different interests at stake in a case,
and to indicate the reasons why a more or a less rigorous inquiry should be
conducted. If courts can genuinely do this, it should allow their reasons for
82 As indicated above, this occurred in the cases concerning the compatibility of the Shops Act 1950
with Art 30 of the Treaty, e.g. B & Q Ltd v Shrewsbury andAtchamBC [1990] 3CMLR 535, Torfaen BCv
B & Q [1990] 3 CMLR 455 and Stoke-on-Trent BCv B & Q [1990] 3 CMLR 31. R. v Secretaryof State
for Employment (ex parteEqual Opportunities Commission) [1994] 2 WLR 409.
83 See CCSU v Ministerfor the Civil Service [1985] AC 374, R v Secretary of State for the Home
Department (ex p. Brind)[1991] 1 AC 696, R v Highbury Corner Justices, ex p Uchendu, The Times, 27 Jan
1994. See also the comments of Lord Browne-Wilkinson in 'The Impact of European Law on English
Human Rights and Public Law', in The Gradual Convergence, Foreign Ideas, Foreign andEnglish Law on
the Eve of the 21st Century (Ed) Markesinis (Clarendon Press Oxford 1994) 202.
8. See the recent attempt by Lester QC in R v Criminal Injuries Compensaion Board ex p P [1994] I
AER 80 at 83, to argue that the rule within the Criminal Injuries Compensation Scheme which had the
result of denying compensation to a victim of sexual abuse was invalid on the ground of
disproportionality. The court rejected the argument, stating that a claim to compensation was not a
recognized legal right but merely a privilege.
85 See Laws 'Is the High Court the Guardian of Fundamental Constitutional Rights?' (1993) Public
Law 59. And see Boyron (1992) OiLS 237 at 259, suggesting that the lack of a moden bill of rights could
jeopardize the functioning in the UK of a principle of proportionality.
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Grainne de Burca
engaging in a less or a more intrusive examination of the justification for a
given measure to be subject to scrutiny and open to criticism. It should also
allow for an ongoing evaluation and articulation of the different interests
and rights which can be the basis for a challenge on grounds of
disproportionality, as well as the public interests which can justify their
restriction.