The European institutions and the authorities of European Member States are frequently faced with the application of the principle of proportionality in relation to EU Law. The principle needs to be applied in the legislative process, EU policy making, national application of EU Law, and review by the European and national courts. In essence, the principle is set to limit the activities that are carried out in EU context to those that are necessary or required to reach a certain aim. In practical terms it closely relates to the subsidiarity principle which was discussed in the March edition of the ECHAMP News . The difference between the two principles lies mainly in the field of application. The subsidiarity principle applies to questions of competence – does the authority in question have the competence to take action and to what extent? The principle of proportionality applies to situations in which competence has already been established. It intends to limit the discretion of the competent authority to a level that is necessary to meet the required aim. In other words, it seeks to protect stakeholders against legal or administrative burdens that are unnecessarily high in relation to the aim for which a measure is applied or adopted.

Definition

The principle of proportionality was initially not explicitly mentioned in the EC Treaty. It has been developed via case law of the European Court of Justice in the context of different aspects of EU Law. For example, the principle of proportionality is applied in respect of the Four Freedoms (the free movement of goods, services, persons, and capital). Now, it can be found in the third paragraph of Article 5 of the EC Treaty:

“Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.”

Further rules are given in the 30^th Protocol to the EC Treaty on the application of the principles of subsidiarity and proportionality.

Based on Article 5 EC and the interpretation by the European Court of Justice European decision making and action must comply with the following requirements. The measure taken:

1. Must be suitable for the desired aim;

2. Must be necessary to reach the desired aim; and

3. May not be excessively burdensome on an individual in relation to the objective that is intended to be reached.

The extent to which Community or Member State action is scrutinized by the competent courts varies considerably. In some Member States the legal system allows for in depth review of administrative decisions, in others review is more limited – providing more freedom for the competent authorities. The extent of the judicial review of decisions by the competent courts will in both situations depend on the level of discretion that the competent authority has.

European application

At EU level the principle of proportionality is applied in different ways. When it comes to policy making for example, the principle is often applied with certain caution. A measure that may be inherently harmful to an individual because it limits his or her property rights, but which leads to the result envisaged by a certain policy, can nonetheless be acceptable if it is to the benefit of society as a whole. With regard to access to political documents the principle of proportionality may have a different face. For example, the Council may not simply deny a member of the European Parliament access to certain documents because this may harm the EU, where a partial disclosure also provides a solution.

Limiting the discretion of the Member States

Looking at Article 5 EC one may wonder why it binds Member States as well since it refers only to ‘action by the Community’. Where Member States apply Community or EU Law this is legally considered to fall within the scope of Community action, meaning that the principle applies to Member States as well. It will often be up to the national courts to examine whether the principle of proportionality is adhered to. As mentioned above, the extent to which a judicial review will take place will depend on the legal tradition in a Member State.

Member State action can also be subjected to the scrutiny of the European Court of Justice. In such cases the Court may actually give an interpretation that has to be followed in all Member States. This may lead to a more harmonized approach. A good example of the application of the principle of proportionality in the field of pharmaceuticals and the free movement of goods is Commission v France.¹ This case clearly shows the limitations that the principle of proportionality imposes on Member State authorities with respect to personal (non-commercial) imports concerning homeopathic medicinal products. In paragraph 43 of this case the Court observed:

‘Although grounds of health protection may justify restrictions on the free movement of goods between Member States, such measures must comply with the principle of proportionality. They must be confined to what is actually necessary to ensure the safeguarding of public health; they must be proportionate to the objective pursued, which could not have been attained by measures which are less restrictive of intra-Community trade (see Case C-192/01 Commission v Denmark [2003] ECR I-9693, paragraph 45).’

The Court further points out in paragraphs 45 and 46:

‘So far as concerns the imports referred to by the present complaint, it is for the French authorities to adopt an authorisation procedure adapted to the specific nature of those imports and the restrictive effects on intra-Community trade of which do not go beyond what is necessary to attain the objective pursued (…).

That procedure must be easily accessible and capable of being brought to completion within a reasonable period (…).’

The consequence of these proceedings is that France or any other Member State may not apply the rigorous commercial authorisation requirements to individuals who want to import a (homeopathic) medicinal product for personal use from another Member State which has authorised that medicinal product.

The above case shows that the principle of proportionality is a valuable tool to restrict EU and Member State action to what is really necessary. However, it is not a tool that every individual can (ab-)use to oppose EU policy measures that have been designed for the benefit of the European society as a whole.

Johan Hulshof
Van Benthem & Keulen, Advocaten en Notariaat