The principle of proportionality in EU law – Part 1
In R (on the application of Lumsdon and others) (Appellants) v Legal Services Board (Respondent)  UKSC 41,  3 WLR 121, the Supreme Court (Lord Reed and Lord Toulson with whom Lord Neuberger, Lady Hale and Lord Clarke agreed) delivered a helpful analysis of how the principle of proportionality applies in EU law. In this first part of a two part series, we summarise their findings:
1. Proportionality is a general principle of EU law, enshrined in article 5(4) of the Treaty on European Union (“TEU”) and reflected elsewhere in the EU treaties, for example in article 3(6) TEU; but it has been primarily and most fully developed by the Court of Justice in its jurisprudence, drawing upon the administrative law of a number of member states. The principle only applies to measures interfering with protected interests which include the fundamental freedoms guaranteed by the EU Treaties. It applies generally to legislative and administrative measures adopted by EU institutions, but also applies to national measures falling within the scope of EU law. As explained by Advocate-General Sharpston:
“For that to be the case, the provision of national law at issue must in general fall into one of three categories. It must implement EC law (irrespective of the degree of the discretion the member state enjoys and whether the national measure goes beyond what is strictly necessary for implementation). It must invoke some permitted derogation under EC law. Or it must otherwise fall within the scope of Community law because some specific substantive rule of EC law is applicable to the situation.” [Opinion in Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (Case C- 427/06)  ECR I-7245, para 69]
2. The principle of proportionality in EU law is neither expressed nor applied in the same way as the principle of proportionality under the European Convention on Human Rights. Although there is some common ground, the four-stage analysis of proportionality which was explained in Bank Mellat v Her Majesty’s Treasury (No 2)  UKSC 39;  AC 700, paras 20 and 72-76, in relation to the justification under domestic law (in particular, under the Human Rights Act 1998) of interferences with fundamental rights, is not applicable to proportionality in EU law.
3. Issues of proportionality may arise directly before the Court of Justice and be decided by that court, as for example when the legality of an EU measure is challenged in direct proceedings, or when enforcement proceedings are brought by the Commission against a member state in relation to a national measure. Issues of proportionality may also arise before national courts. A national court may not declare an EU measure to be illegal. When, therefore, the validity of an EU measure is indirectly challenged before a national court on the ground of proportionality, the national court can refer the issue to the court for determination, and should do so if it considers the argument to be well-founded (R (International Air Transport Association) v Department for Transport (Case C-344/04)  ECR I-403, para 32) or, in the case of a final court, if the issue is other than acte clair.
4. When the validity of a national measure is challenged before a national court on the ground that it infringes the EU principle of proportionality, it is in principle for the national court to reach its own conclusion. It may refer a question of interpretation of EU law to the Court of Justice, but it is then for the national court to apply the Court’s ruling to the facts of the case before it. The court has repeatedly accepted that it does not have jurisdiction under the preliminary reference procedure to rule on the compatibility of a national measure with EU law: see, for example, Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano (Case C-55/94)  ECR I-4165, para 19. It has explained its role under that procedure as being to provide the national court “with all criteria for the interpretation of Community law which may enable it to determine the issue of compatibility for the purposes of the decision in the case before it” (Gebhard, para 19). Nevertheless, where a preliminary reference is made, the court often effectively determines the proportionality of the national measure in issue, by reformulating the question referred so as to ask whether the relevant provision of EU legislation, or general principles of EU law, preclude a measure of that kind, or alternatively whether the measure in question is compatible with the relevant provision of EU legislation or general principles. That practice reflects the fact that it can be difficult to draw a clear dividing line between the interpretation of the law and its application in concrete circumstances, and an answer which explains how the law applies in the circumstances of the case before the referring court is likely to be helpful to it. The practice also avoids the risk that member states may apply EU law differently in similar situations, or may be insufficiently stringent in their scrutiny of national measures. It may however give rise to difficulties if the court’s understanding of the national measure, or of the relevant facts, is different from that of the referring court.
5. Where the proportionality principle is applied by a national court, it must, as a principle of EU law, be applied in a manner which is consistent with the jurisprudence of the court: as is sometimes said, the national judge is also a European judge. The jurisprudence in relation to the principle of proportionality is not without complexity and has been expressed and applied by the court in different ways in different contexts. In order for national judges to know how the principle should be applied in the cases before them, it is necessary for them to understand the nature and rationale of these differences, and to identify the body of case law which is truly relevant.
6. Proportionality as a general principle of EU law involves a consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method. There is some debate as to whether there is a third question, sometimes referred to as proportionality stricto sensu: namely, whether the burden imposed by the measure is disproportionate to the benefits secured. In practice, the court usually omits this question from its formulation of the proportionality principle. Where the question has been argued, however, the court has often included it in its formulation and addressed it separately, as in R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88)  ECR I-4023.
7. Apart from the questions which need to be addressed, the other critical aspect of the principle of proportionality is the intensity with which it is applied. In that regard, the court has been influenced by a wide range of factors, and the intensity with which the principle has been applied has varied accordingly. It is possible to distinguish certain broad categories of case. It is however important to avoid an excessively schematic approach, since the jurisprudence indicates that the principle of proportionality is flexible in its application. The court’s case law applying the principle in one context cannot necessarily be treated as a reliable guide to how the principle will be applied in another context: it is necessary to examine how in practice the court has applied the principle in the particular context in question. Subject to that caveat, the court’s general approach in relation to three types of case can be described:
- Review of EU measures. As a generalisation, proportionality as a ground of review of EU measures is concerned with the balancing of private interests adversely affected by such measures against the public interests which the measures are intended to promote. Proportionality functions in that context as a check on the exercise of public power of a kind traditionally found in public law. The court’s application of the principle in that context is influenced by the nature and limits of its legitimate function under the separation of powers established by the Treaties. In the nature of things, cases in which measures adopted by the EU legislator or administration in the public interest are held by the EU judicature to be disproportionate interferences with private interests are likely to be relatively infrequent.
- Review of national measures relying upon derogations from general EU rights. Proportionality as a ground of review of national measures, on the other hand, has been applied most frequently to measures interfering with the fundamental freedoms guaranteed by the EU Treaties. Although private interests may be engaged, the court is there concerned first and foremost with the question whether a member state can justify an interference with a freedom guaranteed in the interests of promoting the integration of the internal market, and the related social values, which lie at the heart of the EU project. In circumstances of that kind, the principle of proportionality generally functions as a means of preventing disguised discrimination and unnecessary barriers to market integration. In that context, the court, seeing itself as the guardian of the Treaties and of the uniform application of EU law, generally applies the principle more strictly. Where, however, a national measure does not threaten the integration of the internal market, for example because the subject-matter lies within an area of national rather than EU competence, a less strict approach is generally adopted.
- Review of national measures implementing EU law. Where member states adopt measures implementing EU legislation, they are generally contributing towards the integration of the internal market, rather than seeking to limit it in their national interests. In general, therefore, proportionality functions in that context as a conventional public law principle. On the other hand, where member states rely on reservations or derogations in EU legislation in order to introduce measures restricting fundamental freedoms, proportionality is generally applied more strictly, subject to the qualifications which we have mentioned.
To be continued …