User:Kaihsu/EUlawD5

Constitutional and institutional law of the European Union.

Section D: General principles of European Union law.

Chapter 5: Proportionality (and subsidiarity).

Notes by Kaihsu Tai, 2011-10-17.

Conferral of competences, proportionality, and subsidiarity
"1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality."

Also see Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to TEU (ex No 30 of 1997).

“In order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained [1] whether the means which it employs are suitable for the purpose of achieving the desired objective and [2] whether they do not go beyond what is necessary to achieve it”: Case C-426/93 Germany v Council. This is confirmed in Case C-84/94 UK v Council (Working Time Directive): “the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion.”

Proportionality in Union action
“The obligation to purchase at [...] a disproportionate price constituted a discriminatory distribution of the burden of costs between the various agricultural sectors. Nor, moreover, was such an obligation necessary in order to attain the objective in view [...]. It could not therefore be justified [...]”: Case 114-76 Bela-Mühle v Grows-Farm.

Proportionality in state actions when implementing Union law
“Appraising the proportionality of national rules which pursue a legitimate aim under Community law involves weighing the national interest in attaining that aim against the Community interest in ensuring the free movement of goods. In that regard, in order to verify that the restrictive effects on intra-Community trade of the rules at issue do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct, indirect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing of national products. [... Article 34 TFEU] is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays”: Case C-169/91 Stoke-on-Trent and Norwich v B&Q.

“[The] prohibition of cold calling by the Member State from which the telephone call is made, with a view to protecting investor confidence in the financial markets of that State, cannot be considered to be inappropriate to achieve the objective of securing the integrity of those markets”: Case C-384/93 Alpine Investments.

“[...] on a proper construction of [Article 34 TFEU], a Member State is not precluded from taking, on the basis of provisions of its domestic legislation, measures against an advertiser in relation to television advertising, provided that those provisions affect in the same way, in law and in fact, the marketing of domestic products and of those from other Member States, are necessary for meeting overriding requirements of general public importance or one of the aims laid down in [Article 36 TFEU], are proportionate for that purpose, and those aims or overriding requirements could not be met by measures less restrictive of intra-Community trade”: Case C-34/95 De Agostini.

“The right to property, and likewise the freedom to pursue an economic activity, form part of the general principles of Community law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise of the right to property and the freedom to pursue an economic activity may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed”: Joined Cases C-154/04 and C-155/04 The Queen, on the application of Alliance for Natural Health and Others v Secretary of State for Health and National Assembly for Wales.

Horizontal cases
A Member State may rely on the protection of fundamental rights, provided this was proportionate, to justify a restriction on Treaty freedoms: Case C-112/00 Schmidberger v Austria and Case C-36/02 Omega. But likewise, a trade union’s right to collective action restricting Treaty freedoms is also subject to a review of proportionality: Case C-438/05 Viking Line and Case C-341/05 Laval.