Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/6.3.1:6.3.1 Introduction

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/6.3.1

6.3.1 Introduction

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279. In advocating a more prominent role of the principe de proportionnalité in French law, Braibant, illustrated the function of the principle metaphorically by stating “que l’on ne doit pas tirer sur des moineaux avec un canon, ce qui équivaut à l’expression française selon laquelle on ne doit pas écraser une mouche avec un marteau-pilon”.1 Or, in another metaphor, one ought not to crush a nut with a sledgehammer.2 These oneliners reflect that remedies must be proportio­nate. Certainly, a sledgehammer in itself could – depending on the force with which it is used – certainly be suitable to achieve the objective to crush a nut; yet it is presumed that in this case there are alternatives at hand, which are less onerous to other interests involved.3 After all, it is likely that a sledgehammer will not crush only the nut’s shell, but also the nut itself and potentially also damage the porcelain plate and the table on which the nut lies. This would make the use of the sledgehammer to crush the nut neither suitable nor necessary, nor proportionate to achieve the aim of crushing a nut. Like in the legal orders of Member States4, also in Union law the principle of proportionality is based on this line of reasoning.

280. In 1956 the Court of Justice referred to the principle of proportionality by stating that “in accordance with a generally accepted rule of law” a reaction by an administrative authority to illegal action on the part of private parties “must be in proportion to the scale of that action”.5 The Court neglected to clarify the exact application of the proportionality principle, but at least the principle’s ranking was determined: it enjoys the status of a general principle of law. From 1970 onwards – after the key judgment in Internationale Handelsgesellschaft6– the proportionality principle has been flourishing as an instrument for the judicial review of administrative and legislative measures.7 The Court clarified that the Union institutions are bound by fundamental rights since Union law is supplemented by unwritten legal principles including predominant fundamental rights. According to the Court, these legal principles enjoy the same status as primary Union law.8 To review whether the Union measure conflicts with a fundamental right, the Court carries out a test on appropriateness and necessity9 and, since it concerns a fundamental rights question, the Court also pays attention to the proportionality stricto sensu10: these are the first rough sketches of the Court’s proportionality assessment.

281. In the years following this judgment, the proportionality principle was regularly applied, but lacking clear standards and terminology. Another twenty years later, in Fedesa11,the Court – prompted by the parties involved – provided for a very clear set of constituent elements of the Union’s proportionality principle:

“The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not bedisproportionate to the aims pursued.”12 [Emphasis added: I.A.]

282. This formulation captures the proportionality principle in its most comprehensive form, consisting of one precondition and three constituent elements:

1)

The measure should have a legitimate aim (precondition);

2)

The measure is appropriate to achieve the aim pursued;

3)

The measure is necessary to achieve the aim pursued – i.e. there are no other less onerous alternatives at hand;13

4)

The disadvantages resulting from the measure should not be disproportionate to the aim pursued.

Van Gerven remarks that “[i]t will be apparent […] that the concept of proportionality is used in a variety of situations, which in turn accounts for the diversity and pluriformity of the concept itself”.14 The case law of the Court of Justice shows that the specific application of the elements may vary depending on what the principle of proportionality is deployed for – i.e. controlling function (judicial review),15 interpretative function,16 gap-filling function17. The Court of Justice seldom carries out a full-fledged proportionality test18; in many cases the Court of Justice assesses only the appropriateness and necessity of the measure reviewed.19 Such curtailed formulations and applications of the proportionality principle have been the order of the day since the recognition of proportionality as a general principle of Union law in the early seventies.20

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