Proportionality

Proportionality

Description

When asked to choose a general principle which has most influenced the development of public law across Europe, it seems difficult—one might almost say manifestly disproportionate—to choose any principle other than proportionality. It is hard to deny the influence of proportionality, both as a general principle of EU law which pervades the case law of the European Court of Justice and as the means through which the European Court of Human Rights determines whether restrictions placed on Convention rights are ‘necessary in a democratic society’. As such, proportionality is a principle which is frequently applied by domestic courts, even within those legal systems that have not adopted a specific or general test of proportionality. And once courts have had experience of applying proportionality, it seems almost inevitable that the principle will expand its influence into domestic law. It seems also hard to conclude, in view of the extensive literature on the topic, that proportionality is anything other than a modern invention, an indication of the willingness of the judiciary to subject discretionary decisions of the administration to a more searching scrutiny. Proportionality, therefore, appears to be part of the recent move towards greater accountability, with more emphasis being placed on the enforcement of the rule of law by the judiciary in order to control actions of both the legislature and the executive. Proportionality is also seen by many as closely linked to the protection of human rights, both in terms of its role in decisions of the European Court of Human Rights and its influential role in German law. Hence if there is a tale to tell of the influence of proportionality, it seems to be one of its growing influence across Europe, leading to greater judicial scrutiny, more accountability and a stronger protection of human rights. We hope that this collection of essays goes some way to telling a more nuanced, if not a different story. Although it is hard to deny the influence of the European Union and the European Convention on Human Rights (ECHR), it is not necessarily true that proportionality has its origins in German jurisprudence, or that the growing influence of the principle is due solely to the role of the European Union and the ECHR. Nor is the influence of either the Strasbourg or the Luxembourg courts the same across the Member States of the European Union and the signatory states of the ECHR. And while it is clear that there is a connection between proportionality and human rights, it is not the case that proportionality is inevitably linked with human rights. When analysing different jurisdictions and the application of the proportionality test in the European Union we also see a role for proportionality in enforcing an aspect of distributive justice, ensuring in particular that administrative policies do not impose manifestly disproportionate burdens on particular individuals or groups. And whilst there may be, broadly speaking, a consensus surrounding what the test of proportionality comprises in the context of the ECHR, there is not necessarily a consensus surrounding the nature of the test of proportionality beyond this, particularly as concerns the connection between proportionality and the judicial control of rationality. Nor is the test of proportionality without its critics. If we learn anything from the fresh set of narratives contained in the chapters which follow, it is that the principle of proportionality is multifaceted and that a better understanding of its nature and practice may only be gleaned from separating out its different elements, assessing the extent to which different understandings of proportionality are suited to different subject matters, and examining how they are articulated and applied within different legal systems.

Source Publication

General Principles of Law: European and Comparative Perspectives

Source Editors/Authors

Stefan Vogenauer, Stephen Weatherill

Publication Date

2017

Proportionality

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