European Governance 2

8/3/2019 European Governance 2

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Introduction

A) The General Principles as a Source of Community LawB) The sources of General PrinciplesC) The function of general principles in the Community legal order

I The Principle of Equality (non discrimination)

A) The Original EC Treaty; the elaboration of Equality as a GPLB) Equality After AmsterdamC) Equality in the Treaty after LisbonD) Concrete implementation

II The Principle of Proportionality

A) Origins of the principleB) The ECJs Proportionality ReviewC) Intensity of the ECJs proportionality review

III The principle of subsidiarity

IV Legal certainty and protection of legitimate expectations

V Responsibility in the European Union Order


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Introduction

Method for Discovering the GPL

Algera and Others v Common Assembly, (Joined Cases 7/56 and 3/57 to 7/57 [1957] ECR 39,

55

the Court observed that the problem of withdrawing individual administrative measures was

a problem which is familiar in the case-law and learned writing of all the countries of the

Community, but for the solution of which the Treaty does not contain any rules. The Court

held that, unless it was to deny justice, it was obliged to solve the problem, and to find a

corresponding community unwritten rule.

Kampffmeyer and Others v Commission and Council, (Joined Cases 56/74 to 60/74 [1976]

ECR 711)

the Court accepted the possibility of an action for liability based on future damage, although

such an action existed in only some of the Member States. The Court merely observed that

this possibility existed in the majority, if not all the national legal systems.

AM & S Europe v Commission, (Case 155/79 [1982] ECR 1575, paragraphs 18 to 27) the Court

recognised the existence of a principle ensuring the confidentiality of communications

between lawyers and their clients, although its scope and the criteria for applying it differ

considerably from one Member State to another. The Court found that the principle was

generally recognised and that the national legal systems revealed the existence of

common criteria.

Mangold, Case C-144/04 Mangold [2005] ECR I-9981

In Mangold, Case C-144/04 Mangold [2005] ECR I-9981 (10) the Court held that it was

possible for a general principle of law to apply where a directive could not be relied on in the

case owing to its subject-matter, its lack of effectiveness in horizontal relationships, and the

fact that the period for its transposition had not yet expired.

Directive 2000/78 does not itself lay down the principle of equal treatment in the field of

employment and occupation. Indeed, in accordance with Article 1 thereof, the sole purposeof the directive is to lay down a general framework for combating discrimination on the

grounds of religion or belief, disability, age or sexual orientation, the source of the actual

principle underlying the prohibition of those forms of discrimination being found, as is clear

from the third and fourth recitals in the preamble to the directive, in various international

instruments and in the constitutional traditions common to the Member States.

Consequently, observance of the general principle of equal treatment, in particular in

respect of age, cannot as such be conditional upon the expiry of the period allowed the

Member States for the transposition of a directive intended to lay down a general

framework for combating discrimination on the grounds of age, in particular so far as the

organisation of appropriate legal remedies, the burden of proof, protection against


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victimisation, social dialogue, affirmative action and other specific measures to implement

such a directive are concerned.

As we have said two weeks ago, the GPL can derive from a comparison between domestic

laws. It must be added that GPL can also derive directly from community law.

Ex: principle of democracy (UEAPME v. Council, 1998: the principle of democracy is indeed

a founding principle of the EU .

Ex. The precautionary principle. The TFI has reminded in 2003 that:

The precautionary principle constitutes a general principle of Community law requiring the

authorities in question, in the particular context of the exercise of the powers conferred on

them by the relevant rules, to take appropriate measures to prevent specific potential risks

to public health, safety and the environment, by giving precedence to the requirements

related to the protection of those interests over economic interests. Since the Communityinstitutions are responsible, in all their spheres of activity, for the protection of public health,

safety and the environment, the precautionary principle can be regarded as an autonomous

principle stemming from the Treaty provisions, in particular Articles 3(p) EC, 6 EC, 152(1) EC,

153(1) and (2) EC and 174(1) and (2) EC. CFI, 21 October 2003, Solvay Pharmaceuticals BV v

Council of the European Union, Case T-392/02.

We should also have in mind that the General Principles of Community Law can derive, or at

least be supported, by international instruments to which the Community or member States

are parties. It is of course the case with the European convention on human rights.

Let us take for the first example of the right of property:

FUNDAMENTAL RIGHTS FORM AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF THE

LAW , THE OBSERVANCE OF WHICH IT ENSURES . ONE OF THE FUNDAMENTAL RIGHTS

WHICH IS ACCORDINGLY PROTECTED UNDER COMMUNITY LAW IN ACCORDANCE WITH THE

CONSTITUTIONAL CONCEPTS COMMON TO THE MEMBER STATES AND IN THE LIGHT OF

INTERNATIONAL TREATIES FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH MEMBER

STATES HAVE COLLABORATED OR TO WHICH THEY ARE SIGNATORIES IS THE RIGHT TO

PROPERTY , AS THE COURT HAS RECOGNIZED , NOTABLY IN ITS JUDGMENT OF 13 DECEMBER

1979 IN CASE 44/79 HAUER. Judgment of the Court of 19 June 1980. Joined cases 41/79,

121/79 and 796/79.

For a second example, criminal law and the penalties related to it. According to the Court:

67. It must be pointed out in this regard that, according to settled case-law, fundamental

rights form an integral part of the general principles of law, the observance of which the

Court ensures. For that purpose, the Court draws inspiration from the constitutional

traditions common to the Member States and from the guidelines supplied by international

treaties for the protection of human rights on which the Member States have collaborated

or to which they are signatories ..68. The principle of the retroactive application of the more

lenient penalty forms part of the constitutional traditions common to the Member States.69.It follows that this principle must be regarded as forming part of the general principles of


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Community law which national courts must respect when applying the national legislation

adopted for the purpose of implementing Community law and, more particularly in the

present cases, the directives on company law. Judgment of the Court (Grand Chamber) of 3

May 2005, Joined cases C-387/02, C-391/02 and C-403/02.

As you see all these sources on which the Court can rely to determine the existence ofGeneral Principles of Community Law gives it a great normative power. Now, is the Court

legitimate when elaborating GPL?

In fact the recourse to GPL has been largely influenced by the German tradition, under which

the question of legitimacy of the administrative action is prominent. Indeed, the German

influence can be traced in the development of principles like proportionality, legitimate

expectations, and protection of fundamental rights. The reason for that is that in the first

years of the Community, the Court was in a position quite similar to that of the German

judiciary after world war II. During this period, in a reaction to the abuses of the Nazi regime,

the German Courts were anxious to elaborate and consolidate constitutional principlescapable of constraining the executive power. The doctrine then elaborated on the concept

of Reichsstaat (tat de droit), in order to give it a substantive content.

As you know, it was not the case in the French approach of the tat de droit, in which the

power is supposed to be constraint not by substantive principles, but by the so called

balance of power. Indeed, in France, the substantive constitutional rules entered lately in

the famous constitutionality block in France. By contrast, Germany sought sooner to

introduce substantive rules in its constitutional approach. Those principles led to the gradual

establishment of a body of administrative law.

In fact, the ECJ was in the same situation during the first years of the European construction,

and it naturally had recourse to general principles in order to consolidate the European

legitimacy, which was a necessity in order to render acceptable the supremacy of

Community Law over national traditions.

Apart from the historical considerations, there is also a texual consecration of the capacity

recognized to the Court to base itself on GPL.

Art. 19 TUE: the Court has the reponsibility to ensure that in the interpretation and the

application of this Treaty the law is observed . This seems obvious, as the role of every

court is to uphold the law. But in fact, this is a very important provision as it establishes that

the Community is bound by the rule of law and recognizes the separation of powers

(legislative and judicial). This article grants that Court responsibility to oversee the

Community institutions so as to ensure that they do not extend their mandate under the

Treaty. At the same time, it requires the Court to supervise the Member States .

But this article does not provide any substantive standards of review. It assumes the

existence of a legal order but tells nothing about the subtantive principles. This has been

interpreted as giving a mandate to the Court to work out a system of legal principles in

accordance with which the legality of Community and Member State action must be

determined. In other words, since it contains no substantive principle of its own, it mandates

the Court to have recourse to the legal traditions of the Member States or other sources,


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and extrapolate principles of law found therein, with a view to developing a notion of the

rule of law appropriate to the Community.

Let us turn to the functions of General Principles of Community Law.

First of all, they are an aid to interpretation of written primary law. In effect, where a aCommunity text fails to be interpreted, preference must be given as far as possible to the

interpretation which renders it compatible with the other parts of the Treaty and with the

General Principles of law. In itself, this principle of interpretation is a GPL.

So the general principles can serve to interpret the treaty itself. This has permitted a very

creative interpretation of the treaties by the Court.

As an example, we can see that in a Judgment of the Court of 18 March 1980, SpA Ferriera

Valsabbia s, Joined cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79, it

has been judged that:

IT WILL THEN BE NECESSARY TO EXAMINE THE GROUNDS ON WHICH THE APPLICANTS

IMPUGN THE LEGALITY OF GENERAL DECISION NO 962/77, WHICH WILL HAVE TO BE

EXAMINED BOTH WITH REGARD TO ARTICLE 61, WHICH CONSTITUTES ITS LEGAL BASIS,

WITH REGARD TO THE OTHER PROVISIONS OF THE ECSC TREATY AND IN THE LIGHT OF THE

GENERAL PRINCIPLES OF LAW WHICH GOVERN THE INTERPRETATION AND APPLICATION OF

THE SAID TREATY , AND , FINALLY , WITH REGARD TO ADHERENCE TO THE OBJECTIVES

PRESUPPOSED BY THE USE OF THE POWERS WHICH THE COMMISSION EXERCISED IN

ADOPTING THE SAID GENERAL DECISION.

It can first be observed that this principle of interpretation has justified the famous Les verts

Case decided in 1986, in which the court held that although at that time the Parliament was

not mentioned as a possible defendant, binding measure adopted by it were subject to

judicial review, because of the GPL that every normative measure should be subject to

review

It can also be observed that the ECJ has interpreted Treaty Provisions more liberally than

acts of the institutions. In particular, it has understood its own jurisdiction more widely in

order to ensure respect for the fundamental right to judicial protection.

Of course General Principles can also serve the interpretation of secondary Community law,

specially when these rules leave to the Member States a margin of interpretation.

where it is necessary to interpret a provision of secondary Community law, preference

should as far as possible be given to the interpretation which renders the provision

consistent with the Treaty and the general principles of Community law. Judgment of the

Court (Fifth Chamber) of 21 March 1991, Siegfried Rauh v Hauptzollamt Nrnberg-Frth,

Case C-314/89.

This principle is, in itself, a GPL. As the Court as decided:


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it must be borne in mind that, according to settled case-law, where a provision of

Community law is open to several interpretations, preference must be given to that

interpretation which ensures that the provision retains its effectiveness.

Judgment of the Court (Fifth Chamber) of 4 October 2001. Italian Republic v Commission of

the European Communities. Case C-403/99

Thirdly, GPL are also considered as grounds for review.

The Court has had more difficulties to refer to GPL as normative rules than as interpretative

rules, but it became common ground in the 70s.

Now it is common ground to invoke GPL in order to obtain the annulment of a Community

measure. A Community measure which infringes a general principle will be annulled by the

Court or the CFI, depending on which Court has jurisdiction.

It must be pointed out in this regard that, according to settled case-law, fundamental rights

form an integral part of the general principles of law, the observance of which the Court

ensures..

Court, 3 May 2005, Joined cases C-387/02, C-391/02 and C-403/02.

Now, it must be precised that it is not only community measure that can be challenged

against GPL; it is also national measures, when they are implementing measures of

Community Law.

Where national authorities implement Community Law, they must implement and respect

all the Community law, including GPL. In the WachaufCase, the court said that the Member

states must respect GPL when they implement a regulation (1989, case 5/88).

In the Karlsson Case (2000, C 292/97), the Cour held very clearly:

It should be remembered that the requirements flowing from the protection of

fundamental rights in the community legal order are aslo binding on member states when

they implement community rules. Consequently, member states must, as far as possible,

apply those rules in accordance with those requirements .

Are the GPL also of application against individuals ?

In fact, authors observe that where the case law establishes obligations going beyond the

text of the founding treaties, it does so against the State as well as against the community

institutions. But in the absence of written provision, the case law is reluctant to impose

obligations on individuals. The reason for that is probably that it is a matter of simple justice

that individuals cannot be committed to unwritten obligations. But, precisely, there are

some written principles in the treaty, that could have horizontal effects. When applying

these rules, which are written in the treaty, the Court now accepts to give it an horizontal

effect (in relations to relations between private persons).


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Ex. The Angonese Case (2000, C 281-98)

30 It should be noted at the outset that the principle of non-discrimination set out in

Article 48 is drafted in general terms and is not specifically addressed to the Member States.

31. Thus, the Court has held that the prohibition of discrimination based on nationality

applies not only to the actions of public authorities but also to rules of any other natureaimed at regulating in a collective manner gainful employment and the provision of services.

32. The Court has held that the abolition, as between Member States, of obstacles to

freedom of movement for persons would be compromised if the abolition of State barriers

could be neutralised by obstacles resulting from the exercise of their legal autonomy by

associations or organisations not governed by public law .33. Since working conditions in

the different Member States are governed sometimes by provisions laid down by law or

regulation and sometimes by agreements and other acts concluded or adopted by private

persons, limiting application of the prohibition of discrimination based on nationality to acts

of a public authority risks creating inequality in its application. 34. The Court has also ruled

that the fact that certain provisions of the Treaty are formally addressed to the MemberStates does not prevent rights from being conferred at the same time on any individual who

has an interest in compliance with the obligations thus laid down. The Court accordingly

held, in relation to a provision of the Treaty which was mandatory in nature, that the

prohibition of discrimination applied equally to all agreements intended to regulate paid

labour collectively, as well as to contracts between individuals (see Defrenne, paragraph 39).

35. Such considerations must, a fortiori, be applicable to Article 48 of the Treaty, which lays

down a fundamental freedom and which constitutes a specific application of the general

prohibition of discrimination contained in Article 6 of the EC Treaty (now, after amendment,

Article 12 EC). In that respect, like Article 119 of the EC Treaty (Articles 117 to 120 of the EC

Treaty have been replaced by Articles 136 EC to 143 EC), it is designed to ensure that there isno discrimination on the labour market.36. Consequently, the prohibition of discrimination

on grounds of nationality laid down in Article 48 of the Treaty must be regarded as applying

to private persons as well.

I- The principle of EqualityThis principle is ancient, but does not come from the Roman tradition. As a legal principle, it

received express reference in the Declaration of Independence of the United States in 1776

and subsequently, the Declaration of Rights of Man of 1789.

The legal notion of equality had the meaning of equality of citizens before the law. It was a

rejection of the inequalities of the ancient regime. It produced, under the pressure of the

capitalist ideology, the freedom of trade. It was, during the 19th

century, considered as a

compliment to laissez faire doctrine (this is the so-called formal equality). In the 20th

century, it began to embrace the idea of social equality, leading in fact to less laissez faire

(this is the so called substantial equality).

We could propose as a synthesis that the idea behind the principle is that it concerns the

equality of persons in relation to each other andbefore the law. In fact, the principle may

have multiple meanings: equality may mean liberty, competition, but liberty andcompetition may lead to inequalities.


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A From the original ECT to the GPL elaborated by the Court

The original Treaty stated since 1957 the prohibition of discrimination on ground of

nationality and sex.

Art. 40.3. Rome Treaty:

The common organisation in one of the forms mentioned in paragraph 2 may comprise all

measures necessary to achieve the objectives set out in Article 39, in particular, price

controls, subsidies as to the production and marketing of various products, arrangements for

stock-piling and carry-forward, and common machinery for stabilising importation or

exportation.

The organisation shall confine itself to pursuing the objectives set out in Article 39 and shall

exclude any discrimination between producers or consumers within the Community.

Article 48 Rome Treaty:

1. The free movement of workers shall be ensured within the Community not later than at

the date of the expiry of the transitional period.

2. This shall involve the abolition of any discrimination based on nationality between

workers of the Member States, as regards employment, remuneration and other working

conditions.

Art. 119 of the 1957 Treaty : Each Member State shall in the course of the first stage ensureand subsequently maintain the application of the principle of equal remuneration for equal

work as between men and women workers .

In the original context those prohibitions had a typical economic value as functional to the

market integration. But art. 119 has probably a more moral and social value.

The ECJ has easily considered that these provisions are an expression of the general principle

of non-discrimination granted on the E Law.

As a general principle the Court generally considers that itprecludes comparable economic

situations from being treated differently, unless the difference in treatment is objectively

justified.

THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY PROVIDES THAT THE

COMMON ORGANIZATION OF AGRICULTURAL MARKETS SHALL EXCLUDE ANY

DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY .

WHILST THIS WORDING UNDOUBTEDLY PROHIBITS ANY DISCRIMINATION BETWEEN

PRODUCERS OF THE SAME PRODUCT IT DOES NOT REFER IN SUCH CLEAR TERMS TO THE

RELATIONSHIP BETWEEN DIFFERENT INDUSTRIAL OR TRADE SECTORS IN THE SPHERE OF

PROCESSED AGRICULTURAL PRODUCTS .


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THIS DOES NOT ALTER THE FACT THAT THE PROHIBITION OF DISCRIMINATION LAID DOWN IN

THE AFORESAID PROVISION IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE

OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW .

THIS PRINCIPLE REQUIRES THAT SIMILAR SITUATIONS SHALL NOT BE TREATED DIFFERENTLY

UNLESS DIFFERENTIATION IS OBJECTIVELY JUSTIFIED . Judgment of the Court of 19 October1977. Albert Ruckdeschel & Co. Joined cases 117-76 and 16-77.

In the same way, the principle also means that it is precluded to treat in the same way

different situations, unless objective reasons can be advanced.

AS THE COURT HAS CONSISTENTLY HELD , DISCRIMINATION CONSISTS SOLELY IN THE

APPLICATION OF DIFFERENT RULES TO COMPARABLE SITUATIONS OR IN THE APPLICATION

OF THE SAME RULE TO DIFFERING SITUATIONS. Judgment of the Court 13 November 1984.

Firma A. Racke Case 283/83.

Generally, in the sphere of economic law, the Court favours what can be termed a

traditional, pluralistic, conception of equality which accepts State intervention as necessary

for the fair redistribution of resources rather than a pure market-oriented idea of equal

treatment which subordinates State action to market forces and gives primacy to property

rights. This approach can be seen for example in the context of the implementation of the

State Aid law. But the notion is not always linked to economic questions.

Question of gender equality at work; 1978

THE COUR DE CASSATION HAS REFERRED TO THE COURT A PRELIMINARY QUESTION ,WORDED IN TWO PARTS , WHICH REQUIRES CLEAR REPLIES INASMUCH AS IT RELATES , FIRST

, TO THE DETERMINATION OF THE FIELD OF APPLICATION OF ARTICLE 119 OF THE TREATY

AND , SECONDLY , TO THE POSSIBLE EXISTENCE OF A GENERAL PRINCIPLE OF COMMUNITY

LAW , THE AIM OF WHICH IS TO ELIMINATE DISCRIMINATION BETWEEN MEN AND WOMEN

WORKERS AS REGARDS CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS OTHER

THAN REMUNERATION IN THE STRICT SENSE .

THE REPLY TO THE FIRST PART OF THE QUESTION MUST THEREFORE BE THAT ARTICLE 119

OF THE TREATY CANNOT BE INTERPRETED AS PRESCRIBING , IN ADDITION TO EQUAL PAY ,

EQUALITY IN RESPECT OF THE OTHER WORKING CONDITIONS APPLICABLE TO MEN AND

WOMEN .

THE SECOND PART OF THE QUESTION ASKS WHETHER , APART FROM THE SPECIFIC

PROVISIONS OF ARTICLE 119 , COMMUNITY LAW CONTAINS ANY GENERAL PRINCIPLE

PROHIBITING DISCRIMINATION BASED ON SEX AS REGARDS THE CONDITIONS OF

EMPLOYMENT AND WORKING CONDITIONS OF MEN AND WOMEN. THE COURT HAS

REPEATEDLY STATED THAT RESPECT FOR FUNDAMENTAL PERSONAL HUMAN RIGHTS IS ONE

OF THE GENERAL PRINCIPLES OF COMMUNITY LAW , THE OBSERVANCE OF WHICH IT HAS A

DUTY TO ENSURE. THERE CAN BE NO DOUBT THAT THE ELIMINATION OF DISCRIMINATION

BASED ON SEX FORMS PART OF THOSE FUNDAMENTAL RIGHTS .


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ON THE OTHER HAND , AS REGARDS THE RELATIONSHIPS OF EMPLOYER AND EMPLOYEE

WHICH ARE SUBJECT TO NATIONAL LAW , THE COMMUNITY HAD NOT , AT THE TIME OF THE

EVENTS NOW BEFORE THE BELGIAN COURTS , ASSUMED ANY RESPONSIBILITY FOR

SUPERVISING AND GUARANTEEING THE OBSERVANCE OF THE PRINCIPLE OF EQUALITY

BETWEEN MEN AND WOMEN IN WORKING CONDITIONS OTHER THAN REMUNERATION .AS

HAS BEEN STATED ABOVE , AT THE PERIOD UNDER CONSIDERATION COMMUNITY LAWCONTAINED ONLY THE PROVISIONS IN THE NATURE OF A PROGRAMME LAID DOWN BY

ARTICLES 117 AND 118 OF THE TREATY , WHICH RELATE TO THE GENERAL DEVELOPMENT OF

SOCIAL WELFARE , IN PARTICULAR AS REGARDS CONDITIONS OF EMPLOYMENT AND

WORKING CONDITIONS .32IT FOLLOWS THAT THE SITUATION BEFORE THE BELGIAN COURTS

IS GOVERNED BY THE PROVISIONS AND PRINCIPLES OF INTERNAL AND INTERNATIONAL LAW

IN FORCE IN BELGIUM .33THE REPLY TO THE SECOND PART OF THE QUESTION MUST

THEREFORE BE THAT AT THE TIME OF THE EVENTS WHICH FORM THE BASIS OF THE MAIN

ACTION THERE WAS , AS REGARDS THE RELATIONSHIPS BETWEEN EMPLOYER AND

EMPLOYEE UNDER NATIONAL LAW , NO RULE OF COMMUNITY LAW PROHIBITING

DISCRIMINATION BETWEEN MEN AND WOMEN IN THE MATTER OF WORKING CONDITIONSOTHER THAN THE REQUIREMENTS AS TO PAY REFERRED TO IN ARTICLE 119 OF THE TREATY .

Judgment of the Court of 15 June 1978. Gabrielle Defrenne v Socit anonyme belge de

navigation arienne Sabena.. Case 149/77.

Apart from the many commentaries that could be done about this decision, as is seen, the

ECJ has qualified the principle as a fundamental right notwithstanding the exercise of an

economic activity. Here, it should be noted that as a general principle, the principle of

equality does not endorse any particular theory of equality. As a General Principle, the

principle is seen as a principle of good governance, or of democracy (or, perhaps more

convincingly, as a republican principle), preventing the public decision making powers inEurope to impose differential treatment without legitimate purposes. It then requires that

public powers justify their policies.

Nowadays, in Community Law, equality is omnipresent as a legal concept.

It is first a principle that underlies the objective of ensuring that public agencies do not

discriminate against market actors on arbitrary grounds.

THE NON-DISCRIMINATION RULE WOULD BE INFRINGED IF IT WERE SHOWN THAT THE

COMMUNITY LEGISLATURE HAD TREATED COMPARABLE SITUATIONS DIFFERENTLY .

Judgment of the Court of 27 October 1971. Rheinmhlen Dsseldorf v Einfuhr- und

Vorratsstelle fr Getreide und Futtermittel. Case 6-71.

The very goal for this rule is deriving from the liberal doctrine of equality, under which

competition between undertakings must be fair, on equal footing, noone being abnormally

disadvantaged.

The principle of equal treatment prohibits like cases from being treated differently, thereby

subjecting some to disadvantages as opposed to others, without such differentiation being

justified by the existence of substantial objective differences (Case T-106/96

Wirtschaftsvereinigung Stahlv Commission [1999] ECR II-2155, paragraph 103).


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It is also a principle underpinning the internal market or, in other words, of economic

integration. The prohibition of discrimination on grounds of nationality provides the starting

point for the fundamental freedoms of movement.

Last, we can say that equality is a fundamental right. It covers the prohibition of

discriminations on grounds of sex, race, age, or social practices.

BThe textual formalization of the Principle in the social field

The process of formalization of the Principle of equality participates to a kind of

constitutionalization movement (of a substantial nature). So that the principle is now in

article 13 EC, but also in the Charter of fundamental rights, and in a series of directives.

1- The EU Treaty after Amsterdam and before Lisbon

-Art. 13 ECT

The Article 13 ECT has been introduced by the Amsterdam treaty. It has had a quite fast

implementation. The Amsterdam Treaty entered into force on 1st May 1999.

Art. 13 provides that :

The Council, acting unanimously on a proposal from the Commission and after consulting

the European Parliament, may take appropriate action to combat discrimination based on

sex, racial or ethnic origin, religion or belief, disability, age orsexual orientation.

This article inputs a political dynamic, but do not grant any right. Moreover, any decision

must be taken unanimously.

But on the 2nd November 1999 the European Commission presented to the Council a packet

of proposals with two Directives and one Action Programme. After only one year all the

three measures have been adopted.

- The Directives

The Directives adopted in 2000 are not the first directives to deal with equality. Article 119

of the Treaty of Rome enshrines the principle that men and women should receive equal pay

for equal work. The Member States have shown little enthusiasm for implementing this

provision and a series of directives has therefore been adopted since 1975. But the

important general Directives have been adopter after the Amsterdam T.

Directive 2000/78/CE is generally called the framework Directive, which provides for

equal treatment in employment on all the grounds included in Article 13 (against

discrimination at work on grounds of religion or belief, disability, age or sexual orientatio,

with the exception of sex and race).

This Employment Equality Directive 2000/78/EC:


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Implements the principle of equal treatment in employment and training irrespective of

religion or belief, sexual orientation and age in employment and training.

Includes identical provisions to the Racial Equality Directive on definitions of discrimination,

rights of legal redress and the sharing of the burden of proof

Requires employers to make reasonable accommodation to cater for the needs of a person

with a disability who is qualified to do the job in question.

Allows for limited exceptions to the principle of equal treatment, for example to preserve

the ethos of religious organisations or to allow special schemes to promote the integration

of older or younger workers into the labour market.

The other one, Directive 2000/43/CE, the race Directive applies to a wider range of areas,

but only on the grounds of racial or ethnic origin.

The Racial Equality Directive 2000/43/EC:

Implements the principle of equal treatment between people irrespective of racial or ethnic

origin.

Gives protection against discrimination in employment and training, education, social

security, healthcare and access to goods and services.

Contains definitions of direct and indirect discrimination, harassment and victimisation.

Gives victims of discrimination a right to make a complaint through a judicial or

administrative procedure, associated with appropriate penalties for those who discriminate.

Shares the burden of proof between the complainant and the respondent in civil and

administrative cases.

Provides for the establishment in each Member State of an organisation to promote equal

treatment and provide independent assistance to victims of racial discrimination.

These two Directives do not fall into the conventional relationship between framework

and implementing or daughter Directives. They stand alone: the race Directive is notintended to provide for detailed implementation of general principles set out in the

framework Directive.

Gender (not sexual orientation) is excluded from these Directives because it is covered by

important Community legislation going back as far as the 1970s and because it has a specific

legal basis for action in the employment field, namely, which was strengthened at

Amsterdam. It is for this reason that a specific Directive, the 2002/73/CE was passed later

based on Art. 141 EC Treaty.

A distinct feature of both directives is their horizontal application. They Mandate MemberStates to apply their provisions both to the public and private sectors an thus, within the


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scope of their application, make the principle of equal treatment as implemented by

national law binding also on private entities. Since directives may not produce horizontal

effect, individuals may rely against other private entities not on the directives themselves

but on norms of national law which implement them or can be interpreted in conformity

with them.

Current Proposal for a new directive against discrimination based on age, disability, sexual

orientation and religion or belief beyond the workplace

This new directive, proposed by the Commission in July 2008 and being negotiated, proposes

the following: Equal treatment in the areas of social protection, including social security and

health care, education and access to and supply of goods and services which are

commercially available to the public, including housing. The Directive will prohibit direct and

indirect discrimination as well as harassment and victimisation. For people with disabilities,

there would be an obligation to provide them general accessibility as well as reasonable

accommodation . Both are subject to the condition that they do not impose adisproportionate burden on service providers.

2- The Fundamental rights Charter

The EU Charter of Fundamental Rights was solemnly promulgated in 2000 in Nice. The third

chapter is headed Equality with six articles concerning: Equality before the law (Article 20);

Non-discrimination (Article 21); Cultural, religious and linguistic diversity (Article 22);

Equality between men and women (Article 23); The rights of the child (Article 24); The rights

of the elderly (Article 25); Integration of persons with disabilities (Article 26).

In part, this document sets out more systematically the fundamental rights already

considered by the ECJ as arising from the general principles of Community law. The Charter

goes further, however, in setting out a wider catalogue of rights that are considered to be

fundamental in the European Union. Original is the general provision setting out that

everyone is equal before the law. It is the first Positive Equality declaration also taking

account of the European Conventions of Human Rights. The text includes also the classical

ban of Discrimination based on any ground such as sex, race, colour, ethnic or social origin,

genetic features, language, religion or belief, political or any other opinion, membership of a

national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Comparing to Article 13 ECT as included by the Amsterdam Treaty, this is not only a legal

base for European Acts :it widens the list of prohibited grounds, non intended as exhaustive.

The Union is to respect cultural, religious and linguistic diversity. Equality between men and

women must be ensured in all areas, including employment, work and pay, but the principle

ofequality shall not prevent the maintenance or adoption of measures providing for

specific advantages in favour of the under-represented sex.

Certain rights of the children are recognized, including the right to such protection and care

as necessary for their well-being. The rights of the elderly to lead a life of dignity and

independence and to participate in social and cultural life is recognized and respected, as is

the right of persons with disabilities to benefit from measures designed to ensure their


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independence, social and occupational integration and participation in the life of the

Community.

A very discussed issue has been that of the legal status of the Charter. After its adoption it

was clear that it could not have any binding effect postponing this decision to the 2004, but

several Advocates General and the Court of First Instance of have already referred to theCharter in their opinions and decisions. The Charter has been included in the Second

Chapter of the European Treaty Project establishing a Constitution for Europe.

Finally it is now legally binding since the entry into force of the Lisbon Treaty

3- Current Treaty provisions

Art 2. TFUE (values):

The Union is founded on the values of respect for human dignity, freedom, democracy,equality, the rule of law and respect for human rights, including the rights of persons

belonging to minorities. These values are common to the Member States in a society in

which pluralism, non-discrimination, tolerance, justice, solidarity and equality between

women and men prevail .

See also article 3.3 TFUE (internal market policies):

The Union shall establish an internal market. .It shall combat social exclusion and

discrimination, and shall promote social justice and protection, equality between women

and men, solidarity between generations and Article 10 (TFUE). In defining andimplementing its policies and activities, the Union shall aim to combat discrimination based

on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 18 (nationality)

Within the scope of application of the Treaties, and without prejudice to any special

provisions contained therein, any discrimination on grounds of nationality shall be

prohibited. The European Parliament and the Council, acting in accordance with the ordinary

legislative procedure, may adopt rules designed to prohibit such discrimination.

Article 19 (ex 13)

1.Without prejudice to the other provisions of the Treaties and within the limits of the

powers conferred by them upon the Union, the Council, acting unanimously in accordance

with a special legislative procedure and after obtaining the consent of the European

Parliament, may take appropriate action to combat discrimination based on sex, racial or

ethnic origin, religion or belief, disability, age or sexual orientation.

2.By way of derogation from paragraph 1, the European Parliament and the Council, acting

in accordance with the ordinary legislative procedure, may adopt the basic principles of

Union incentive measures, excluding any harmonisation of the laws and regulations of the


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Member States, to support action taken by the Member States in order to contribute to the

achievement of the objectives referred to in paragraph 1

Article 45

Freedom of movement for workers shall be secured within the Union.

.Such freedom of movement shall entail the abolition of any discrimination based on

nationality between workers of the Member States as regards employment, remuneration

and other conditions of work and employment.

c) Implementation of the Principle of Equality

General view (i), then implementation by topics or sectors (ii), iii, )

1- In generalIt must be admitted that in general the principe of equal treatment binds the European

institutions in the exercice of their powers to coordinate national laws. But in this context,

the fact that the european rules mays produce different effects in the various member states

does not in itself mean that they run counter to the principle of equal treatment. It has been

held that a harmonization measure which is intended to standardize previously disparate

national laws, which discriminates, but does not amount to unjustified discrimination, is not

contrary to the principle of equality.

The example of the Francovich II case (C 479-93), 1995, can be given.

In this case, the problem was concerning Directive 80-987 on the approximation of laws of

the Member States relating to the protection of employees in the event of the insolvency of

their employer. The Directive was applying only to employees whose employers may, under

national law, be made subject to insolvency proceedings for the collective satisfaction of the

creditors. It was argued that the directive infringed the general principle of equality to the

extent that it protected only those employees, but not the others.

In its judgment, the court did no deny that the Directive was resulting in a difference in

treatment between two categories of employees, but it focused on whether the difference

in treatment was objectively justified.

It held that, in the exercise of the powers conferred upon them by the EC Treaty, the

institutions have discretion in particular with regard to the possibility of pursuing

harmonization in stages. It also noted the difficulties surrounding the harmonization process

given the complexity and divergence of national laws and the need to obtain unanimity in

the Council under the procedure provided for in article 94. In this context, the Court held

that given the difficulties in finding a concept of insolvency capable of unambiguous

application in the divergent laws of the Member States, the distinction between employees

according to whether their employers may, or may not, be subject to proceedings to satisfy

collectively the claims of creditors, derived from a concept of insolvency which was

objectively justified.


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2- Discrimination on grounds of sex and sexual orientationsSex equality

As you will remember, sex equality in the EU law was first written in the context of the

principle of equal pay at work, originally included in the Treaty of Rome. This article 119 andthe directives adopted byt the Council on sex equality have had an influence on the domestic

laws of Member States, giving rise to a culture of sex equality, sustained also by an activist

case law. In the Defrenne v. Sabena case (43/75, 1976), the Court declared that art. 119 has

a direct effect, so that it is possible for a female to rely on that provision against her

employer (remark that in 1978, in the Defrenne case we have already seen, the principle of

equality as regard working conditions other than equal pays have not been considered as

having a direct effect).

The Court regards sex equality as a fundamental human right. In the Defrenne case of 1978

(149/77), it declared that the elimination of sex discrimination forms part of thefundamental rights recognized and enforced by the Court.

To be continued.

The P and S case (13/94, 1996), provides an example of the way the Court views the

principle of equality as a general principle of community law transcending the provisions of

community legisltation. It was a case concerning a trans sexual. The applicant was

dissmissed from its employment following a decision to undergo gender reassignment by a

surgical operation. The question put to the Court was whether the Equal Treatment Directive

precludes dismissal of a trans sexual for reasons related to gender reassignment. The UnitedKingdom submitted that no discrimination was involved because a female to mal trans

sexual would have been treated in exactly the same way as the applicant. The Court refused

this comparison.

The Court Concluded that to tolerate such discrimination would be tantamount, as regards

such a person, to a failure to respect dignity and freedom to which he or she is entitled, and

which the Court has a duty to safeguard .

Sexual orientations

Another important issue is wether the Equal Treatment Directive is broad enough to

encompass discrimination against other groups, in particular homosexuals.

In Grant v. South West Trains Limited(C- 249/96, 1998), the applicant , a female employee,

argued that she was victim of sex discrimination because she was refused by her employer

certain travel concessions, which had been made available to her predecessor for his

cohabitee of the opposite sex, on the ground that her cohabitee was of the same sex.

In its judgment, the Court observed that discrimination on the ground of sexual orientation

is different that discrimination on the ground of sex. It observed also that the conditions that

the worker must live with a person of the opposite sex in order to benefit from the travelconcession was applied regardless of the sex of the worker concerned. Travel concessions


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were effectively refused to a male living with a male, as well to a female living with a

female. It then considered that situations where two people are married, ore where two

persons of the opposite sex have a stable relationship, are not comparable to situations

where persons living together are of the same sex.

As you may see, the case law of the Court establishes a distinction between transsexual andhomosexuals. Differences in treatment againts the latter is more difficult to see caught by

the general principle of non discrimination.

Now, these cases are dated, for the least, 1998. The Directive 2000/78 has been adopted

since then. But it is still not clear whether the Grantcase would be caught by the Directive

because it forbids all discrimination on the ground of sexual orientation only with regard to

working conditions , not to social advantages .

The case law of the Court has evolved towards assimilating marriage to other forms of union.

Case Tadao Maruko, 1 april 2008, C 276-06. In this case, the Court holds that where aMember state has created a form of union comparable to marriage, and open to same sex

partners, they may not create an arbitrary difference in treatment between marriage, which

is not open to the same sex couples, and the form of union open to them, as regards

advantages falling under the material scope of application of the Employment Equality

Directive. But this does not imply that all the Member States have to adopt institutions

equivalent to marriage, for the same sex couples.

On this subject, see European Union Agency for Fundamental Rights, Homohobia and

Discrimination on Grounds of Sexual Orientation in the EU Member States, Part I, Legal

analysis, O. de Schutter, 2008, spec. p. 52 ff.

3- Positive discriminationPositive action defines specific measures to eliminate, prevent or remedy past

discrimination. It goes beyond legislation on equal treatment by promoting substantive

equality (equality of outcomes), for example, by addressing structural disadvantages rather

than merely aiming for equality of opportunity or prohibitions on discrimination.

In 1984, a Council Recommendation on the Promotion of Positive Action for Women

proposed that Member States adopt a positive action policy to eliminate existing

inequalities in working life and to promote a better balance between the sexes in

employment (84/635/EEC, *1984+). In 1988 the Commission published Positive action: equal

opportunities for women in employment, a guide.

It is clear that strict application of the principle of equal treatment is a potential barrier to

the adoption of positive action. This was addressed by Council Directive 76/207/EEC of 9

February 1976 on the implementation of the principle of equal treatment for women and

men as regards access to employment, vocational training and promotion, and working

conditions: This directive shall be without prejudice to measures to promote equal

opportunity for women and men, in particular by removing existing inequalities, which affect

womens opportunities.


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However, the application of positive action by Member States and the interpretation of this

provision when some of these actions were challenged led to European Court of Justice

decisions that raised uncertainty about the extent to which positive action can be permitted

under Community law.

In Kalanke, Case C-450/93, [1995] the Court held that a national rule to the effect that whereequally qualified men and women are candidates for the same promotion, in sectors where

there are fewer women than men at the level of the relevant post, women are automatically

to be given priority involves discrimination on grounds of sex.

In Marschall, Case C-409/95, [1997, the Court held that, unlike the rules at issue in Kalanke, a

national rule which contains a saving clause is acceptable if, in each individual case, it

provides for male candidates who are as qualified as the female candidates a guarantee that

the candidatures will be the subject of an objective assessment which will take account of all

criteria specific to the individual candidates and will override the priority accorded to female

candidates where one or more of those criteria tilt the balance in favour of a malecandidate.

The Treaty of Amsterdam attempted to provide some clarification with a new provision in

Article 141(4) EC: (T)he principle of equal treatment shall not prevent any Member State

from maintaining or adopting measures providing for specific advantages in order to make it

easier for the under-represented sex to pursue a vocational activity or to prevent or

compensate for disadvantages in professional careers.

Council Directive 2002/73/EC (OJ 2002 No. L269/15) subsequently revised the provision of

Article 2(4) of the 1976 directive to read: Member States may maintain or adopt measureswithin the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in

practice between women and men (new Article 2(8)). Similarly, provisions were enacted

under the rubric Positive action in Article 5 ofCouncil Directive 2000/43 which implements

the principle of equal treatment between persons, irrespective of racial or ethnic origin and

in Article 7 of Council Directive 2000/78 which establishes a general framework for equal

treatment in employment and occupation. In the latter case, specific provision is made for

disabled persons.

In Badeck, 28 March 2000 (1), Case C-158/97, the court summed up the position of European

Law as regards Positive discrimination

4- Equality of States?Equality of Member States is a general, unwritten, principle of Community Law. It has been

referred by the Court especially in enforcement actions under Article 226 EC. On one case,

the Court stated:

In permitting Member States to profit from the advantages of the Community, the Treaty

imposes on them also the obligation to respect its rules. For a State unilaterally to break,

according to its own conception of national interest, the equilibrium between advantages

and obligations flowing from its adherence to the Community brings into question the


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equality of Member States before the Community law and creates discrimination at the

expense of their nationals. (Commission v. Italy 1973, 39/72).

5- Non discrimination and legalityA Member State may not invoke equality in order to justify its failure to comply with theCommunity law. Thus, where the Commission institutes proceedings against a member

state, it is not good defence to argue that the same breach has been committed by other

member states.

It is the same reasoning as regards private persons.

In 22 December 2005, in the Gorostiaga Atxalandabaso, Case T-146/04, a Parliament

Member had perceived an allowances normally due to cover the expenses arising from the

employment or from the engagement of the services of one or more assistants. The

Commission, then, claimed that he had to pay back this amount. In the Court, he pointed outthat the measures taken against him are unprecedented. In his opinion, that constituted an

infringement of the principle of equality and non-discrimination.

Findings of the Court

141 As may be seen from the case-law, the principle of equality of treatment must be

reconciled with the principle of legality, according to which no person may rely, in support of

his claim, on an unlawful act committed in favour of another (judgments in Cases 188/83

Witte v Parliament[1984] ECR 3465, paragraph 15, 134/84 Williams v Court of Auditors

[1985] ECR 2225, paragraph 14, and Italyv Council, cited in paragraph 134 above, atparagraphs 87-93).

142 Hence, even supposing that the applicants complaints concerning unlawful acts

committed in favour of other Members, on account of the absence or inadequacy of checks

on the use of parliamentary allowances, are well founded, the applicant cannot benefit

therefrom.

It follows that a measure which is intended to give priority in promotion to women in

sectors of the public service where they are under-represented must be regarded as

compatible with Community law if

- it does not automatically and unconditionally give priority to women when women and

men are equally qualified, and

- the candidatures are the subject of an objective assessment which takes account of the

specific personal situations of all candidates.


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II- The Principle of Proportionality

A) Origins and functions of the principle

1- Origins

As a constitutional principle and as a general principle of administrative law, the principle of

proportionality requires each decision and measure to be based on a fair assessment and

balancing of interests, as well as on a reasonable choice of means. In other words, any action

undertaken must be proportionate to its objective.

The principle of proportionality as a legal principle is derived from German law. It is a legal

safeguard against the unlimited use of legislative and administrative powers and considered

to be a part of a rule of common sense, according to which an administrative authority

may only act to exactly the extent that is needed to achieve its objectives.

More specifically, the principle of proportionality means that any measure by a public

authority that affects a basic human right must be:

appropriate in order to achieve the objective, which is intended,

necessary in order to achieve the objective, which is intended, i.e. there are no less severe

means of achieving the objective, and reasonable, i.e. the person concerned can reasonably

be expected to accept the measure in question

As a ground for review, the principle of proportionnality was first developped by the Court tocounter-balance the effects of market regulation measures restricting economic freedom

adopted under the ECSC treaty. In this context, in 1956, the Court referred to a generally

accepted rule of law according to which the reaction by the high authority to illegal action

must be in proportion of the scale of that action (Fdchar, 8/55, 1956).

It affected EU law more deeply in the Internationale Handelsgesellschaftcase in 1970:

A public authority may not impose obligations on a citizen except to the extent to which

they are strictly necessary in the public interest to attain the purpose of the measure.

Since then it has become one of the important fundamental principles of the jurisprudence

developed by the European Court of Justice.

The principle of proportionality is identified as a general principle of law, not as a

fundamental freedom provided by the Treaty of the European Union. Proportionality is not

itself a fundamental right, but its role is to determine the substantial content of other rights.

Moreover, the treaties began to include the principle in their provisions only recently.


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2- Incorporation of the principle in the treaty

It is in 1999 that the principle of proportionality was incorporated in the EU Amsterdam

Treaty. Article 3 of the EU Amsterdam Treaty states: Any action by the Community shall not

go beyond what is necessary to achieve the objectives of this Treaty. This provision was the

article 5 of EC treaty (before Lisbon).

In the current TFEU, article 5, al. 4 states:

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. .

The Protocol 2 on the application of the principles of subsidiarity and proportionalityannexed to the treaty explicitly refers to this article 5 under this title. This protocol states

that the members are: WISHING to ensure that decisions are taken as closely as possible

to the citizens of the Union .

But let us take note that there is a clear distinction between the concept of the principle of

proportionality, whose provision falls under Article 5 of the Treaty, and the one that

emerges from the case law of community courts: the concept of the principle of

proportionality provided by the Treaty is rather narrow- as it refers only to community

institutions and not to Member States- and it appears inextricably interrelated with the

principle of subsidiarity, which is embodied in the very same Article (5) of the Treaty.Compared to that narrow meaning, the application of the principle of proportionality in the

case law of community courts reveals a widerconcept of the principle.

In effect, the principle of propotionnality applies both to Community AND to national

measures (when they apply community law) and covers both legislative and administrative

action. The Court requires that all administrative acts or decisions and all legislation be in

conformity with the general principle of proportionality.

3- Funtions of the principle,

The principle fulfils 3 primary functions:

it is used as a ground for review of Community measures;

it is used as a ground for review of national measures affecting one of the fundamental

freedoms;

it governs the exercise by the Community of its legislative competence.

Clearly, the principle of proportionality plays a central role in the case-law of the European

Court of Justice. It is of course implemented in the field of economic law, because of theliberal approach of EC Law, under which it is felt necessary to retrain the administrative


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interventions, but also in cases concerning agricultural issues, free movement of goods, state

aid or citizenship, but also external trade.

In fact, the principle is not applicable only in two particular cases: where the ECJ is excluded

under the founding treaties; where the treaty excludes the application of the principle.

The wide range of application of the proportionality principle necessitates certain

restrictions when describing its operation in European law. In particular, differences in

application are visible between proportionality in relation to penalties or financial burdens

and proportionality in relation to discretionary policy choices.

The test applied to penalties or other financial burdens is mainly a test of excessiveness: the

essence of the proportionality argument in these cases is mostly that the penalty is too

drastic in relation to the aim of the measure in question. Although this test of excessiveness

may raise many interesting questions, its application in European law is relatively

uncontroversial. I will not explain this point here.

I will only deal with proportionality as a general principle for discretionary policy decisions,

which is, of course, a question of europeangovernance.

Then, we will first present a characterisation of the European proportionality test as it is

applied by the CJ. Then we will present the various requirements and subtests used by the

Court. Finally, we will see what is the intensity of the Courts proportionality review .

B) The ECJs Proportionality Review

In German legal literature and practice, the general test of proportionality is subdivided in

three different tests or requirements.

To meet the requirement of proportionality, a measure or decision must constitute an

effective means to realise the aims pursued by the measure or decision (test of

effectiveness; or appropriateness).

Further, the measure or decision must be necessary to achieve the relevant aims, which

means in particular that no alternative and less intrusive measures are available (test of

necessity and subsidiarity).

Finally, even if it is clear that a certain act or measure is an appropriate and necessary means

to achieve a legitimate policy, an act, decision or measure can still be disproportionate if no

reasonable or fair balance is struck between the aims pursued and the interests harmed

(test of proportionality in the strict sense or proportionality stricto sensu).

Although these three sub-tests are also widely used and recognised in European law, the

CJ appears to be rather ambiguous as regards their application. In fact there is no single

formula the Court systematically and consistently uses in its proportionality review. Rather,

the Court disposes of a variety of different formulas, seemingly rather arbitrarily choosing

one or the other depending on the circumstances of the case.Sometimes the Court focuses

on just one or two of the three distinct tests; in other cases it applies a general test of


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arbitrariness or reasonableness; and it even sometimes uses a completely different formula,

for instance stating that a decision should not impair the very substance of the right at hand.

The confusion created by the Courts proportionality case-law is mitigated somewhat by the

efforts of legal scholars to analyse and describe the Courts approach as much as possible in

accordance with the three different tests that are characteristic for the Germanproportionality concept. We can then present this review under the three distinct elements

of effectiveness, necessity and proportionality in the strict sense. It is important to

remember, however, that the Court only seldom applies all of these tests in one single

judgment.

1- Effectiveness (or appropriateness, or suitability)When applying the general principle of proportionality, the ECJ frequently states that the

principle requires an act or measure to be apprpriate, or suitable, to achieve the aims

pursued, or it rather concludes that a decision is disproportionate because it is manifestlyinappropriate in terms of the objective which the competent institution is seeking to

pursue.

In practice, the requirement of appropriateness generally appears to be quite unimportant

in comparison to other elements of the proportionality test. The Court only rarely tests the

appropriateness of the measure or decision at hand and it has developed hardly any criteria

or standards to do so.

We can nevertheless give an example with a recent case (Legua Portuguesa)

TO be continued. We can further observe that the Courts case-law in agricultural cases

shows that the criterion to be applied is not whether the measure adopted by the

legislature was the only one or the best one possible but whether it was manifestly

inappropriate.

When applying a test the Court relies on retrospective, rather than retroactive review:

Where the Community legislature is obliged to assess the future effects of rules to be

adopted and those effects cannot be accurately foreseen, its assessment is open to criticism

only if it appears manifestly incorrect in the light of the information available to it at the

time of the adoption of the rules in question.

Finally, the Court has stressed in many cases that the assessment of suitability is strongly

related to the facts and circumstances of the case. For that reason, it usually leaves this

assessment to the relevant Community or national authorities or, in preliminary

proceedings, to the national courts.

2- Necessity and subsidiarityThe requirements of necessity and subsidiarity constitute the core of the ECJs

proportionality review. They are mentioned in almost all cases in which the principle of

proportionality is applied. Nonetheless, the Court has only rarely explained the precisemeaning of these requirements.


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This is true in particular for the test of necessity. Although this test evidently concerns the

need to choose a certain act, measure or decision as a means or instrument to realise a

certain goal, it not so clear what exactly necessary means.

Does it mean that the chosen measure or act is really indispensable, in the sense that the

aims could not be achieved but for this particular measure or decision? Or does it rathermean that the measure is relatively useful and, to say the least, not superfluous?

In practice, the standards the ECJ uses in assessing necessity appear to depend strongly on

the circumstances of the case and the relevant area of Community law.

We can take an example of assessement of the proportionnality of a national measure

contrary to the free movement of goods. And once again, I think that the Liga portuguesa de

Futebol Profissional is an interresting case.

The Court has also established an elaborate line of case-law with respect to the principle ofprecaution that is sometimes invoked in justification of trade barriers, such as measures

limiting the import of foodstuffs containing artificial additives such as vitamins. In these

cases the Court requires the authorities of the member states to demonstrate on basis of

recent and convincing scientific data that the perceived risks of certain goods to public

health or to the environment are actual, concrete and real. Only if these risks are sufficiently

evaluated and demonstrated on the national level, the ECJ will consider restrictive measures

to meet the requirement of necessity.

Now, the test of subsidiarity can be regarded as a subspecies of the requirement of

necessity.

It means that the principle of proportionality is infringed when drastic means were chosen

whilst less intrusive instruments were available that would have had similar effect. When

applying a marginal test, the Court mostly demands that the applicant party show that less

intrusive (but equally effective) measures were available.

In other cases the ECJ itself has suggested possible alternatives, for example basing itself on

solutions that it has found in national or Community law or on suggestions that have been

made by the Advocate-General.

3- Proportionality stricto sensuThe ECJ does not often expressly apply the test of proportionality stricto sensu.

We can understand that it is a kind of opportunity test, under which the Court has to check if

the balance of all the interrest at stake is correct, and that this kind of opportunity test is

very difficult to achieve for a judge, who should not intervene in the policical field.

It is nevertheless possible to trace some elements of the test of proportionality in the strict

sense in the Courts case law. In particular the Court almost always determines the interests

that are being served by the contested measure or decision, and it often evaluates whetherthe measure or decision impairs the interests protected by the EC Treaty.


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In this respect, the Court also demands that the relevant national or Community bodies have

established the presence of such interests in the decision-making process: according to the

Court, the authorities should take into account all the protected interests involved.

In addition it has made clear that certain interests cannot constitute legitimate government

aims, which means that furtherance of such interests is never in conformity with theprinciple of proportionality. For example, restrictions of the free movement of goods can

only be justified by one of the aims mentioned in Article 30 EC or flowing from the rule of

reason established in the Cassis de Dijon case.

An assessment of the weight of the respective aims and interests and the seriousness of the

harm done is also visible in the Courts case-law.

C)Intensity of the ECJs proportionality review

The cases in which the European principle of proportionality is invoked mostly concern theexercise of discretionary powers by national or Community bodies.

In these cases the Court usually applies a highly deferential or marginal test, examining

whether a certain decision or measure is manifestly inappropriate or is vitiated by a

manifest error, or investigating whether the relevant authority manifestly exceeded the

bounds of its discretion.

In certain other cases, however, the Court opts for a much stricter test, making high

demands on the demonstration of necessity of the chosen instruments and the importance

of the aims pursued or even requiring fundamental interests of society to be shown injustification of an interference with Community freedoms. It is evident that it is much more

difficult to satisfy the test of proportionality if such a strict test is applied than if the Court

applies deferential or marginal review.

The choice for a deferential or intensive proportionality review is determined by a variety of

factors.In the first place, the nature and extent of the powers granted to the relevant

authorities (both on the national and the Community level) is important to the intensity of

the Courts proportionality review. If the bounds of a normative or executive power are

widely drawn, or if decision-making requires difficult political choices or complex

assessments of social and economic factors to be made, the Court usually considers thatmarginal review is appropriate.

The primary reason for this is that the national and Community authorities are generally

better placed than the Court to make such choices.Secondly, the Court appears to attach

much weight to the nature of the interests concerned in a particular case in order to

determine the intensity of its review.

Of first and foremost importance in this regard is the nature of the interests that are being

interfered with. If an important Community interest has been impinged upon, such as the

free movement of goods or persons, the Courts review is usually very strict because of the

importance of these freedoms for the smooth operation of the European Union.This will

only be different if the interference serves a national interest about which there does not


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appear to be a European consensus, for example when certain services or goods have been

prohibited in order to protect human dignity.

If the individual interest harmed by the contested measure or decision is a fundamental

right, the Courts review will also be strict.Once again, however, this rule is not absolute,

since not every individual fundamental right is considered to be of like importance. Forexample, the Court sees less reason to apply a strict test in a case concerning restrictions of

commercial expression than in cases concerning interferences with press freedom.

Furthermore, the ECJ will only apply a strict test if a measure restricts the exercise of a

fundamental right.

If, by contrast, a certain measure is aimed at protecting fundamental rights and interests,

the Court will commonly show deference. Finally, if the impaired interest is not a Community

interest, but rather a national or individual interest (not being a fundamental right), the

Courts review is generally deferential. This is true in particular if the measures or decisions

at hand aim to protect Community interests or have been taken to implement Communitylaw, as will often be the case with agricultural or environmental measures. Whether such

measures have been taken by Community institutions or national authorities appears to be

of less relevance to the intensity of the Courts review it is mainly the nature of the

relevant interests that determines the amount of discretion that is left to the authorities.

Conclusion

Until now, within the legal order of the European Union, despite the fact that the principle of

the separation of powers is not as strictly determined, the systematic judicial review could

counter-balance the Unions so-called democratic deficit, that is the accumulation oflegislative power in the Council and the Commission. Those organs, which are not

democratically legitimized, need the existence of an institutional counterbalance, a role that

could be perfectly performed by the Unions courts.

Court (First Chamber) of 23 February 1983. Fromanais Case 66/82. IN ORDER TO

ESTABLISH WHETHER A PROVISION OF COMMUNITY LAW IS CONSONANT WITH THE

PRINCIPLE OF PROPORTIONALITY IT IS NECESSARY TO ESTABLISH , IN THE FIRST PLACE ,

WHETHER THE MEANS IT EMPLOYS TO ACHIEVE ITS AIM CORRESPOND TO THE IMPORTANCE

OF THE AIM AND , IN THE SECOND PLACE , WHETHER THEY ARE NECESSARY FOR ITS

ACHIEVEMENT.

Court of 18 September 1986. Commission C. Germany. 116/82.21

THE PRINCIPLE OF PROPORTIONALITY REQUIRES THE MEASURES IMPOSED BY THE

COMMUNITY INSTITUTIONS TO BE APPROPRIATE TO ACHIEVE THE INTENDED OBJECTIVE

AND NOT TO EXCEED THE LIMITS OF WHAT IS NECESSARY TO THAT END .

Court (Fifth Chamber) of 11 July 1989. Hermann Schrder 265/87.21

the principle of proportionality is one of the general principles of Community law . By virtue

of that principle, measures imposing financial charges on economic operators are lawful


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provided that the measures are appropriate and necessary for meeting the objectives

legitimately pursued by the legislation in question .

Of course, when there is a choice between several appropriate measures, the least onerous

measure must be used and the charges imposed must not be disproportionate to the aims

pursued .

22 However, with regard to judicial review of compliance with the abovementioned

conditions, it must be stated that, in matters concerning the common agricultural policy, the

Community legislator has a discretionary power which corresponds to the political

responsibilities imposed by Articles 40 and 43 . Consequently, the legality of a measure

adopted in that sphere can be affected only if the measure is manifestly inappropriate

having regard to the objective which the competent institution intends to pursue ( see in

particular the judgment in Case 179/84 Bozzetti v Invernizzi (( 1985 )) ECR 2301 )

JUDGMENT OF THE COURT (Grand Chamber), 10 January 2006, In Case C-344/04

With regard to judicial review of the conditions referred to in the previous paragraph, the

Community legislature must be allowed a broad discretion in areas which involve political,

economic and social choices on its part, and in which it is called upon to undertake complex

assessments.

Consequently, the legality of a measure adopted in those fields can be affected only if the

measure is manifestly inappropriate having regard to the objective which the competent

institution is seeking to pursue.

III- The principle of subsidiarity

A) OriginsSemantically, subsidiarity comes from the Latin term subsidium, which meant help or

accessory used to consolidate a main element. The Latin term was also used in the form of

subsidiarius in order to define the backup troops that were called to strengthen the army

when necessary.

Subsidiarity emerged as an explicit principle of political thought in the 19th

century, findingexpression both in political liberalism and Catholic social theory. In political liberalism,

subsidiarity is a single-edged sword used to justify non-intervention by the state in

individual affairs. In Catholic social theory, subsidiarity is potentially double-edged, in that it

counsels state intervention where it is efficient and non-intervention where it is not.

Subsidiarity has been generally understood, in political terms, as a principle for determining

how powers should be divided or shared between different levels of government.

Subsidiarity is applied in the national legal orders in order to designate the principle of

decentralizing the local services and the competencies of the local authorities. Another

application of this term can be found in federal states, where it defines the relationship


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between the structures functioning at the federal level and those created at the level of each

state.

B) Subsidiarity in European Law Before LisbonArticle 5 of the ECSC Treaty stipulated that the Community should exert direct influence on

production only when circumstances so required. This was a first implementation of the

principle of subsidiarity at the european level.

At the European Level, subsidiarity has also been promoted by the council of Europe.

The European Charter of Local Self-Government was adopted under the auspices of the

Congress of the Council of Europe and was opened for signature by the Council of Europes

member states on 15 October 1985. Almost all Council of Europe member states are parties

to the Charter the exceptions are the three micro-states of Monaco, Andorra and San

Marino. New member states of the Council of Europe are expected to ratify the Charter atthe earliest opportunity.

The Charter commits the ratifying member States to guaranteeing the political,

administrative and financial independence of local authorities.

Art. 4, par. 3 of the Charter states:

Public responsibilities shall generally be exercised, in preference, by those authorities which

are closest to the citizen. Allocation of responsibility to another authority should weigh up

the extent and nature of the task and requirements of efficiency and economy.

This paragraph articulates the general principle that the exercise of public responsibilities

should be decentralised. This principle has been stated on a number of occasions within the

context of the Council. This implies that, unless the size or nature of a task is such that it

requires to be treated within a larger territorial area or there are overriding considerations

of efficiency or economy, it should generally be entrusted to the most local level of

government.

If we let aside the Charter, we can observe that subsidiarity found its first clear legal

expression in an EC Treaty when it appeared in the Single European Acts article on

environmental protection. It can be explained by the fact that by the mid-1980s, all Member

States recognised the need for the Community to have powers in the environmental field.

Several Member States, Denmark in particular, nonetheless feared that a common EC policy

would act to weaken their strict national environmental standards. Thus, the Act stated that

the Community shall take action relating to the Environment to the extent to which the

objectives can be attained better at Community level than at the level of individual Member

States.

During the 1991 intergovernmental conference to negotiate the Maastricht Treaty, the

British government saw subsidiarity as a means of limiting the EUs involvement in national

affairs and holding in check future transfer of policy competences to the EU. For the German


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government, on the other hand, subsidiarity was welcomed as a safeguard on the powers of

the German Lnder to regulate in areas such as education and social policy.

The Maastricht Treaty made subsidiarity a general rule for all Community activity. Article

3bTEC set out different requirements for Community action and contained three legal

principles of i)conferral; ii) subsidiarity; and iii) proportionality. These were carried over toArticle 5 of the post-Amsterdam TEC.

It is at this moment, and not before, that the principle of subsidiarity became a general

principle of community Law. In effect, the Court of First Instance of the EC ruled in its

judgment of 21 February 1995, SPO, that the subsidiarity principle was not a general

principle of law, against which the legality of Community action should be tested, before the

EU Treaty entered into force.

After the ratification of the Treaty of Maastricht in 1992, the European Council of

Birmingham (16 October 1992), reaffirmed the intention of bringing the European Unioncloser to its citizens through the principle of subsidiarity, but demanded some guidelines for

this application of the principle.

The following European Council (Edinburgh 11-12 December 1992) reached agreement on

the guidelines to implement the subsidiarity principle and measures to increase

transparency and openness in the decision making process of the Community and issued a

declaration on the principle of subsidiarity, which lays down the rules for its application.

Article 3b was elaborated on (interpreted) at this Edinburgh European Council in december

1992 following the Danish no vote to the Maastricht Treaty. There the Commissioncommitted itself to justify all new proposals on the basis of subsidiarity, both in the

preamble to the text and in the accompanying explanatory memorandum. The resulting

interpretation of subsidiarity places the burden of proof on the Commission to show that it

could better handle issues than the Member States. This interpretation was carried on to the

next intergovernmental conference in Amsterdam.

In the following council summits the guidelines were more clearly defined to be then

included as a Protocol in the Treaty of Amsterdam (1997). It establishes, among other things,

detailed criteria for the application of the principle of subsidiarity by the Community

Institutions participating in the legislative procedure.

The Amsterdam Treaty placed further emphasis on the principle of subsidiarity by including

it in Article 2TEU. According to Article 2 the objectives of the Treaty shall be achieved while

respecting the principle of subsidiarity as defined in Article 5 of the Treaty Establishing the

European Community. The Amsterdam Treaty also contains an accompanying Protocol on

the Application of the Principles of Subsidiarity and Proportionality

The formulation of the principle (before Lisbon) was then contained in Article 5 of the Treaty

Establishing the European Community (consolidated version following the Treaty of Nice):


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The Community shall act within the limits of the powers conferred upon it by this Treaty and

of the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action,

in accordance with the principle of subsidiarity, only if and in so far as the objectives of the

proposed action cannot be sufficiently achieved by the Member States and can therefore, byreason of the scale or effects of the proposed action, be better achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives

of this Treaty.

A more descriptive analysis of the principle could be found in Protocol 30 to the EC Treaty.

Formally, the principle of subsidiarity applies to those areas where the Community does not

have exclusive competence, the principle delineating those areas where the Community

should and should not act. In practice, the concept is frequently used in a more informalmanner in discussions as to which competences should be given to the Community, and

which retained for the Member States alone.

The concept of subsidiarity therefore has both a legal and a political dimension. Moreover,

the subsidiarity principle pursues two opposing aims. On the one hand, it allows the

Community to act if a problem cannot be adequately settled by the Member States acting on

their own. On the other, it seeks to uphold the authority of the Member States in those

areas that cannot be dealt with more effectively by Community action.

Consequently, there are varying views as to its legal and political consequences, and variouscriteria are put forward explaining the content of the principle. For example:

The action must be necessary because actions of individuals or member-state governments

alone will not achieve the objectives of the action (the sufficiency criterion)

Documents

European Governance 2