Published online by Cambridge University Press: 13 December 2016
Proportionality review has emerged as a multi-purpose, best-practice standard for conflict resolution, and has for this reason been embraced by most constitutional systems worldwide. It is, however, difficult to escape the fact that proportionality review opens up room for judicial discretion. In European Union law, as well as European Convention on Human Rights law, this discretion has provided an activist judiciary with a most powerful tool for facilitating European integration through judicial adjudication. In a number of recent cases, this approach has been criticized. The critique raised reaches beyond the application of the proportionality principle in concrete cases. It also encompasses a critique of the proportionality principle as such, at least the conventional interpretation of the proportionality principle. This, in turn, raises questions concerning the concept of European law, its constitutional quest and even its very legitimacy. In this article the author discusses the legal and political implications of these challenges and proposes a revival of political power at the expense of judicial power. To this effect, the author introduces procedural proportionality review. Procedural proportionality review secures judicial deference, although not judicial abdication, in politically controversial and democratically legitimate cases.
1 Cf. Sweet, A. Stone and Mathews, J., ‘Proportionality, Judicial Review and Global Constitutionalism’, in Bongiovanni, G., Sartor, G. and Valentini, C. (eds.) Reasonableness and Law (2009) 173 Google Scholar. On the proportionality principle in EU law, see T. Tridimas, The General Principles of EU Law (2006). On the proportionality principle in ECHR law see J. Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (2009).
2 The European Court of Human Rights has been less explicit in its application of the proportionality review but it appears clear that when it reviews whether a national measure infringes on one or more individual rights it applies a strict norm. According to Arts. 8–11 of the Convention, exemptions may only be lawful if they are deemed ‘necessary in a democratic society’. The Court has, in its judgment of 7 December 1976, Handyside v. UK (App. No. 332/57), interpreted this phrase to mean that the measure taken must correspond to a ‘pressing social need’, which at least from an etymological point of view constitutes a stricter norm than the ‘necessary in a democratic society’ norm formulated in the Treaty provisions. The determination of the content and scope of the proportionality review in Convention law is made difficult due to the Court's application of the doctrine of margin of appreciation.
3 Case C-438/05 Viking  ECR I-10779; Case C-341/05 Laval un Partneri  ECR I-11767; Case C-346/06 Rüffert  ECR I-1989.
4 Lautsi v. Italy, Judgment of 3 November 2009, (App. No. 30814/06).
5 Lautsi v. Italy, Judgment of 18 March 2011, (App. No. 30814/06), para. 70.
6 Cf. the principle of practical concordance in J. Schwarze, European Administrative Law (2006), at 690.
7 E.g., Hans Kelsen’s legal positivism: H. Kelsen, Allgemeine Staatslehre (1925); H. Kelsen, Reine Rechtslehre (1934). Jeromy Bentham's positivist theory of law: Principles of Morals and Legislation (1823). Scandinavian legal realism, e.g., A. Ross, Om Ret og retfærdighed (2013).
8 R.M. Dworkin, Taking Rights Seriously (1977).
9 R.M. Dworkin, A Bill of Rights for Britain: Why British Liberty Needs Protection (1990), 1.
10 It depends, of course, whether the European Court of Human Rights has a monopoly on defining what individual rights in Europe are; Dworkin may be right, see H. Fenwick et al., Judicial Reasoning under the UK Human Rights Act (2007).
11 H.L.A. Hart, The Concept of Law (1994).
13 ‘hard case’, i.e., cases which cannot be solved according to a clear rule of law laid down by some institution in advance. R.M. Dworkin, Taking Rights Seriously (1977), Ch. 4; H.L.A. Hart, The Concept of Law (1994), 136 ff. The so-called Hart–Dworkin debate concerns the question as to how the judges should go about when deciding a case where there is no rule of law, which may be applied to solve a case at hand. According to Hart, the judges must in these cases act as ‘deputy legislators’ and fill the ‘legal gap’ in the way he believes the legislator would. According to Dworkin there really are no ‘legal gaps’ since judges are bound to solve these cases according to the non-positivist concept of ‘arguments of principle’.
15 R. Alexy, A Theory of Constitutional Rights (2002). Alexy's theory of constitutional rights is based on an analysis of the rights adjudication conducted by the German Constitutional Court.
16 J. Rawls, Political Liberalism (1996), at 231 ff. John Rawls also suggests that political institutions may be expressers of ‘public reason’: ‘This ideal is realized, or satisfied, whenever judges, legislators, chief executives, and other governmental officials, as well as candidates for public office, act from and follow the idea of public reason and explain to other citizens their reasons for supporting fundamental political positions in terms of the political conception of justice that they regard as the most reasonable’, in J. Rawls, The Laws of Peoples (1999), at 135.
18 Ibid., at 135 (emphasis added). The substantial aspect of public reason may, in the abovementioned citation, be read into the phrase: ‘. . . act from and follow the idea of public reason . . .’ (emphasis added), whereas the procedural aspect of public reason may be read into the phrase: ‘. . . and explain to other citizens their reasons . . .’ (emphasis added).
23 A. Hamilton et al., The Federalist Papers (1787–88). Efforts to curb factionalism through externally imposed checks and balances on political institutions are, arguably, what the US Constitution is all about.
24 R. Hirschl, Towards Juristocracy (2007).
25 Cf. A. Scalia, A Matter of Interpretation (1997).
26 E.g., L.D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); M. Tushnet, Taking the Constitution away from the Courts (1999).
27 N. MacCormick, Legal Reasoning and Legal Theory (1978), at 21.
28 R. Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (2010), at 1.
29 J. Habermas, Between Facts and Norms (1996), at 306.
32 The Court of Justice has taken this approach in cases concerning the Community agriculture policies, cf. Case C-331/88 Fedesa and Others  ECR I-4023, para. 14.
33 Handyside v. UK, Judgment of 7 December 1976, (App. No. 332/57).
34 Cohen, J., ‘Deliberation and Democratic Legitimacy’, in Hamil, A. and Pettit, B. (eds.), The Good Polity (1989), 17 Google Scholar.
35 On the difference between compromise and consensus, see Habermas, Between Facts and Norms, supra note 29, Ch. 7.
36 Cf. Joerges, C. and Neyer, J., ‘From Intergovernmental Bargaining to Deliberative Political Processes’, (1997) 3 European Law Journal 273–99CrossRefGoogle Scholar; Joerges, C., ‘Transnationale deliberative Demokratie oder deliberativer Supranationalismus?’, (2000) 7 Zeitschrift für Internationale Beziehungen 145–61CrossRefGoogle Scholar.
37 R. Dahl, A Preface to Democratic Theory (1956).
38 Schmitter, P. and Lehmbruch, G. (eds.), Trends towards Corporatist Intermediation (1979)Google Scholar.
39 E.g., Norwegian lov om allmenngjøring av tariffavtaler m.v. (allmenngjøringsloven), Lov 6. April 1993 Nr 58.
40 Case C-341/05 Laval  ECR I-11767.
41 G. Esping-Andersen, The Three Worlds of Welfare Capitalism (1990).
42 In EU law, the list of legitimate reasons for derogation laid down in treaty provisions has been supplemented by so-called mandatory requirements foreseen in Case 120/78 Cassis de Dijon  ECR 649.
43 Case C-346/06 Rüffert  ECR I-1989.
45 A Swedish ‘futureeconomist’(!) (fremtidsøkonom) has suggested that the large number of refugees that came to Sweden in 2015 would constitute a low wage class which should shovel snow and pack bags in supermarkets. See www.aftenposten.no/okonomi/–Flyktningene-som-kommer-til-Norden_-kommer-med-entreprenorskap-og-en-smarttelefon-12925b.html.
48 Case C-308/14, Commission v. UK, 14 June 2016.
51 The ruling was regarded as important because it strengthens the argument of Remain campaigners that the future reforms to free movement and welfare rules – as agreed in the EU renegotiation – will not be rolled back by the EU Court: see O. Wright, ‘EU court backs UK Government's right to restrict migrant benefits’, Independent, 14 June 2016, available at www.independent.co.uk/news/uk/politics/eu-court-backs-uks-ability-to-restrict-child-benefits-for-migrants-a7081046.html.
52 The British people voted on 23 June 2016 in favour of leaving the EU. It is, however, likely that they will in the future continue to have a close economic relationship with the EU, which would imply participation in the common market.
53 Case C-341/05, Laval,  ECR I-11767, paras. 93–4.
55 E.g., Case C-36/02, Omega,  ECR I-6969; Case C-112/00, Schmidberger,  ECR I-5659.
56 Case C-159/90, SPUC v. Grogan,  ECR I-4685.
57 Open Door Counselling Ltd and Dublin Well Women Centre v. Ireland, Judgment of 29 October 1992, (App. No. 14235/88).
59 I noted in the introduction that reviewing whether a measure is (manifestly) unreasonable is one element in the limited mode of judicial review referred to as ‘the four corners’ review. This is a mode of judicial review which is compatible with legal positivism and implies judicial deference in the context of proportionality review.
60 One cannot expect, as also argued above, that the judiciary elaborates on all effects of an injunction in the same way as the legislator would do when preparing a legislative Act.
61 As laid down in Art. 9 and Art. 2 of Protocol No. 1 to the Convention.
62 Lautsi v. Italy, Judgment 3 November 2009, (App. No. 30814/06).
63 It was argued that the decision did not respect the established case law of the Court itself, whereby, in a case like this, where there is no European consensus on the matter, the states should be granted a wide margin of appreciation since the national bodies are the ones which can best determine how to settle the principle of secularity and neutrality of the state. Furthermore, it was argued that removing the crucifixes and thus settling for the principle of secularism did not constitute a neutral approach but a priority of non-believes. Finally, it was argued that the Chamber's judgment was based on an individualistic understanding of the fundamental rights, forgetting the necessary complementarity of rights and duties and that they can only be exercised in a well-ordered political community. Accordingly, the judgment was inconsistent with the very objectives of the Council of Europe itself, whose raison d´etre is to protect human rights, democracy and the rule of law. Removing crucifixes from public schools in Italy, which affects the identity of the Italian people, is equivalent to building a democracy without demos, i.e., without a people capable of making culturally determined political decisions by themselves.
64 Lautsi v. Italy, Judgment 18 March 2011, (App. No. 30814/06), para. 70.
67 Hirsh v. The United Kingdom, Judgment 6 October 2005, (No. 2, the case was first handled by the Chamber) (App. No. 74025/01)
73 ‘The European Court also requires that the means employed to restrict the implied Convention rights to vote are not disproportionate, and that is the point at which, as it seems to me, it is appropriate for this Court to defer to the legislature. It is easy to be critical of a law which operates against a wide spectrum (e.g., in relation to its effect on post-tariff discretionary life prisoners, and those detained under some provision of the Mental Health Act 1983), but, as is clear from the authorities, those States which disenfranchise following conviction do not all limit the period of disenfranchisement to the period in custody. Parliament in this country could have provided differently in order to meet the objectives, which it discerned, and like McLachlin J in Canada, I would accept that the tailoring process seldom admits of perfection, so the courts must afford some leeway to the legislator. As [counsel for the Secretary of State] submits, there is a broad spectrum of approaches among democratic societies, and the United Kingdom falls into the middle of the spectrum. In course of time this position may move, either by way of further fine tuning, as was recently done in relation to remand prisoners and others, or more radically, but its position in the spectrum is plainly a matter for Parliament not for the courts. That applies even to the “hard cases” of post-tariff discretionary life sentence prisoners . . . They have all been convicted and if, for example, Parliament were to have said that all those sentenced to life imprisonment lose the franchise for life the apparent anomaly of their position would disappear. . .’, Lord Justice Kennedy cited in ibid. Hirsh v. UK
74 A. Travis, ‘Voting ban on prisoners convicted of serious crimes is lawful, EU court rules’, Guardian, 6 October 2015, available at www.theguardian.com/politics/2015/oct/06/uk-ban-on-prisoner-voting-is-lawful-eus-highest-court-rules.
75 E.g., Greens and M.T. v. the UK, Judgment of 23 November 2010; Firth and Others v. the UK, Judgment of 12 August 2014; McHugh and Others v. the UK, Judgment of 10 February 2015.
77 It is widely acknowledged that the UK courts (at least traditionally) are reviewing the reasonableness rather than the proportionality of legislative and administrative measures, e.g., P. Craig, Administrative Law (2003).
78 E.g., Craig, P., ‘Unreasonableness and Proportionality in UK Law’, in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (1999), 85–106 Google Scholar.
79 One could argue that this telos has been more present in the European integration debate than in the debate concerning the European Convention on Human Rights or for that sake the EEA.
80 The example was formulated by A. France, Le Lys Rouge (1894).
81 J. Fischer, Vom Staatenverbund zur Foederation: Gedanken ueber die Finalitaet der europaiechen Integration (2000). With this speech he had, first of all, the EU in mind.
83 E.g., Schoenberger, C., ‘Die Europaeisiche Union als Bund: Zugleich ein Beitrag zur Verabschiedung des Staatenbund-Bundesstaat-Schemas’, (2004) 129 Archiv des Oeffentlichen Rechts 81–120 Google Scholar.