Skip to main content Accessibility help
×
Home
Hostname: page-component-544b6db54f-lmg95 Total loading time: 0.272 Render date: 2021-10-22T14:18:47.947Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

Chapter 6 - The Principle of Proportionality

Published online by Cambridge University Press:  22 November 2017

Get access

Summary

IMPORTANCE OF THE PRINCIPLE OF PROPORTIONALITY FOR EU CIVIL LAW: SOME GENERAL REMARKS

“HARD LOOK” IN REVIEWING OF NATIONAL MEASURES

The principle of proportionality as a constitutional principle of EU law – including EU civil law – was first developed to justify restrictions by Member States on free movement under the public policy or general interest proviso. The Court summarised the basic principles in Gebhard mentioned earlier within the context of “framed autonomy” (1.9): Member State restrictions on autonomy of contracting which have a negative impact on fundamental freedoms must be justified not only by a legitimate public interest, but they must also be suitable for attaining the given objective (relationship between means and end), and be necessary for achieving the proposed goal, without putting an excessive burden on the individual. In general terms, this amounts to the “less restrictive alternative” test. A state measure which puts an unreasonable burden on the individual and which can easily be substituted by a less intrusive measure capable of attaining the same objective will not be regarded as being “necessary”.

The Gebhard test has been used many times in later cases, sometimes with slight variations in the wording, which I will not follow up here. Its impact on (mandatory) contract law of Member States restricting free movement of goods, services or capital has been mentioned above with some examples from ECJ practice (1.10–1.11). With regard to the “imperative requirements in the general interest”, the catalogue of these interests – consumer or worker protection, environmental concerns, fairness of commercial transactions – is an open-ended one, with the exception of “purely economic interests”, which do not justify restrictions. Member States will usually be able to find a justified public interest which legitimates restrictions on the exercise of fundamental freedoms by EU market citizens. The debate in the many cases which have been decided under the Gebhard test, or closely related tests, will therefore usually concentrate on:

  • – first, the adequacy of a certain restrictive regulation (is it suitable for attaining the proclaimed general interest objective?);

  • – second, its necessity with regard to its intrusive elements (does it go beyond what is required to attain this objective, for example as in the case of “information” vs. “regulation” to protect consumers or guarantee fair commercial practices?);

  • Type
    Chapter
    Information
    Publisher: Intersentia
    Print publication year: 2013

    Access options

    Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

    Send book to Kindle

    To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

    Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

    Find out more about the Kindle Personal Document Service.

    Available formats
    ×

    Send book to Dropbox

    To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

    Available formats
    ×

    Send book to Google Drive

    To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

    Available formats
    ×