Proportionality
Produced in partnership with Dr Alexander Türk, Professor of Law of King’s College London
Proportionality

The following Public Law practice note produced in partnership with Dr Alexander Türk, Professor of Law of King’s College London provides comprehensive and up to date legal information covering:

  • Proportionality
  • Definition of proportionality
  • Use of the principle of proportionality against EU Member States
  • The proportionality test
  • Evidence required for the review of proportionality
  • Intensity of the review
  • Use of the principle of proportionality against the EU
  • The proportionality test
  • Intensity of the review

Definition of proportionality

The principle of proportionality requires that EU and Member State action shall not to go beyond what is necessary to achieve the desired objectives.

The Court of Justice of the European Union has established proportionality as a general principle of EU law. The test employed by the Court in assessing the proportionality of a measure originates from continental law, in particular the German legal tradition.

Use of the principle of proportionality against EU Member States

The principle of proportionality can be invoked against Member States that adopt acts within the scope of EU law, in particular when restricting the free movement rights granted by EU law. Even if a restrictive measure has a legitimate aim, the Member State is under the obligation to demonstrate that its action is proportionate to achieve the objective pursued.

In that context, proportionality is an instrument of market integration, in that it limits the actions of the Member States within the scope of EU law and requires national authorities to justify their actions.

The proportionality test

In its most complex form, the Court’s proportionality test involves three steps:

  1. suitability

  2. necessity

  3. proportionality stricto sensu

Step 1—suitability:

The measure adopted should be suitable or appropriate to achieve the objective that the legislation in question is seeking to pursue. A restrictive measure imposed by the Member States is ‘justified only if [it] is appropriate to ensuring the

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