EU Law and the Proportionality Principle

This assignment examines the proportionality principle within European Union law. It delves into the function of this principle, its application in various legal contexts, and relevant case law. Students are expected to demonstrate a comprehensive understanding of the proportionality principle's role in shaping EU legal decisions and outcomes.

Law of U
institutions
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“In developing the concept of State liability, the Court of Justice has shown itself to be an
‘activist court”
European law is divided into primary and secondary legislation. Objectives of this law is
to assure uniformity of legal provisions in their member states. For this aspect, treaties and
directives are issued by the European Union1. Member countries are required to implement this
legislation in the stipulated time frame. EU legislation has equal enforceability to national law.
By considering this aspect EU law confers right and obligation on the authorities in member
states along with the individual and business entities 2. In situation, if there is breach in cited
legal provisions, then faulty party will be liable to pay damages. Described concept is developed
through provision of state liability.
In accordance with the provisions of state liability, an individual is entitled to attaining
the compensation from a member state in situation where they have to suffered from a loss as a
consequence of failure of that Member State in compliance of obligation stated by the European
Union. According to the study of Pangilinan (2011) Provision of state liability is beneficial for
providing indemnification in situation where there is neither applicability of direct effect nor of
indirect effect 3. For this aspect case of Francovich v Italy 4 can be considered. In this case,
European Court of Justice had provided decision that member stated of EU will be held liable for
the payment of compensate to the injured party in situation of non-compliance of EU legislation.
In the cited case, member states of EU were required to enact the provisions described in
Insolvency Protection Directive 80/987 5 in their national law in order to give a minimum level
1 Summers, Clyde W. "Rights of Individual Workers: The Contract of Employment and the Rights of
Individual Employees: Fair Representation and Employment at Will, The."Fordham L. Rev. 52 (1983):
1082.
2 Micklitz, Hans-W, and Bruno de Witte. 2012. The European Court Of Justice And The Autonomy Of The
Member States. Cambridge, U.K.: Intersentia.
3 Pangilinan, Christian.. "A ROLE FOR THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS IN
DEVELOPING A BINDING REGIONAL FRAMEWORK FOR REFUGEE PROTECTION.[2011]. African
Yearbook Of International Law Online / Annuaire Africain De Droit International Online 19 (1): 45-80.
doi:10.1163/22116176-01900005.
4 1991C-6/90
5 (now 2008/94/EC)
2

insurance for employees who are not provided with the wages in situation where employers went
insolvent. However, company failed to comply these directive and five years later they were
declared insolvent. Furthermore, employees were not provided with the any compensation
because there was no money as per the liquidator. As a consequence, employee brought claim
against the Italian state and stated that they must pay damages in order to compensate for the
occurred losses as they failed in implementation of described directive by EU. Court of Justice
had provided decision in the favour of employees as Italian government had breached their
obligations.
In addition to the above cited decision, Court of Justice had held that damages for such
breaches should be available before the national courts. For this purpose, provision of state
liability was introduced. As per the view point of Steinberg (2005) this liability will provide
benefit only in situation where claimant is able to proof that directive provided by EU conferred
specific rights on them and there is casual connection between the loss suffered and failure of
implementation of directive by member states 6. This aspect is supported by the case of C-260/89
Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas
7.
In relation to the breach of Eu act, how MP was made liable by CJ has been explained.
The proceedings in the Court of justice are carried out by the Commission. They give the
members state about the opportunities to give reply against the issue or breach of Eu Act. In
case, if it does not terminates then there result in the failure of the termination of the Member
State. This will further moved or carried forwards with the violation of member state which is
not enforced by any of them.
Judicial activism can be defined as judicial rulings that are based on the political and
personal consideration instead of consideration of existing law. It is an antonym of judicial
restraint. On the basis of cited definition it can be said that provision of state liability regarding
activism of Court of justice is true. It is because, through this outset EEC had created their own
legal system which is required to be integrated to the legal systems of Member States. Activism
6 Steinberg, Justice David M. DEVELOPING A UNIFIED FAMILY COURT IN ONTARIO. [2005].
Family Court Review 37 (4): 454-459. doi:10.1111/j.174-1617.1999.tb00545.x.
7 [1991] ECR I-02925.
3

of court of justice is represented in various cases in European legislation. In accordance with the
case of C-109/01 Secretary of State for the Home Department v Akrich 8 courts of the country
have legal obligation for the applicability of cited directives and norms by EU. However, failure
for such imposition of law leads to the obligation for the compensation of injury of innocent
party. In addition to this, study of Micklitz (2005) shows that they had developed philosophy of
judicial decision whereby judges of Court of Justice are entitled to implement their personal
views in a public policy among other existing factors in their decisions9. Similar activism of
court can also be noticed in the case of zuckerfarbric schoeppensted v canal 1971. In this case,
CJ had breached superior law in order to provide protection to the individuals. In the cited case,
CJ held prohibition of discrimination provisions on the basis of general principle of EU law19,
despite of the fact that prohibition did not appear to constitute a tendency which was uniform or
had clear majority support in the national legal systems or in constitutional law of the Member
States. Further, in this case, court was held successful for making claim of damages under
Article 215 para 2 for legislatively wrongdoing.
As per the provisions of EU law ECHR is considered as source of inspiration and
guidance of ‘special significance’ for the applicability of general principles of EU law. This fact
is clarified in case decision of Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis
and Sotirios Kouvelas 10. In this case, community law does not preclude the granting of television
monopoly for the purpose of consideration of non economic nature by considering the public
interest. However, this provision was in contradictory to the article 59 of EEC. Furthermore, the
limitations imposed on the power of the Member States to apply the provisions referred to in
Articles 66 and 56 were highlighted. In this case, CJ had not considered the special provisions
developed by the MS for the monopoly despite of the fact that discrimination is done because of
justifiable reason of source of broadcasting. CJ had stated that MS is not in position to provide
such special permission and consequently there is irrelevance of appraisal and permissibility of a
television monopoly. In this aspect, various activist judgements can be noticed on the part of CJ
8 [2003] ECR I-9607
9 Micklitz, Hans-W. 2005. The Politics Of Judicial Co-Operation In The EU. Cambridge, UK: Cambridge
University Press.
10 [1991] ECR I-2925, para 41
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through the expansive treaty interpretations. CJ had applied EU law in the areas that were
previously considered to be exclusive concern of national law. In accordance with the study of
Hyunwook (2014) this factor depicts activism of CJ has steered the EU towards a different
hierarchical power sharing agreement in which final decision is taken by EU instead of MS in
contrast to the traditional model11. In accordance with this power sharing agreement there is
priority to the EU law over national law.
Tompkins (2005) had stated that norms of EU legislation are enforceable in all its
member states12. In accordance with the case precedent of Francovich v Italy13, state is liable for
the breach of directive issued by European Union. In this aspect, judicial party in this case had
cited that State is said to liable for breach if following two aspects are satisfied:
 Breach of right described in directive must be directly effective14
 Individual must be failed to implement directive as required by EEC Treaty (at present
TFEU)15
Furthermore, court of law had stated that if State fails to implement a directive, is
obligation to compensate plaintiff for damage suffered. Similar aspect is described in the case of
Farrell v Whitty [2007]16. This principle was developed by the European Court of Justice along
with the interpretation that European law will always take precedence over any norms of the
national law. For this aspect case of R v Secretary of State for Transport, ex p Factortame Ltd
can be considered.
In addition to this, CJ is not only activist in the introduction of principle of supremacy but
also they had subsequently expanded the scope of principles introduced by them in various case
11 Hyunwook Cho, The Legal Principles Of Criminal Liability For A Title Trustee Who Acts On Disposal Of
Real Estate In Supreme Court Shown Case. [2014]. Journalofhongiklawreview15 (3): 293-321.
doi:10.16960/jhlr.15.3.201409.293.
12 Tompkins, Robert. "PARENTING PLANS". [2005]. Family Court Review.33 (3): 286-297.
doi:10.1111/j.174-1617.1995.tb00371.x.
13 [1991] ECR I 5357
14 Shaw, Josephine, and Marise Cremona. Law of the European Union. London: Macmillan, 1996.
15 Weatherill, Stephen. Cases and materials on EU law. Oxford University Press, 2012.
16 ECR I 3067
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situations in order to make it broadly applicable. For this aspect, case of Internationale
Handelsgesellschaf mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel 17 can be
considered. In this case, CJ had stated that law of EU cannot be challenged by considering the
fact that they run counter to FR as formed by constitution of stated through the principles of
national constitutional structure. Similar aspect can be noticed in the case of Amministrazione
delle Finanze dello Stato v Simmenthal SpA18. In this case also, EU had expanded the scope of
the legal provisions of State liability by holding that provisions of EU law that is applicable to
national law in both the situations i.e. pre dated case and post dated case.
In this aspect, Fitzgerald (2002) had stated that supremacy of EU law also challenges to
the principal of Conferral. It is because, in case situations CJ had provided decision that is
completely contradictory to the principle described by MS19. In accordance with the case of C-
1/05 Yunying Jia v Migrationsverket 20 Contradictory decision was provided without considering
any treaty provisions embodying their provisions. Resistance by MS of the EU law has limited
approach and in situation where resistance is attempted then also it has never been succeeded.
This fact can be noticed through the introduction of doctrine of Van Gend en Loos. Activist
decision given by CJ had engineered the development of primacy model between the EU and
MS. According to Cichowski (2007), this model has been initially developed through the
introduction of direct effect and its implications to treaty provisions21. Through this approach,
EU had provided entitlement to the CJ to act beside the conferred powers. Direct effect can be
defined as basic principle of the community law. In the case of Van Gend en Loos, CJ had stated
that direct effects confers rights on individual which can be used to invoke before the community
and national courts. Provision of this principle shows that community law is part of the national
law and it has strengthened its effectiveness. This effect has been further segregated into
horizontal effect and vertical effect.
17 (1970) Case 11/70
18 Case C-106/77 [1978] ECR I-629.
19 Fitzgerald, Laura S. Suspecting The States: Supreme Court Review Of State-Court State-Law Judgments.
[2002]. Michigan Law Review. 101 (1): 80. doi:10.2307/1290418.
20 [2007] Q.B. 545
21 Cichowski Rachel A. The European Court And Civil Society. Cambridge, UK: (Cambridge University
Press 2007)
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As per the Craigand Gráinne De Búrca (2011) harmonization of the provisions of State
liability by the CJ case laws had not extended beyond the existence of the principle of liability
for ascribable breaches of the basic liability conditions and Community law22. It is because;
various factors of damages claims are governed in accordance with the norms national liability
law. For example, according to the internal legal order of each Member State is required to
designate the competent courts and cite the procedural rules in their national law. In addition to
this, as per the ECJ, the substantial and procedural terms for the purpose of reparation of loss and
damage laid down by the domestic law of the Member States must not be less pleasing in
comparison to the similar domestic claims and must not be so framed as to make it virtually
impossible or excessively difficult to obtain reparation.
In accordance with the study of Harbo (2010) in various situations ruling provided by CJ
in context of state liability does not show activism. It is because; MS were able to claim in
contradiction with the provided decisions23. This fact is supported by the case of R v HM
Treasury, ex p British Telecommunications plc [1996]. In the cited case, UK was not held liable
for the payment of damages under the provisions of state liability despite of the fact that CJ had
provide ruling that MS had mis-implemented the directive. It is because, there was lack of
precision in the relevant provisions described under directive and interpretation made by UK was
in good faith. In accordance with the case of Van Duyn v Home Office [1974] ECJ, individual
was restricted for entering in UK on the grounds of her undesirability but she relied on the article
of the Treaty, and Art 3 of Directive 64/221, which allowed free movement of workers in the
EU. In this case also, decision of MS was considered instead of CJ. It is because; Member State
was entitled to refuse the entry on the basis of their association with the organization whose
activities are in contradiction with the interest of public. However, in the case of R v Ministry of
Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd CJ had adopted stricter
approach. In this case decision, they had held that in absence of evidence of supporting case,
precedent action of UK cannot be considered as justifiable. In addition to this, breach is
22 Craig, Paul, and Gráinne De Búrca. EU law: text, cases, and materials. Oxford University Press, 2011.
23 Harbo, Tor‐Inge. "The function of the proportionality principle in EU law."European
Law Journal 16, no. 2 (2010): 158-185.
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sufficiently serious. As a consequence, UK is held liable for the loss and damages suffered by the
Hedley Lomas.
In accordance with the present study conclusion can be drawn that cited statement is true.
It is because; through the provisions of state liability court of justice had presented themselves as
activist court. This fact has been concluded by considering various case precedents in which EU
law had established their supremacy through contradictory decisions over the provisions of the
national law. In addition to this through CJ activism, power shifting arrangements has been
shifted from traditional model to primacy model. Ability of CJ to act of its conferred powers had
made increase in the occasions whereby EU law had superseded the national law and this factor
has been considered as characteristic of their power structure. By considering this aspect,
member states are required to comply with the provisions set out by EU law. These provisions
also imposes obligation on workers and business entities for compliance of developed
legislation.
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BIBLIOGRAPHY
Summers, C. W. "Rights of Individual Workers: The Contract of Employment and the Rights of
Individual Employees: Fair Representation and Employment at Will, The." Fordham L.
Rev. 52 (1983): 1082.
Shaw, J., and Marise C.. Law of the European Union. London: Macmillan, 1996.
Weatherill, S.. Cases and materials on EU law. Oxford University Press, 2012.
Harbo, T. "The function of the proportionality principle in EU law."European Law Journal 16,
no. 2 (2010): 158-185.
Craig, P., and Gráinne De B.. EU law: text, cases, and materials. Oxford University Press, 2011.
Cichowski R A. The European Court And Civil Society. Cambridge, UK: (Cambridge University
Press 2007)
Fitzgerald, L. S. Suspecting The States: Supreme Court Review Of State-Court State-Law
Judgments. [2002]. Michigan Law Review. 101 (1): 80. doi:10.2307/1290418.
Guth, J., Soft Law In Court: Competition Law, State Aid And The Court Of Justice Of The
European Union, By Oana Ştefan. Alphen Aan Den Rijn: Wolters Kluwer, 2013, Xviii +
367Pp. ISBN 9041139974; ISBN 13: 9789041139979. [2014]. Leg Stud (Soc Leg
Scholars).34 (1): 174-179. doi:10.1111/lest.12045.
Hyunwook C, The Legal Principles Of Criminal Liability For A Title Trustee Who Acts On
Disposal Of Real Estate In Supreme Court Shown Case. [2014].
Journalofhongiklawreview15 (3): 293-321. doi:10.16960/jhlr.15.3.201409.293.
Micklitz, HW. 2005. The Politics Of Judicial Co-Operation In The EU. Cambridge, UK:
Cambridge University Press.
Micklitz, HW and Bruno W. 2012. The European Court Of Justice And The Autonomy Of The
Member States. Cambridge, U.K.: Intersentia.
Pangilinan, C.. "A ROLE FOR THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS
IN DEVELOPING A BINDING REGIONAL FRAMEWORK FOR REFUGEE
PROTECTION.[2011]. African Yearbook Of International Law Online / Annuaire
Africain De Droit International Online 19 (1): 45-80. doi:10.1163/22116176-01900005.
Steinberg, J D M. DEVELOPING A UNIFIED FAMILY COURT IN ONTARIO. [2005].
Family Court Review 37 (4): 454-459. doi:10.1111/j.174-1617.1999.tb00545.x.
Tompkins, R., 2005. "PARENTING PLANS". Family Court Review 33 (3): 286-297.
doi:10.1111/j.174-1617.1995.tb00371.x.
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