Turning proportionality upside down: from legitimating principle to critical tool

Abstract

The reconstruction and analysis of the case law of the European Court of Justice of the European Union (ECJ) provides new insights into the structure and the normative implications of proportionality as a tool of judicial decision-making. The way in which the ECJ does proportionality renders visible the need to reconstruct proportionality review by reference to five, not the canonical three steps. To standard adequacy, necessity and proportionality in a narrow sense we should add the translation of social conflict into a constitutional conflict, and the assignment of the argumentative burden or determination of the centre of normative gravity of the case. Furthermore, the decisiveness of the assignment of abstract and concrete weight to fundamental legal positions requires developing operational guidelines in that regard. At the same time ‘Europroportionality’ renders very tangible the risks implicit in resorting to proportionality, including the ‘tabula rasa’ risk, the ‘mistranslation’ risk, the bias risk, the ‘distortion’ risk, and the double standards risk. On such a basis, the chapter ends with a call to turning proportionality upside down, from a legitimating strategy to a critical tool with which to render explicit the implicit substantive choices made by judges.