Towards Process-Oriented Proportionality Review in EU Law

European Public Law (2017) 23

29 Pages Posted: 29 Jun 2021

Date Written: 2017

Abstract

This article provides an analysis of contemporary case law and subsequent academic commentary which suggests that a more process-oriented approach to proportionality review has recently been taken by the Court of Justice of the European Union. It argues that the manner in which process-oriented review has been utilized gives rise to a fundamental reconceptualization of the nature of the proportionality test at the EU level; moving away from a substantive, merits based concept of review towards something more akin to a procedural obligation to state the reasons which underpin a contested measure. The article highlights some of the problems that have arisen from this shift in approach from both a doctrinal and a theoretical perspective, whilst demonstrating the inconsistent way in which the Court has formulated and applied process-oriented proportionality review to date.

Keywords: EU law, Proportionality, Judicial Review

JEL Classification: K

Suggested Citation

Harvey, Darren, Towards Process-Oriented Proportionality Review in EU Law (2017). European Public Law (2017) 23 , Available at SSRN: https://ssrn.com/abstract=3868933

Darren Harvey (Contact Author)

King's College London ( email )

Strand
London, England WC2R 2LS
United Kingdom

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