What is the principle of proportionality in EU Law

What is the principle of proportionality in EU Law

The principle of proportionality is a general principle of EU law which is applicable to all treaties of the EU. The Treaty on European Union, Article 5 provides this principle of proportionality to mean that the measures taken by the EU should not exceed what is necessary to achieve the objectives of the treaties. In other words, it demands that the measures taken shall be proportionate and reasonable. The principle of proportionality was first recognised by the CJEU in Federation Charbonniere de Belgique v High Authority. Another way to understand the principle of proportionality is to see it from the perspective of the individual so that it may mean that a proportionate measure is that which does not limit the individual’s freedom of action limited the degree that is necessary in the public interest (R v Minister of Agriculture, Fisheries and Food ex parte Fedesa). The principle has three tests: first, to ask whether the measure is suitable to achieve a legitimate aim; second, to ask if there are less restrictive means that are also available to achieve that aim; and third, to ask whether the measure would have an excessive effect on the interest of the individual. If you need assistance with a law dissertation, then consider seeking expert guidance from professionals in the field who have expertise in providing law dissertation help.

What is the principle of direct effect in EU law?

The principle of direct effect provides that the EU law can be directly effective in national jurisdictions and can be enforced by the individual in the national courts even if the Member State has not given effect to it through domestic law. The first case in which the principle of direct effect was laid down was Van Gend en Loos v Nederlandse Administratie der Belastingen, in which the CJEU held that EU law has the capacity to be directly invoked before the national courts and the latter have the duty to give effect to the rights of the individuals under the EU law. The CJEU has applied the doctrine of direct effect to regulations and jurisprudence developed by the EU courts. In Defrenne v Sabena, vertical and horizontal direct effects were explained by the court. Vertical direct effect is applicable against the state; indirect direct effect is applicable against private parties. Vertical direct effect does not apply to directives except where the body is doing some public service and given special powers by the state and works under state control (Foster v British Gas).

What is the principle of subsidiarity in EU law?

The principle of subsidiarity means that where the Member States are able to take measures and actions, then the EU should not intervene. In other words, decisions and actions are to be performed by Member States without the intervention EU where such intervention is not needed and it is only where the Member States do not have sufficient powers then the EU should take action. The areas where the EU should intervene depends on the competencies (exclusive, shared, supporting). In exclusive competence, the EU alone can legislate. Shared competence is where both EU and Member States are able to legislate. In supporting competence, the EU can legislate only for the purpose of support Member States.

What are the functions of the European Commission?

The principal functions of the European Commission are related to shaping of overall strategy of the EU (strategy and policy); proposing new EU laws and policies (law), monitors implementation of the laws and policy; managing the EU budget (budgeting and funding); and managing international relations by supporting international development and delivering aid. The powers and functions of the European Commission are organised under the categories of executive functions, legislative functions, and enforcement functions.

What is the role of the Court of Justice of the European Union?

The principal role of the CJEU is to interpret the EU law, to apply the EU law, to ensure the uniform application of the EU law, and to settle legal disputes between national governments and EU institutions. The CJEU is also required to review the legality of the actions and measures of the EU institutions. The CJEU has the jurisdiction to review the actions of the Member States to consider whether they have fulfilled their obligations under primary and secondary EU law. The CJEU also has the important task to answer the questions on interpretation raised by the national courts under the preliminary ruling procedure under Article 267 of the TFEU. Through this mechanism, the CJEU plays a critical role in ensuring consistent and uniform application of the EU law through preliminary ruling procedure.

What did the UK Supreme Court hold in the case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union? The Supreme Court held that the government cannot trigger Article 50 withdrawal from the EU without parliamentary approval. The principle laid down by the court was that the ministers cannot exercise prerogative powers to withdraw from the EU Treaties without the permission of the parliament. With regard to the referendum giving the power to exit from the EU, the court held that the implementation of a referendum result can only be done with the help of the parliamentary legislation because any change in the law requires that the change must proceed from the Parliamentary legislation and it is up to the parliament to decide what form such legislation should take.

What is the composition of the European Council?

The European Council is composed with the heads of states of all Member States; the President of the European Council; and the President of the European Commission. The President is elected by the European Council for a two-and-a-half-year term which can be renewed once.

What is the importance of the Treaty of Lisbon?

The Treaty of Lisbon is a very significant treaty of the EU. One point of significance is that it has led to updating of the regulations of the EU. Another point of significance is that there is now a more centralised leadership. There is also a more centralised foreign policy. In some ways, the Treaty of Lisbon has also improved the existing provisions of the EU law, particularly related to the process for exit from the EU and improved processes for enacting new policies. The Treaty of Lisbon has done an important change of streamlining existing laws and processes of the EU. For instance, the treaty has led to the use of weighted votes and extending the reach of qualified majority voting which was an important change because prior to this, countries could not agree on the voting process. Another important change brought by this treaty is the creation of the post of President of the European Council. What did the Court of Justice decide in the case of Van Duyn and why is this of importance in EU law? In Van Duyn, the CJEU held that the EU Directives can be enforced directly. The case is important in EU law because the court held that even directives have direct effect. The CJEU held that if the direct effect of directives is not upheld that it would be incompatible with the binding effect of Directives under EU law and would also lead to the reduction of the practical efficacy of the Directive. The significance of the judgment is that it laid the basis of the application of the direct effect doctrine on the directives.

What is the key principle of the Francovich case?

The key principle in the Francovich case relates to the doctrine of state liability so that the principle of state liability can be applied to allow individuals to claim damages against the state for not applying EU directives if the following conditions are satisfied. First, it should be established that there is a directive and the same grants rights to individuals. If so, then second, it should be established that the contents of the rights of the individuals can be identified on the basis of the directive. If so, then third, it should be established that there is a causal link between the breach of the obligation to implement the EU Directive and the injury to the claimant.

What is the difference between a provision being directly applicable and being of direct effect?

Direct applicability of the EU provision means that the provision is applicable without there being a need to enact national laws to apply the EU law in the state. EU treaties and regulations are directly applicable and there is no need for any Member State to enact domestic laws to make these laws applicable within their jurisdictions. However, the Directives of the EU are not applicable directly and the national laws have to be enacted to give application to them. This is very direct effect principle comes into relevance. The principle of direct effect refers to the ability of the EU law to be enforced in national courts. In other words, direct effect refers to the reliance that can be placed on the EU law by individuals before the national courts. Directives even though may not have direct applicability, they can have vertical direct effect (i.e. can be enforced against the state) even if the directive has not been enacted into law provided that the time for enacting expressed in the directive has lapsed (Pubblico Ministero v Ratti).

Name some of the freedoms provided under the Charter of Fundamental Rights.

Freedoms under the Charter of Fundamental Rights are provided in Articles 6 to 19. The right of liberty is provided in Article 6. Private and family life rights are provided in Article 7. Other freedoms include right to marry and found a family (Article 9), freedom of thought, conscience and religion (Article 10) and freedom of expression (Article 11). Individuals also have the freedom of assembly and of association (Article 12), to choose an occupation and right to engage in work (Article 15) and to conduct a business (Article 16).

What is the general EU principle of legitimate expectation?

The general EU principle of legitimate expectation is related to the general principle of legal certainty. The principle of legitimate expectation means that those who act in good faith and on the basis of law should not be frustrated in their expectations. In other words, the principle of legitimate expectation means that any institution of the EU must stand by its position so that if it has induced a party to take a particular course of action, then it must not renege on the position it took earlier if this would lead to a loss to the party (Mulder v Minister van Landbouw en Visserij). In Kühn v Landwirtschaftskammer Weser-Em, the court has explained the principle of legitimate expectation by holding that the principle may be invoked where an EU institution has previously created a situation which can give rise to a legitimate expectation. In simple words, if an expectation is legitimately raised due to the actions or measures of the EU institution, then the EU institution cannot refuse to give effect to the legitimate expectation.

What is the importance of Article 2 of the Treaty on the European Union?

Article 2 of the TFEU provides the values of “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities" as the valued on which the EU is founded. The article is important because not only does it provide these founding values but it also imbibes the principle of rule of law. As this is a founding principle, it would mean that all EU actions, decisions and measures would accord with these values or would be required to accord with these values.

What is the principle of sincere cooperation?

The principle of sincere cooperation is provided in Article 4(3) of the TEU. The principle of sincere cooperation is to be applied for developing full mutual respect between the Union and the Member States for assisting each other in carrying out tasks. This was explained in Commission v Sweden by the CJEU to mean that there are duties of cooperation as between the Union and the Member States that are having the status of legal duties and not just politically desirable duties. The principle of sincere cooperation is important because it is only through co-operation between the Member States and the EU institutions can the objectives of the EU law be achieved. Therefore, this is also seen as a constitutional principle of the EU law.

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