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The Principle of Proportionality is not new concept from the time of Romans the Goddess of justice was imaged as female with the balance.1 More recently, in Europe this Principle is inspiration of 19th century of German law, as a criterion this principle was intending to find a balance between police measures and citizens2 hence, As the constitutional principle it seeks to ensure that all measures and decisions were made on relevant choices of means, fairly assessed, and the balance of interest was respected3thus, is its impose limitation on EU Law. In a legal context, this principle was seen as a tool aiming at balancing between competing values.4For a better explanation of the principle in simple English, it was defined: ”you must not use a stream hammer to crack a nut if a nutcracker would do”.5

On European Union level Principle of Proportionality is enshrined by Article 5TEU and by the protocol on principle of subsidiarity and proportionality. Proportionality as an important tool for ensuring respect to the fundamental rights were often invoked by Constitutional courts.6 In common law, this principle is known as ”Principle of Reasonableness.’7The Proportionality contains three elements: Suitability, Necessity and Proportionality Sensu Stricto 8 and if one of the element is not present the

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In EC law, proportionality is ‘build’ on the ECJ case law and considers to be one of the major standards of legality and interpretation. Maastricht Treaty Principle of Proportionality was positively accepted.9 It was argued that the Principle of Proportionality is essential in context of Fundamental rights as EC law implement any codified standards for limiting these rights. 10 This principle serves idea that any action taken thought the treaty provisions should suit and to necessarily to achieve a legitimate aim.11 Proportionality as a significant legal principle has developed  in assosication of  constitutional review of public acts, hence, it legitimazes the constitutional claims related to Union law.12

 

The Court challenged actions of MS as it esthablish the breach of Proportionality Principle, nevertheless court never annul the law.13 In Affish14 EU’s decision to ban Japanese fish was found as disproportionate to the objective even though such objective in the case was protection of health. EU’s decision was challenged by arguments that not all Japanese fish factories have problems which can treathen someones health, nevertheless, as it was impractical check and control all factories in Japan Court concluded that such decision by EU was proportionate.

It consider that Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality has equal legal status to the Lisbon Treaty as it determines the special role to EU institutions and requires that all you Institutions will respect Both Principles. (ibid 20)

It worth meaning that National legislators ones having general political dialogue with commission or in preparation of the reasoned opinion which refered also with Comission, Proportionality concerts are recorded. In COSAC15 survey revealed that most national legislators viewing proportionality as very important principle as monitoring of subsidiarity is not considered as effective without taking into account principle of proportionality.16  In the History of European Legal Integration, Proportionality has been considered to be one of the key player principles after the supremacy and the direct effect doctrines of EU law, Principle of proportionality is a balancing tool to be used in the Judicial governance. 17 In EU law a proportionality test is applied both to EU and MS acts18 when their action falls under Union law 19The principle of proportionality is outcome of the lasws of member states while for example, supremacy, direct effect and state liability are derived from Union legal order.20

 

It’s worth mentioning that proportionality is not policing the borders only in relation of public power and private individuals, rather this principle aims at having a balance between various government institutions even if Union law s build on rights of citizens are involved as Individual right are vis-à-vis MS are based on Union law as well.

According to Emiliou, Proportionality is not ‘outcome’ of case law development as its enshrined in Treaty and does not really apply in implementation stage but rather on Legislative stage. As both – Subsidiarity and Proportionality has influential role in legislative proposals, it was also argued that protocol focus on Subsidiarity in this procedures more than proportionality. While subsidiarity is know as more politically motivated principle seems to be more suitable for judicial application21

 

As principle of proportionality is seens as important in review of legal acts of different union institutions, According Craig principle of proportionality has been invoked toward acts of union institutions mainly where case was concerning discretionary policy choices, or when there was breach of the rights recognized under Union law and the cases related to unreasonable penalties and financial duties. 22

1

2 The Principle of Proportionality A comparative study of its application in WTO law and EU law, 2014, pg.5

3 http://lewebpedagogique.com/jmthouvenin/european-governance-2-program/european-governance-2-the-principle-of-proportionality/

4 https://europeanlawblog.eu/2013/07/16/pomfr-proportionality-analysis-and-models-of-judicial-review/

5 http://www.doj.gov.hk/eng/public/basiclaw/basic15_2.pdf

6 J. Cianciardo, ”The Principle of Proportionality: The Challenges of Human Rights”, 2014, pg.177

7 Ibid. 179

8 C. Cauffman, Maastricht European Private Law Institute Working Paper: ”The Principle of Proportionality and European Contract Law”, SSRN Electronic Journa, 2013, pg.4

9

10 Iid

11 Ch. Henkel, ”The Allocation of Powers in the European Union: A Closer Look at the Principle of Subsidiary”, Berkeley Journal of International Law, Volume 20, Issue 2, 2002, pg.374-375

12 W. Sauter, ” Proportionality in EU law: a balancing act?”, TILEC Discussion Paper, ISSN 1572-4042,2013, pg.1

 

13 Call for Evidence on the Government’s review of the Balance of Comptences between the United Kingdom and The European Union: Subsidiarity and Proportionality, .pg.18

14 Ibid, pg.19

15 Note: Conference of Parliamentary Committees for Union Affairs

16 Ibid, 20

17W. Sauter, ” TILEC Discussion Paper TILEC: Proportionality in EU law: a balancing act?”, 2012, pg.5

18 Ibid, 6

19 The Principle of Proportionality A comparative study of its application in WTO law and EU lawpg36

20, pg.34

 

21 W. Sauter, ” TILEC Discussion Paper TILEC: Proportionality in EU law: a balancing act?”, 2012, pg. 9

22 The Principle of Proportionality A comparative study of its application in WTO law and EU lawpg36

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