question 5. Proportionality and trade.


Question 5 ‘The essence of the proportionality principle is that it makes it possible to combine a liberal pro free trade case law with a strong commitment to a welfare state and the preservation of certain state functions.’ Discuss.







==========================================================================General remarks A question on one of the key EU constitutional principles – proportionality. LA3024 EU law 6 Law cases, reports and other references the examiners would expect you to use Examples from free movement law case law; Case C-112/00 Schmidberger; Case C-36/02 Omega; Joined Cases C-338/04, C-359/04 and C-360/04 Placanica [2007] ECR I-1891; Case C-42/07 Liga Portuguesa de Futebol Proffissional. Common errors Not discussing proportionality across the four freedoms. Not giving a distinction on the proportionality test according to the grounds invoked. A good answer to this question would… discuss the meaning of the principle and the test used by the Court (suitability – less restrictive alternative and proportionality strictu sensu). You should discuss how the Court used it as an instrument of integration and market regulation – that is, to propose specific standards that member states had to apply (see, for instance, the labelling case law – Rau). You should, however, also analyse the recent case law of the Court. In the last few years the Court has been rather soft with member state derogations – a soft proportionality approach – relying on the national conception of certain possible justifications and deferring to the national scale of values (see for instance Omega and gambling case law). Poor answers to this question… gave an analysis mainly dealing with free movement of goods. Did not identify proportionality as a general principle of EU law.


About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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