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.
Proportionality is one of the guiding principles of European Union jurisprudence. It is repeatedly mentioned in the European Convention on Human Rights which all EU states have domesticated. Proportionality is mentioned in most judgments by the ECJ. The European Union has always intended to have ”a high level of social protection and economic development” This phrase is taken form the Treaty of Rome which was the originary document of the European Economic Community which is now called the European Union.
The EU is founded on four freedoms. These are the free movement of goods, people, services and capital. All of these can be restricted for reasons of public safety, public policy or for some philosophical reason so long as the restriction is in proportion to the legitimate aim pursued. Moreover, this aim must not be achievable by some less intrusive measure of the restriction is to be upheld by the courts.
The EU prides itself on providing a good social system with benefits to prevent acute poverty. All EU states have a welfare state of some kind. The free market is also allowed to function but within certain limits.
In Grzelszyk the ECJ ruled that the student was entitled to the Belgian minimex despite being a Frenchman living in Brussels. Social welfare cannot be denied to someone on the sole grounds of nationality. Social benefits are to be given to other EU nationals too after residing in a member state for a certain period.
The EU is about striking a balance between the need for capitalism to ensure economic growth and the need to avoid severe social division and penury. This is for humanitarian reasons and to avoid the recrudescence of communism and nazism that caused the Second World War.
Economic freedom is considered important but can be trumped by other imperatives as demonstrated by Schmidberger v Austria 2003. In this case some protestors blocked the road in protest against road haulage. The court held that Austria was right not to prevent the protest. The protest has disrupted the free movement of goods for 30 hours but the right to demonstrate was so important that this protest was allowed.
The restrictions on economic freedoms were demonstrated anew in the Omega Spiehallen und Automatenaufstellungs v Oberburgermeister in der Bundestadt Bonn 2004. In this case Germany was allowed to prevent the importation of toy guns for a very realistic combat simulation game. This game breached the German constitutional principle on the sanctity of human life. This is a rare example of the court permitting a derogation from the German principle of the free movement of goods.
Walter Rau Lebensmittelwerke case from 1983 shows yet again how the could recognises the need for an equilibrium between these two cardinal principles of market economics and social welfare. Belgium required margarine to be in cube shaped containers to prevent consumers mixing it up with butter. There was a health issue here since one food was healthier than another. Belgium was pursuing a legitimate aim but the means used was disproportionate thereto. In order to comply with this regulation the German manufacturer would have had to use different containers and thereby incurred losses. This was a product requirement and states are very seldom allowed to impose these on imports from other member states. The ECJ found for Rau and against Belgium. The legitimate aim pursued – the protection of public health – could easily be achieved by a less restrictive measure in this case labelling the product.
Students do not have the same rights in other member states as the nationals of the said state. However, if the student has shown a high degree of integration in the state in which he or she studies then he or she shall be treated the same as nationals of that state in financial terms. This demonstrates the EU’s commitment to welfare.
The Court usually acts as an instigator of market integration. Despite this it occasionally permits restrictions on the market especially in order to uphold welfare.
In conclusion the title statement is apt.
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  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.