[MUSIC]

Welcome.
In this lecture I'm going to present
the principle which is of relevance for
almost every single other
aspect of European law.
I'm talking of the principle
of proportionality.
I have based this lecture on this
excellent book, the Third Edition of
European Union Law, written by
Koen Lenaerts and Piet Van Nuffel.
It was published by Sweet and
Maxwell in 2011.
In life,
we are all called upon to make choices.
They range from what should I have for
dinner, to where do I want
to send my kids to school.
The law is no different.
Often, choices have to be
made based on evidence.
In criminal law,
for instance, we need to see whether
the accused committed the alleged act.
In EU law, we have that too, but because
of the very special nature of EU law,
which is based on the parallel
application of EU law and national law,.
We sometimes must make
an assessment whether EU law and
national law are compatible.
We call this a compatibility assessment.
This assessment often leads to
balancing of different interests and
different results.
On one hand, we have the primacy,
unity, and effectiveness of EU law.
And, on the other hand, we have the
principles of subsidiarity and conferral.
As Leonard Zenuffle had explained it,
the principle of proportionality
serves to assess the legality of
an exercise of power wherein an
admittedly, legitimate aim is pursued but
at the same time other objectives
deserving of protection are damaged.
The balancing of these interests
follows a certain model.
The model has been adopted from
German constitutional law, and
it is applied in all fields of EU law.
Proportionality assessments are also
different, depending on the field of that
law, it is applied in relation to
fundamental rights, the four freedoms,.
Labor law and
many other fields where national measures
must be assessed in the light of EU law.
So, remember in this lecture we will look
at how the principle of proportionality
is applied, when national measures
are assessed in the light of EU law.
In order to make
the assessment transparent,.
The proportionality test
follows three distinct steps.
These steps ensure not only transparency,
but also function as a way of
self control, because they force
judges to reason their decision.
I will now present
the three steps one by one.
And gave you some examples
from the case law of the ECJ.
As always, you'd find the relevant cases
in the reading materials for this lecture.
The first step in
the proportionality assessment is
the question whether the measurement
question is appropriate.
This step requires a causal
relationship between the measure and
the objective pursued.
It controls whether the measure
was taken arbitrarily.
The court of justice leaves a margin of
discretion to the national
authority concerned.
And only considers whether there
has been a manifest error.
One example of an appropriate measure
can be found in the case Dirextra.
Apparently Italian legislation
provided certain funds to
higher education on master level.
On the condition that the demanding
school had at least ten years'
experience to provide higher education.
The question arose whether the Italian
measure restricted the freedom of
establishment in the EU,
by limiting the number of schools
which could receive the funds.
In its analysis the Court of Justice found
that the aim of the Italian measure to
ensure a high quality of the education on
the master level, which makes it easier
for those who visit the school to find
a job once they're done, was appropriate.
So now it was time to go to Step Two.
The second step in
the proportionality assessment is
the question whether
the measure was necessary.
This test is the dominant feature
in the proportionality test.
The question is,
does the measure go farther than is
necessary to achieve
the legitimate aim pursued?
In practice,
the question arises whether other
less restrictive means capable of
realizing the same end, exists.
Less restrictive means that it would
be less detrimental to another aim or
interest protected by EU law.
As you see, this is the part where
the actual balancing takes place.
If we continue with the example
from step one the court,
after finding that
the measure was appropriate.
Found that since the restriction was only
applicable to master level education, and
did not restrict the possibility of
students to seek out any other education,
it could not be considered
disproportionate to provide the funds only
to a limited number of schools,
which met the requirements.
As a result,
the measure was compatible with EU law.
Finally, there's also the weighing
of interests in general.
This third step of the proportionality
test is sometimes overlapping with
the second step.
The advantage of this third step,
however, is that it allows for
a sort of rule of reason, if an outcome
would be manifestly inappropriate.
Remember, the principle of proportionality
applies in all fields of EU law.
It is used for fundamental rights,
as well as the review of EU legislation.
As a matter of fact, Article Five TEU
stipulates an obligation for the EU to
respect the principle of proportionality
when it exercises its competence.
I have included two cases which cover
this test in the reading materials.
This, dear watchers,
outlines the principle of proportionality.
You will meet this principle again, and
again in the different
lectures which follow.
I hope that you have enjoyed the lecture.
Thank you for tuning in,
and see you soon again.