Proportionality principle: content, meaning, case law and path toward sustainable development within an administrative law perspective

May 15, 2018

 
Abstract

This paper follows a specific structure. While paragraphs 2 and 4 provide the general framework for the conducted analysis, paragraphs 3 and 5 go more into detail and examine, namely, the proportionality principle, and how the latter helps public administration (PA) in enhancing equitable and sustainable development (SD). The entire research will be conducted with regards to the EU system.

 

I. Admninistrative procedural law

Before going into detail with the analysis of the principle of proportionality, it would be useful to discuss about the context in which this paper conceives it, that is to say administrative procedural law. An administrative procedure is the formal path, established in legislation, which an administrative action should follow.(1) Broadly speaking, an extensive approach to this formulation confers the idea that organizational and procedural frameworks are indispensable for the effective implementation, application and enforcement of the law.(2)

 

So as to better understand administrative procedures, and why they are so important, two questions are suitable: what are their functions and why and how to regulate them? The first answer concerns the difference between non-instrumental and instrumental functions. While the former refer to administrative procedures playing a role by themselves, without being necessarily connected to their output (such as the protection of personal dignity, and the increase of transparency), the latter indicate those administrative procedures guaranteeing the correctness of their substantive results (like the protection of rights and interests, and the good administration). Precisely, this distinction is important to understand that administrative procedures are not simply the instructions provided to PA for the performance of a good administrative act, but they also are an outcome on their own.(3)

 

According to the second question, it could be useful to consider, as an example, the 1999 European Code of Good Administrative Behavior, which, defining principles applicable between institutions, their administration and the public, demonstrates the attempt to regulate, through codification, the administrative procedures in the EU. (4) (5)

 

Regardless of this experience, the EU legislation has been an important laboratory for testing the procedural design of administrative structures. Particularly, due to its fragmentation - which made it more difficult to comply with the right of good administration, as set in Article 41 of the EU Charter of Fundamental Rights,(6) and with the standard of an open, efficient and independent European administration, as established in Article 298 of the TFUE(7) - such purpose of codification reflects four main needs: clarification and easier access to law, coherence of administrative principles, filling in the gaps in the existing law, and establishment of administrative procedure functions.(8)

 

Nevertheless, despite an established catalogue of general principles of EU administrative procedural law doesn’t exist (neither can be defined a hierarchical order among them),(9) an EU Regulation on administrative procedures could be useful to clarify rights and obligations and satisfy the four abovementioned needs.(10)

 

 

II. Defining the principle of proportionality through case law

One of the main principles of administrative procedural law, included in the codification process, concerns the concept of proportionality, a quite old one, dating back to Aristotle’s thought. However, its concrete legal implementation occurred only later, and today the principle derives from the German domestic administrative law.(11) Proportionality is listed in the Treaties of the EU as a guiding principle defining how the Union should exercise its competences. For instance, Article 5.4 of the TEU states: Under the principle of proportionality, the content and form of Union action, shall not exceed what is necessary to achieve the objectives of this Treaty.(12)

 

Nevertheless, the real content and relevance of the principle arises from the interpretation given to it by the European Courts’ case law, especially the ECJ. Indeed, much before proportionality was recognized in the Treaties, the Court had developed it as a general principle of EU law and established a three-step test for examining its compliance.(13) Specifically, proportionality inquiry concerns three stages: whether the measures adopted by the EU institutions aren’t excessive compared to what is appropriate and necessary to achieve the desired end (suitability); whether they are necessary to achieve the pursued objective (necessity); and whether they impose a burden excessive compared to the aim sought to be achieved (proportionality stricto sensu).(14)

 

Thus, the proportionality principle can be understood according to three main groups of case law arising with regards to it. The first category concerns the claimant’s complaint about an excessive limitation of rights by the Community action.(15) This happened in the Schräder v. Hauptzollamt Gronau case of 1989, when the ECJ restricted the right to property and freedom to pursue a trade or profession in relation to the context of common organization of the market.(16) Specifically, the case regarded the question about the validity of the Council’s Regulation introducing a co-responsibility levy in the cereals sector, which Schräder believed violating the principle of proportionality, because not appropriate and necessary to stabilize the market. On the basis of the abovementioned definition concerning the requisites of suitability and necessity, the Court stated that the Community legislator had discretionary power for matters concerning the Common Agricultural Policy (CAP) and that, not having exceeded the limits of its power, the proportionality principle hadn’t been infringed.(17) (18)

 

The second category of case law regarding the proportionality principle concerns claims about the excessiveness of the penalty imposed.(19) An example is provided by the 1985 Man (Sugar) case, in which the export company (Man Sugar) paid the Intervention Board for Agricultural Produce (an administrative authority) a deposit in anticipation of its application of an export license. Nevertheless, as the latter reached the authority later than established by the deadline, the authority itself declared the entire deposit to be forfeit. With regards to this administrative penalty, the ECJ stated that it should have been more consonant with its practical effects. Therefore, the Court didn’t accept the forfeiture of the entire deposit (which was equal to almost three years’ profit for the company) and employed the principle of proportionality in the context of too severe administrative sanctions for minor breaches of EC legislation.(20) (21)

 

The third and final main category of case law regarding the proportionality principle concerns the protest about the disproportionality of measures adopted by the administration.(22) An example derives from the Fedesa case of 1990, which concerns the challenge to a Community policy choice made under the CAP, about the prohibition of certain hormones in meat production. The argument held by Fedesa supported the infringement of the principle of proportionality with regards to all of its “steps”. The policy would have been: inappropriate to reach the declared objectives, not necessary, and too disadvantageous in terms of financial losses. However, the Court remembered that in matters concerning the CAP the Community legislature had discretionary power and, consequently, the legality of a decision adopted in that sphere could have been compromised only due to the manifestly inappropriateness of the measure, relatively to the objective to pursue. On this basis, the Court held that, even though the prohibition might have caused financial losses to some traders, it wasn’t manifestly inappropriate and, consequently, the principle of proportionality wasn’t infringed.(23) (24)

 

Although the present paper deliberately focuses more on the case law of the ECJ, it is also important to briefly mention another approach, the one of the ECHR. The rights of the EU Convention of Human Rights are not always absolute. Interferences are admitted as long as good reasons are provided and they are “necessary in a democratic society”, for the protection of specific public interests. In the Sunday Times case the Court stated: it must be decided whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient.(25)

 

Although this definition seems to contain the classic elements of proportionality review (suitability, necessity and a reasonable balance between concerned interests), the latter are not expressly mentioned and, on the contrary, the terminology seems vague and unclear. This lack of clarity results problematic and reflects the tradition of the ECHR of not utilizing systematically the three-part test of proportionality, but of focusing especially on the requirement of the proportionality stricto sensu.(26) Nevertheless, the recent 2013 Saint-Paul Luxembourg S.A. v. Luxembourg case disproves this habit, as the Court applied the necessity test separately from the proportionality stricto sensu. The dispute rose after the newspaper “Contacto Semanário” (the applicant company) published an article describing the situation of parents having no custody over their children, due to social services interventions. The journalist told the story of two adolescents and named the social worker in charge of their case, who, after having complained for defamation, required the domestic authorities to investigate against the author of the article. Nevertheless, as the name didn’t result in the official list of journalists, it was searched through seizure warrant against the applicant company, which, consequently, clamed a violation of its rights according to Articles 8 and 10 of the EU Convention on Human Rights. Although the Court’s reasoning skipped the suitability test, it engaged with the necessity of the interference with the rights and concluded, with regards to Article 8, that the measures complained of were therefore not reasonably proportionate to the pursuit of the legitimate aims in question and, in relation to Article 10, that the search and seizure carried out at the registered office of the applicant company were disproportionate to the aim pursued. Thus, the Court declared the measures too severe and not necessary in relation to the pursued objective.(27)

 

In conclusion, the analysis of these case law points out the main essence of the proportionality principle: the ability of managing disputes involving conflicts between right claims, or between rights or private interests and public interests, and the capacity of facilitating arguments of principles and arguments of policy and to balance different competing interests.(28) While this first part of the paper has proved the importance of the proportionality principle for PA, the following section will rather focus on how the principle itself is related to SD, and how the latter is linked to PA.

 

 

IV. PA and proportionality principle in relation to Sustainable Development

The importance of PA in relation to SD is broadly acknowledged, as proved by the 13th Session of the UN Committee of Experts on Public Administration (CEPA), organized to enable PA to meet SD goals.(29) The idea that SD is deeply compatible with the core values of PA is strengthened by who believes that sustainability should be added to the three pillars of PA (efficiency, effectiveness and social equity), so as to complete its framework.(30)

 

SD requires a growing economy leading to a higher standard of living, equitable and shared distribution of benefits, human rights protection, democratic participation and preserved and healthy environment. Precisely, its focus on present and future generations is a fundamental aspect for PA, as it allows the latter to consider the management of social, environmental and economic resources both in the short and long run planning. Applying SD logics to the work of the public sector would enable it to broaden the scope of its activity, to enforce values already considered important and to integrate other principles in its domain.(31)

 

With regards to the second relationship analyzed in this paragraph, SD is also linked to the proportionality principle in several aspects. Precisely, when SD considers, in the development process, multiple factors, like public interest, intergenerational equity, environmental protection and further on, here it is when the proportionality principle comes into effect, in order to manage and balance the relationship among all these values.(32)

 

As demonstrated by the previous case law, in legal, administrative and human rights doctrine, the proportionality principle has been adopted to resolve conflicts in bipolar relationships. However, the principle can also intervene in multipolar conflicts, and this happens specifically in relation to SD. Indeed, in this case, besides needing to be proportional according to the three-step inquiry, policy measures also must be proportional with regards to SD parameters and values.(33)

 

Specifically, considering the social pillar of SD, the unified application of the three requirements of proportionality to review violations of human rights has made proportionality itself an inherent part of fundamental rights, as it became a tool for evaluating legislative and administrative choices. Dependent on several external factors, such as economic trends, social rights are open and changing subjects, which need to be balanced continuously. Broadening the judicial authority, by enabling it to perform such a “balancing function”, proportionality also allows judges to define the content of the rights and principles at stake and, therefore, to solidify their substance by taking into account also other influential facts.(34)

 

Regarding the other two pillars of SD (environment and economy), the proportionality test could also imply that measures protecting fundamental ecological functions and social principles could be considered proportionate, even though they cause economic losses, if they are legitimized by reasonable (and sustainable) justifications.(35)

This last element is important especially with regards to the following paragraph.

 

V. The meeting point: how proportionality can direct PA towards Sustainable Development

After having demonstrated how the proportionality principle is linked to both, PA and SD, this section will concentrate on the way these three elements meet in the PA “environment”. Specifically, as an empirical example of this “encountering point”, public procurement (PP) will be taken into account. The latter implies the exercise of public authorities, such as government departments, of purchasing work, goods or services from selected companies. While, historically, rules governing this process derived from the economic sphere, the new regime of the EU system is more oriented towards sustainability concerns, as demonstrated by the 2014 Procurement Directives of EU, aiming at enabling PP to support also social and environmental goals.(36)

 

Member States of the EU are required to make better use of PP to favor environmental friendly products and services. However, the decisions in this domain are not covered by rules of PP directives, but by Treaty principles, such as equal treatment, transparency and proportionality. Precisely, the latter plays an important role in relation to the selection and awards criteria of the contract deriving from the PP procedure.(37)

 

To understand how the principle of proportionality works in PP process, it should be considered in relation to the principle of equality between the undertakings. Differentials in treatments in the selection and award criteria are granted only when the circumstances are sufficiently different or when adequate to the objective dissimilarities between the two firms. Thus, although non-equitable treatment must encounter the three requirements for proportionality, the latter is fundamental for shaping the non-discrimination principle and creating less rigid “formally egalitarian” criteria within the PP exercise.(38)

 

This analysis is particularly important with regards to SD. The introduction of sustainable considerations in PP, motivated by a broader attention towards environmental protection and social cohesion (rather than only to economic advantages), can justify a (proportionate) unequal treatment between the undertakings if a competitor promotes more sustainable policies than the other one. Thus, the principle of proportionality could legitimize deeper PP sustainable criteria, by enabling the latter to be considered appropriate for reaching environmental and social objectives, and necessary and proportionate for the pursued aims.(39)

 

Thus, in conclusion, even though PP is just one of the practices of PA, it demonstrates how the principle of proportionality helps PA to take a progressive stance for integrating economic, environmental and social requirements within the framework of SD.

 

VI. Conclusion

The conducted analysis has helped defining proportionality as both, a principle shaping PA procedures and a principle that, due to its abovementioned capabilities, can help the path towards global sustainability.

 

NOTES

(1) Rusch W. “Administrative Procedures in EU Member States. Conference on Public Administration Reform and European Integration”. Budava and Montenegro: SIGMA, 2009: 3.

(2) Nehl H. P. Principles ofAdministrative Procedure in EC Law. Oxford and Portland: Hart Publishing, 1999: 2.

(3) Ponce J. “Good Administration and Administrative Procedures”. Indiana Journal of Global Studies, Volume 12 (2). University of Barcelona, 2005: 552-553.

(4) See footnote 3, pp. 562-567.

(5) Among the various principles, the Code directly refers to proportionality at Article 6. The European Ombudsman. The European Code of Good Administrative Behaviour. Luxembourg: Office for Official Publications of the European Communities, 2005: 12.

(6) Charter of Fundamental Rights of the European Union (2000/C 364/01). Nice European Council, 2000.

(7) Article 298 TFEU. Consolidated Reader-Friendly Edition of the TEU and the TFUE as amended by the Treaty of Lisbon. Bonde J. P. (ed). Notat Grafisk: Foundation for EU Democracy, 2008: 173.

(8 )Ziller J. “Is a Law of Administrative Procedure for the Union Institutions Necessary? Introductory Remarks and Prospects”. Brussels: European Parliament, 2011: 13-16.

(9) Galetta D. U., Hofmann H. C. H., Puigpelat O. M. and Ziller J. “The General Principles of EU Administrative Procedural Law: In- Depth Analysis for the JURI Committee”. Brussels: European Parliament, 2015: 6, 16.

(10) See European Parliament Resolution of 15 January 2013 with Recommendations to the Commission on a Law of Administrative Procedure of the European Union (2012/2014(INL)). 2013.
(11) Engle E. “The History of the General Principle of Proportionality: An Overview”. 10 Dartmouth Law Journal, Volume X (1). 2009: 2-7.
(12) TUE. Article 5 (4). Consolidated Versions of the TEU and the TFUE. 2007

(13) Hofmann H. C. H. “General Principles of EU Law and EU Administrative Law” in: Barnard C. and Peers S. (eds). European Union Law. Oxford: Oxford University Press, 2014: 203-205.
(14) Craig P. and De Búrca G. EU Law: Text, Cases, and Materials. Oxford: Oxford University Press, 2015: 545.
(15) See footnote 14, p. 546.

(16) Raitio J. The Principle of Legal Certainty in EC Law. Harvard and Madrid: Kluwer Academic Publishers, 2003: 167-168.

(17) ECJ Judgment. Case 265/87 Hermann Schräder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau. 11 July 1989.

(18) For the first category of case law related to the proportionality principle see also: Case C-343/09 Afton Chemical Limited v Secretary of State for Transport. 8 july 2010.
(19) See footnote 14, p. 547.
(20) ECJ Judgment. Case 181/84 The Queen, ex parte E. D. & F. Man (Sugar) Ltd v Intervention Board for Agricultural Produce. 24 September 1985.

(21) For the second category of case law related to the proportionality principle see also: Case Bayerische HNL Vermehrungsbetriebe GmbH & Co. KG and Others v Council and Commission of the European Communities. 25 May 1978.
(22) See footnote 14, p. 548.
(23) ECJ Judgment. Case C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and Others. 13 November 1990.
(24) For the third category of case law related to the proportionality principle see also: Case C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd. 10 December 2002.

(25) ECtHR. Case The Sunday Times v United Kingdom. 26 April 1979.

(26) Gerards J. “How to Improve the Necessity Test of the European Court of Human Rights”. International Journal of Constitutional Law, Volume 11 (2). 2013: 466-468.
(27) ECtHR. Case of Saint-Paul Luxembourg S.A. v. Luxembourg. 18 April 2013.
(28) Harbo T. “The Function of the Proportionality Principle in the EU Law”. European Law Journal, Volume 16 (2). Oxford: Blackwell Publishing Ltd, 2010: 164-165.
(29) UN Department of Economic and Social Affairs. “Transforming Public Administration for Sustainable Development”. New York, 2014.

(30) Bartle J. and Leuenberger D. “The Idea of Sustainable Development in Public Administration”. Public Works Management & Policy, Volume 10 (3). Sage Publications, 2006: 191.

(31) Leuenberger D. “Sustainable Development in Public Administration: A Match With Practice?”. Public Works Management & Policy, Volume 10 (3). Sage Publications, 2006: 198-201.

(32) Puthucherril T. G. From Shipbreaking to Sustainable Ship Recycling. Evolution of a Legal Regime. Leiden and Boston: Martinus Nijhoff Publishers, 2010: 91-92.
(33) Bonanomi E. B. Sustainable Development in International Law Making and Trade. International Food Governance and Trade in Agriculture. Cheltenham and Northampton: Edward Elgar Publishing, 2015: 149-156.

(34) Contiades X. and Fotiadou A. “Social Rights in the Age of Proportionality: Global Economic Crisis and Constitutional Litigation”. Oxford University Press and New York University School ofLaw, Volume 10 (3): 667-671.

(35) Voigt C. Sustainable Development as a Principle of International Law. Resolving Conflicts Between Climate Measures and WTO Law. Leiden and Boston: Martinus Nuhoff Publishers, 2009: 335-337.

 

 

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