De Criminali Proportione: Assessing the Clash Between National Criminal Provisions and the E.U. Fundamental Freedoms in Light of the Principle of Proportionality

• Autore: Alessandro Rosanò
• Carica: PhD, is Teaching Fellow of International Law and European Union Law at the University of Padova, School of School (Italy)
• Pagine: 49-67

ARTICLES & ESSAYS

https://doi.org/10.6092/issn.2531-6133/7180

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.2:1 2017]

This article is released under the terms of Creative Commons Attribution 4.0 International License

49

De Criminali Proportione: On Proportionality Standing Between

National Criminal Laws and the E.U. Fundamental Freedoms

ALESSANDRO ROSANÒ†

TABLE OF CONTENTS: 1. Introduction; 2. The principle of proportionality and free

movement of persons; 3. The principle of proportionality and free movement of goods;

4. The principle of proportionality and free movement of services; 5. The principle of

proportionality and free movement of capitals; 6. Conclusion.

ABSTRACT: Over time, the European Court of Justice has had to clarify whether and under

what circumstances national laws may put one of the four fundamental freedoms of the

internal market aside in cases concerning clashes between national regulations and

said freedoms. The answers provided by the E.C.J. have always focused on the centrality

of the principle of proportionality, expressing the idea that a balance between

conflicting interests and means to protect those interests must be reached. An a priori

protection of the fundamental freedoms has been refused in favor of a more concrete

kind of approach. This article deals with this topic, assessing the relationship between

proportionality and free movement of persons, goods, and services. Also, it is checked

whether, thanks to the principle of proportionality, the E.C.J. may achieve the role of a

European Constitutional Court that can protect the E.U. interests without putting

national interests aside.

KEYWORDS: Principle of Proportionality; European Court of Justice; Free Move ment of Persons;

Free Movement of Goods; Free Movement of Services

University of Bologna Law Review

[Vol.2:1 2017]

https://doi.org/10.6092/issn.2531-6133/7180

50

1. INTRODUCTION

It is a notable aspect of the European Union (“EU”) legal framework that the

general principle of proportionality regulates the exercise of powers by the

Union. Although it has been developed by the European Court of Justice

(hereinafter E.C.J.)

1

in order to limit the institutions' discretion, it has also

been applied to national legislation, as far as the interference of national

regulations on obligations under E.U. law has been concerned.

2

From a general point of view and in light of what the Lisbon Treaty

provides with regard to said principle, one must consider art. 5(4) of the Treaty

on the European Union (hereinafter T.E.U.):

Under the principle of proportionality, the content and form

of Union action shall not exceed what is necessary to achieve

the objectives of the Treaties. The Institutions of the Union

shall apply the principle of proportionality as laid down in the

Protocol on the application of the principle of subsidiarity and

proportionality.

3

Protocol No. 2 requires draft legislation to be justified with regard to the

principles of subsidiarity and proportionality, adding that any draft legislative

†

Alessandro Rosanò, PhD, is Teaching Fellow of International Law and European Union Law at

the University of Padova, School of School (Italy). This article is a more systematic re -elaboration

of a text appeared for the first time in the Polish Review of International and European Law:

Alessandro Rosanò, The Need For Proportionality: Assessing the Clash Between National Criminal

Provisions and the Four Fundamental Freedoms in the Case Law of th e European Court of Justice, POL. REV.

OF INT’L & EUR. L., no. 2, 2015, at 48.

1

It is thank to the ECJ if that principle has progressively been constitutionalised and

normativised. See Case 138/79, SA Roquette Frères v Council, 1980 E.C.R. 03333; Case 44/79,

Liselotte Hauer v Land Rheinland-Pfalz, 1979 E.C.R. 03727; Case 11-70, Internationale

Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1970 E.C.R.

01125; Case 19/61, Mannesmann AG v High Authority, 1962 English special edition 00357 and Case

8-55, Fédération Charbonnière de Belgique v High Authority, 1956 English special edition 1954-56

00245.

2

See Harbo Tor Inge, The Function of the Proportionality Principle in EU Law, 16 EUROPEAN L. J. 158,

158-185 (2010); TAKIS TRIDIMAS, THE GENERAL PRINCIPLES OF EU LAW (Oxford EU Law Library, 3rd ed.

2018); ENZO CANNIZZARO, IL PRINCIPIO DELLA PROPORZION ALITÀ NELL’ORDINAMENTO INTERNAZIONALE [THE

PRINCIPLE IN INTERNATIONAL LAW] (2000); THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE

(Evelyn Ellis ed., 1999); NICHOLAS EMILIOU, THE PRINCIPLE OF PROPORTIONALITY IN EUROPEAN LAW, A

COMPARATIVE STUDY (1996). On the principle of proportionality in the case law of the European

Court of Human Rights, see SÉBASTIEN VAN DROOGHENBROECK, LA PROPORTIONNALITE DANS LE DROIT DE

LA CONVENTION EUROPÉENE DES DROITS DE L’HOMME [THE PROPORTIONALITY IN THE EUROPEAN CONVENTION

OF HUMAN RIGHTS] (2001).

3

See Consolidated version of the Treaty on the Functioning of the European Union [hereinafter

TFEU] Protocol (No. 2) on the application of the principles of subsidiarity and proportionality, art

5, Dec. 17, 2007, 2008 O.J. (C 115) 206.