Towards process-oriented proportionality review in the European Union

Darren Harvey

Research output: Contribution to journalArticlepeer-review

Abstract

This article provides an analysis of contemporary case law and subsequent academic commentary which suggests that a more process-oriented approach to proportionality review has recently been taken by the Court of Justice of the European Union. It argues that the manner in which process oriented review has been utilized gives rise to a fundamental re-conceptualization of the nature of the proportionality test at the EU level; moving away from a substantive, merits based concept of review towards something more akin to a procedural obligation to state the reasons which underpin a contested measure. The article highlights some of the problems that have arisen from this shift in approach from both a doctrinal and a theoretical perspective, whilst demonstrating the inconsistent way in which the Court has formulated and applied process-oriented proportionality review to date.
Original languageEnglish
Pages (from-to)93-121
JournalEuropean Public Law
Volume23
Issue number1
Publication statusPublished - 9 Feb 2017

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