Principle of Proportionality as Principle of Economic Efficiency
The principle of proportionality is at the cornerstone of EU law, and precisely of the case-law of the European Court of Justice (ECJ). In the law and economics literature, the general principles of law are commonly opposed to legal rules in terms of efficiency. On the one hand, the legal formalistic approach consists of apprehending the law as principled, whereby principles of law do not and should not encompass an efficiency rationale and should be self-sufficient. On the other hand, the legal nihilism denying the existence or relevance of the general principles of law favours legal rules that are said to incorporate an efficiency rationale. I intend to analyse the efficiency rationale of probably the most important general principles of EU law—the proportionality principle. In this paper, I shall assert that not only does the EU proportionality principle encap- sulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such—hence, I propose the representation of the principle of proportionality as a principle of economic efficiency. After having introduced the principle of proportionality (1), I shall decipher the pro- portionality principle both from a law and economics perspective, and from a comparative perspective (2). Then, I shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representa- tion (3). Finally, I conclude in light of the findings of this paper (4).
Citation:Portuese, A. (2013) Principle of Proportionality and as Principle of Economic Efficiency. European Law Journal. 19 (5), pp.612-635
- Department of Law