Towards Process-Oriented Proportionality Review In The European Union

• Darren Harvey ^[1]
  1. [1] University of Cambridge

     University of Cambridge

     Cambridge District, Reino Unido

     
• Localización: European public law, ISSN 1354-3725, Vol. 23, Nº. 1, 2017, págs. 93-121
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • 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 reconceptualization 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.