Last week’s entry to the Europe Dictionary was on the topic of subsidiarity. A related and equally important principle in European law is proportionality, which Niamh Baker-Loughlin will now examine.
Proportionality, which is a principle also found in general and criminal law, is laid out in Article 5 of the Treaty on European Union, with the criteria for its application being described in Protocol 2. It’s based on the principle that when a law is proposed at the European level, it should not go beyond what is necessary to fulfil the objectives of the Treaties. In practice, it limits the powers of the supranational institutions to go beyond what has been agreed by the nation states. This means that there exists a safeguard against over-regulation by the EU institutions, which not only reassures member states but also streamlines the policy process at the EU level.
Under the principle of proportionality the legislative act proposed must be both appropriate and necessary and the Commission must be prepared to justify why they think the draft act does not violate the principle.
Combined with the principle of subsidiarity, proportionality ensures that EU law doesn’t go beyond what is required for the smooth and effective creation of legislation at the EU level. In a climate in which many member states are questioning the limiting effects of EU law on national sovereignty, it goes some way to reassuring national governments and their constituents that the EU is not overreaching or trying to expend its own powers beyond the constitutional principles outlined in the treaties. If the EU becomes a fully federal system, these legal principles can still apply as decisions continue to be taken at the appropriate level and at the appropriate distance from the citizen.
Image ‘Gavel for SalFalko’ courtesy of Rosario Esquivel via Flickr.com, released under Creative Commons 2.0.