NUMERO 4 - 20/02/2019

stato » dottrina - di Gino Scaccia

 Proportionality and the Balancing of Rights in the Case-law of EU Courts

Even a superficial analysis of the case-law of the European Courts of Rights will unequivocally show the relevance and paramountcy of the proportionality test and the technique of balancing – which is a logical consequence of proportionality – within the proceedings that lead to the Courts’ judgments. Proportionality and balancing, read as a hendiadys, are after all key concepts in global constitutionalism. They are the ripe fruit of the circulation of juridical models and legal reasoning within the multilevel system of human rights protection.  Within the context of Continental European law, we found the first trace of formal expression of the notion of proportionality in the 1794 Allgemeines Landrecht für die preußischen Staaten, which cites it as a general criterion for the administration of penalties and police actions. This translated into a ban on punitive measures that restricted personal liberties beyond what was deemed strictly necessary to protect public safety. After a long process of refining by administrative and later constitutional case-law – the former devising the pertaining judgment criterion since the Kreuzberg case of 1882 – the proportionality test has become a recurring module of reasoning in the case-law of the Luxembourg Court of Justice, of the ECHR and of many constitutional courts all over the world. The reasons the this widespread success of this veritable Zauberformel of current civil law, setting aside the powerful influence of German legal doctrine, are numerous. I will point out the more prominent… (segue)



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