Proportionality in the Treaties - Coggle Diagram
Proportionality in the Treaties
Article 5 TEU
5(1) The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
5(4) Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality
The Court of Justice has developed the review of compliance with the principle of proportionality as a three-step test:
Under the first level ‘the principle of proportionality requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question.’ - See eg Case C-343/09 Afton Chemical  ECR I-7027, para 45, and Joined Cases C-581/10 and C-629/10 Nelson, EU:C:2012:657, para 71.
Secondly, ‘when there is a choice between several appropriate measures recourse must be had to the least onerous’. The notion of ‘least onerous’ therefore requires a clear definition of the rights in question. See eg Afton Chemical (n 44) para 45, and Nelson (n 44) para 71.
Thirdly, ‘the disadvantages caused must not be disproportionate to the aims pursued’, that is, there must be an overall reasonable ratio between means and outcome. See eg Afton Chemical (n 44) para 45, and Nelson (n 44) para 71.
where institutions enjoy wide legislative discretion - The reason for the judicial self-restraint in these cases is that the Court is reluctant to replace the assessment of the legislature with its own assessment of the politically desirable outcome. Such restraint is therefore a question of respect for the separation of powers as expressed in Article 13(2) TEU.
less judicial self-restraint - will conduct a more full review of the proportionality of an act
those where the institutions have no or only limited discretion—this is often the case in matters of administrative acts implementing legislation - Case T-170/06 Alrosa v Commission  ECR II-2601, paras 108–110; Case C-12/03 P Commission v Tetra Laval  ECR I-987, paras 38–40.
acts of Member States which limit EU fundamental rights or fundamental freedoms - Case C-200/02 Catherine Chen v Secretary of State  ECR I-9925, para 32; Case C-413/99 Baumbast  ECR I-7091, paras 90 and 91; Case C-41/02 Commission v Netherlands (‘Vitamins drops’)  ECR I-11375, para 46:
acts of the institutions which restrict the scope of applicability of a fundamental right or balance various rights and principles against each other - Sky Österreich (n 47) paras 47–66. This is now an explicit obligation under Article 52(1) Charter which reads: ‘Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest’.
Article 5(4) TFEU
Content and form of EU action not exceed what is necessary to pursue Treaty Objectives
Fedesa Test (Case C-331/88)
If there is a choice of appropriate measures, the least onerous should be chosen
Measures should be appropriate and necessary for the objectives pursued
Proportionality address how the EU should use its competence
EU law should be the least intrusive possible
Directive could be annulled for breach of the principle of proportionality