Volume 23 (2017)

Volume 23 (2017) / Issue 1

Darren Harvey, 'Towards Process-Oriented Proportionality Review In The European Union' (2017) 23 European Public Law, Issue 1, pp. 93–121


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.

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ISSN: 1354-3725
ID: EURO2017006