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Published online by Cambridge University Press: 27 October 2017
The aim of this chapter is to illustrate how the principle of proportionality as derived from the legal orders of the Member States has been incorporated in the legal order of the European Union as well as codified in the Treaties. The chapter revolves around two key arguments. It emphasises, first, that the principle of proportionality has been used as a criterion for controlling the legality of the acts of the Union and of those of the Member States when implementing Union law. Secondly, it is argued that, more recently, the same principle has been used by the Court of Justice of the European Union as a useful instrument towards ensuring an even stronger coordination with national judges.
1 See Adam, R and Tizzano, A, Lineamenti di diritto dell’Unione Europea, 2nd edn (Turin, Giapichelli, 2010) 48–49 Google Scholar.
2 Joined Cases C-56 and 58/64 Établissements Consten SàRL and Grundig-Verkaufs GmbH v Commission of the EEC [1966] ECR 299.
3 Case C-122/78 Buitoni v Fonds d’orientations [1979] ECR 677.
4 Case C-135/08 Rottmann v Freistaat Bayern [2010] ECR I-1449.
5 Case C-369/90 Micheletti v Delegación del Gobierno en Cantabria [1992] ECR I-4239.
6 Case C-135/08 Rottmann, n 4 above, para 58.
7 C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Germany [2010] ECR I-13849.
8 Ibid, para 61.
9 Ibid, para 62.
10 Ibid, para 30.
11 Opinion delivered by Advocate General P Mengozzi on 2 September 2010 in Case C-279/09, para 69.
12 One can easily deduce that the position taken by the Court of Justice will provoke reactions in Germany. In that country, in fact, as the Court of Justice noted, the constitutional federal court considered that ‘the granting of legal aid is a measure of social assistance which is derived from the principle of the social State and is necessary for the safeguarding of human dignity’ (Case C-279/09, [2010] ECR I-13849, para 24). This is why the German constitutional court considered that legal aid can be granted to legal persons only when this is necessary for social or general purposes. However, the Court of Justice deemed that the right to receive legal aid, as it appears in Title VI (relating to justice) and not in Title IV (relating to solidarity) of the Charter, is essential in order to benefit, independently from considerations of a social nature, from effective access to justice to safeguard the rights granted by EU law. In order for the Court of Justice’s reasoning to neutralise the criticisms which might come from Germany one must logically deem that also the third paragraph of Art 47, on which it is based, similarly to the first and the second paragraphs of the same article, does not show an innovative character but that it expressly specifies an idea strictly linked to the spirit in which the principle of effective judicial protection has been affirmed in the Community (now Union) order.
13 Case C-279/09, [2010] ECR I-13849, para 60.
14 Opinion delivered by Advocate General Sharpston on 14 October 2010 in Case C-208/09 Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693.
15 Opinion in the case C-208/09, ibid at ‘conclusion’.
16 See also Case 36/02 Omega [2004] ECR I-9609, p 31.
17 On the way in which, in these two cases, the Freystaat Bayern and the Bundesverwaltungsgericht applied point by point the criteria indicated by the Court of Justice see P Mengozzi, ‘Corte di giustizia, giudici nazionali e tutela dei principi fondamentali degli Stati membri’ in Il Diritto dell’Unione Europea 3/2012, at pp 573–75 (at fns 26 and 29).