PROPORTIONALITY

Proportionality



Proportionality

The European doctrine of proportionality means that "official action should have no greater effect on private interests is necessary for the achievement of its objective: Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten [] ECR , .

Proportionality is probably a reason for independent review of judicial review, but when a decision is challenged by judicial review of the new approach requires the HRA was described by Lord Steyn in R (Daly) v Secretary of State for [ Home Department ] AC , paragraphs -. There is no way for a substantive review, but the intensity of screening is greater than was appropriate, and more even than the screening test approved by the Court of Appeal in R v Minister of ex parte Smith [] QB Defense. The national court must now make value judgments, a assessment, depending on the circumstances prevailing at the time of the incident: Wilson v First County Trust Limited (No. ) [] AC , paragraph . Proportionality must be judged objectively by the courts: R (Williamson) v Secretary of State for Education and Employment [] AC , paragraph . See also the comments of Lord Bingham in the case of R (SD) v Governors of Denbeigh High School [] AC , paragraph .

Exactly how the courts should address the issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD [] WLR , in which he said in paragraph : "The contours of the principle of proportionality are familiar . In Freitas v Permanent Secretary, Ministry of Agriculture, Fisheries, Lands and Housing [] AC the Privy Council approved a three-step test. Lord Clyde noted in p , in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask: "if (I) the legislative objective is sufficiently important to justify limiting of a fundamental right, (ii) measures to meet the legislative objective rationally connected to it and (iii) the means used to impair the right or freedom are no more than is necessary to achieve the goal. "

In particular in German legal literature and practice, the general test of proportionality is subdivided into three different tests or requirements. To meet the requirement of proportionality, a measure or decision shall constitute an effective means to achieve the objectives of the action or decision (test effectiveness). In addition, the action or decision must be necessary for achieving them, which means, in particular, there is no alternative and less intrusive measures are available (proof of necessity and subsidiarity). Finally, although it is clear that a particular act or action is an effective and necessary to promote legitimate governmental interests, an act, decision or action may be disproportionate even if there is no reasonable and fair balance between the objectives and interests of the injured (test of proportionality in the strict sense or sense of proportionality).

Although these three "sub-tests" are also widely used and recognized in European law, the ECJ appears to be quite ambiguous in their ...