Similarities and differences regarding the apply of the principle by slappypappy126

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									   The application of the principle of proportionality in the case law of
        Community and Greek courts: similarities and differences
                             (draft for discussion)




                                                              Sarantis Orfanoudakis
                                Ass. Professor, Aristotle’s University of Thessaloniki
                                                                     Vasiliki Kokota
                                            Attorney at Law, MA Constitutional Law




       1. Introduction
       The principle of proportionality states as an example of a creative
interaction between the legal orders of the European Union and the Member
States. Despite the fact that the ‘community’ aspect of the principle of
proportionality was inspired by the national laws of Member States, it was
developed and applied in the case law of community courts as an eo nomine
principle of community law, adjusting to the special characteristics of the
community legal order. On the other hand, the ‘national’ aspect of the
principle of proportionality, as it applies in the case law of national courts,
regardless of the similarities it might present at the level of doctrine, operates
in a way that can be recognised as different in quality 1 .


       2. Proportionality as a general principle of ‘constitutional’ status


       The principle of proportionality is identified as a general principle of
law, not as an individual right provided by a certain Constitution nor as a
fundamental freedom provided by the Treaty of the European Union.
Proportionality is not itself a fundamental right, but its role is to determine the


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substantial content of other rights 2 . The very nature of the principle of
proportionality determines, further, and its operation within a certain legal
order.
         As far as the legal status of the principle is concerned -the question of
its ranking among the sources of law in a certain legal order- an issue that is
interrelated to the addressees of the principle, after the expressis verbis
provision of the principle of proportionality under Article 25 par. 1 of the Greek
Constitution (as amended in the year 2001), the principle of proportionality
undoubtedly enjoys constitutional status. Even before that strict constitutional
provision, the principle of proportionality was acknowledged by national courts
as one of the unwritten general principles of law that applied as constitutional
norms 3 . Concerning the normative foundation of the principle, proportionality
derives from the concept of the ‘Rule of Law’ (Rechtsstaat), which is a
concept that permeates the Greek Constitution 4 . The principle of Rechtsstaat
consists of two sub-principles: the fact that the administrative power is liable
to the legislative power (principle of legality) and, cumulatively, the fact that
the legislative power is liable to Constitution, under the guarantee of the
constitutional review conducted by judges 5 .
         Regarding the legal status of the principle of proportionality in the
community law, it is argued that proportionality is not, simply, a general
principle of Administrative European Law 6 , but rather a principle that prevails
over the secondary legislation of European Union, thus applying to all areas of
community law 7 . However, there is a clear distinction between the concept of
the principle of proportionality, whose provision falls under Article 5b (ex 3b)
of the Treaty, and the one that emerges from the case law of community
courts 8 : The concept of the principle of proportionality provided by the Treaty
is rather narrow -as it refers only to community institutions and not to Member
States- and it appears inextricably interrelated with the principle of
subsidiarity, which is embodied in the very same Article (5b) of the Treaty 9 .
Compared to that narrow meaning, the application of the principle of
proportionality in the case law of community courts reveals a wider concept of
the principle.
         In any case, the question of the normative foundation of the
‘community’ aspect of the principle of proportionality should be limited within


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the community legal order, instead of referring to the legal orders of the
Member States. Thus, the narrower sense of the principle of proportionality is
embodied expressis verbis in Article 5b of the Treaty, whereas the wider one
derives -in a similar way to the ‘national’ aspect of the principle- from the
concept of the ‘Community of Law’ (Rechtsgemeinshaft), which once again
enjoys ‘constitutional’ status 10 . Both approaches to the ‘community’ aspect of
the principle of proportionality enjoy constitutional status, the former due to its
strict provision under the Treaty, the latter due to its normative foundation on
the concept of Rechtsstaat/ Rechtsgemeinshaft.
        The constitutional status of the principle determines, further, and its
addressees: Thus, the principle of proportionality is binding for every state
power (legislative, executive when it acts with discretionary power, judicial),
establishing a postulate vis-a-vis the State and the individuals as well 11 .
Similarly, the community courts’ approach -the wider one- towards the
principle of proportionality entails that it refers both to Member States and to
the European Union’s institutions, being binding for every ‘community’ power
(legislative, executive, judicial), despite the lack of a strict equivalent to the
traditional separation of state powers in the legal order of the European
Union 12 .
        As a conclusion, comparing the origins, the nature and the legal status
of the principle of proportionality, it can be argued that in both legal orders the
principle is acknowledged as one of the fundamental general principles of law
-identified expressis verbis as a constitutional norm in the Greek law,
emerging from the case law of community courts in the community legal
order- and that both aspects of the principle are founded on the very concept
of   Rechtsstaat/   Rechtsgemeinshaft,     one    of   constitutional   (or   quasi-
constitutional) status.




        3. Conceptual framework: the three stages of the control as the
        three constituents of the principle of proportionality
        Despite the provision of the principle of proportionality under Article 25
of the Greek Constitution, no definition of the principle is included in the
constitutional text. Thus, the substantial content of the principle emerges from


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its application in the case law of national courts. The same applies to the
community aspect of the principle, through its application in the case law of
community courts. Needless to say, that both aspects of the principle of
proportionality were developed and applied under the influence of the case
law of the German Federal Constitutional Court (Bundesverfassungsgericht)
13
     .
         According to the case law of the German Court, the principle of
proportionality aims at the pursuit of a reasonable relationship between a
restrictive measure and the end that has to be attained. Regarding the
structure of the principle, proportionality consists of three sub-principles that
altogether constitute the principle of proportionality lato sensu. Those three
sub-principles are applied in a logical sequence: the sub-principle of
suitability, which means that the selected restrictive measure should be
appropriate/ suitable to achieve the -constitutionally or by the Treaty
approved- aim that has to be achieved, necessity, which means that the
adopted measure should not exceed what is necessary, as far as its extent,
intensity or duration is concerned, to achieve the objective and, finally, stricto
sensu proportionality, which demands that the disadvantages involved in the
restriction do not outweigh the advantages 14 .
         In doctrine, the three components/ stages of the control are recognised
as identical, since both national and community courts have ‘adopted’ the
principle under the influence of German Law. However, each legal order
adjusted the principle of proportionality to its own special characteristics:
Thus, in the case law of Greek courts, the principle of proportionality applies
under the two sub-principles of suitability and necessity, however, there is a
subtle difference in the conceptual approach to what constitutes the third
stage of the control: According to the Greek case law, there exist cases where
judges recognise the aim that has to be achieved as being worthy to serve
(the so-called ‘reasonableness’), whereas there are cases where that specific
aim is doubted (the so-called ‘stricto sensu proportionality’). This latter
application of the third sub-principle of the principle of proportionality is
identical to the concept of the stricto sensu proportionality adopted by
community courts 15 .



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       In practice, however, as derives from the case law of both national and
community courts, there appears to be a major confusion regarding the
terminology followed by judges: A measure can often be rejected as
disproportionate, in general terms, without a further analysis or grounding
whether it is rejected as unsuitable, unnecessary or disproportionate under
the application of the third stage of the control. What is more, it can also be
rejected as unnecessary, instead of being characterised as unsuitable/
inappropriate or vice versa 16 .
       Although the terminology followed by judges of both national and
community courts seems inconsistent with the strict conceptual framework of
the principle of proportionality established by doctrine, it is commonly
accepted that the control exerted under the third stage of the principle
(reasonableness or stricto sensu proportionality) has been successfully
characterised as ‘true proportionality’ 17 , since it represents the most intense
kind of control, according to which the judge leads himself to the ‘core’ of the
balancing approach.


       4. The principle of proportionality as the foundation / criterion for
       the judicial technique of balancing


       The technique of balancing is a method of solving real conflicts
between equally protected but competing interests of the same legal status 18 .
The fact that the protected interests are of the same legal status shifts the
conflict from the question of hierarchy, guiding the judge to the pursuit of
different criteria, which could be used to solve the conflict. The principle of
proportionality serves exactly as this criterion.
       Balancing is a judicial technique 19 which uses the principle of
proportionality as a foundation/criterion. The systematic distinction of these
two notions points out their different context, that is, while the principle of
proportionality has a substantial content, which is the search for a reasonable
relationship between the violated legal interest and the restrictive measure,
the technique of balancing is deprived of any substantial content. Moreover, it
is important to point out that this specific type of balancing, which is founded
on the principle of proportionality, presents the characteristics of ad hoc


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balancing, contrary both to the technique of subsumption and to other
balancing techniques 20 .
        In relation to other forms of balancing techniques, the technique of ad
hoc balancing has the advantage that the solution to the conflict between the
equally protected but competing interests of the same legal status is neither
known to the judge a priori nor is it presented as the unavoidable result of the
conflict. There exists no hierarchy between the competing legal interests, but
rather a conditional relationship of precedence, which can be judged ad hoc
and not per se. In this way, the conflict is shifted from the level of the legal
interests’ validity to the dimension of their special weight, that is the gravity
each of them has in the specific case under rule (in concreto) 21 .
        The conditional relationship of precedence is founded on two strong
preconditions: on one hand, the competing legal interests are incepted as
objective principles, which are examined in the light of specific circumstances,
rather than as subjective rights 22 . As a direct consequence of the above
perception, comes the conclusion that the same legal interests, found under
different circumstances, will not necessarily lead to the same relationship of
precedence, since this relationship is judged at a level of special weight rather
than validity. On the other hand, the conflict of legal interests takes place both
at a factual level as well as a legal one, since the principle of proportionality,
which serves as the foundation of the balancing technique, presents both a
factual and a legal aspect: the criteria of suitability and necessity are the
factual balancing conditions, whilst the third stage of the principle constitutes
the legal balancing conditions 23 .
        The adoption, by both national and community courts, of the ad hoc
balancing technique, as a method of solving real conflicts between legal
interests of the same legal status, can not but be founded on the same
theoretical preconditions and aim at the same result: the affirmation of one
conditional relationship of precedence for each case under rule. However, it is
an altogether different issue whether the same technique (the ad hoc
balancing), which apparently uses the exact same criterion (the principle of
proportionality), operates differently in the case law of community and national
courts 24 .



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           More precisely, the relationship developed between the conflicting legal
interests is not a two-part relationship but a tripartite, since it consists of two
conflicting legal interests and one restrictive measure, which is imposed to
one of them at the advantage of the other, while the concerning parties hold
once the stable position and another time the position of a variable 25 .


           5. The application of the principle of proportionality: guarantee of
           rights or mechanism for Community’s integration?


           Within the Greek legal order the principle of proportionality is activated
in the field of protection of individual and social rights, being one -the most
important 26 - of the “restrictions of the restrictions” (‘Schranken-Schranken’) of
constitutional rights. The principle’s embodiment in Article 25 par. 1 of the
revised Constitution, at the end of the Chapter concerning the protection of
individual and social rights (Articles 4-24 of the Greek Constitution), is a
strong argument in favour of the opinion that the principle of proportionality is
especially intended to limit State’s action (both legislative and executive)
against the citizens’ constitutional rights. The principle of proportionality
provides the criterion, according to which judges decide whether a restrictive
state action is proportional to the violated constitutional right: in cases where
action originates from legislative power, it is an issue of constitutional review
of legislation, whereas in cases where action originates from the executive
power, it is an issue of review of the legality of the restrictive administrative
act 27 .
           As a result, the expansion of the application of the principle to other
fields, apart from the limitation of the restrictions of constitutional rights (for
instance the application of the principle in order to judge the fairness of one
electoral system over another), does not seem justified 28 . The operation of the
principle of proportionality in the Greek legal order is strictly constrained by
the Greek Constitution, in a way that it excludes its transformation into a
general directive of every state action.
           On the contrary, within the community legal order, the principle of
proportionality mostly applies in areas which are irrelevant to rights. These are
the fields where the most important jurisprudential conclusions, concerning


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the application of the principle, are drawn. In any case, the community’s
primary aim is not the protection of human rights, which are recognized by the
member-states’ legal orders, not even the protection of the community
freedoms provided by the Treaty to the European citizens, but as it is cited in
Article 2 of the Treaty: ‘The Community shall have as its task, by establishing
a common market and an economic and monetary union … to promote
throughout the Community a harmonious and balanced development of
economic activities...’.
       It should be noted that the issue of the application of the principle of
proportionality applies to both community and national measures: Regarding
the control of community measures, the preferential field of the principle’s
application is the Common Agricultural Policy (CAP), where the courts have
developed rich jurisprudence, balancing the extent of the violation with the
objective pursued by the community organ, which adopted the restrictive
measure, even using the sub-principle of sricto sensu proportionality 29 .
Likewise, in the field of competition law, the courts balance the conflicting
interests, using the criterion of proportionality, both during the procedure of
establishing the violation, as well as during the assessment of the fine
imposed, examining whether the interest of the Union’s organs, which have
enforced the restrictive measures, overrides the interest of the enterprises
who suffer them 30 . The fact that the Union’s organs enjoy discretion when
they adopt those restrictive measures does not place their action outside the
judicial review. It is, however, a decisive element when it comes to minimizing
or intensifying the control exerted. Also, in the field of the control of state aids,
the courts use the principle of proportionality to establish, for example,
whether a Member State is allowed to take back a financial aid, which was
given to an enterprise illegally 31 .
       Regarding the review of national measures, the principle of
proportionality is applied to restrictive measures, which originate from Member
States and concern the “four fundamental freedoms” (free movement of
goods, persons, services and capital). The rules of free movement are
fundamental principles which tend to realise the Treaty’s objective (the
creation of a Common Market 32 ), while any exception to that rule has to be
narrowly interpreted and it only concerns reasons of public order, public safety


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and public health 33 . In cases of measures that are restrictive to fundamental
freedoms, the courts use the principle of proportionality, balancing, on one
hand, the national interest evoked by the Member State and, on the other
hand, the importance of the community objective, which is violated by the
restrictive measure. The greater the importance of the fundamental freedom,
the stricter the control becomes, taking under consideration the allegations of
Member States about the specific reasons that led to the enforcement of the
restrictive measure 34 .
        In the area of the protection of the ‘four fundamental freedoms’,
especially the ‘personal’ ones (free movement of persons and services), the
control exerted on restrictive national measures is based on the principle of
proportionality, in order to establish the compatibility of measures with the
community law. However, the way those freedoms function within the
community legal system is different from the way individual rights function
within the legal systems of Member States: the four fundamental freedoms
that the Treaty confers to the European citizens, are not an objective in
themselves but only means to accomplish the Union’s objectives, as they are
declared in the original Treaties. Even in cases where the compatibility of the
restrictive measures is examined, the principle of proportionality serves more
as a mechanism for market integration, rather than as a guarantee of
individual rights 35 : The community courts use the principle as an instrument 36 ,
in order to decide on the legality of the national measures vis-a-vis the
Union’s fundamental freedoms.
       The validity of this argument is also suggested by the extent of the
control exerted: The kind of control that the judge applies, based on the
principle of proportionality, is often related to the origin of the restrictive
measures: regarding the assessment of measures originating from Member
States, the control is strict, contrary to the review of community measures,
where the control is looser. As a result, it could be argued that the courts
establish a presumption of proportionality 37 , when they challenge community
restrictive measures, having as a starting position the measure’s compatibility
with the community law, contrary to a presumption of dis-proportionality,
regarding the control of national restrictive measures 38 . A relative observation
is that when community measures are assessed, it is only examined whether


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the measure is “manifestly inappropriate”, while when national measures are
under review, the control is stricter, as it postulates “a less restrictive
alternative” 39 .
        Yet it should be mentioned that, regarding the so-called fundamental
rights recognised by the Union 40 , their protection within the community legal
order is not absolute. On the contrary, those rights are taken into
consideration in connection to their function, which is to serve as instruments
for the creation of a Common Market. These fundamental rights, which have
entered the community’s legal system through the European Convention on
Human Rights (ECHR) and through the general principles of law which are
common to Member States 41 , have a supplementary role compared to the
role of the four fundamental freedoms.
        Finally, there is a last dimension of the principle of proportionality, the
one that is embodied in Article 5b of the Treaty 42 . This is, in a way, the federal
dimension 43 of the principle, which is inextricably interrelated, both chronically
and logically, with the principle of subsidiarity 44 . Subsidiarity is the criterion
according to which the competences between the European Union and the
Member States are allocated, while proportionality further designates the form
(the gravity, the intensity and the duration) of the action which is undertaken.
The specific Article of the Treaty only addresses to community organs and
determines the range of their competences (which has already been judged
according to the principle of subsidiarity) and the kind of their action. The
Member States exercise most of the shared competences, while the Union
acts ‘only if and in so far as’ her action does not violate the principle of
subsidiarity 45 . In this way, the principle of proportionality is transformed into
an instrument for the assessment of the law-producing procedure, functioning
in a decentralising way, since her objective is to restrain competences in
favour of the Member States and against the ‘central’ power (the Union’s
organs).


        6. The principle pf proportionality as a factor of stability of the
        separation of powers




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        However,    the   vital   question   remains:   Does   the   principle   of
proportionality operate as a violating or as a safeguarding factor for the
institutional balance, which should exist between the legislative, the executive
and the judicial power? The verification that the balancing technique is used
as a method of solving conflicts between competing legal interests, does not
necessarily mean that the principle leads to arbitrary decisions, since the
principle of proportionality, along with its essential elements (suitability,
necessity and reasonableness or stricto sensu proportionality), serves as the
criterion, according to which the judge will organize the reasoning of his/her
decision 46 .
        Within the Greek legal order, the principle’s operation as a “restriction
of the restrictions” of constitutional rights, guarantees the observance of the
principle of the separation of powers, since it secures both the executive’s
submission to the legislative power, through the review of the legality of the
administrative acts, as well as the legislature’s submission to Constitution,
through the constitutional review of laws.
        Within the legal order of the European Union, despite the fact that the
principle of the separation of powers is not as strictly determined, the
systematic judicial review could counter-balance the Union’s so-called
‘democratic deficit’, that is the accumulation of legislative power in the Council
and the Commission 47 . Those organs, which are not democratically
legitimized, need the existence of an institutional counterbalance, a role that
could be perfectly performed by the Union’s courts.
        In any case, the selection of one judicial technique over another is not
methodologically neutral, since it is directly connected to the role of judges,
who actually apply the technique, as well as the extent of the control applied.
The implementation of the principle of proportionality, either by the community
or the national judge, extends his/her role, since he/she is obliged not only to
apply the law but also to interpret it during the balancing approach towards
the equally protected but competing legal interests 48 .
        The application of the principle of proportionality by national and
community courts does not necessarily result in a shift of the institutional
balance in favour of the judicial power. It rather safeguards the real substance
of the separation of powers, giving the principle a new meaning. As a result,


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the adoption of the principle of proportionality does not lead to judicial
“activism”, as far as the judge is asked to implement a balancing procedure.
This balancing procedure coincides with the current economic, political and
social developments, followed by changes to the rules themselves 49 .


       7. Conclusion


       In a nutshell, concerning the community and the national perception of
the principle of proportionality, the theoretical and conceptual similarities are
evident, due to their common (German) origin. Another manifested similarity is
that, in comparison with other judicial techniques, the principle of
proportionality, as a criterion for the judicial technique of balancing, leads to a
more intense control of the restrictive measures, without being an
unauthorized intervention of the judicial power into the area of the other two
state powers.
       However, differences are remarked regarding the function of the
principle of proportionality, since within the Greek legal order the principle is
strictly limited to the protection of constitutional rights, operating as one of
their “restriction of the restrictions”. On the contrary, within the Union’s legal
order, the principle applies mostly in other areas of action (common
agricultural policy, competition law, state aids), rather than in the area of
individual rights. Furthermore, the principle’s application in the latter case,
serves more as an instrument for the creation of a Common Market, through
the realisation of the four fundamental freedoms.
       Under this perception, the kind of control performed by the Greek
courts could be characterised as more specific, since it involves two
competing    constitutional   rights   and    one    restrictive   (legislative   or
administrative) measure. Thus, the emphasis of the judicial review is given to
the protection of the conflicting constitutional interests, one of which has to be
sacrificed in favour of the other, but only for the case under rule. On the
contrary, the control exerted by the Union’s courts, conducted according to
the principle of proportionality, is orientated towards the special needs of the
European legal system, aiming at a certain objective: the creation of a
Common Market, through the promotion of the four fundamental freedoms.


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This kind of control is characterised as more abstract, since it is conducted at
a more general level of balancing between the national and the community
legal interests, a balancing procedure that is not primarily interested in the
protection of individual rights.
        Eventually, the role of the principle of proportionality in the case law of
Greek courts appears to be more limited but at the same time more
‘substantial’, since the principle exclusively applies in the area of individual
rights, in order to protect them against the intrusion coming from the
legislative or administrative power, through the pursuit of a reasonable
relationship between the restrictive measure and the aim that has to be
attained. On the contrary, the principle of proportionality has a more
‘instrumental/procedural’ function in the case law of community courts, where
the principle serves more as a criterion for the allocation of powers between
the community institutions and the Member States, since the decision on the
proportionality of the restrictive measure, is, in final analysis, a decision on
whether the legislative organ (community or national) was competent to act.




References
1
  For comparative studies upon the principle of proportionality, see E.Ellis (ed), The principle
of proportionality in the Laws of Europe, 1999, N. Emiliou, The principle of proportionality in
the European Law: A comparative study, 1996, G. Gerapetritis, Proportionality in
administrative law. Judicial review in France, Greece, England and in the European
Community, 1997, W. Skouris (ed.), Advertising and constitutional rights in Europe, 1994, G.
Xynopoulos, Le contrôle proportionnalité dans le contentieux de la constitutionalité et de la
légalité en France, Allemagne et Angleterre, 1995.
2
  S. Orfanoudakis, The principle of proportionality in the Greek legal order (in Greek), 2003, p.
200, G. de Búrca, The principle of proportionality and its application in EC law, YEL 1993, p.
105 seq.
3
  Regarding the operation of the principle of proportionality before its embodiment in the
article 25 of the revised Greek Constitution, see: A. Manessis, Constitutional Rights A’-
Individual Liberties (in Greek), 1993, p. 77 seq, D. Tsatsos, Constitutional Law - Fundamental
Rights. General Part (in Greek), 1988, p. 245 seq, P. Dagtoglou, Constitutional Law -
Individual rights (in Greek), 1991, p. 308, A. Manitakis, ‘Rechtsstaat’ and constitutional review
of laws (in Greek), Vol I, 1994, p. 20, D. Kontogiorga- Theocharopoulou, The principle of


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proportionality in domestic public law (in Greek), 1989, V. Voutsakis, The principle of
proportionality: From interpretation to creativity in law (in Greek) in: Aspects of ‘Rechtsstaat’,
K. Stamatis (ed.), 1990, p. 205. After its strict provision under Article 25: S. Orfanoudakis,
op.cit, V. Voutsakis, The principle of ‘Rechtsstaat’ and the new rules for individual and social
rights (in Greek), Nomiko Vima, 2002, p. 7, K. Gogos, Aspects of the control of proportionality
in the case law of the Council of State (in Greek), Revue Hellénique des Droits de l’Homme
III/2005, p. 299.
4
   For the interrelation between the principle of proportionality and the concept of the State of
Law, see A, Manitakis, State of law, op.cit., p.153 seq, S. Orfanoudakis, op.cit, p. 21 seq.
5
  A. Manitakis, State of law, op.cit., passim.
6
   For the general principles of European Administrative Law, see J. Schwarze, Developing
principles of European Administrative law, PL 1993, p. 229 seq.
7
   For the operation of the general principles in the case law of community courts, see M.
Akehurst, The application of general principles of law by the Court of Justice of the European
Communities, British Yearbook of International Law 1981, p. 29 seq, N. Emiliou, op.cit., p.
115 seq.
8
  For this distinction, see E. Prevedourou, The application of the principle of proportionality in
the case law of the ECJ (in Greek), Revue Hellénique des Droits de l’Homme III/2005, p. 167
seq.
9
   According to Article 5b (ex 3b) of the Treaty: ‘In the areas which do not fall within its
exclusive competence, the Community shall take action, in accordance with the principle of
subsidiarity, only if an in so far as the objectives of the proposed action cannot be sufficiently
achieved by the Member States and can therefore by reason of the scale or effects of the
proposed action, be better achieved by the Community. Any action by the Community shall
not go beyond what is necessary to achieve the objectives of the Treaty’.
10
    More accurately, quasi-constitutional, since the Treaty for the European Union is not
exactly equivalent to a national Constitution. For this problematic, see A. Manitakis, The
European ‘Constitution’ between national and european sovereignty (in Greek) in: A.
Manitakis/ L. Papadopoulou, The perspective of a Constitution for Europe, 2003, p. 43 seq.
11
    See: W. Skouris, Advertising and Constitutional Rights in Greece in: W. Skouris (ed.),
Advertising and Constitutional Rights in Europe, op.cit., p. 166 seq, G. Gerapetritis, op.cit., p.
105 seq.
12
    E. Prevedourou, op.cit., p. 184-185.
13
    For some references to the case law of the German Federal Constitutional Court, see N.
Emiliou, op.cit. p. 23 seq, W. van Gerven, The effect of proportionality on the actions of
member states of the European Community: National viewpoints of Continental Europe in:
E.Ellis (ed), op.cit, p. 44 seq, A. Tsevas, The principle of proportionality in the German
Administrative Law (in Greek), Revue Hellénique des Droits de l’Homme III/2005, p.133 seq.
14
    R. Alexy analyses the structure of the principle of proportionality, see R. Alexy, A theory of
constitutional rights, 2002, p. 66 seq, 397 seq.
15
    For what constitutes the third sub-principle of the principle of proportionality lato sensu in
the case law of Greek courts, see S. Orfanoudakis, op.cit., p. 38-41.
16
    For the inconsistency of the terminology adopted by judges see S. Orfanoudakis, op.cit., p.
204, E. Prevedourou, op.cit. p. 187.
17
    J. Snell, True proportionality and the free movement of goods and services, EBLRev 2000,
p. 50.
18
    There has to be a real conflict between legal interests of the same legal value, otherwise
the solution is provided by other practical methods and not by the balancing technique, S.
Orfanoudakis, op.cit., p.31.
19
    For judicial techniques and their function see A. Fotiadou, Balancing the freedom of
speech. Judicial techniques and freedom of speech in USA and Greece, 2006, p. 119, seq.
The writer contradicts the technique of ad hoc balancing, whose outcome is not a priori
known, to the technique of definitional/categorical balancing, which is restricted by a series of
strict rules leading the “balancing” towards a specific direction (p. 133-142).
20
    Analytically for the distinction between balancing and subsumption methods, see R. Alexy,
On balancing and subsumption. A structural comparison, Ratio Juris, p. 433 seq.
21
    The conditional relationship of precedence between the competing constitutional aims is
thoroughly analyzed by R. Alexy, A theory, op.cit., p. 49 seq (p. 52).




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22
    See E.-W. Böckenförde, Grundrechte als Grundsatznormen, p. 1 seq, J.-P. Müller, Zur sog.
Subjektiv und Objektiv – Rechtlichen Bedeutung der Grundrechte, p. 33 seq, R. Alexy,
Grundrechte als subjektive Rechte und als objektive Normen, p. 49 seq, all in: Der Staat
1990.
23
    R. Alexy, A theory, op.cit. p 66 seq and 396 seq.
24
    See next chapter.
25
    Concerning the mathematical approach to the conflict of parties see S. Orfanoudakis,
op.cit., p.41 seq. and R. Alexy, On balancing, op.cit., p. 443.
26
    E. Venizelos, The ‘acquis’ of the constitutional revision. The constitutional phenomenon in
the 21st century and the contribution of Hellenic Constitution revision of the year 2001 (in
Greek), 2002, p. 139 seq.
27
    See K. Gogos, op.cit., p.307 and G. Gerapetritis, op.cit., p.108.
28
    For the problematic about the extension of the application of the principle of proportionality
to other domains apart from the constitutional rights, see K. Gogos, op.cit, 303 and A. Tsevas,
op.cit., p. 151.
29
     Concerning the application of the principle of proportionality in the field of common
agricultural policy, see E. Prevedourou, op.cit., p. 253 seq and G. De Búrga, op.cit., p. 115
seq.
30
    E. Prevedourou, op.cit, p 261 seq.
31
    See P. Stagos/P. Makridou/S. Markou, The protection of the fundamental rights within the
community legal order, (in Greek), Revue Hellénique des Droits de l’Homme 11/2001, p. 823
seq.
32
    For the concept of the European Single Market see K. Mortelmans, The common market,
the internal market and the single market, what’s in a market?, CMLRev 1998.101-136.
33
    The exceptions under which a fundamental community freedom can be restricted have
been examined by the ECJ through the recognition of “imperative needs” (case Cassis de
Dijon, C-120/78) and of “reasons of general interest” (case van Binsbergen, C- 33/74).
34
    For a synopsis of the case law concerning the four fundamental freedoms, see H. Tagaras,
The free movement of goods, persons, services, capital in the European Union (in Greek),
2002, passim.
35
    T. Tridimas, Proportionality in Community Law: Searching for the appropriate standard of
scrutiny in: E. Ellis (ed.), op.cit, p. 65 seq, who argues that the principle’s operation as a
mechanism for economic integration harbors her operation as a guarantee for individual rights
(p. 66-67).
36
   See G. Gerapetritis, op.cit., p. 160.
37
    E. Prevedourou refers to this presumption, op.cit., p. 226.
38
    The community courts apply double standards, that is a more tolerant when it comes to
community measures, but stricter when they review national measures, see F. Jacobs,
Recent developments in the principal of proportionality in EC Law in: E. Ellis (ed), op.cit., p. 1
seq, (p. 21).
39
   See T. Tridimas, op.cit., p. 66, where the distinction between the “manifestly inappropriate
test” and the “less restrictive alternative test”.
40
    According to Article 6 par 2 of the Treaty “the Union shall respect fundamental rights, as
guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the
constitutional traditions common to the Member States, as general principles of Community
law”.
41
    See P. Stagos, The judicial protection of fundamental rights within the community legal
order, 2004, passim, especially in the first chapter of part one.
42
   See above, under 2.
43
    This way, G. De Búrca, op.cit., p 112.
44
    According to the principle of subsidiarity, as it figures in Article 5 of the Treaty, the decision-
making competence remains at the lowest possible level of the political hierarchy, in a way
that the decisions are taken closest to the ones concerned. In cases where the Community
competences are not exclusive, the Community takes action only if the anticipated objectives
can be better served at a community level instead of a national one.
45
   For the relation between the principle of subsidiarity and the principle of proportionality, see
T. Tridimas, op.cit, p. 65 seq (p. 80), N. Emiliou, op.cit, p. 139 seq.




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46
   See L. Moral Soriano, How proportionate should anti-competitive State intervention be?,
ELRev 2003, p. 112 seq (p. 113).
47
   G. Gerapetritis, op.cit., p. 154-155.
48
   For this extended role of today’s judge, see S. Orfanoudakis, op.cit., p. 45-48.
49
   Regarding the changes to the form of rules, see A. Manitakis, The important return of
‘Rechtsstaat’ (in Greek) in: Aspects of ‘Rechtsstaat’, op.cit, p. 62 -63.




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