Towards Process-Oriented Proportionality Review In The European Union

Abstract

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.

Accountability in the EU's para‐regulatory state: The case of the Economic and Monetary Union

“…Originating in public law (Harvey 2017), the distinction between procedural and substantive accountability is useful to denote not only how employees justify their conduct in a public organization but also the grounds on which accountability forums can contest such conduct. In the EU institutional framework, the emphasis on procedural accountability reflects several advantages embedded in the goals of the traditional regulatory state.…”