PROPORTIONALITY - CASES

Case 240/78 Atalanta [1979] ECR 2137

Facts

Atlanta was an importer of pig meat affected by EU regulations and challenged the CAP because it caused them disproportionate financial burdens. 

Outcome

It should be observed that the absolute nature of Articles 5(2) of the above mentioned regulation is contrary to the principles of proportionality in that it does not permit the penalty for which it provides to be made commensurate with the degree of failure to implement the contractual obligations or with the seriousness of the breach of these obligations. 

Here the EU court looks at whether the court applies with the objective and if there were other less intrusive measures → not a question of subsidiarity but looks at the effects it would have and if there were more lenient measures: so it is defs a different mechanism but shares the same idea about considering the interests of the member states 

• The purpose of this tute is to consider the lifespan on the EU

Case 114/76 Bela-Mühle

Facts

There was a large over accumulation of skimmed milk power held by intervention agencies. To reduce the stock, Council regulation no563/86 of 15th of March 1976 required the compulsory purchase of skimmed milk power for a use a animal feed importers. The price at which the skinned milk power was sold was three times that of comparable animal feed.

The defendant’s argument: The principle of proportionality is not complied with – i) the scheme is not necessary to achieve the objectives of stock reduction, which could be achieved by other, less burdensome measures and ii) no factual links exist between those who benefit (milk farmers) and those who bear the burden (feeding-stuffs producers).

Outcome

The Regulation was found to be invalid on the grounds of proportionality (adopting the AG’s Opinion).

• The objectives are not achieved in a proportionate manner: The obligation was not necessary in order to obtain the objective in view – the disposal of excess stocks.
  

On the principle of non-discrimination: The obligation to purchase at a disproportionate price (3x higher than alternatives) was a discriminatory distribution of the burden of costs

AG’s opinion

Preferred outcome: The Regulation was found to be invalid on the grounds of proportionality.

Why the measure was disproportionate: Compared with the advantages sought for the EC, the system made demands which were too heavy on certain producers, breaching the principle of proportionality.

Other, less burdensome measures were available: The sacrifice would have been more evenly distributed if it had been indirectly shared by all citizens

• Principle of non-discrimination: Concerned with the relationship between various groups of persons and takes the form of equality of treatment.

  • Differs to proportionality: This means that the “burdens imposed on persons concerned must not exceed the steps required in order to meet the public interest involved”. 

This is a fundamental right and is one of the general principles of EC law.

C-375/96 Galileo Zaninotto v. Ispettorato Centrale [1998]

Facts

Reference for a preliminary ruling on the validity of the fourth indent of Article 1(3) of Regulation 343/94 creating certain detailed rules for the opening of compulsory distillation. The applicants challenged the proportionality of the Article which suggested that the quantities for distillation should be apportioned among various producers in a region on the basis of yield per hectare. 

• The applicant’s argument: The criterion of yield per hectare is inappropriate for pursuing the objective of improving conditions in the wine market and excessively penalises producers who do not overproduce, while encouraging poor quality production.

  • The criterion of end-of-year stocks would achieve the same result without being disproportionate. 

The Council and Commission’s response: A criterion based on end-of-year stocks would be too difficult to monitor.

Outcome

The Article within the Directive was not invalid on the grounds of proportionality: the measure of yield per hectare was appropriate for fulfilling the objective of improving market conditions.

• Low intensity review: In matters concerning the CAP – areas of political responsibility, the legality of a measure can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.

  • The choice of yield per hectare is not a manifest error, as it imposes the burden of compulsory distillation on those who are responsible for overproduction.

    • Thus, the measure is not disproportionate.
      
      

• Judging in hindsight: The legality of an act cannot depend on retrospective considerations of its efficacy. Where the legislature is obliged to assess the future effects of rules and the effects cannot be accurately foreseen, it can be criticised only if it appears manifestly incorrect in relation to the information at the time.

Given that the judgment was not manifestly incorrect, the fact that other criteria are envisaged for the future does not render the initial criterion unlawful retroactively.

C-453/03 et al ex p ABNA [2005]

Facts

Reference for a preliminary ruling on the validity of the Directive on the circulation of compound feeding-stuffs by requiring a compulsory declaration of the quantities of feed materials used in the composition of their products to a tolerance of ±15% and, where a customer asks, a declaration of the exact percentages within a product. The applicants were producers of foodstuffs, arguing that the measure disproportionately infringed their economic rights (the right to property and the right to freely carry on a trade or profession) without being necessary to achieve the objectives of protecting human health, which the previous law already did.

Outcome

The Directive was found to be invalid on the grounds of proportionality.

• The objective pursued by the measure: To safeguard the protection of public health (Article 152(4)(b) EC allows the adoption of measures in the veterinary fields having as their direct objective the protection of public health).

  • It would achieve this by allowing for targeted examination in the event of contamination and disease, allowing for rapid removal of contaminated products.
    
    

• Proportionality: The legislature must be allowed a broad discretion here, given the “political, economic and social choices” and “complex assessments” made here. 

  • It was not necessary to protect public health: Previous Regulations require the batch number to be indicated and ensure traceability of the feedingstuffs without forcing manufacturers to reveal the exact compositions of their products. 

    • “An obligation of this kind [forcing manufacturers to reveal compositions] cannot be justified by the objective of protecting public health which is being pursued and manifestly goes beyond what is necessary to attain that objective”. 

      • A tolerance of ±15% is enough to identify contamination.

    • This obligation is independent of foodstuff contamination as it has to be met only if the consumer requires it.

  • On the restriction of the right to property and to freely carry on a trade: These principles are “not absolute but must be viewed in relation to their social function”.

    • They may only be restricted where the restrictions are not a “disproportionate and intolerable interference, impairing the very substance of the rights guaranteed”.

Case C-380/03 Germany v. Parliament and Council [2006] (Tobacco Advertising II)

Facts

The Federal Republic of Germany sought the annulment of a Directive on the approximation of the laws of the Member States relating to the advertising and sponsorship of tobacco products. This was a new Directive adopted after its predecessor’s annulment in Tobacco Advertising I. The Directive prohibited tobacco advertising in the media, with exceptions for media products not intended for the general public and products published in third countries not intended principally for the EC market. A different, and unchallenged, part of the Directive (Article 5), prohibited sponsorship advertising to activities and services having cross-border effects.

• Claimant’s argument on proportionality: The prohibitions are drafted in extremely broad terms, cover almost exclusively situations of a local or regional nature and seriously compromise fundamental rights (freedom of press and expression, Article 10 ECHR). 

  • The measure is neither necessary nor appropriate: it is unclear why Article 5, which only limited cross-border advertising sponsorship, could not be replicated as regards media products to only ban cross-border media products.

• As well as their proportionality claim, the claimants (unsuccessfully) contended that the measure lacked legal basis.

Outcome

The Regulation was proportionate and thus valid.

• Applying the principle of proportionality: The measures are appropriate for achieving the objective that they pursue and, given the obligation on the Community legislature to ensure a high level of health protection, they do not go beyond what is necessary to achieve this objective. 

  • i) There are exceptions to the prohibitions on advertising (professionals and third country publications).

  • ii) It was not possible to adopt a less restrictive measure that exempted local advertising, since this would have led to uncertainty and prevented the Directive achieving its objective of harmonisation.

    • Due to the phenomenon of media convergence, it is “difficult, or even impossible”, to draw a distinction between local and international products.

C-58/08 Vodafone [2010]

Facts

Phone companies sought judicial review against the SoS for Business, Enterprise and Regulatory Reform of the UK provisions that implemented Regulation 717/2007 on roaming on public telephone networks within the Community. The High Court stayed the proceedings and referred the grounds of challenge to the ECJ for a preliminary ruling. 

• Effect of the Regulation: First, it capped the wholesale charge that the operator of a visited network may levy from the operator of a roaming customer’s home network. Second, it capped the retail prices companies can charge consumers.
  
  

• The applicants’ arguments on proportionality: The Regulation was disproportionate because it imposed ceilings for wholesale and retail charges and imposes an obligation to provide information about those charges to roaming customers.

A less intrusive approach would be to regulate wholesale charges only, allowing competition to bring down retail prices

Outcome

The Regulation was found to be proportionate – intervention that protects customers against excessive prices is proportionate to the aim pursued even though it might have negative economic consequences for operators.

• On the proportionality test: The test is not whether a measure was “the only or best possible measure”, but whether the measure is “manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue”.

  • Even though the Community legislature has a broad discretion, it must base its choice on objective criteria and examine whether the objectives pursued by the measures are such as to justify negative economic consequences for certain operators.

    • Thus, the legislature, given that this decision involves choices to be made of an “economic nature, requiring complex assessments and evaluations”, was able to decide that both retail and wholesale caps were necessary.

  • The “exceptional” and “unique” characteristics of the roaming markets justifies it.
    
    

• Consideration of other options: The Commission conducted an “exhaustive study” examining various options (regulating retail charges only, or wholesale charges only).

• The provision of ceilings for retail charges was appropriate for the purpose of protecting customers against high charges (5x the cost of the service).

• Regulating the wholesale price only and letting this trickle down would not necessarily lead to lower consumer prices, given that there was no competitive pressure on operators to pass on that reduction.

C-547/14 Philip Morris v Secretary of State for Health [2016]

Facts

The applicants sell tobacco products and brought judicial review in the High Court against the SoS for Health seeking to prevent the implementation of Directive 2014/40 that revised rules concerning the manufacture, presentation and sale of tobacco and related products. The Directive aimed to implement the WHO Framework Convention on Tobacco Control. The High Court asked about the validity of various parts of the Directive on various grounds in a preliminary reference.

• Proportionality argument: Is the Directive invalid because the provisions on banning flavours and packaging requirements are disproportionate?

  • Does it disproportionately interfere with the fundamental right to freedom of expression and information (Article 10 ECHR; Article 11 CFR)?

Does it disproportionately interfere with the fundamental right of freedom to conduct a business (Article 16 CFR)?

Outcome

 The measure was not invalid on the grounds of proportionality: the objective of human health protection outweighs the interest put forwards by the claimant.

• Article 52(1) CFR on limiting fundamental rights: Any limitation on the exercise of the Charter rights and freedoms must be [i)] provided for by law and [ii)] respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, is permissible only if it is [iii)] necessary and actually [iv)] meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of the other.

  • i) In accordance with law: The Directive was created by the EU legislature,

  • ii) Does not alter the essence of the freedom: It does not prohibit all communications about tobacco but “merely controls, in a very clearly defined area, the labelling”.

  • iii) Necessary: The EU must be allowed broad discretion in this political area: the Directive is not manifestly inappropriate for achieving its object of protecting health and promoting the freedom of the internal market.

    • Other methods to the flavourings ban are inappropriate: These methods are not equally suitable for achieving the objectives pursued.

      • i) Raising the age limit only applies to one segment of consumers and can be easily circumvented.

      • ii) Information campaigns do not reduce divergence in national rules.

      • iii) Lists of allowed flavours can become outdated.

    • Other methods to the packaging regulations are inappropriate: The claimants suggest the less restrictive requirements already in place are sufficient. However, this ignores how less restrictive requirements would not improve the functioning of the internal market.

iv) Objective: The protection of health is an objective recognised by the EU; the Directive protects consumers from the risks of tobacco use.