Chapter 3: The resilience of the principle of proportionality
After outlining the general features of proportionality, the chapter illustrates the main concerns associated with proportionality in the internal market as regards (a) the risk of affecting the delicate structure of domestic constitutional systems through the ‘restrictive effect on trade’ test, (b) the use of the fundamental rights and security discourses to promote the expansion of the CJEU’s competences vis-á-vis both the EU institution and the national level as well as market integration, and (c) the CJEU’s attempt to accommodate (again in the name of market integration) the diversity of national legal systems through a version of the margin of appreciation test in the context of the free movement of persons . The internal market thus witnesses a struggle between the push towards greater integration and the resistance of Member States, as well as between the ‘market integration meta-rationale’ and the social constitution. On a similar wavelength, in the AFSJ proportionality serves to justify the increasingly intrusive powers of the EU. A comparison between internal market rationality and AFSJ rationality allows us to point out the flaws of balancing as an element of the test of proportionality, when applied at the EU level, especially at a time of highly controversial institutional developments.
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