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The Foundations of the EU as a Polity

Massimo Fichera

In this insightful book, Massimo Fichera provides an original account of European integration as a process. He argues that European constitutionalism has been informed from its earliest stages by a meta-rationale, which is expressed by security and fundamental rights as discourses of power. Employing this descriptive and normative conceptual framework to analyse the development of the EU as a polity, chapters cover significant recent events such as the Eurozone crisis, the refugee crisis, the rule of law crisis, Brexit and the constitutional identity crisis.
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Chapter 3: The resilience of the principle of proportionality

Massimo Fichera

Extract

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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