n Comparative and International Law Journal of Southern Africa - Proportionality review - the battle between community standards and English domestic law




In the European Community System, proportionality is an important general principle of Law and is applied by both the European Court of Justice and the European Court of Human Rights. These courts will exercise restraint in reviewing measures involving complex economic assessment and policies, legislative measures the breach of less fundamental provisions such as directives. In general, a wide margin of discretion will be granted to EC institutions in this regard. However, review by the courts will be quite intense in the field of law enforcement decisions and the breach of fundamental rights; depending on the nature of the interest in question. The English common law recognises the principle of proportionality in the field of constitutional rights and domestic courts use proportionality principles when dealing with European Community law and fundamental rights under the Human Rights Act. In both the EC and domestic application of proportionality, variable intensity of review and a lot of flexibility exist. As a separate ground of review, however, the English courts are reluctant to recognise proportionality for fear of lowering the threshold of judicial intervention and considering the merits of the decision. Despite considerable argument in favour of the application, the courts reject this view. They are clear on the fact that whatever the opinion may be, it is for the House of Lords to make such a decision. The development towards a common administrative law in Europe, in the form of spill-over of Community instruments and principles to matters of purely internal law, can offer a solution to the recognition of the principle of proportionality also in purely domestic matters.


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