Principle of proportionality as principle of economic efficiency

Portuese, A. 2013. Principle of proportionality as principle of economic efficiency. European Law Journal. 19 (5), pp. 612-635. https://doi.org/10.1111/j.1468-0386.2012.00611.x

TitlePrinciple of proportionality as principle of economic efficiency
TypeJournal article
AuthorsPortuese, A.
Abstract

The principle of proportionality is at the cornerstone of EU law, and precisely of the case-law of the European Court of Justice (ECJ).

In the law and economics literature, the general principles of law are commonly opposed to legal rules in terms of efficiency. On the one hand, the legal formalistic approach consists of apprehending the law as principled, whereby principles of law do not and should not encompass an efficiency rationale and should be self-sufficient. On the other hand, the legal nihilism denying the existence or relevance of the general principles of law favours legal rules that are said to incorporate an efficiency rationale. I intend to analyse the efficiency rationale of probably the most important general principles of EU law—the proportionality principle.

In this paper, I shall assert that not only does the EU proportionality principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such—hence, I propose the representation of the principle of proportionality as a principle of economic efficiency.

After having introduced the principle of proportionality (1), I shall decipher the proportionality principle both from a law and economics perspective, and from a comparative perspective (2). Then, I shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representation (3). Finally, I conclude in light of the findings of this paper (4).

JournalEuropean Law Journal
Journal citation19 (5), pp. 612-635
ISSN1351-5993
Year2013
PublisherWiley
Digital Object Identifier (DOI)https://doi.org/10.1111/j.1468-0386.2012.00611.x
Publication dates
PublishedSep 2013

Related outputs

The principle of legal certainty as a principle of economic efficiency
Portuese, A., Gough, O. and Tanega, J. 2017. The principle of legal certainty as a principle of economic efficiency. European Journal of Law and Economics. 44 (1), pp. 131-156. https://doi.org/10.1007/s10657-014-9435-2

European Regulatory Framework of Money Market Funds
MacNeil, I.G. and Portuese, A. 2014. European Regulatory Framework of Money Market Funds. in: Baklanova, V. and Tanega, J. (ed.) Money Market Funds in the EU and the US: regulation and practice Oxford Oxford University Press.

The principle of subsidiarity as a principle of economic efficiency
Portuese, A. 2012. The principle of subsidiarity as a principle of economic efficiency. Columbia Journal of European Law. 17 (2), pp. 231-262.

Law and economics of the European multilingualism
Portuese, A. 2012. Law and economics of the European multilingualism. European Journal of Law and Economics. 34 (2), pp. 279-325. https://doi.org/10.1007/s10657-010-9171-1

Permalink - https://westminsterresearch.westminster.ac.uk/item/8yw9y/principle-of-proportionality-as-principle-of-economic-efficiency


Share this

Usage statistics

166 total views
0 total downloads
These values cover views and downloads from WestminsterResearch and are for the period from September 2nd 2018, when this repository was created.