Most often, however, the CJEU shirks from such a complex evaluation (see here). In some cases, it does include some form of a balancing assessment (see here for a famous example where the CJEU weighs the free movement of goods against the freedom of expression). However, its use of proportionality is as varied as it is widespread. Internationally, it is often referred to as one of the courts who have most enthusiastically embraced this principle. The BVerfG’s assessment is ironic as the CJEU can only be described as a champion of proportionality. ![]() Such criticism assumes, rather parochially, that the German understanding of proportionality is universal. In the BVerfG’s own words: “The application of the principle of proportionality by the CJEU cannot fulfil its purpose, given that its key element – the balancing of conflicting interests – is missing” (138). the third and last sub-test, since it abstained from weighing the benefits of the PSPP against other (non-monetary) interests. It reproaches the CJEU for failing to include a balancing stage in its reasoning, i.e. The BVerfG explains that proportionality includes three cumulative sub-tests: the measure under review must advance a legitimate purpose (suitability), that purpose cannot have been attained just as effectively through less costly means (necessity) and the benefit obtained must be proportionate to the cost incurred (proportionality stricto sensu). One of the key arguments of the BVerfG is that the CJEU’s application of proportionality in Weiss goes against both the CJEU’s own case law, as well as that of the constitutional courts in every Member State. A parochial understanding of proportionality Indeed, the BVerfG’s reasoning on proportionality is parochial, misguided and reductive. A closer reading makes one wonder if it is not rather the BVerfG’s reasoning that is “simply not comprehensible”. As has already been pointed out in this blog, its own reasoning on proportionality is not without flaws. ![]() If one is to judge others so harshly, it is wise to make sure that one’s own position is irreproachable. If the BVerfG is the teacher and the CJEU the pupil, the grade dispensed is a miserable fail. ![]() The CJEU’s application of proportionality renders this principle “meaningless” (127), manifestly contradicts its own case law and that of domestic courts, is not “tenable from a methodological perspective” (141), and ultimately is “simply not comprehensible and thus objectively arbitrary” (118). The choice of words signals that the BVerfG intends its rebuke to be nothing short of humiliating. This is what finally leads the BVerfG to condemn the CJEU’s Weiss decision as ultra vires. Upon reading the BVerfG’s bombshell PSPP decision, one cannot but be struck at how little it thinks of the quality of the legal reasoning of the CJEU with regards to the proportionality test.
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