Abstract
Abstract The principle of proportionality has always operated as a means of protecting individuals from excessive uses of public power. When situated alongside the principles of conferral and subsidiarity, proportionality also possesses a federal dimension. In this guise, the principle limits the intensity of EU intervention in order to protect national regulatory autonomy. This federal element of proportionality has featured in recent Court of Justice of the European Union (cjeu) cases. For example, Member States have challenged European Union (EU) legislation for imposing disproportionate social and economic costs in their particular States. This article considers whether individuals can similarly challenge EU legislation for disproportionately interfering with the regulatory autonomy of the Member States? Having considered this question from the perspective of US federalism, it is argued that individuals are actually articulating “Member States’ rights” in such cases. In so doing, attention is drawn to the question of whose rights and interests are really being articulated and balanced in these disputes.
Highlights
The European Union (EU) exists as result of nation states establishing an organisation aimed at pursuing a number of shared aims and objectives
This article considers whether individuals can challenge EU legislation for disproportionately interfering with the regulatory autonomy of the Member States? Having considered this question from the perspective of US federalism, it is argued that individuals are articulating “Member States’ rights” in such cases
Via free access harvey courts, might we see federalism arguments of this sort being referred to the cjeu by way of references for preliminary rulings?15 If so, how should the Court respond to the claim by an individual that EU legislation should be struck down for imposing disproportionate economic and social costs upon certain Member States? – and much more explosively – could natural or legal persons challenge EU legislation on the grounds that that legislation impermissibly encroaches upon the national constitutional identity of a Member State?. These questions go to the very heart of this special edition’s enquiry into whose rights and interests are being articulated, identified and balanced (i.e. States, individuals, corporations, etc.) whenever courts have recourse to the principle of proportionality. In contributing to this discussion, this article argues that certain challenges to EU legislation by natural and legal persons are best conceptualised as an articulation of “Member States’ rights” by those parties
Summary
The European Union (EU) exists as result of nation states establishing an organisation aimed at pursuing a number of shared aims and objectives. The extent to which individuals may be said to be articulating “Member States’ rights” when challenging EU legislation on Article 5 teu grounds has yet to be fully explored An enquiry of this nature is necessitated by contemporary developments in the jurisprudence of the Court of Justice of the European Union (cjeu). These questions go to the very heart of this special edition’s enquiry into whose rights and interests are being articulated, identified and balanced (i.e. States, individuals, corporations, etc.) whenever courts have recourse to the principle of proportionality In contributing to this discussion, this article argues that certain challenges to EU legislation by natural and legal persons are best conceptualised as an articulation of “Member States’ rights” by those parties.
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