Proportionality in Decentralized Action;the Dutch Court Experience in Free Movement of Services and Freedom of Establishment Cases

Abstract

National courts are of vital importance for the effectiveness of European law. In general, they are supposed to handle the bulk of the cases in which European law comes forward, a logical result following the development of the (direct) effects of European law in the national legal order. Several authors in the European law doctrine observed a notable variety of review intensity by the Court of Justice of the European Communities (hereafter: the Court) on the proportionality principle in handling free movement cases. Sometimes the Court employs an intense test; other times the approach of the Court is remarkably restrained. Also, in cases that concern a similar field of the law, this variety may be observed. The general line of the Court is considerably clear, but the review intensity also tends towards being a sort of ‘black box’. This constitutes a problem for the effectiveness of European free movement law at a decentralized level, at national courts. Research into the Dutch court experience demonstrates that it seems as if it is not completely clear how national courts should apply the proportionality principle à l’européen. This contribution concentrates on the application of the proportionality principle by Dutch courts when handling free movement of services and freedom of establishment cases. A few general lines will be identifi ed on the basis of this case–law and some suggestions for the Court on the basis of the decentralized application will be put forward.