Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning

Abstract

Abstract To understand how the Court of Justice of the European Union (cjeu) assesses the proportionality of restrictive national measures, one has to depart from the canonical reading of internal market law cases. An alternative reading of the cjeu case law, focusing on the “who” rather than on the “how”, is possible. This article argues that the control of proportionality should not be viewed as an abstract reasoning aiming at comparing the respective importance and value of the norms in conflict, but rather as an evaluation based upon the thorough description of the social reality of the persons whose life and interests are either affected or protected by the challenged restrictive measure. Because it analyses the control of proportionality as a social narrative elaborated by the judge, the article can demonstrate that among the roles conferred by the proportionality narrative to different characters, the most determinant ones are played by persons standing behind the scene: the “archetypal characters”.