Federal proportionality review in EU law: Whose rights are they anyway?

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.