Proportionality Analysis and Models of Judicial Review

Benedikt Pirker holds an LL.M. from the College of Europe (Bruges) and a PhD from the Graduate Institute Geneva. He also studied and/or worked in different capacities at the University of Innsbruck, Sciences Po Paris, the University of Michigan and the University of Fribourg. His main research interests lie in the fields of European Union law, international economic law and comparative constitutional law.

Acknowledgements
Contents

Chapter 1 Introduction

Chapter 2 Proportionality Analysis, Pre-balancing and Models of Judicial Review
I Introduction
II Proportionality Analysis – Its Promises and Pitfalls
A Proportionality Analysis: The Classic, Four-Pronged Structure
i. The pursuit of a legitimate objective
a. The notion of a conflict of values
b. Human rights as legitimate objectives
c. Public interests as legitimate objectives
d. The horizontal dimension of human rights and public interests
e. Conclusion
ii. Suitability
iii. Necessity
iv. Proportionality stricto sensu
a. The Weight Formula
b. The representation of values under proportionality stricto sensu
c. Attributing weight to values
d. Refinements of the Weight Formula in the light of uncertainty
e. Putting the weighed values in comparison
v. Conclusion
B A Broader Understanding of Proportionality Analysis
i. Understanding proportionality analysis beyond the classic conceptualisation
ii. Balancing and other, less formalized versions of proportionality analysis
C Conclusion
III Balancing vs. Subsumption: The Norm-Theoretic Justification for Proportionality Analysis under the Principles Theory

A The Origin and Central Tenets of the Principles Theory: The Rules and Principles Distinction
B Norm-theoretic Criticisms and the Refinement of the Principles Theory
C Distinguishing Rules from Principles in Adjudicative Practice
D Conclusion
IV Balancing vs. Exclusionary Reasons: The Justification of Proportionality Analysis at the Level of Moral Argumentation and Practical Reasoning
A The Principles Theory and the Relationship between Law and Morals
B Exclusionary Reasons
C Sceptical Views on Exclusionary Reasons
D Conclusion
V Proportionality Analysis and Judicial Review: Towards Pre-Balancing and Models of Judicial Review
A Formal Principles, the Principles Theory and the Link between Proportionality Analysis and Judicial Review
i. Formal principles, proportionality analysis and judicial review
ii. Principal-Agent Theory and the concept of ‘trustee courts’ as the justification for proportionality analysis in judicial review
iii. Proportionality analysis in judicial review as a right to justification.
B Introducing Pre-balancing and Models of Review
i. Splitting up the Law of Balancing
ii. Introducing the idea of pre-balancing
iii. Consequences of pre-balancing for the use of proportionality analysis and models of judicial review
iv. The justification of judicial review
a. Judicial review and the countermajoritarian problem
b. The debate on the institutional qualities of courts and legislators
c. Legitimizing judicial review as dialogue between courts and legislators
d. The procedural democracy doctrine
v. Linking the procedural democracy doctrine, pre-balancing and models of judicial review
vi. Normative arguments and empirical elements and the pre-balancing exercise 80
C Conclusion
VI The Structure for a Comparative Study on Proportionality Analysis and Judicial Review
A The Choice of the Legal Regimes to be Compared
B The Structure of the Comparative Chapters
VII Conclusion

Chapter 3 German Constitutional Law
I Introduction
II The Broader Context of Judicial Review in German Constitutional Law
A Historical Insights: The Development of Judicial Review and Fundamental Rights in German Constitutional Law
i. The historical development of judicial review
a. Administrative review as a precursor of constitutional review
b. Constitutional Review in the Weimar Republic
c. The Basic Law and the creation of the Federal Constitutional Court
ii. The historical development of fundamental rights
a. Natural law thinking in the 17th century and the objective of the State
b. The Allgemeines Landrecht and the changing perception of the State’s objective
c. 19th century legal thinking and the emergence of fundamental rights and traces of proportionality analysis in the case law of the administrative courts
d. From administrative review to constitutional review: The Weimar Republic
e. The coming of age of the principle of proportionality in the case law of the Federal Constitutional Court
iii. Conclusion
B Constitutional Adjudication and The Principle of Proportionality as a Structural Feature of German Constitutional Law
i. The debate on the constitutional rank of the principle of proportionality
a. Deriving the principle of proportionality from equality
b. Deriving the principle of proportionality from fundamental rights
c. Deriving the principle of proportionality from the Rechtsstaat
d. A reconciliatory approach: Simultaneously deriving the principle of proportionality from fundamental rights and the Rechtsstaat
e. Conclusion
ii. Doctrinal criticism of the principle of proportionality
iii. Conclusion
C Institutional Aspects of Judicial Review in German Constitutional Law
D Conclusion
III The Justification of Judicial Review in German Constitutional Law
A General Discussion on the Appropriate Standard of Review
B Respecification of Review and Proportionality Analysis
i. The procedural democracy doctrine and the variable standard of review under the principle of equality
ii. The case of positive obligations for the State derived from fundamental and socioeconomic rights: The procedural democracy doctrine and the Untermassverbot
iii. The procedural democracy doctrine, judicial review and the effects of fundamental rights in private law
a. Theories of horizontal effect in German constitutional law
b. The procedural democracy doctrine, fundamental rights and private law
C Conclusion
IV The Principle of Proportionality
A Fundamental Rights in the Basic Law
B The classic form of the principle of proportionality
i. Determining legitimate objectives
ii. Suitability
iii. Necessity
iv. Proportionality stricto sensu
C Exclusion of the principle of proportionality
D Conclusion
V Evaluation and Conclusion
chapter 4 United States Constitutional Law I Introduction
II The Broader Context of Judicial Review in United States Constitutional Law
A The Emergence of Judicial Review in United States’ Constitutional History
i. The early advent of judicial review
ii. Continuous contestation of the Supreme Court’s review function
iii. Conclusion
B Completing the Constitution: Interpretative Strategies towards a More Inclusive Model of Equal Representation Review
i. Unenumerated rights
a. Substantive due process and the protection of non-written interests as rights
b. Contestation of the results of the doctrine of substantive due process
ii. The doctrine of incorporation
a. The narrow interpretation of the Privileges and Immunities Clause
b. The Due Process Clause of the Fourteenth Amendment
iii. Conclusion
C The Continuous Debate on Judicial Review and the Appropriate Institutional Balance under the Constitution
i. The text of the Constitution and the arguments in Madison v Marbury
ii. Conceptual contestation of judicial review
iii. The procedural democracy doctrine as a middle ground
iv. Conclusion
D Institutional Aspects of Judicial Review and the Supreme Court in United States Constitutional Law
E Conclusion
III The Justification of Judicial Review in United States Constitutional Law
A The Procedural Democracy Doctrine and Fundamental Rights Review: The Development of Tiers of Scrutiny
i. Equal protection in United States constitutional law
ii. Carolene Products, procedural democracy and the system of tiers of scrutiny
iii. The proliferation of the system of tiers of review
iv. Deferent review of fundamental rights in the dimensions of positive obligations and horizontal effect
v. Conclusion
B Elements of The Procedural Democracy Doctrine and Judicial Review under the Dormant Commerce Clause
i. The Dormant Commerce Clause as a competence norm
ii. Competing conceptual readings of the Dormant Commerce Clause
iii. Conclusion
C Conclusion
IV ‘Balancing’ in United States Constitutional Law
A Balancing and Fundamental Rights in the United States Constitution
i. Changes in Legal Thinking in the Early 20th Century
ii. From Lochner to Carolene Products: the persistence of categorisation and definitional approaches
iii. The emergence of balancing
B Balancing and the Dormant Commerce Clause
i. Early developments before the two-tier framework
ii. Discriminatory measures under the two-tier framework
iii. Non-discriminatory measures under the two-tier framework
iv. Conclusion
V Evaluation and Conclusion

Chapter 5 The Law of the European Convention on Human Rights and Fundamental Freedoms
I Introduction
II The Broader Context of Judicial Review under the European Convention on Human Rights and Fundamental Freedoms
A The Origins of a Permanent Court of Human Rights
i. Slow beginnings and conceptual disagreements on the ECHR
ii. The coming of age of a European Bill of Rights
iii. An overburdened Court and efforts of reform
B The Debate on the Role of the Court as a Provider of Individual or Constitutional Justice
i. The competing positions
ii. Arguments in favour of individual justice
iii. Arguments in favour of constitutional justice
C Institutional Aspects of Judicial Review under the European Convention on Human Rights
i. The European Court of Human Rights as a representative court
ii. Sanctions under the Convention
D Conclusion
III The Justification of Judicial Review under the European Convention on Human Rights and Fundamental Freedoms
A Conceptualizing the Justification of Judicial Review under the European Convention on Human Rights for the European Court of Human Rights
B The Margin of Appreciation Doctrine
i. The substantive dimension of the margin of appreciation doctrine
ii. The institutional side of the margin of appreciation doctrine
iii. Conclusion
C Judicial Review under the Convention and Positive Obligations
i. The changing doctrinal perception of Convention rights: towards positive obligations
ii. The emergence of positive obligations in the case law
iii. The standard of review and proportionality analysis in the case law on positive obligations
iv. Conclusion
D Judicial Review and Convention Rights in the Private Sphere
i. The justification of review in light of indirect horizontal effect of Convention rights
ii. The standard of review and proportionality analysis in the case law on conflicts between private parties
iii. Conclusion
E Conclusion
IV The ‘Fair Balance’ Test in the Case Law under the European Convention on Human Rights and Fundamental Freedoms
A The Interpretation of the Convention: Between Deontological and Balancing Approaches
i. Weighing interpretative principles and doctrines
ii. Deontological approaches to rights and excluded reasons
B The ‘Fair Balance’ Test
i. The structure of the rights norms of the Convention
ii. The individual prongs of the ‘fair balance’ test
a. Identifying legitimate aims
b. Sceptical voices on the delimitation of rights and public interests
c. Suitability
d. Necessity
e. Proportionality stricto sensu
C Conclusion
V Evaluation and Conclusion

Chapter 6 European Union Law
I Introduction
II The Broader Context of Judicial Review in European Union Law
A The History of Judicial Review in European Union Law
i. Construing an autonomous legal order – The early days
ii. The Court’s relationship with other courts
B The Court of Justice of the European Union as a Constitutional Court
i. ‘Constitutional’ elements of the Court and its review function
ii. The adjudication of fundamental rights
C Institutional Aspects of Judicial Review by the Court of Justice of the European Union
D Conclusion
III The Justification of Judicial Review in European Union Law
A Judicial Review and the Exercise of EU Competences
i. The system of competences
ii. The standard of review in the case law on the competences of the European Union
iii. Conclusion
B Judicial Review of EU Measures and Fundamental Rights in EU Law
i. Fundamental rights in the EU legal order
ii. The standard of review in the case law reviewing European Union measures against fundamental rights
iii. Conclusion
C Judicial Review of Member States’ Measures and the Internal Market Freedoms
i. The appropriate scope of the internal market freedoms and EU citizenship
a. The example of the free movement of goods
b. The other internal market freedoms and EU citizenship
ii. Varying standards of review in the case law
iii. The procedural democracy doctrine and the scope of the free movement of goods
iv. Conclusion
D Horizontal Effect of Fundamental Freedoms and Fundamental Rights
i. Horizontal effect and the internal market freedoms
ii. Horizontal effect of fundamental rights in EU law
iii. Conclusion
E Conclusion
IV The Principle of Proportionality in European Union Law
A The Necessity Approach of the Court Towards Review of Member States’ Measures Derogating from the Market Freedoms
B The Use of Proportionality Stricto Sensu
C Increasing Complexity under the ‘Principle of Proportionality’ and the Case of Extraterritorial Measures
D Conclusion
V Evaluation and Conclusion

Chapter 7 WTO Law
I Introduction
II The Broader Context of Judicial Review in WTO Law
A A Historical Overview of the Development of the WTO Dispute Settlement System
B The WTO Institutional System and Constitutional Adjudication
C The Rationale of the WTO Dispute Settlement System
i. The text of the DSU and doctrinal discussion on the policy goals of the DSU
ii. The consequences of a breach of WTO law
D Conclusion
III The Justification of Judicial Review in WTO Law
A Introductory Remarks on The Standard of Review in WTO Dispute Settlement
B A Rights-Based Conception of the GATT as the Justification for Judicial Review
i. The controversy on a right to trade under the GATT
ii. Adapting the standard of review based on the values at stake
iii Conclusion
C National Treatment under the GATT
i. The rationale of GATT
ii. The debate on the national treatment standard in the case law under Article III GATT
iii. Conclusion
D The TRIPS Agreement and the Problem of Intellectual Property Rights as Human Rights
E Conclusion
IV ‘Weighing and Balancing’ and Similar Necessity-Based Tests in WTO Law
A Article XX GATT and Article XIV GATS
i. Article XX GATT
ii. Article XIV GATS
iii. The ‘weighing and balancing’ test for measures ‘necessary’ to achieve a public interest
a. The restrictive necessity test of the GATT 1947 era
b. The new ‘weighing and balancing’ test introduced in Korea – Beef
c. Subsequent refinement of the ‘weighing and balancing’ test
d. Conclusion
iv. The test for measures ‘relating to’ a public interest
a. The development of a lenient test under Article XX (g) GATT
b. The case of process and production methods
c. The case of measures with extraterritorial effects
d. Conclusion
v. The chapeau of Articles XX GATT and XIV GATS
vi. Conclusion
B Article 2.2 TBT Agreement
i. The debate in the doctrine
ii. The case law
iii. Conclusion
C Article 5.6 SPS Agreement
D The Exceptions to the TRIPS Agreement
i. The test under the exceptions to the TRIPS Agreement
ii. Debate on a less rigid test under the exceptions provisions
E Conclusion
V Evaluation and Conclusion

Chapter 8 International Investment Law
I Introduction
II The Broader Context of Judicial Review in International Investment Law
A The History of Judicial Review in International Investment Arbitration – Two Conflicting Narratives
i. The progressive narrative
ii. A less linear account
B The Institutional Design of Judicial Review in Investment Arbitration
C The Political Economy of International Investment Law and Judicial Review
D Conclusion
III The Justification of Judicial Review in International Investment Law
A Investment as a Public Interest
B Investment Law as a Regime Protecting Property Rights
C Conclusion
IV ‘Proportionality’ and Similar Tests in International Investment Law
A Expropriation
i. Norms on expropriation and the concepts of direct and indirect expropriation
ii. Legal tests developed under expropriation provisions
a. The ‘sole effects’ doctrine
b. The ‘police powers’ exception
c. The Tecmed decision and the emergence of proportionality analysis
iii. Conclusion
B Fair and Equitable Treatment
i. General tendencies in the case law
ii. Legal tests under the fair and equitable treatment standard
iii. Conclusion
C National Treatment
i. Regulatory purpose and national treatment in international investment law
ii. Legal tests under the national treatment obligation
iii. Conclusion
D Non-Precluded Measures Clauses and the Defence of Necessity
i. The norms allowing the invocation of a state of necessity
ii. Legal tests under the conditions of Article 25 of the International Law Commission’s Draft Articles
iii. Legal tests in the interpretation of treaty provisions
i. Conclusion
E General Exceptions Clauses
F Conclusion
V Evaluation and Conclusion

Chapter 9 Conclusion

Bibliography
Case Law and Other Documents Cited