10.6092/issn.2531-6133/7180
Over time, the European Court of Justice has had to clarify whether and under what circumstances national laws may put one of the four fundamental freedoms of the internal  market  aside  in  cases  concerning  clashes  between  national  regulations  and said freedoms. The answers provided by the E.C.J. have always focused on the centrality of  the  principle  of  proportionality,  expressing  the  idea  that  a  balance  between conflicting interests and means to protect those interests must be reached. An a priori protection of the fundamental freedoms has been refused  in favor of a more concrete kind of approach. This article deals with this topic, assessing the relationship between proportionality and free movement of persons, goods, and services. Also, it is checked whether, thanks to the principle of proportionality, the E.C.J. may achieve the role of a European  Constitutional  Court  that  can  protect  the  E.U.  interests  without  putting national interests aside. 
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Alessandro Rosanò
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De Criminali Proportione: On Proportionality Standing Between National Criminal Laws and the E.U. Fundamental Freedoms
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Alessandro Rosanò
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De Criminali Proportione: On Proportionality Standing Between National Criminal Laws and the E.U. Fundamental Freedoms
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ARTICLES & ESSAYS                                                        https://doi.org/10.6092/issn.2531-6133/7180




De Criminali Proportione: On Proportionality Standing Between
National Criminal Laws and the E.U. Fundamental Freedoms

                                           ALESSANDRO ROSANÒ†




TABLE OF CONTENTS: 1. Introduction; 2. The principle of proportionality and free
movement of persons; 3. The principle of proportionality and free movement of goods;
4. The principle of proportionality and free movement of services; 5. The principle of
proportionality and free movement of capitals; 6. Conclusion.


ABSTRACT: Over time, the European Court of Justice has had to clarify whether and under
what circumstances national laws may put one of the four fundamental freedoms of the
internal market aside in cases concerning clashes between national regulations and
said freedoms. The answers provided by the E.C.J. have always focused on the centrality
of the principle of proportionality, expressing the idea that a balance between
conflicting interests and means to protect those interests must be reached. An a priori
protection of the fundamental freedoms has been refused in favor of a more concrete
kind of approach. This article deals with this topic, assessing the relationship between
proportionality and free movement of persons, goods, and services. Also, it is checked
whether, thanks to the principle of proportionality, the E.C.J. may achieve the role of a
European Constitutional Court that can protect the E.U. interests without putting
national interests aside.



KEYWORDS: Principle of Proportionality; European Court of Justice; Free Movement of Persons;
Free Movement of Goods; Free Movement of Services




                                            UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

                                                     [VOL.2:1 2017]

           This article is released under the terms of Creative Commons Attribution 4.0 International License


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         1. INTRODUCTION

It is a notable aspect of the European Union (“EU”) legal framework that the
general principle of proportionality regulates the exercise of powers by the
Union. Although it has been developed by the European Court of Justice
(hereinafter E.C.J.)1 in order to limit the institutions' discretion, it has also
been applied to national legislation, as far as the interference of national
regulations on obligations under E.U. law has been concerned. 2

         From a general point of view and in light of what the Lisbon Treaty
provides with regard to said principle, one must consider art. 5(4) of the Treaty
on the European Union (hereinafter T.E.U.):

           Under the principle of proportionality, the content and form
           of Union action shall not exceed what is necessary to achieve
           the objectives of the Treaties. The Institutions of the Union
           shall apply the principle of proportionality as laid down in the
           Protocol on the application of the principle of subsidiarity and
           proportionality.3

Protocol No. 2 requires draft legislation to be justified with regard to the
principles of subsidiarity and proportionality, adding that any draft legislative

†
  Alessandro Rosanò, PhD, is Teaching Fellow of International Law and European Union Law at
the University of Padova, School of School (Italy). This article is a more systematic re-elaboration
of a text appeared for the first time in the Polish Review of International and European Law:
Alessandro Rosanò, The Need For Proportionality: Assessing the Clash Between National Criminal
Provisions and the Four Fundamental Freedoms in the Case Law of the European Court of Justice, POL. REV.
OF INT’L & EUR. L., no. 2, 2015, at 48.

1
  It is thank to the ECJ if that principle has progressively been constitutionalised and
normativised. See Case 138/79, SA Roquette Frères v Council, 1980 E.C.R. 03333; Case 44/79,
Liselotte Hauer v Land Rheinland-Pfalz, 1979 E.C.R. 03727; Case 11-70, Internationale
Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1970 E.C.R.
01125; Case 19/61, Mannesmann AG v High Authority, 1962 English special edition 00357 and Case
8-55, Fédération Charbonnière de Belgique v High Authority, 1956 English special edition 1954-56
00245.
2
  See Harbo Tor Inge, The Function of the Proportionality Principle in EU Law, 16 EUROPEAN L. J. 158,
158-185 (2010); TAKIS TRIDIMAS, THE GENERAL PRINCIPLES OF EU LAW (Oxford EU Law Library, 3rd ed.
2018); ENZO CANNIZZARO, IL PRINCIPIO DELLA PROPORZIONALITÀ NELL’ORDINAMENTO INTERNAZIONALE [THE
PRINCIPLE IN INTERNATIONAL LAW] (2000); THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE
(Evelyn Ellis ed., 1999); NICHOLAS EMILIOU, THE PRINCIPLE OF PROPORTIONALITY IN EUROPEAN LAW, A
COMPARATIVE STUDY (1996). On the principle of proportionality in the case law of the European
Court of Human Rights, see SÉBASTIEN VAN DROOGHENBROECK, LA PROPORTIONNALITE DANS LE DROIT DE
LA CONVENTION EUROPÉENE DES DROITS DE L’HOMME [THE PROPORTIONALITY IN THE EUROPEAN CONVENTION
OF HUMAN RIGHTS] (2001).
3
  See Consolidated version of the Treaty on the Functioning of the European Union [hereinafter
TFEU] Protocol (No. 2) on the application of the principles of subsidiarity and proportionality, art
5, Dec. 17, 2007, 2008 O.J. (C 115) 206.




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act shall contain a detailed statement making it possible to appraise
compliance with said principles. Furthermore, pursuant to art. 52(1), second
line of the Charter of Fundamental Rights of the European Union (hereinafter
the Charter), subject to the principle of proportionality, limitations on the
rights and freedoms recognized by the Charter may be made only if they are
necessary and genuinely meet objectives of general interest recognized by the
Union or the need to protect the rights and freedoms of other. 4

         Over time, issues concerning proportionality of criminal offenses have
been brought to the E.C.J.'s attention. As a matter of fact, the Court has been
asked whether and under what circumstances national laws may put one of the
four fundamental freedoms of the internal market aside in cases concerning
clashes between national regulations and said freedoms. The answers provided
by the E.C.J. have constantly underlined the centrality of the principle of
proportionality. Additionally, it is not by chance that a specific declination of
that principle regarding criminal offenses and penalties may be now found
under art. 49(3) of the European Charter of Fundamental Rights, under which
“the severity of penalties must not be disproportionate to the criminal
offense”.5 In fact, the Court has always looked for a balance between
conflicting interests and means to protect those interests.




4
  On art. 52 of the Charter see Koen Lenaerts, Exploring the Limits of the EU Charter of Fundamental
Rights, 8 EUR. CONST. L. REV. 375 (2012). On the EU Charter of Fundamental Rights in general, see
THE EU CHARTER OF FUNDAMENTAL RIGHTS AS A BINDING INSTRUMENT: FIVE YEARS OLD AND GROWING (Sybe
de Vries, Ulf Bernitz & Stephen Weatherill eds., 2015); MAKING THE CHARTER OF FUNDAMENTAL RIGHTS
A LIVING INSTRUMENTS (Giuseppe Palmisano ed., 2014); THE EU CHARTER OF FUNDAMENTAL RIGHTS: A
COMMENTARY (Steve Peers, Tamara Hervey, Jeff Kenner & Angela Wards eds., 2014).
5
  See For what concerns administrative sanctions, Council Regulation (EC, Euratom) 2988/95, of
18 December 1995 on the protection of the European Communities financial interests, 1995, O.J.
(L-312) 1. Pursuant to art. 2(1) and (3), administrative sanctions shall be «proportionate» and
«Community law shall determine the nature and scope of the administrative measures and
penalties necessary for the correct application of the rules in question, having regard to the nature
and seriousness of the irregularity, the advantage granted or received and the degree of
responsibility».




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So, this search for a balance is the topic this article tackles 6 in order to assess
the relationship between proportionality and free movement of persons (Pt. II),
goods (Pt. III), and services (Pt. IV).7 Furthermore, it is checked whether the
principle of proportionality may make it possible for the E.C.J. to achieve the
role of a European Constitutional Court that can protect the E.U. interests
without putting national interests aside.




         2. THE PRINCIPLE OF PROPORTIONALITY AND FREE MOVEMENT OF PERSONS

In contemplating the free movement of persons, one may consider some
questions referred to the Court for a preliminary ruling by the Pretura di
Milano regarding regulations concerning the presence of foreigners in Italy.8
The questions concerned the regulations' consistency with the free movement
of persons and freedom of establishment.

         Focusing on proportionality, Advocate General (hereinafter A.G.)
Trabucchi noted that this general principle obligates both national and
supranational authorities to achieve a balance. Public authorities can only
subject foreigners to greater intrusion into their private lives than that
national citizens are subjected to only in the presence of an objective



6
  See also Ermioni Xanthopoulou, The Quest for Proportionality for the European Arrest Warrant:
Fundamental Rights Protection in a Mutual Recognition Environment, 6 NEW J. EUR. CRIM. L. 32 (2015);
Tomasz Ostropolski, The Principle of Proportionality under the European Arrest Warrant – with an
Excursus on Poland, 5 NEW J. EUR. CRIM. L. 167 (2014); ESTER HERLIN-KARNELL, THE CONSTITUTIONAL
DIMENSION OF EUROPEAN CRIMINAL LAW (2012); Martin Böse, The Principle of Proportionality and the
Protection of Legal Interest, 1 EU. CRIM. L. REV. 35 (2011); and Anna Maria Maugeri, Il principio di
proporzione nelle scelte punitive del legislatore europeo: l’alternativa delle sanzioni amministrative [The
Proportionality Principle in the Punitive Choices of the European Legislator: the Administrative Sanctions
Alternative], in L’EVOLUZIONE DEL DIRITTO PENALE NEI SETTORI D’INTERESSE EUROPEO ALLA LUCE DEL
TRATTATO DI LISBONA [The Evolution of Criminal Law in the Sectors of European Interest in the light of the
Lisbon Treaty] 67 (Giovanni Grasso & Rosario Sicurella eds., 2011).
7
  See Joined cases C-358/93 and C-416/93, Criminal proceedings against Aldo Bordessa, Vicente
Marí Mellado and Concepción Barbero Maestre, 1995 E.C.R. I-00361 ( I could not find precedents
concerning the compatibility of national criminal measures with free movement of capitals. For
what concerns administrative regulations).
8
  At that time, pursuant to R.D. n. 773/1931, art. 142 (It.), a foreign national had to report to the
public security authority their entry into the national territory within three days. In case of failure,
the penalty provided for was a maximum of three month's detention or a maximum fine of 80.000
Lit. Pursuant to D.Lgs. n. 50/1948, art. 2 , Italian nationals were to report the presence of foreign
nationals to whom they provided board and lodging within 24 hours. In case of failure, the penalty
was detention for up to six months (to which a fine up to 240.000 Lit. could be added). Afterwards,
those provisions were repealed.




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justification. They must also take into account the relationship between the
obligations imposed to them and the pursued legal purpose. 9

        According to the E.C.J., free movement of persons does not exclude the
right of Member States to adopt measures whose purpose is to get information
about the presence of foreigners. The Treaty prevents deportation in the event
that this information is not provided. However, other penalties – such as fines
and detention – may be legitimate, provided that they are not so
disproportionate to the gravity of the infringement that they become an
obstacle to the free movement of persons.10

        In Calfa, an Italian national had been caught in possession of drugs
while in Greece, sentenced to three months' imprisonment, and her permanent
exclusion from Greek territory was ordered. Two questions were referred to the
E.C.J.: One concerned the consistency of permanent exclusion with Community
law, since this measure could not apply to Greek citizens; 11 the other question
dealt   with    the    consistency     of   said    measure      with       the       principle          of
proportionality.

        A.G. La Pergola highlighted that the question related to the dame issue
since proportionality is one of the criteria that must be taken into account
when assessing the consistency of national provisions with supranational
rules. From his point of view, as far as the protection of fundamental interests
of the society against a genuine and sufficiently serious threat is concerned,
national authorities should adopt measures that are effectively designed to
combat those conducts, despite the fact that national legislation does not
always provide for the same measures. However, regarding the actual case, he
came to the conclusion that Greek legislation had introduced a form of
discrimination because, when convicted of the same offense, nationals had the




9
   Opinion of AG Trabucchi in Watson and Belmann.
10
   Case 118-75,Lynne Watson and Alessandro Belmann, 1976 E.C.R. 01185. A similar reasoning,
concerning German regulations sanctioning foreigners living in Germany without passport or
residence permit, may be found in Sagulo and others, Case 8/77, Concetta Sagulo, Gennaro Brenca
and Addelmadjid Bakhouche, 1977 E.C.R 01495.
11
   Greek nationals cannot be subject to an expulsion order, but may be ordered not to reside in
certain parts of the territory in some cases, especially those concerning drug dealing (the
prohibition is discretionary and may not exceed five years).




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main penalty applied, while foreigners were subject to that and an additional
penalty, the expulsion. So, this measure was contrary to Community law. 12

        The E.C.J. agreed and added something with regard to expulsion:

          In this respect, it must be accepted that a Member State may
          consider that the use of drugs constitutes a danger for society
          such as to justify special measures against foreign nationals
          who contravene its laws on drugs, in order to maintain public
          order. However, as the Court has repeatedly stated, the public
          policy exception, like all derogations from a fundamental
          principle of the Treaty, must be interpreted restrictively. […]
          Previous criminal convictions cannot in themselves constitute
          grounds for the taking of such measures. It follows that the
          existence of a previous criminal conviction can, therefore,
          only be taken into account in so far as the circumstances
          which gave rise to that conviction are evidence of personal
          conduct constituting a present threat to the requirements of
          public policy […]. It follows that an expulsion order could be
          made against a Community national such as Ms Calfa only if,
          besides her having committed an offence under drugs laws,
          her personal conduct created a genuine and sufficiently
          serious threat affecting one of the fundamental interests of
          society.13

Thus, there was a disproportionate legal reaction in Calfa that involved the use
of an unjustified differentiation in the applicable sanctions depending on the
citizenship of the offender, without taking into account the seriousness of their
conduct.14

        In Nazli, a Turkish citizen living in Germany was not able to obtain an
extension of his residence permit because he had been implicated in a case of
drug trafficking and sentenced to a suspended term of imprisonment. One of


12
   Opinion of AG La Pergola in Calfa.
13
   See Case C-348/96, Criminal proceedings against Donatella Calfa, 1999 E.C.R. I-00011, 22-25.
14
   See also Case C-441/02, Commission of the European Communities v Federal Republic of
Germany, 2006 E.C.R. I-03449, 33, 34, 93. See also Case C-50/06, Commission of the European
Communities v Kingdom of the Netherlands, 2007 E.C.R. I-04383.




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the issues brought before the E.C.J. concerned the expulsion of a Turkish
citizen that had been ordered out of the will of dissuading other foreigners
from committing those offenses, and the compatibility of this measure with
Community law.15

         According to A.G. Mischo, only general preventive reasons may justify
expulsion. Since the sanction of imprisonment had been suspended, that would
deny the idea that the Turkish citizen would commit that offense again, in that
the Turkish citizen's criminal behavior had been deemed not so serious. So,
expulsion should have been deemed inconsistent with Community law. 16 The
E.C.J. ruled that it must be assessed whether the personal conduct indicates a
specific risk of new and serious prejudice to the requirements of public policy. 17

         In Orfanopoulos and Oliveri, a Greek national and an Italian national,
both drug addicts with a number of convictions, were denied the extension of
their residences permits by the German authorities. A.G. Stix-Hackl referred to
Calfa and Nazli, stating that it should be considered whether the present
conduct could be regarded as a threat. Furthermore, she took into account the
European Court of Human Rights (hereinafter E.Ct.H.R.) case law concerning
art. 8 of the European Convention on Human Rights (hereinafter E.C.H.R.), 18
since the expulsion of Mr. Orfanopoulos and Mr. Oliveri could have negatively
affected the members of their families: as a matter of fact, they might have




15
   Under art. 6(1) fourth point of the decision no. 1/80 of the Association Council of 19 September
1980 on the development of the Association between the European Economic Community and
Turkey, a Turkish worker duly registered as belonging to the labour force of a Member State shall
enjoy free access in that Member State to any paid employment of his choice, after four years of
legal employment. Thus, one of the questions concerned whether the Turkish worker had lost that
right because of his criminal record.
16
   Opinion of AG Mischo in Nazli. The order would have not been consistent with art. 14(1) of the
decision no. 1/80 which provides that the provisions concerning employment and free movement
of workers shall apply “subject to limitations justified on grounds of public policy, public security
or public health”, while Mr Nazli had only been involved in a case of drug selling.
17
   See Case C-340/97, Ömer Nazli, Caglar Nazli and Melike Nazli v Stadt Nürnberg, 2000 E.C.R. I-
00957. The Court dealt with similar cases in Case C-349/06, Murat Polat v Stadt Rüsselsheim,
2007 E.C.R. I-081670, and in Case C-145/09, Land Baden-Württemberg v Panagiotis Tsakouridis,
2010 E.C.R. I-11979.
18
   Pursuant to European Convention on Human Rights, art. 8, Nov. 4, 1950, 10 Council of Europe
Secretary General 1 (Right to respect for private and family life): “(1) Everyone has the right to
respect for his private and family life, his home and his correspondence. (2) There shall be no
interference by a public authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others”.




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had to move to another country.19 Therefore, according to the A.G., three
aspects should have been verified: the personal situation, especially for what
concerns the extent of integration in the State from the social and professional
point of view and in terms of family relations; the situation of family
members, especially if they should move to another State; and the seriousness
and number of the offences committed by the individual.20

        The    E.C.J.   criticized   automatic      expulsions     of     a     foreigner as              a
consequence of a criminal conviction and ruled:

          The necessity of observing the principle of proportionality
          must be emphasised. To assess whether the interference
          envisaged is proportionate to the legitimate aim pursued, in
          this instance the protection of public policy, account must be
          taken, particularly, of the nature and seriousness of the
          offences committed by the person concerned, the length of
          his residence in the host Member State, the period which has
          elapsed since the commission of the offence, the family
          circumstances of the person concerned and the seriousness of
          the difficulties which the spouse and any of their children
          risk facing in the country of origin of the person concerned. 21

Thus, based on the above-mentioned case law, the Court believes that the
Member States are allowed to limit free movement of persons, provided that
they make a careful assessment to achieve a balance between security reasons
and the interest which is put aside – which means, said freedom. In this
regard, one should bear in mind that the Maastricht Treaty introduced the
European citizenship as a personal status that disconnected the binds between
free movement of persons and economic activities: so, free movement of
persons




19
   See Boultif v Switzerland, App. no. 54273/00, 2001-IX Eur. Ct. H.R. For what concerns the ECJ
case law, see also Case C-60/00, Mary Carpenter v Sec'y of State for the Home Department, 2002
E.C.R. I-06279.
20
   Opinion of AG Christine Stix-Hackl in Orfanopoulos and Oliveri.
21
   See Joined Case C-482/01 and C-493/01, Georgios Orfanopoulos and Others (C-482/01) and
Raffaele Oliveri (C-493/01) v Land Baden-Württemberg, 2004 E.C.R. I-05257, 99. See also Council
Directive 2004/38, art. 28, 2004 O.J. (L 158) 77, 115 (EC) and the explications infra.




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has become an individual right in itself.22 Therefore, in light of the relevance of
this freedom and the qualitative leap that has occurred since 1992, the Court
has identified some conditions Member States should comply with if they want
to legitimately affect it and said conditions that have been transposed into E.U.
legislation. In fact, the need for a balance is now well-expressed by the
formula under art. 27(2), second line of Directive 2004/38: 23 a genuine, present
and sufficiently serious threat affecting one of the fundamental interests of
society. Its meaning is quite clear in that it conveys the idea of a reasonably
substantial prejudice to the axiological system that defines the identity of a
community.24




         3. THE PRINCIPLE OF PROPORTIONALITY AND FREE MOVEMENT OF GOODS

When evaluating the principle of proportionality and free movement of goods,
one should look at that topic in light of the concept of measures having an
effect equivalent to a quantitative restriction as defined in Dassonville. 25

         In Donckerwolcke, the issue at stake involved the importation into
France of bales of cloth and sacks by two Belgian companies. According to the
directors of those companies, the goods originated in Europe but the French

22
   Apart for the provisions under art. 20 and 21 TFEU, see art. 45(1) of the EU Charter of
Fundamental Rights that provides that every citizen of the Union has the right to move and reside
freely within the territory of the Member States. See also Case C-378/97, Criminal proceedings
against Florus Ariel Wijsenbeek, 1999 E.C.R. I-6251.
23
   Council Directive 2004/38, 2004 O.J. (L 158) 77, 113 (EC). Pursuant to art. 27 of this Directive, “1.
Subject to the provisions of this Chapter, Member States may restrict the freedom of movement
and residence of Union citizens and their family members, irrespective of nationality, on grounds
of public policy, public security or public health. These grounds shall not be invoked to serve
economic ends. (2) Measures taken on grounds of public policy or public security shall comply
with the principle of proportionality and shall be based exclusively on the personal conduct of the
individual concerned. Previous criminal convictions shall not in themselves constitute grounds for
taking such measures. The personal conduct of the individual concerned must represent a
genuine, present and sufficiently serious threat affecting one of the fundamental interests of
society. Justifications that are isolated from the particulars of the case or that rely on
considerations of general prevention shall not be accepted”.
24
   On the application of art. 27(2), second line of directive 2004/38 to non-criminal cases see Case
C-434/10, Petar Aladzhov v Zamestnik director na Stolichna direktsia na vatreshnite raboti kam
Ministerstvo na vatreshnite raboti, 2011 E.C.R. I-11659. See also Case C-249/11, Hristo Byankov v
Glaven sekretar na Ministerstvo na vatreshnite raboti, 2012 published in the electronic Reports of
Cases.
25
   See Case 8/74, Procureur du Roi v Benoît and Gustave Dassonville, 1974 E.C.R. 00837 where the
Court identified “all trading rules enacted by Member States which are capable of hindering,
directly or indirectly, actually or potentially, intra-Community trade” as measures having an
effect equivalent to quantitative restrictions.




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customs authorities found out that they came from the Middle East, so the
directors were charged with having made false declarations of origin and
sentenced to imprisonment and fine and the goods were confiscated. The
questions referred to the E.C.J. concerned the nature of those penalties as
measures having an effect equivalent to a quantitative restriction.

        A.G. Capotorti identified two possible violations of the principle of
proportionality: first, a national provision that obligates importers to make an
exact declaration on the origin of the goods without leaving any ground to
stand on if they do not know is disproportionate; secondly, penalties are
excessive in that they do not reflect the seriousness of the offense. 26

        The E.C.J. ruled that theoretically, the knowledge of the origin may be
necessary both for the Member States to determine their commercial policy
and the Commission to perform its control activities. However, the Member
States may only require the importers to indicate the origin of the goods when
they know it or may reasonably be expected to know it. All things considered, a
violation of that rule cannot lead to the application of disproportionate
sanctions, given the administrative nature of the contravention. So, in light of
the principle of proportionality,

        Any administrative or penal measure which goes beyond what is strictly
necessary for the purposes of enabling the importing Member State to obtain
reasonably complete and accurate information on the movement of goods
falling within specific measures of commercial policy must be regarded as a
measure having an effect equivalent to a quantitative restriction prohibited by
the Treaty.27

        This reasoning was later confirmed in a case involving the importation
into France of prohibited goods by means of false declaration of origin and on
aaa




26
  Opinion of AG Capotorti in Donckerwolcke.
27
  See Case 41/76, Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République
au tribunal de grande instance de Lille and Director General of Customs, 1976 E.C.R. 01921.




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the basis of false or inaccurate documents: the defendants were sentenced to
pay some fines.28
         A.G. Warner referred to Donckerwolcke and agreed with the solution
provided in that case.29 The E.C.J. did the same and ruled that in general terms,
any administrative or penal measure that goes beyond what is strictly
necessary for the purpose of enabling the importing Member State to obtain
reasonably complete and accurate information on the movement of goods must
be considered a measure having an effect equivalent to a quantitative
restriction prohibited by the Treaty.30

         Another case concerned the limitation of free movement of goods on
the ground of public morality. In 1977, two British citizens were convicted of a
number of offenses relating to the importation and sale of pornographic
articles. Under sec. 42 of the 1876 Customs Consolidation Act and sec. 304 of
the 1952 Customs and Excise Act, those articles could be forfeited and
destroyed. One of the points at issue concerned the notion of public morality
under art. 36 of the Treaty establishing the European Community, 31 that
provided that prohibitions or restrictions on imports, exports or goods in
transit could be justified on that ground.

         A.G. Warner stated that it is quite difficult to provide a uniform
definition of public morality and a criterion of reasonableness should be taken
into account, meaning that the effects of the prohibition should not be
disproportionate in light of the pursued objective. 32

         The Court ruled that different regulations were into force in the United
Kingdom, given the peculiarities of the legal system of that country; Anyway,
that did not make it possible to acknowledge the existence of a legal –



28
    The case was particularly complex: after being ordered to pay a fine by the Montpellier Tribunal
de grande instance, one of the parties - Leonce Cayrol, a French national - applied to the Italian
Tribunale di Saluzzo for a warrant for attachment against the assets of Rivoira Giovanni e Figli s.n.c.
in order to get a compensation on the grounds that the penalties imposed by the French
authorities were the consequence of the company conduct. As a matter of fact, the company had
deceived custom authorities as to the origin of a number of consignments of table grapes using
the certificate of the Italian Trade Agency, while the grapes came from Spain. The Tribunale di
Saluzzo referred the question to the CJEU when Donckerwolcke had already been passed.
29
   Opinion of AG Warner in Cayrol.
30
   See Case 52/77, Leonce Cayrol v Giovanni Rivoira & Figli, 1977 E.C.R. 02261.
31
   See TFEU art. 36.
32
   Opinion of AG Warner in Henn and Darby.




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meaning, permitted – trade of those articles, so no arbitrary discrimination
had been created.33

        Another important ruling may be found in Wurmser, which concerned
the compatibility with Community law of a French legislation requiring
importers to verify the conformity of imported products with the rules in force
and imposing criminal liability in the case of failure. According to the Court,

          For a national rule capable of having a restrictive effect on
          imports to be justified under art. 36 of the Treaty or on the
          basis of […] imperative requirements […], it must […] be
          necessary for the purposes of providing effective protection of
          the public interest involved and it must not be possible to
          achieve that objective by measures less restrictive of intra-
          Community trade. It must therefore be considered whether a
          national provision such as that concerned in the main
          proceedings      is    in    accordance     with    the     principle          of
          proportionality thus expressed. […] In regard in particular to
          the verification of information supplied to consumers as to
          the composition of a product when it is released for sale, the
          importer may not, as a general rule, be required to have the
          product analysed for the purpose of that verification. Such an
          obligation    would         impose   on    the   importer        a     burden
          considerably greater than that imposed on a domestic
          manifacturer, who himself has control of the composition of
          the product, and it would often be disproportionate to the
          objective to be achieved, having regard to the existence of
          other    forms    of    verification      equally   reliable      and       less
          burdensome.34

So, as far as the free movement of goods is concerned, the Court's reasoning
gets more cryptic than it is in the cases on free movement of persons. In fact,
aaa



33
  Case 34/79, Regina v Maurice Donald Henn and John Frederick Ernest Darby, 1979 E.C.R. 03795.
34
  See Case 34/79, Regina v Maurice Donald Henn and John Frederick Ernest Darby,1979 E.C.R.
03795.




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based on the above-mentioned cases,35 it cannot be identified a clear and
stentorian formula such as the one of genuine, present, and sufficiently serious
threat affecting one of the fundamental interests of society that can be found
in the case law concerning free movement of persons. Anyway, one cannot
deny the E.C.J. has always tried to strike a balance between national and
supranational interests. Furthermore, a fundamental achievement can be
found     in   the    equivalence      between        proportionality       and       reasonableness
established by A.G. Warner.36




         4. THE PRINCIPLE OF PROPORTIONALITY AND FREE MOVEMENT OF SERVICES

With regard to free movement of services, one may refer to a case regarding
criminal proceedings brought in Germany against a Greek woman since she
had not complied with the German legislation that provided for the exchange
of foreign licenses for a German one within one year of taking up normal
residence in Germany. In case of failure to comply, the German legislation
provided for up to one year's imprisonment or a fine or, if the offense was
committed as a result of carelessness, for up to six month's imprisonment or a
fine. The woman was found driving with a Greek license but without a German
one after the one-year period had passed. Her husband faced the same


35
   See also Case C-12/02, Criminal proceedings against Marco Grilli, 2003 E.C.R. I-11585; Case C-
121/00, Criminal proceedings v. Walter Hahn, 2002 E.C.R. I-09193; Case C-394/97, Criminal
proceedings against Sami Heinonen, 1999, E.C.R. I-03599; Case C-83/94, Criminal proceedings
against Peter Leifer, Reinhold Otto Krauskopf and Otto Holzer, 1995 E.C.R. I-03231; and Case C-
17/93, Criminal proceedings against J.J.J. Van der Veldt,1994 E.C.R. I-03537.
36
   See also the Opinion of AG Capotorti in Adoui and Cornauille (Joined cases 115 and 116/81, Rezguia
Adoui v Belgian State and City of Liège; Dominique Cornuaille v Belgian State, 1982 E.C.R. 01665,
and Case C-65/05, Commission of the European Communities v Hellenic Republic, 2006 E.C.R. I-
10341, at paras. 38-41) in which the ECJ ruled that “even if that case-law may not be applied in the
present case, the overriding public interest reasons put forward by the Hellenic Republic may
justify the barrier to the free movement of goods. However, it is also necessary for the national
legislation at issue to be proportionate to the objectives being pursued. In that regard, the Hellenic
Republic has not established that it implemented all the technical and organisational measures
likely to have achieved the objective pursued by that Member State using measures which were
less restrictive of intra-Community trade. The Greek authorities not only could have had recourse
to other measures which were more appropriate and less restrictive of the free movement of
goods, as the Commission suggested during the pre-litigation procedure, but also could have
ensured that they were correctly and effectively applied and/or executed in order to achieve the
objective pursued. It follows that the prohibition laid down by art. 2(1) of Law No. 3037/2002 on
the installation in Greece of all electrical, electromechanical and electronic games, including all
computer games, on all public and private premises apart from casinos, constitutes a measure
which is disproportionate in view of the objectives pursued”.




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penalties since, as person in charge of the vehicle, he allowed his wife to drive
it without a German license. The national judge decided to stay the proceedings
and refer a question to the E.C.J. in order to understand whether those
provisions were consistent with free movement of persons and freedom of
establishment.37

         The ruling was quite solomonic. In fact, on the one hand, the Court
ruled out the prohibition for the Member States to obligate to exchange the
license since at that time, the directive on mutual recognition of driving
licenses had not come into force yet; 38 on the other hand, the Court
acknowledged it would have been disproportionate to treat a person who was
found driving with a license issued by another Member State as if they were
driving without a license at all. That would be excessive, especially if one
considers that the offense is not so serious. Furthermore, the Court underlined
the negative consequences arising from the failure to comply with the principle
of proportionality, stating that a criminal conviction may have consequences
for the exercise of a trade or a profession, as far as the access to certain
activities or offices is concerned.39

         Another case involved criminal proceedings brought in Italy against
more than a hundred people who had allegedly violated the Italian regulation
which criminalises the collection and transmission of bets without a license. 40
The bets were transmitted to an English bookmaker, so freedom of
establishment and freedom to provide services were considered.

         According to the E.C.J., national legislation that prohibits on pain of
criminal sanctions the collection, acceptance, registration, and transmission of
offers to bet, in particular on sporting events, without a license is a restriction

37
    As a matter of fact, the driving licence represents the necessary prerequisite for the exercise of
a trade or a profession, so the obligation to exchange it could be seen as a discrimination against
the citizens of other Member States.
38
   See Council Directive 91/439/ECC of 29 July 1991 on Driving licences, 1991 O.J. (L-237) 1.
39
   See Case C-193/94, Criminal proceedings against Sofia Skanavi and Konstantin
Chryssanthakopoulos, 1996 E.C.R. I-00929; Case C-230/97, Criminal proceedings against Ibiyinka
Awoyemi, 1998 E.C.R. I-06781.
40
   Pursuant to L. n. 401/1989, art. 4, (It.) fines and imprisonment may apply in that case. See also
Case C-6/01, Associação Nacional de Operadores de Máquinas Recreativas (Anomar) and Others v
Estado português, 2003 E.C.R. I-08621; Case C-67/98, Questore di Verona v Diego Zenatti, 1999
E.C.R. I-07289; Case C-124/97, Markku Juhani Läärä, Cotswold Microsystems Ltd and Oy
Transatlantic Software Ltd v Kihlakunnansyyttäjä (Jyväskylä) and Suomen valtio (Finnish State),
1999 E.C.R. I-06067 and Case C-275/92, Her Majesty's Customs and Excise v Gerhart Schindler
and Jörg Schindler, 1994 E.C.R. I-01039.




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to those freedoms. The issue at stake regarded the possibility to identify a good
reason to justify that restriction. First of all, it had to be justified by imperative
requirements in the general interest. Second, it had to be suitable for achieving
the pursued objective. Third, it had not to go beyond what is necessary in order
to attain it. Therefore, according to the Court, it is up to the national judge to
assess it by taking into account some hints given by the Court itself, according
to whom consumer protection and the prevention of fraud and incitement to
squander on gaming are imperative requirements in the general interest.
However, it must be determined whether the restriction aims at achieving that
purpose coherently and systematically. Regarding the actual case, the Court
held that Italy pursued a policy of expanding betting and gaming. Thus, those
reasons could not justify the choice. More, the Court ruled that

          It is for the national court to consider whether the manner in
          which the conditions for submitting invitations to tender for
          licences to organise bets on sporting events are laid down
          enables them in practice to be met more easily by Italian
          operators than by foreign operators. If so, those conditions do
          not satisfy the requirement of non-discrimination. Finally,
          the restrictions imposed by the Italian legislation must not go
          beyond what is necessary to attain the end in view. In that
          context the national court must consider whether the
          criminal penalty imposed on any person who from his home
          connects by internet to a bookmaker established in another
          Member State is not disproportionate . . . . especially where
          involvement in betting is encouraged in the context of games
          organised by licensed national bodies. 41

In this regard, one may also consider Placanica, where the Court held that a
licensing system may be seen as an efficient mechanism to prevent the
exploitation of betting and gaming activities for criminal or fraudulent
purposes. However, it is up for national courts to determine whether that kind




41
  See Case C-243/01, Criminal proceedings against Piergiorgio Gambelli and Others, 2003 E.C.R. I-
13031.




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of mechanism genuinely contributes to that type of objectives, as well as to
ascertain whether it satisfies the condition of proportionality. 42

         Hence, it can be confirmed what has already been written with regard to
free movement of goods: There is no standard formula but the Court always
tries to strike a balance between conflicting interests. 43




         5. CONCLUSION

The early approach followed by the E.C.J. with regard to the principle of
proportionality can be summarized through the well-known cost-benefit
formula. In this regard, one should remember the most renowned 44 wording of
the principle that can be found in the E.C.J. case law: “The Institutions must
ensure that the burdens which commercial operators are required to bear are
no greater than is required to achieve the aim which the authorities are to
accomplish.”45

         Over time, the E.C.J. has tackled the issue from a different angle, mainly
in light of the general provisions that can be found in the Treaties and under
art. 52 of the Charter. Most of all, the Court has effectively made it a general
tool to achieve a fair balance between fundamental rights and general interests
by constantly stressing that the principle of proportionality “requires that acts
of the E.U. institutions be appropriate for attaining the legitimate objectives
pursued by the legislation at issue and do not exceed the limits of what is
aaaaaa




42
   See Joined Cases C-338/04, C-359/04, C-360/04, Criminal proceedings against Massimiliano
Placanica, Christian Palazzese and Angelo Sorricchio, 2007 E.C.R. I-01891; see also Case C-347/09,
Criminal proceedings against Jochen Dickinger and Franz Ömer, 2011 E.C.R. I-08185.
43
   Even if the topic is only implicitly considered, see also Case 5/83, Criminal proceedings against
H.G. Rienks,1983 E.C.R. 04233 and Case 271/82, Vincent Rodolphe Auer v Ministère public, 1983
E.C.R. 02727, concerning the improper exercise of the profession of veterinary surgeon.
44
   See TITO BALLARINO, LINEAMENTI DI DIRITTO COMUNITARIO [PRINCIPLES OF COMMUNITY LAW] 182 (3rd
ed. 1990).
45
   Joined Cases 26 and 86/79, Criminal proceeding against Forges de Thy-Marcinelle and
Monceau, 1980, E.C.R. 01083 at para. 6 and Case 5/73, Criminal proceeding against Balkan 1973,
E.C.R. 1092 at para. 22.




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appropriate and necessary in order to achieve those objectives” 46 and that
“when there is a choice between several appropriate measures recourse must
be had to the least onerous, and the disadvantages caused must not be
disproportionate to the aims pursued.”47

         Thus, the principle of proportionality surely is the parameter that
makes it possible to assess the utility, suitability, and adequacy of draft
legislative acts48 but it has become an instrument of protection of fundamental
rights against excessive interference from E.U. acts, first, and Member States
acts, then, too.

         Therefore, the progressive opening of the European Union to a political
dimension – that is to say the progressive opening to the protection of
fundamental rights – has brought to light a specific, non-economic declination
of the principle of proportionality that concerns the criminal matter too. When
it comes to the relationship between E.U. law and criminal law, the E.C.J. seems
to focus on the clash between national and supranational legal interests
deserving protection in order to avoid that national security policies always
prevail and supranational interests are always put aside.

         In this regard, one may deem meaningful the equivalence between
proportionality and reasonableness drawn by A.G. Warner, 49 since it leads to
the consequence that criminal sanctions must be used measurably in order to
punish not the violation of a normative precept in itself, but a conduct which
effectively harms a legal interest that deserves protection; that is to say,
criminal sanctions must be used to punish a genuine, present, and sufficiently

46
   See, e.g, Joined Case C-293/12 and Case C-594-12, Digital Rights Ireland Ltd, Seitlinger and
Others, 2014, published in the electronic Report of Cases, at para. 46; Case C-101/12, Schaible v
Land Baden-Württemberg, 2013, published in the electronic Report of Cases, at para. 29; Case C-
283/11, Sky Österreich GmbH v Österreichischer Rundfunk, 2013, published in the electronic Report
of Cases, at para. 50 and Case C-558/07, S.P.C.M SA. and Others v Secretary of State for the
Environment, Food and Rural Affairs, 2009, E.C.R. I-05783, at. par. 41. On the topic see Georgios
Anagnostaras, Balancing Conflicting Fundamental Rights: The Sky Österreich paradigm, 39 EUR. L.REV.
111 (2014).
47
   See, e.g, Joined Case C-581/10 and C‑ 629/10, Nelson and Others, 2012, published in the electronic
Reports of Cases, at para. 71 and Case C-343/09, Afton Chemical Limited v Secretary of State for
Transport, 2010, E.C.R. I-07027, at para. 45.
48
   See Franco Pizzetti & Giulia Tiberi, Le competenze dell'Unione e il principio di sussidiarietà [EU
Authority and Subsidiarity Principle] in LE NUOVE ISTITUZIONI EUROPEE. COMMENTO AL TRATTATO DI
LISBONA 143-153 (Franco Bassanini & Giulia Tiberi eds., 2nd ed. 2010).
49
   However, it is interesting to notice that the Italian Constitutional Court has come to the same
conclusion, too. See also Italian Constitutional Court, Judgment of I June 1995, no. 220, at para. 4,
where the Court underlined that proportionality is a direct expression of the general canon of
reasonableness.




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serious threat affecting one of the fundamental interests of society while
avoiding excesses which are justified by reasons of internal politics only.

         This is positive in that it restates the centrality of the principle of
proportionality but one may wonder if it really makes it possible to avoid a
tough situation. In light of the above-mentioned case law, the E.C.J. seems to
be the only judicial body entitled to assess the balance between national and
supranational conflicting legal interests and it looks like the Court is keen to
preserve its position as the only judicial body entitled to do so. This may raise a
problem – and not a small one – if one considers the sometimes complicated
relationship      between      the    E.C.J.   and     national     courts,       especially           some
Constitutional Courts.50

         The position held by the E.C.J. is quite balanced indeed, since its
purpose is not the a priori protection of the fundamental freedoms when a
clash between them and national provisions arises. However, one may question
that approach when it comes to criminal law. It is well renowned that the E.C.J.
has ruled out the existence of national safe havens not affected by the
supranational law;51 at the same time, a peculiar tie between criminal law and
national sovereignty does exist and cannot be denied.52

         Hence, as far as proportionality is concerned, one may think that the
E.C.J. could avoid new conflicts with national courts only by sticking to its
constant interpretation of the principle of proportionality. However, this
requires the Court to carefully assess the fundamental interests of national

50
   One may want to check the Lisbon judgment of the German Federal Constitutional Court
(BVerfG, 2 BvE 2/08 Gauweiler Die Linke v. Act of Approval of the Lisbon Treaty (Lisbon), Judgment of
30.6.2009) and the academic literature it has given rise to. See Armin Steinbach, The Lisbon
Judgement of the German Federal Constitutional Court - New Guidance on the Limits of European
Integration?, 11 GER. L. J. 367 (2010); Jacques Ziller, The German Constitutional Court’s Friendliness
Towards European Law: On the Judgement of Bundesverfassungsgericht over the Ratification of the Treaty
of Lisbon, 16 EUR. PUBLIC L. 53 (2010); Daniel Thym, In the Name of Sovereign Statehood: A Critical
Introduction to the Lisbon Judgment of the German Constitutional Court, 46 COMMON MKT. L. R. 1795
(2009). Also, one should consider the Declaration 1/2004 of the Spanish Constitutional Court
(European Constitution), Judgment K 18/04 of the Polish Constitutional Court (Accession Treaty)
and Decision Pl. ÚS 19/08 of the Czech Constitutional Court (Lisbon).
51
   E.g., Case 82/71, SAIL v Pubblico Ministero della Repubblica Italiana, 1972, E.C.R. 00119, at para.
5, the Court ruled that art. 177 of the Treaty on the European Economic Community is worded in
general terms and draws no distinction according to the nature, criminal or otherwise, of the
national proceedings within the framework of which the preliminary questions have been
formulated. In Case 186/87, Cowan v Trésor public, 1989, E.C.R. 00195, at para. 19, the Court ruled
that although in principle criminal legislation and the rules of criminal procedure are matters for
which the Member States are responsible, Community law sets certain limits to their power.
52
   See, e.g., Case C-329/11, Achughbabian v Préfet du Val-de-Marne, 2011, E.C.R. I-12695, at para.
32.




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societies and that should lead to a more comparative, cross-fertilized approach
to proportionality. As a matter of fact, the decisions of national courts should
be taken into proper account in order to identify the real scope of national
interests. Otherwise, the proportionality test would be based on a one-way
interpretation of both national and supranational interests by the Court which
could cast some doubts on the effective fairness of the assessment.

         Truth be told, the case law mentioned in this article makes it clear that
the Court does not follow that interpretative approach and does not seem so
willing to follow it for several reasons, 53 most of all because that may
compromise its battle over judicial supremacy in Europe.54 Anyway, the careful
consideration of national courts decisions may be an interesting way to ascend
– once and for all, maybe? – to the role of European Constitutional Court
without disregarding national differences.




53
   See Gráinne de Búrca, After the EU Charter of Fundamental Rights: The Court of Justice as a Human
Rights Adjudicator?, 20 MAASTRICHT J. EUR. & COMP. L. 168 (2013).
54
   The expression “battle over judicial supremacy in Europe” may be found in Asterios Pliakos &
Georgios Anagnostaras, Who is the Ultimate Arbiter? The Battle Over Judicial Supremacy in Europe, 36
Eᴜʀ. L. Rᴇᴠ. 109 (2011).




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