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According to Article 5 (4) TEU, ‘[u]nder the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.’

One way to accomplish this is to choose instruments that do not unnecessarily restrict possibilities for Member States to regulate a question themselves.

Several important environmental legal acts have the character of framework directives and thus leave a relatively wide scope for Member States to adopt concrete measures needed to achieve the objectives of the EU law.87

Regulations are often used when the main purpose is to harmonise the relevant legislation to ensure the smooth functioning of the internal market, including cases where it is rules for the protection of the environment that are harmonised. Draft legislative acts must contain an explanation of how the principle of proportionality has been taken into account.88

The succinct wording of Article 5 (4) TEU provides a limited picture of the functions that the proportionality principle fulfils in EU law. It is not only the freedom of action of individual Member States that is partly protected by this principle. Even those obligations that EU rules create for individuals are subject to the requirement of proportionality. When there is a possibility to choose between various measures, the measure that is least onerous must be chosen. Possible disadvantages for individuals may not be disproportionate in relation to the intended objective of the measure.[1] [2] [3] [4] [5] In order to be proportionate, the measure the EU takes ‘should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it’.9°

The fact that one particular group is affected more than another group by a particular legislative measure does not necessarily mean that the measure is disproportionate or discriminatory, provided that it is intended to solve a problem of public interest.91 In agricultural policy, which includes many measures to protect health and the environment, the EU legislator has a specific possibility to make discretionary evaluations. This means that a measure in this area can be declared invalid only when it is obviously inappropriate in relation to the objective that a competent institution seeks to achieve.92

A third area where the principle of proportionality is of great significance is the assessment of whether measures taken by individual Member States can be accepted, despite the fact that they restrict freedom of movement within the EU. In addition to a legitimate objective (for instance protection of the environment or human health), a measure that prohibits or limits the possibility of importing a product from another Member State must also be necessary for attaining the said objective.93 The measure cannot be considered necessary if another measure could accomplish the same objective, but is less trade-restrictive. This aspect of proportionality principle will be discussed in more detail in Chapter 3.

  • [1] Joint Cases C-133/93, C-300/93, and 362/93 Crispoltoni, Natale and Pontillo ECLI:EU:C:1994:364, para 41. The Court has repeated this position in its later practice. See, eg, CaseC-343/09 Afton Chemical (n 51), para 45; Joined Cases C-581/10, and C-629/10 Nelson and OthersECLI:EU:C:2012:657, para 71.
  • [2] 9° Case C-491/01 British American Tobacco ECLI:EU:C:2002:741, para 122.
  • [3] Case C-453/08 Karanikolas and Others ECLI:EU:C:2010:482, para 55.
  • [4] 92 This follows from ‘the political responsibility that has been entrusted the legislator in this areaaccording to the Treaty’. Case T-334/07 Denka International ECLI:EU:T:2009:453, para 139 withmore references.
  • [5] Case C-400/96 Harpegnies ECLI:EU:C:1998:414, para 34.
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