2.8 Impact of the European Court of Justice Proportionality This principle provides that measures must be no more than are necessary to achieve the end desired. It is of general application and may apply in the context of challenges to the legality of Community legislation as well as to questions of compliance by Member States with Directives. In the Danish bottles case referred to above, it was held that measures to protect the environment may permit limitations on free movement, but only in so far as they are proportionate to the result intended. In Gourmetterie Van den Burg case C–169/89, the ECJ held that a Dutch ban on the marketing of Red Grouse was out of proportion to the benefit, namely the preservation of stocks in the UK of a species which was not endangered. Similarly, in Commission v Germany C-131/92, it was held that restrictions on the import of live crayfish were illegal. Although it was accepted by the court that restrictions on trade are allowed with the aim of preventing the spread of disease, in this case it concluded that less restrictive measures would have been able to achieve the same end. The proportionality principle may furthermore be relied on in challenging national laws where it is alleged that disproportionately harsh penalties lead to an infringement of Treaty provisions (Skanari C–193/94). |
