Standard of Review for Necessity and Proportionality Analysis in EU and WTO Law
Standard of Review for Necessity and Proportionality Analysis in EU and WTO Law
Why Differences in Standards of Review Are Legitimate
Chapter 12 compares the standards of review in necessity and proportionality analysis in the jurisprudence of the CJEU concerning the internal market and WTO dispute settlement bodies. It argues that judicial deference by the CJEU and WTO is appropriate to questions of fact and mixed legal-factual questions whenever the facts or considered normative judgments are uncertain, as is frequently the case in necessity and proportionality analysis. In particular, the chapter submits that the nature of handling uncertainties (ie through fair and inclusive decision-making procedures that provide legitimacy for subsequent decisions) requires the court to put an emphasis on the procedure rather than on substance of the decision under review. This means that deference with respect to substance should be combined with an intrusive review exercised by courts over the procedural fairness of the way the decision was taken.
Keywords: standard of review, margin of appreciation, EU law, CJEU, WTO law, necessity, proportionality, Article 36 TFEU, general exceptions
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