The Principle of Proportionality in Viking and Laval : An Appropriate Standard of Judicial Review?

Abstract

Although the application of the proportionality principle is a well known element of the ECJ's internal market case law, its application can raise very sensitive issues in an industrial action context. The argument of the present paper is that one of the main reasons why the outcome of the Viking and Laval cases was so controversial was because of the way in which the Court applied the proportionality principle. On the basis of some selected case studies from a labour law and industrial action context, the article will point out that with a better structured proportionality analysis the Court could have significantly improved the legitimacy of its decisions.