Universiteit Antwerpen

Proportionality and Post-National Constitutionalism, Feb 17-18

This conference focuses on the question of whether the principle of proportionality is an engine of post-national constitutionalisation or rather a reflection of it by examining its normative underpinnings. The principle has risen to the fore in human rights instruments and economic integration agreements. In a nutshell, the principle of proportionality is a way of balancing conflicting objectives or rights. Two forms are known: the least-restrictive means version and proportionality stricto sensu. With the former, the adjudicator examines first examines whether the objective pursued Is legitimate, then inquires into whether the measure is suitable for meeting the objective and finally investigates whether the same objective can also be achieved through means that are less restrictive of the other objective or right. When the adjudicator uses proportionality stricto sensu, a fourth step is added: the adjudicator also gauges the importance of the two interests that need to be balanced against each other.
The most principled justification of proportionality has been derived from seeing constitutional rights as optimization requirements rather than reason-blocking trumps or absolute entitlements. Once it is accepted that rights need to be balanced against each other, the principle of proportionality follows almost naturally as a technique for ordering conflicting claims. However, this view presumes that a legal order is already to some extent constitutionalised because it presumes a minimal consensus on the rights which are to be balanced against each other, even if their precise ordering is subject to disagreement or doubt.
Alexy’s justification of balancing contrasts with a situation where there is no consensus on the need to balance a particular right or objective against others or where there is disagreement on what the full catalogue of rights subject to balancing should be and raises the question of whether the principle of proportionality could also be used as an engine of constitutionalisation in the sense of it helping to establish a consensus on the catalogue of rights or objectives to be balanced. There are two interpretations of the principle of proportionality through which this could be achieved: one would be to view the principle as a conflict-of-laws tool that allows adjudicators to manage potentially devise conflicts by giving recognition to both objectives or rights and then deciding the case on the failure to meet the burden of proof and leaving it up to the parties to structure their ongoing relationship with the potential that they will come to see a way of accommodating their conflicting claims (this might be called proportionality through practice). Another interpretation might see the principle of proportionality as a tool designed to strengthen national discursive practices by requiring the law-maker to investigate the consequences of a law and possible alternatives fully and to provide an adequately reasoned decision (this might be called proportionality through deliberation).
However, different versions of the principle of proportionality and different standards of scrutiny concerning proportionality lend themselves more or less easily to being used as a technique of constitutional adjudication or constitution-making. What is more, standing rules and the interplay with other legal principles influence the ability of courts to scrutinise on the basis of proportionality. Of particular interest in this connection will be the reforms on standing and the ability of national parliaments to seek review of proposed EU legal acts on the basis of subsidiarity introduced by the Lisbon Treaty, which may give more weight to the assessment of the proportionality of EU acts as well. This conference will therefore be devoted to exploring the best interpretation of the principle of proportionality and examining how well its variants found in particular positive EU or international legal contexts contribute to achieving its principled justification


Thursday, 17 February 2011

9:45 Welcome by the Dean of the Law Faculty
10:00 – 12:10 Panel I: Philosophical foundations. Panel chair: Daniel Augenstein (Tilburg)
10:00-11:00 presentations of 15 min. each by Robert Alexy (CAU, Kiel), Kai Möller (LSE), George Pavlakos (UA), Stavros Tsakyrakis (Athens)

11:00-11:10 coffee break

11:10-12:10 discussion

12:10-13:30 lunch

13:30-15:30 Panel II: Proportionality in international economic law. Panel chair: Panagiotis Delimatsis (Tilburg)
13:30-14:30 presentations of 15 min. each by Thomas Cottier (Bern), Alexia Herwig (UA), Joost Pauwelyn (Geneva), Benedikt Pirker (Fribourg)

14:30-15:30 discussion

15:30-15:50 coffee break

15:50-17:50 Panel III: Proportionality assessment of European Courts. Panel chair: Gert Straetmans (UA)
15:50-16:50 presentations of 15 min. each by Steven Greer (Bristol), Tor-Inge Harbo (Oslo), Christian Joerges (Bremen), Tommi Ralli (Bremen)
16:50-17:50 discussion

19:00 dinner at De Lokeend

Friday, 18 February 2011

10:00-12:00 Panel IV: Proportionality, balance of power and multilevel governance. Panel chair: Gerhard van der Schyff (Tilburg)
10:00-11:00 presentations of 15 min. each by Martin Borowski (Birmingham), Mattias Kumm (WZB and Humboldt), Christoph Möllers (Humboldt), Patricia Popelier and Catherine van de Heyning (UA)
11:00-12:00 discussion

12:00-12:30 concluding remarks by the organizers

12:30- 14:00 lunch

Conference venue: Universiteitsclub, second floor meeting rooms, Prinsstraat 13b, University of Antwerp.

Attendance is free but prior registration by e-mail to Alexia.Herwig@uantwerpen.be is asked for.