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European Proportionality in Macedonia’s Political and Judicial Systems

April 4, 2009

By Ljubica Dzabirova*

The principle of proportionality implies balancing of power, actions and measures. Being a relatively young country, Macedonia does not yet have the experience and legal basis to really be able to apply proportionality in its judicial system. However, in the case of applying proportionality in the political system, the question is whether it is suitable to have such balancing between competing values and interests, which can significantly intervene in the autonomy of policy choices.

Background

The principle of proportionality is a fundamental principle of European Union Law. According to this principle, the EU may only act to exactly the extent that is needed to achieve its objectives, and no further.

This principle has underpinned the European Union since its beginning in 1957. It is also explicitly specified in the proposed new Lisbon Treaty for Europe.[1] In the presently applicable primary law, this principle is clearly formulated in the third paragraph of Article 5 of the Treaty[2] establishing the European Community as follows: “European Union law is the unique legal system which operates alongside the laws of Member States of the European Union (EU)€š Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.”

However, the principle of proportionality is given different meanings by different researchers. There is no agreement on what this principle refers to or covers. For the purpose of this article, I use the definition of the principle of proportionality given by Jan Jans.[3] The principle of proportionality, in its most elaborate form, consists of three different elements: suitability, necessity, and proportionality, elements that need to be assessed cumulatively.

The full proportionality test of a specific measure thus involves a three-step assessment. The first step is the assessment of suitability, i.e., whether the measure at issue is suitable or appropriate to achieve the objective it pursues. Suitability requires a casual relationship between the measure and its object.[4]

The second step of the full proportionality analysis is the assessment of necessity, i.e., whether there exists an alternative measure which is less restrictive than the measure in question, and which is (at least) equally effective in achieving the pursued objective. If such alternative measure exists, the measure at issue is not necessary.

The third and final step is the assessment of proportionality stricto sensu, i.e., proportionality in its narrow sense. This step involves an assessment of whether the effects of the measure are disproportionate or excessive in relation to the interests affected. At this stage the true weighing and balancing takes place. The more intense the particular interest, the more important for the countervailing objective it needs to be.[5]

The principle of proportionality is usually applied in the legal/judicial systems of countries. Nevertheless, considering in detail the main elements of the principle of proportionality, there is no reason not to apply it in politics as well. It was initially developed in the German system as a political maxim: that any layer of government[6] should not take any action that exceeds that which is necessary to achieve the objective of government.[7]

Applying Proportionality in Macedonia

Applying the above definition in Macedonia opens a question of whether, and, if so, to what extent, the principle of proportionality is part of Macedonian politics and the Macedonian judicial system.

The hesitation, when talking about the application of the principle of proportionality in Macedonian politics may arise, because proportionality usually exists, and plays an important role, as a principle to assist with the choice between competing social values and interests on the basis of the weights attributed to these values and interests.

Nevertheless, the question is whether it is suitable to balance, and thus make choices between political and non-political values and interests. Whether it is appropriate to debate and assess whether or not the societal value or interest pursued by a certain political party outweighs the burden that a certain measure or action can impose. It is obvious that such balancing between competing values and interests can significantly restrict policy choices and their autonomy.

A sort of trend, maybe latent and invisible, which seems to be interpreted by political actors in Macedonia, is that applying proportionality implies dissolution of boundaries between political and non-political values and interests, and is thus weakening the power of their autonomy. “Proportionality concerns the ‘evolution of a concept of governance which transcends the more traditionally conceived private/public divide and which challenges previous assumptions about the locus of political and economic authority.”[8]

The trend toward fading barriers between the political and non-political values and interests should be therefore a guideline to follow when we want to find solutions to the lack of democratic participation in Macedonia. And, of course, the main difficulty then becomes ways to reconcile these solutions.

A first answer to this question can be found through the European proportionality principle, by analyzing it from both a normative and a case law perspective, i.e., whether the action, non-action, measure or certain behaviour imposed by the political actors is suitable, necessary and proportional stricto sensu.

On the other hand, talking about proportionality in the judicial system, Macedonia does not yet have sufficient experience and a legal basis to apply proportionality. The national judicial scrutiny of restrictive measures can take place before either the Administrative Court, the basic courts of the country, or before the Constitutional Court. The Administrative Court will review acts enacted by public administration and the review will typically be applicable in vertical legal relationships, i.e. in relationships involving individuals and legal persons on the one hand, and state authorities on the other.[9]

In the administrative review procedure, proportionality analysis is not common. As a general rule, the Administrative Court cannot review discretion, but only legality. In other words, it does not have recours de plaine pouvoir, and cannot decide cases on their own merits. The result of this is that, generally speaking, proportionality analysis is not possible within the review of administrative discretion.

Exceptionally, the Administrative Court can decide cases on the merits in a limited number of situations when it has enough data to do so. For example, when the Court decides to annul an administrative act due to its illegality, it can decide the case by reaching a judgement which replaces the annulled act.[10]

Second, in case the administrative body does not adopt the act within the time prescribed by law the Administrative Court can decide the case on its own, thus replacing the administrative act which was not adopted on time by its own judgement.[11]

Similarly, in case the act has not been adopted on time and the Court resolves not to decide the case on its own, but gives an order to the administrative body to act accordingly, and the administrative body does not act, the Administrative Court can decide the case on its own.

Although the situations presented above show that, in certain cases, the Administrative Court can decide a case on its own merits, in reality the Court rarely, if ever, decides to avail itself of this right, even in situations when it has enough data to decide the case on its own.

Ordinary jurisdiction has not confronted the issue of proportionality yet. However, recourse to ordinary jurisdiction will anyway be possible only in horizontal cases, involving non-governmental actors, such as trade unions, in situations comparable to those that emerged in Walrave und Koch,[12] and more recently in cases Laval[13] and Viking.[14]

In other words, litigants will include an individual or legal person on the one side and another entity of private law, such as professional association or an NGO on the other. If, in such situations an EU provider is caught up in the provision of services by such a private actor, it will be protected by Community free movement rules. On the other hand, member states will have an obligation to bring into force the laws, regulations and administrative provisions necessary to comply with the EC Treaty.

Within the scope of private law, the Macedonian Law on Obligations[15] restricts the freedom of contract, where it is contrary to the Constitution, strict legal norms or public morality.[16] While this definition is circular and adds nothing to the Constitutional restrictions, it is worth noting that, typically, civil law judges will question these issues only exceptionally, and only against decisions of the Constitutional Court. It is not likely that they will engage in any balancing or proportionality analysis in cases where e.g. “State interest” is clearly defined by law.

Definition of possible restrictions is, in Macedonian legal culture, reserved for the legislator. This means that basic courts will, as a rule, defer to the legislature and follow its legislative choice. This is, of course, contrary to the Community doctrine of supremacy, as defined in the Simmenthal.[17]

Ideally, to ensure compliance with Community law, Basic Courts, confronted with application of national law which is claimed to have restricted the freedom to provide services, should be in a position to apply the full proportionality analysis (Gebhard test)[18] on its own, and ‘it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.’[19]

However, within the present Macedonian legal framework, this would be possible only in respect to secondary legislation which is typically adopted by the government or its bodies.

Here, Basic Courts can directly apply the law to the case before them, while at the same time referring the issue of legality of the secondary legislation to the Constitutional Court without staying the proceedings. In case of laws, Basic Courts have to stay the proceedings and refer the issue to the Constitutional Court.

Another most likely focus of review is the Constitutional Court. It has jurisdiction for concrete constitutional review instituted by the courts and for abstract constitutional review of legislation. It also decides constitutional complaints. However, due to the reasons described above, it is to expect that the Constitutional Court will typically deal with proportionality analysis in abstract review, and possibly in constitutional complaint proceedings. While protection before the Constitutional Court can be effective to set aside restrictive legislation, due to the Simmenthal principle[20] it is inappropriate for purposes of concrete protection of Community based rights.

Conclusion

On the one hand, proportionality provokes discussions about the readiness and willingness of its application in the Macedonian judicial or political system. On the other hand it also touches upon issues, such as sensitive local moral standards, tradition, culture and political and judicial experiences. This suggests that applying proportionality in Macedonia is not a simple process of adjudication. Rather, it requires a prudent and sensitive appreciation by the Macedonian actors of diverse values, and the different possible ways of acting consistently with the elements of the principle of proportionality: suitability, necessity, and proportionality stricto sensu.

*Ljubica Dzabirova is a PhD researcher in law at the University of Amsterdam, currently doing field research at the World Trade Organisation in Geneva; she has also been employed by the Macedonian Government’s Secretariat for European Affairs since 2003.


[1] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ C  306, Volume 50, 17 December 2007; In the Treaty of Lisbon, Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC).

[2]Consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community, 29.12.2006,  C 321 E/1

[3] J. Jans, Proportionality Revisited’s, 27 Legal Issues of Economic Integration 239, 240-241, 2000

[4] See Ibid, Jans, 240

[5] M. Adenas and S. Zleptning, €šÃ„òProportionality and WTO Law in comparative Perspectives’s, 42 Texas International Law Journal 371, 388

[6] Meaning: control, administration and rules

[7] Proportionality (political maxim), Available: http://www.nationmaster.com/encyclopedia/ (Accessed: 19 February, 2009)

[8] G. de Burca, Reappraising Subsidiarity’s Significance after Amsterdam, Harvard Jean Monnet working paper, 7/99, (2000).

[9] It is worth noting that in Macedonian law and practice a formalist understanding of the “State” is accepted. According to Macedonian practice, “State bodies” are only those bodies which are designated as such by law. This is in contrast with substantive understanding of the ECJ expressed e.g. in Case C-188/89 Foster v. British Gas.

[10] Art. 36 of the Macedonian Law on Administrative Disputes (Official Gazette of the Republic of Macedonia No. 62 of 22 May 2006)

[11] Art. 53 of the Macedonian Law on Administrative Disputes, (Official Gazette of the Republic of Macedonia No. 62 of 22 May 2006)

[12] Case 35/74, B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale

[13] C-341/05, Laval un Partneri

[14] Case C-438/05, The International Transport Workers’ Federation 2) The Finnish Seamen’s Union v 1) Viking Line ABP

[15]Law on Obligations (Official Gazette of the Republic of Macedonia No. 18/01, 4/02 and 5/03)

[16] See Art. 41 of the Law on Obligations declare inadmissible contracts the object of which is contrary to the Constitution, strict legal rules or morality. See also Art. 43 for the legality of basis of the Contract; or Art. 67 for the legality of the contract conditions; All these provisions specify the same grounds.

[17]Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA. ECR 1978 P. 00629

[18] Case C-55/94, Reinhard Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, (1995) ECR. P. I-04165

[19] Ibid. at p. 24 of the judgment.

[20] See Ibid. Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA. ECR 1978 P. 00629; Simmenthal introduced the system of decentralized judicial review, previously non-existent in the majority of European states. In which way has this disturbed institutional balance in Member States – relations between legislative, executive and judiciary

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