Proportionality test in the «Age of balancing»

Abstract

Abstract:
The article analyzes the application of the principle of proportionality, or rather of the proportionality test as interpretative criterion of the Italian Constitutional Court, European Court of Justice and European Court of Human Rights. This criterion was originally adopted within the German legal order and then, thanks to the jurisprudence of the European Court of Justice, it has spread in many countries including common law countries. Therefore, the proportionality test became one of the central concepts of global constitutionalism, as an instrument fostering the dialogue between the courts through the circulation of legal models and argumentative standards. 

The paper starts with an introduction relating to the development of European constitutions from the end of World War II up to now and containing mostly principles that are characterized by open and heterogeneous cases. Then, the paper analyzes the techniques of balance that are particularly used both in new legislation and case-law. The analysis continues with an examination of the case study, with special attention to Sentence n. 1 of 2014 of the Italian  Constitutional Court (which declared the unconstitutionality of the electoral system for the election of Parliament) and the Decision of the European
Court of Justice of 14 June 2015 relating to the assessment of the ECB’s monetary policy. 
Finally, this paper examines European and non EU doctrine that has shown its main concern due to the wide discretion that these decision-making instruments allow. In fact, the most recent international theoretical debate has focused on the deficit of democratic legitimacy occurring in the jurisprudence of constitutional courts and has drawn the attention to the inherent danger in the scrutiny of proportionality and, more generally, in all the interpretative techniques of balance.
The above-mentioned fear involves the fact that the principle of proportionality,
which is the «par excellence» instrument of the «AGE of balancing», ends up stifling the democratic political autonomy.
Despite the undeniable risk that courts can go into a non-allowed land, subverting the delicate balance of the decisions of the representative bodies, this paper accepts the idea that the existence of an oversight body, aimed at criticizing and, when appropriate, correcting the majority decision, is an indispensable instrument to protect the fundamental values both of national and international legal orders. 
In short, constitutional courts do not find the basis of their democratic legitimacy in popular election, but in their function itself, so as
that the majority decision is also accepted by the minority forces if and to the extent it is the expression of shared values.