Proportionality in decentralized action: the Dutch court experience in free movement of services and freedom of establishment cases

National courts are of vital importance for the effectiveness of European law. In
general, they are supposed to handle the bulk of the cases in which European
law comes forward, a logical result following the development of the (direct)
effects of European law in the national legal order.
Several authors in the European law doctrine observed a notable variety of
review intensity by the Court of Justice of the European Communities (hereafter:
the Court) on the proportionality principle in handling free movement
cases. Sometimes the Court employs an intense test; other times the approach
of the Court is remarkably restrained. Also, in cases that concern a similar
fi eld of the law, this variety may be observed. The general line of the Court is
considerably clear, but the review intensity also tends towards being a sort of
‘black box’.
This constitutes a problem for the effectiveness of European free movement
law at a decentralized level, at national courts. Research into the Dutch court
experience demonstrates that it seems as if it is not completely clear how national
courts should apply the proportionality principle à l’européen.
This contribution concentrates on the application of the proportionality
principle by Dutch courts when handling free movement of services and
freedom of establishment cases. A few general lines will be identifi ed on the
basis of this case-law and some suggestions for the Court on the basis of the
decentralized application will be put forward.