Proportionality review in economic governance: a manifestation of the formal rationality of modern law?

The European Court of Justice’s proportionality review in the cases Gauweiler and Weiss was seen as lacking and thus criticized in the legal literature. Given that proportionality review originates from an assessment of to what extent can the state breach individuals’ rights, and that proportionality review as such has been criticized, the criticism levelled against these two judgments does not seem that surprising. If proportionality as a legal doctrine originates from the protection of individuals rights, then how can it be applied in the context of economic governance where no specified individual rights are at stake? If central in proportionality review is the connection between means and ends, and their selection in a rational manner, how can proportionality review function if the distinction between means and ends is not clear and they have not been set in a formally rational manner? This article engages with such issues by way of analysing the Court’s proportionality review in the two mentioned judgments in light of the formal rationality of modern law as conceptualized by Max Weber. The article argues that the CJEU should develop a separate proportionality test that applies to economic governance related cases that do not concern the rights of individuals, but rather the delineation of competences and the substantive content of policy-decisions, often involving a considerable amount of discretion.