The Principle of Proportionality: A Balance of Aims in Public Contracts
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190 I The Principle of Proportionality
The Principle of Proportionality:
A Balance of Aims in Public Contracts
Carina Risvig Hamer*
The article explores and analysis how the principle of proportionality has developed over
the years and how the principle is applied in EU public procurement law. It explores differ-
ent justifications for exclusions of undertakings such as social and environmental consider-
ations, and how the principle of proportionality is used when balancing the different aims
in public procurement. It is argued that the principle of proportionality ultimately ensures
the procurement rules are flexible and contributes to safeguarding and developing the aims
in public contracts.
Keywords: proportionality; internal market; restrictions; exclusions grounds
I. Introduction
The principle of proportionality is considered a gen-
eral principle of EU law' and lies inherent in the
Treaty on European Union (TEU) - particular Article
5(4) TEU,2 but the principle is found in almost every
area of EU law, and as stated by Advocate General Ja-
cobs, it is indeed true, that 'As for the principle of
proportionality, there are few areas of Community
law, if any at all, where that is not relevant. Thus,
the principle plays an important role in EU law.4 The
principle requires that measures taken by Member
States are appropriate for attaining the legitimate ob-
jectives pursued by the legislation at issue and that
these measures does not go beyond what is necessary
DOI: 10.21552/epppl/2022/3/8
Carina Risvig Hamer, PhD, professor in administrative law and
public procurement law at the Faculty of Law, University of
Copenhagen. The article is part of the research project PRO-
CUREGREEN funded by the Independent Research Fund, Den-
mark, case number: 1127-00220B. The author would like to
thank Rasmus Horskjmrr Nielsen, Ezgi Uysal and Roberto Caranta
for comments and discussions on earlier drafts. Getting feedback
and academic discussions is the best part of working in academia.
1 Regarding general principles of EU law see eg Tridimas, The
General Principles of EU Law (2nd edn, OUP 2006), Groussot,
General Principles of Community Law (The Hogendorp Papers,
Europa Law Publishing 2006). See also Gutierrez-Fons and Lean-
nerts, 'The Constitutional allocations of powers and general
principles of EU law' (2010) 47 CML Rev 1629-1669.
2 Art 5(4) TEU states that 'Under the principle of proportionality,
the content and form of Union action shall not exceed what is
necessary to achieve the objectives of the Treaties. The institu-
tions of the Union shall apply the principle of proportionality as
to achieve them.5 However, whereas other general
principles of EU law will protect an individual de-
fined purpose up front, such as eg the principle of
non-discrimination based on nationality in Article 18
of the Treaty on the Functioning of the European
Union (TFEU), which ensures that no discrimination
based on nationality takes place, the principle of pro-
portionality is instead used as an instrument to bal-
ance other aims in order to determine whether a bar
rier can be justified. In this context, the aim of the
proportionality principle is to ensure that decisions
and legislation are fair, as well as to ensure that the
measures taken are necessary to achieve a specific
goal and does not go beyond what is necessary in or-
der to reach the goal.
laid down in the Protocol on the application of the principles of
subsidiarity and proportionality.' Also OJ 2012/C, C326/02 the
Charter of Fundamental Rights of the European Union refers to
the principle of proportionality in relation to the interpretation of
the rights and principles of the Charter, see art 52.
3 AG Jacobs opinion in Case C-120/94 Commission v Hellenic
Republic [1995] EU:C:1995:109, para 70.
4 As well as in the individual Member States. See also Harbo,'The
Function of the Proportionality Principle in EU Law' (2010) 16 ELJ
158-185. However, the principle of proportionality, as it is
developed in the Member States' administrative and constitution-
al law, is not necessarily considered the exact same principle as
the principle of proportionality in EU law, see eg Craig and de
Birca EU Law Text, Cases and Materials (7th edn, OUP 2020),
583.
5 See eg Case C-210/03 Swedish Match [2004] EU:C:2004:802,
para 47; Case C-558/07 S.PC.M. and Others [2009]
EU:C:2009:430, para 41 and Case C-58/08 Vodafone and Others
[2010] EU:C:2010:321, para 51.
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