RESTRICTIVE MEASURES OF THE EUROPEAN UNION AND THE PROPORTIONALITY OF RESTRICTIONS ON THE FREEDOM TO CONDUCT A BUSINESS AND THE RIGHT TO PROPERTY

THE BOSPHORUS DOCTRINE AND EUROPEAN CONSTITUTIONAL PLURALISM

Abstract

The primary objective of this article is to analyse and identify the essential elements of the proportionality assessment method applied by the Court of Justice of the European Union in cases concerning the restrictive measures (sanctions) adopted by the Council, which limit the freedom of entrepreneurship and the property rights guaranteed by Articles 16 and 17 of the Charter of Fundamental Rights. Since these measures amount to interferences with the right to peaceful enjoyment of property protected by Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, this article specifically aims to identify both the similarities and the contentious differences in the proportionality assessment methods used by the CJEU and the ECtHR, especially in the context of the Bosphorus doctrine and the presumption that the protection standard provided by EU law is equivalent to the standards of the Convention. Given their unprecedent character, the article particularly analyses cases of the CJEU concerning sanctions imposed following the war in Ukraine by comparing them with relevant case-law of the ECtHR under Article 1 of Protocol No. 1 to the Convention. Finally, the article provides original conclusions regarding the elements of the lawfulness and proportionality tests applied by the CJEU that should be improved in order to make its practice more consistent and clearer for national constitutional courts, which will increasingly be required to apply both the accepted Convention standards and EU law in cases concern- ing restrictive measures. In this regard, the article also offers conclusions on the principles that constitutional courts should follow in such cases.