The Guardianship of European Constitutionality

Under the cloth of the projection of the national principle of proportionality to Union law, European courts have radically altered the substance of European law. This has been done both to supranational and national constitutional law and by means of redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete constitutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the constitutionally possible key public policies without which some of the fundamental collective goods at the core of the Social and Democratic Rechtsstaat become extremely vulnerable. This paper shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined economic freedoms as the yardstick of European constitutionality.  This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms, and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.