When good is not good enough
| DOI | 10.1177/1023263X18769500 |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| Author | Hendrik M Wendland |
| Subject Matter | Articles |
Article
When good is not good
enough: A comparative analysis
of underinclusiveness and the
principle of coherence under
proportionality review
Hendrik M Wendland*
Abstract
Proportionality review has long been a tool of the ECJ to scrutinize national measures that impede
the realization of the Internal Market. More recently, the ECJ has required those measures to
be ‘consistentand systematic’.This paper shows the historicaldevelopment of the ECJ’sjurisprudence
and contrastsit with the approach taken by US Courtsreviewing similar issues.Under consideration
of the comparative findings, different framings for arguments of underinclusiveness and coherence
under a general concept of proportionality review are derived: the arguments can determine not
only the efficacy or suitability of a measure, but also play a role when analyzing proportionality
stricto sensu. On the other hand, it is argued that the sub-testof necessity is the wrong location for
assertingthose considerations.Most importantly,the ECJ – limited by its institutional design– uses the
principle of coherence as a factor when interpreting the national law forits proper purpose.
Keywords
Principle of coherence, proportionality review, underinclusiveness, strict scrutiny, pretext analysis,
Trump’s ‘Muslim ban’
In many modern constitutions and international treaties, the principle of proportionality plays an
important role in limiting the state’s power to regulate the community under its jurisdiction.
The European Court of Justice (ECJ) developed a requirement of ‘consistent and systematic’
regulation as a subtest of the requirement of proportionality in its jurisprudence on the fundamental
(market) freedoms. This paper analyses the function of this principle of coherence [for an explana-
tion of the difference in terminology, see I.B. below] as it relates to a general concept of
*Center for Technology, Innovation and Competition, University of Pennsylvania Law School, Philadelphia, USA
Corresponding author:
Hendrik M Wendland
Email: hmw2138@columbia.edu
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(3) 332–356
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X18769500
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proportionality. When contrasting it with the US approach to deal with the problem of ‘under-
inclusiveness’, it becomes apparent that the requirement mainly serves as a tool to reinforce the
burden of proof of the Member States to justify their presumptively invalid legislation by a specific
general interest. As such, it fits into the classic understanding of the concept of proportionality.
Underinclusive classifications do not include all who are similarly situated with respect to a rule, and
thereby burden less than would be logical to achieve the intended governmental end.
1
The problem is best illustrated by an example found in the ECJ’s case law itself: In several Member
States of the European Union (EU), the organization of betting and other gambling activities is
heavily regulated. Some Member States prohibit the establishment of private gambling providers.
At the same time, however, these Member States offer games of chance such as a state lottery, or
even the same gambling modes as private businesses, advertise for these games and expand the
variety of games offered.
2
The ECJ had to decide if these regulations, which clearly hinder the
freedom of establishment, Art. 49 of the Treaty on the Functioning of the European Union (TFEU),
and freedom to provide services, Art. 56 TFEU, are justified by the state’s public policy concerns.
The question arises: Are these measures not incoherent? And what effect does this observation
have?
In the US, the question of underinclusiveness has come up in a recent, heated political and legal
debate on President Trump’s ‘Muslim ban’: In January 2017, the US President issued an Executive
Order ‘Protecting the Nation From Foreign Terrorist Entry Into the United States’.
3
As a result of
this order, entries from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen were temporarily
suspended. Fairly immediately after the order was issued, the media started to question, why other
countries like Saudi Arabia or Pakistan – possible state sponsors of terrorism – or other Muslim
majority countries such as Egypt were not included in the ban.
4
Speculations about these countries
not being included because of their ties to Trump’s businesses,
5
as well as the allegation that the
ban was motivated by islamophobia,
6
arose. Can such a measure withstand constitutional scrutiny
in light of its underinclusiveness?
I. Preliminary questions
A. Underinclusive disproportionality?
At a first glance, underinclusiveness and proportionality review seem to be mutually exclusive.
When we think about proportionality review, we usually think about situations in which the state
1. L. Tribe, American Constitutional Law (2nd edition, West Academic Publishing, 1988), p. 1447.
3. See Executive Order 13769 of January 27, 2017, 82 FR, p. 8977–8982.
4. Compare, for example, A. Neier, Saudi Arabia and Egypt are excluded from Trump’s ban. Why?, http://theguardian.
com, 30.01.2017; A. Jaffe, Priebus: Immigration Order ‘Doesn’t Include’ Green Card Holders, But Anyone Traveling to
Banned Countries Will Be ‘Subjected to Further Screening’, http://nbcnews.com, 29.01.2017.
5. See S. Osborne, Muslim-majority countries where Donald Trump does business not included in travel ban, http://
independent.co.uk, 27.06.2017.
6. A. Caldwell & E. Swanson, Poll: Courts are right in blocking Trump’s travel ban, http://apnorc.org, 20.06.2017; M.
Bayoumi, Trump doesn’t want Muslims in the US. That’s OK with the Supreme Court, http://theguardian.com,
26.06.2017.
Wendland 333
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