Proportionality lost - proportionality regained?

In recent years, the European Court of Justice (the ECJ) seems to have accepted restrictions on the freedom of establishment and other basic freedoms, despite the fact that a more thorough proportionality test would have revealed that the restriction in question did not pass the 'rule of reason' test (imperative reasons of overriding public interest) in its present form, as less invasive measures could have achieved the same objective. The reason behind this development is very likely the failure to commit adequate resources to demonstrate which lesser measures could have been applied. This often cannot be done without thorough knowledge of the particular legal field in which the case is anchored, and the ECJ is often left to flounder somewhat on this, with the result that we are suddenly faced with the Court’s acceptance of a restriction. The difficulty often lies - not in recognising the restriction, but in testing its proportionality. The article illustrates its point by referring to two categories of decision: (A) proportionality-strong decisions, which illustrate a thorough and firm proportionality assessment, and (B) proportionality-weak decisions, which could have led to a different result if the proportionality argument had been based on adequate insight. Proportionality-weak decisions are in the article be categorised as: (1) Cases in which the ECJ allows itself to be “talked into” accepting a restriction, and for which the question of proportionality actually has been considered, but where an even less invasive measure could have been found, and (2) cases in which attempts to find a less invasive measure have simply been abandoned. The article takes a critical stand on these two categories of decisions.