The Principle of Proportionality in Restrictions on Economic Freedom

The article explores the role of the principle and test of proportionality in limiting human rights, with particular emphasis on economic rights. The principle of proportionality delineates the boundaries of legitimate restrictions, while the proportionality test provides a structured methodology for assessing their constitutionality. Although mentioned only briefly in legislative texts, proportionality has evolved in case law—ranging from the German Federal Constitutional Court to the CJEU and the ECtHR—into a central standard of judicial review. While critics caution against the risks of formalism and subjectivity, its application facilitates a reasoned balancing between public interests and the rights of individuals and enterprises. In Slovenia, despite being formally situated within the chapter on economic and social relations, economic free dom is treated as a human right, subject to strict proportionality review. The ECtHR protects economic activity primarily through the right to property and the requirement of a fair balance, whereas the CJEU applies proportionality as a general principle of EU law, adjusting the intensity of review according to the context. A comparison of the Slovenian cases Oklešen and Interzero il lustrates that a regulation adopted without transitional measures or opportunities for participation may impose a disproportionate burden on individuals and is therefore questionable in terms of its compatibility with constitutional and European standards.

Key words: proportionality; constitutional law; economic rights; Court of Jus tice of the European Union; Constitutional Court, free economic initiative.