Sentences with phrase «proportionality test»

In BNM v MGN [2017] EWCA Civ 1767, MGN argued that the new proportionality test applied as success fees and ATE premiums could be regarded as «fees» and «expenses», and therefore fell within the definition of costs.

This emphasis was already visible in the Rendón Marín and CS, both 2016 decisions, in which Member States were precluded from expelling criminal TCN parents of EU citizens without first applying a very stringent proportionality test.

The amendment to FRCP 26 (b)(1) incorporates a multi-factor proportionality test directly into the general discovery scope definition and places «proportional» on equal footing with «relevant» as a discoverability criteria.

Nonetheless, in the most interesting part of its reasoning, the Court considered that the measures contained by the draft agreement were not limited to what is strictly necessary (proportionality test stricto sensu) and therefore not acceptable.

I am no fan of Doré and, notwithstanding my oft - expressed belief that, in light of the current state of the jurisprudence, the most logical next step for Canadian administrative law would be to embrace across - the - board reasonableness review, I would much prefer to see a robust proportionality test applied in cases involving infringements of fundamental rights (see further A Theory of Deference in Administrative Law, chapter 5).

His first line of attack is that the project of adapting the multi-stage proportionality test to administrative decision - maker might have «miscarried» (at para. 110):

In that respect, the Advocate General argues that in relation to the protection of the environment, distinctly applicable measures should be able to be justified, albeit with a reinforced proportionality test:

The Court effectively adopted a two - pronged proportionality test, considering whether the measure was appropriate to achieve its objectives and did not go beyond what was necessary to achieve them [46].

Secondly, and more importantly, the Advocate General argues that not taking into account the discriminatory nature of measures in cases like PreussenElektra and Walloon Waste has the disadvantage that there is no room for an appropriate proportionality test.

[3] The second approach sees the need for a separate inquiry into whether forfeiture is justified based on a discrete statutory proportionality test.

How are courts applying the multi-factor proportionality test now enshrined in FRCP 26 (b)(1)?

Nearly five years on from the introduction of the new proportionality test, we are none the wiser as to its proper application.

A more stringent proportionality test is coming.

Legal and public policy acceptance or accommodation of these religious symbols depends on a variety of factors, but is most often rooted in a constitutional proportionality test that balances the right to freedom of religion against the possible threat to safety, security and public order.

Given the devastating consequences inherent in the use of the UK's current nuclear weapons, we are of the view that the proportionality test is unlikely to be met except where there is a threat to the very survival of the state.

After these general considerations, the AG starts his proportionality test.

In the second part of the Opinion the ECJ, ruling for the first time on the compatibility of a draft international agreement with the CFREU (notably taken as the sole parameter for decision), basically followed the typical structure of the proportionality test.

The proportionality test as applied in Viking and Laval is more or less the only thing left for the CJEU in the absence of a functioning competence (like in Schmidberger and Omega) and considering the unwillingness of the national legislators to tackle the issue (Monti II).

Another solution suggested by Professor Collins is the creation of a proportionality test for fairness requiring greater consideration of both the objective of the employer and the necessity for the decision.

After this proportionality test, the ECJ moved on to the guarantees for passengers» fundamental rights and the oversight mechanisms of the exchange and processing of PNR data.

To apply the proportionality test to these kind of issues resembles — as Bogg emphasizes as well — a «colonisation process» (p. 71) and only some kind of immunity from this economic rationality would make a difference.

Absent too is any consideration of whether a formal reprimand was necessary to achieve the statutory objectives, though this is not surprising considering the replacement of the proportionality test with a less robust balancing exercise.

Nonetheless, it held that the Immigration Rules are compatible with ECHR, art 8 in this respect, as this provision requires there to be a fair balance struck between competing public and individual interests involved, applying a proportionality test, and the policies adopted by the Secretary of State are within the margin of appreciation.

Perhaps limitations on their free movement rights are allowed even without a proportionality test, since the CJEU is silent about it, although I doubt, as explained above, whether that may be concluded from this judgment.

Although Lord Justice Jackson is now proposing that fixed costs is the answer the new rule, which everyone agrees that no one understands, is in fact his doing and follows this recommendation in his report: «I propose that in an assessment of costs on the standard basis, proportionality should prevail over reasonableness and the proportionality test should be applied on the global basis.

In marked contrast to its earlier Brey judgment, the Court states that in the present circumstances no proportionality test in the form of an individual assessment of the person concerned is required (para. 59).

The court was concerned that the UK policy set the threshold so high against the applicants from the outset «that it did not allow a balancing of the competing individual and public interests and a proportionality test by the secretary of state or by the domestic courts» because the applicants had to demonstrate as a condition precedent to the application of the policy, that the deprivation of artificial insemination facilities might prevent conception altogether.

However, the Court of Appeal held that the senior costs judge should have used the proportionality test under the old Civil Procedure Rules.

A senior costs judge was wrong to apply the new proportionality test to success fees and after the event (ATE) insurance premiums, the Court of Appeal has unanimously held in a privacy case brought by a primary school teacher whose relationship with a premiership footballer was exposed by the Sunday People newspaper.

The legislation is paternalistic and excessive and under the proportionality test is unnecessary to protect society.»

Francis Kendall, vice-chairman of the Association of Costs Lawyers, said: «It is disappointing that the court chose not to give any guidance on the application of the new proportionality test, but we understand that three conjoined cases are set to come before the court shortly that will hopefully be a vehicle for such guidance.

A senior costs judge was wrong to apply the new proportionality test to success fees and after the event (ATE) insurance premiums, the Court of Appeal has unanimously held in a privacy case brought by a primary school teacher whose relationship with a premiership footballer was exposed by the Sun

Despite the structured nature of the discretion, the proportionality test still places the judiciary into a process of ad hoc interest balancing and cost benefit analysis.

The judiciary's formulation of the proportionality test under s. 1, somewhat incongruously places the judiciary in the discretionary position of, amongst other things, measuring rationality, assessing legislative means, and considering and balancing the relative costs and benefits of national or provincial legislative regulation.

The Court stresses two elements central to the proportionality test: first, it is for the domestic court to ascertain whether there are effective techniques for detecting HIV in blood donations.

The former stated at para 3.10: «There must be «a reasonable relationship of proportionality between the means employed and the legitimate objectives pursued by the contested limitation» a measure that will satisfy the proportionality test only if three criteria are satisfied: the legislative objective must be sufficiently important to justify limiting of fundamental rights; the measure designed to meet the legislative objective must be rationally connected to that objective.

Second, should these techniques be not available, the French ban does not pass the proportionality test if there are other less onerous effective techniques for detecting HIV (para. 65).

The proportionality test is a function of s. 1 of the Charter, which states: