When good is not good enough: A comparative analysis of underinclusiveness and the principle of coherence under proportionality review

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 ‘consistent and systematic’. This paper shows the historical development of the ECJ’s jurisprudence and contrasts it with the approach taken by US Courts reviewing 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-test of necessity is the wrong location for asserting those considerations. Most importantly, the ECJ – limited by its institutional design – uses the principle of coherence as a factor when interpreting the national law for its proper purpose