Policy derogations provide an important means for Member States to enact social, cultural, and moral values that they deem of fundamental importance for their nationals. Nevertheless, because policy derogations allow a Member State to restrict Community freedoms under the EC Treaty, the European Court of Justice analyses these policy grounds strictly. Through its use of the proportionality principle, the Court can narrow the margin of discretion of the Member States. Under the three prongs of the proportionality test, the Court reviews the necessity and legitimacy of the measure proposed, whether any less restrictive alternatives are available, and whether the means employed are proportional to the end pursued.
This article proposes that the Community context often dictates the outcome of the proportionality test. In a number of decisions, the Court weighs the Community burden against the envisaged benefit for a Member State's nationals. In doing so, the Court appears to seek consensus by considering whether the value sought to be protected by one Member State is of similar concern to other Member States. Although the Court does not conduct a comparative analysis of the policy aims of each Member State, this article argues that the Court may be said to legitimise a 'European' conception of values and to provide an impetus towards gradual harmonisation of fundamental rights.
European Review of Private Law