No. 83: Between Rights, Interests, and Risk – The Role of the Proportionality Balancing in the EU Digital Law


  • Jan Czarnocki
Publish Date:
January 20, 2024
Publication Title:
European Union [EU] Law Working Papers
Stanford Law School
Working Paper
  • Jan Czarnocki, Between Rights, Interests, and Risk - The Role of the Proportionality Balancing in the EU Digital Law, EU Law Working Papers No. 83, Stanford-Vienna Transatlantic Technology Law Forum (2024).
Related Organization(s):


The emerging corpus of the EU Digital Law pursues and aims to balance two contradictory objectives: rights protection and respect for economic interests. Legislative inflation in the digital milieu and the above two contradictory goals create a complex and indeterminate legal landscape. The mixture of proportionality principle balancing and risk based approach is used to strike a balance between conflicting objectives and limit uncertainty. Proportionality also aims to solve the complexity and indeterminacy of the EU Digital Law. However, the principle is subject to relentless criticism, accusing it of overt utilitarianism, rights relativism, and hidden judicial policymaking. I argue that the proportionality principle is structurally ingrained in the EU Digital Law, and therefore, rights and interests balancing is inevitable. Private parties assessing risk also play an important role in the EU Digital Law proportionality balancing. Therefore, there is a need for a theoretical and pragmatic frame that explains the principle’s proper use and its strengths and limitations. I propose that the way to properly understand the necessary role of the principle in the EU Digital Law is virtue ethics perspective, along with Robert Alexy’s theory of law. Alexy’s law ideal dimension argument and his law as a rational discourse perspective are of a wealthy explanatory value for proportionality. This theoretical frame enables us to see proportionality as an essential legal virtue. In this article, I first describe the theory of proportionality principle, its main criticism, and the principle’s various incarnations in the EU Digital Law. Then, I explain why manifold new digital laws are complex and indeterminate, given their dual objectives of rights protection and allowing for economic interests pursuit. I describe how risk-based approach further complicates the landscape. Then, I briefly describe Robert Alexy’s theory of law to analyze how Alexy’s rhetorical perspective on law and proportionality principle helps better use the principle in pragmatically achieving EU Digital Law objectives.