The ECJ's Adjudication of Fundamental Rights Conflicts: In Search of a Fair Balance

  • Datum:
  • Plats: Brusewitzsalen, Gamla torget 6, Uppsala
  • Doktorand: Karlander, Lars
  • Om avhandlingen
  • Arrangör: Juridiska institutionen
  • Kontaktperson: Karlander, Lars
  • Disputation

This dissertation examines how the European Court of Justice (ECJ) adjudicates conflicts between fundamental rights. It has the two-fold purpose of surveying and analysing the Court’s case law to identify the methods currently being employed, and to make suggestions on how the methodology can be improved.

The case law study shows that the Court employs three main methods for resolving fundamental rights conflicts: avoidance strategies (where a potential conflict is construed as something else), two-step proportionality assessments (where it is examined whether the limitation on one of the rights is suitable and necessary to protect the opposing right), and balancing (where the rights are weighed against each other more directly).

It was further observed that the Court is rather consistent in its approach when the contexts of the cases are considered. The Court will typically apply a balancing as a part of the proportionality test when EU secondary legislation is questioned on fundamental rights grounds. If a fundamental rights conflict materializes in the implementation of EU law by a Member State, the Court will usually do a free-standing balancing. When a Member State derogates from a free movement right in order to protect a competing fundamental right, a two-step proportionality assessment will be performed. Lastly, when the decision of an EU institution is questioned, the Court will resolve the conflict by applying secondary EU legislation.

Two additional observations were made. First, avoidance strategies tend to pop-up every now and then. Second, the Court has become increasingly reluctant to allow the Member States and their courts to determine the balance between conflicting rights.

It is argued that the Court should start using a single method for resolving all types of fundamental rights conflict since this would promote the coherence, predictability and rationality of the adjudication. Three different methods are suggested: the Charter art 52 procedure, the double-sided proportionality assessment, and a structured balancing test created especially with the ECJ in mind. An evaluation led to the conclusion that the structured balancing test is most appropriate. However, the most important thing is arguably that a structured method is applied consistently.