Social Rights protection problems in conflicting situations with market freedoms in European Union Law (original) (raw)
Related papers
2018
This Article analyses how the Court of Justice decides on conflicts between fundamental freedoms and fundamental rights in the EU. The practice of the Court will be compared with similar cases from the practice of the US Supreme Court where rights protecting economic activity and other rights come to conflict. This comparison demonstrates that the challenges faced by the Court of Justice regarding conflict of rights cases are not peculiar. The relevant case law of the Court has been the subject of criticism. The criticisms raised in relation to the way of resolving conflicts of rights by the Court of Justice could be eliminated either by the refinement of judicial argumentation of the Court or, following the example of US law, by legislation.
Prague Law Working Papers Series No. 2017/II/1, 2017
Ten years after the well-known Viking and Laval judgments, there is still no end to the debate about the appropriateness of the EU Court of Justice (CJ) approach to cases of conflict between the fundamental freedoms of the EU internal market and the fundamental, especially social, rights protected by EU law as well. The CJ does not abandon its pre-Lisbon case law, only the accent seems to change. In its recent decisions however - in particular the AGET Iraklis one from December 2016 - a quite more socially responsive approach can be traced. The following analysis attempts to sum up the path that the CJ has made between the Viking and AGET Iraklis judgments. It wonders whether the CJ has found the optimal solution for clashes between fundamental freedoms and fundamental rights. It shows that this is not yet the case, because even in the AGET Iraklis judgment CJ did not abandon the one-sided test of proportionality, which treats basic social rights and their protection as possible exceptions to the freedoms of movement that could be acceptable only if they are reasonably justified by the protection of overriding reasons in public interest.
Protecting Fundamental Rights within the European Union
Purpose: The purpose of this article is to study the basis of a multidisciplinary approach and a comparative method of protection of basic economic rights in the European Union in order to determine the degree of their protection and implementation and to determine the model of state intervention in the economy. Design/Methodology/Approach: The study based on comparative analysis of state intervention models in the implementation of economic freedom. Doctrinal legal analysis is based on a dual method: first, descriptive and analytical, which explains all points of view, and second, a neutral and critical assessment of certain academic debates and legal considerations. Findings: The research findings demonstrate that the characteristic features of the protection of economic rights of individuals and legal entities in the EU countries are analyzed. The need to study the case law of the EU Court is identified and justified. Based on the analysis, the article suggests paying attention to the obligations of business to respect human rights. It is concluded that it is necessary to develop the state's obligations in the field of economic and social human rights, their protection and promotion. At the same time, the state's obligations to protect economic human rights require that the state prevent violations of economic human rights by third parties. Practical Implications: This research raises awareness of the instrument to strengthen the rule of law, helping to promote judicial reform and the rule of law that has a significant impact on investment decisions and business engagement. Policy makers should devote
Protection of Social Rights as a Permament Challenge for the European Union
Review of European and Comparative Law, 2021
Social rights protection in the European Union has undergone significant development. Currently their protection is regulated by relevant treaty provisions and the Charter of Fundamental Rights (Charter), both of a primary law nature, as well as by the non-binding European Pillar of Social Rights (Pillar). The aim of the paper is the assessment of the social rights protection in the EU, and whether all social rights provided in the CFR have their counterparts in the EPSR, hence whether and in what way the EPSR assists the actual exercise of social rights provided by the CFR. Comparing the content of the above-mentioned legal instruments makes it possible to answer the question whether all social rights provided in the Charter have their counterparts in the Pillar. This can help determine whether the latter affects the implementation of the former. If the answer is in the affirmative, it can further allow for determining in what way the principles of the Pillar assist in the actual e...
The Harmonization Potential of the Charter of Fundamental Rights of the European Union
European Journal of Law Reform
This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and nonapplication of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonisation of human rights protection has emerged.
Legal limitations of socio-economic rights: positive and negative experience of Europe
Revista Amazonia Investiga
The article shows the review of legislative restrictions in European countries which deal with the limitations of the socio-economic rights of the population. The research aims to analyze the limits of human and civil rights and freedoms in modern conditions and directly related relations based on the study and generalization of the doctrinal heritage of legal science, current European legislation, and practice of its application. The article highlights the critical analysis of scientists' opinions on the formation and limitation of socio-economic rights, makes a general assessment of the legislative regulation of this issue. As a result, the features of legislative protection of human rights in European countries, the place of socio-economic rights in the general human rights, and their importance for the socio-economic development of society are shown. Furthermore, the main principles of legislative regulation and practical restrictions are shown: the supreme source of law, in...
Fundamental Human Rights in the European Union
2014
The author of this paper examines the process of development of the fundamental rights protection in the European Union. Firstly, he applies the historical method by explaining how and why in the beginning the European Communities did not engage with fundamental rights. Later on, the development of the notion of human rights as part of the European Community law is exposed first in the case law of the Court of Justice, which was subsequently codified through Treaty reforms in the 1990s and 2000s. Likewise, stress is put on the research of the Charter of Fundamental Rights of the EU, its structure, place in the Union law and legal standing. In the end, the difficult process of the European Union’s accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms is explored, alongside with the European Court of Human Rights’ jurisprudence with regard to the European Union.