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Table of Contents: I. Introduction. – II. Fundamental freedoms and fundamental rights in EU law. – III. Comparability of the case law of the Court of Justice and the US Supreme Court on conflicts of rights. – IV. Criticisms related to the Court of Justice case law. – IV.1. Hierarchy. – IV.2. Balancing by the Court of Justice. – IV.3. Fundamental freedoms and social rights. – V. The case law of the US Supreme Court. – V.1. Hierarchy. – V.2. Balancing. – V.3. The right to take collective action and economic activity. – VI. An alternative approach in EU law. – VI.1. An alternative judicial method for solving conflicts between fundamental freedoms and fundamental rights. – VI.2. Legislation for solving conflicts of rights. – VII. Conclusions.
Abstract: 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.
Keywords: fundamental rights – fundamental freedoms – conflict of rights – tests – balancing – proportionality.
European Papers, Vol. 3, 2018, No 2, pp. 563-600
ISSN 2499-8249 - doi: 10.15166/2499-8249/237
* Senior lecturer, ELTE Eötvös Loránd University, Budapest, firstname.lastname@example.org.