Articol despre conflictul intre drepturile fundamentale din perspectiva CEDO, CJCE & a instantelor nationale…

Fundamental Rights and Other Interests - Should it Really Make a Difference?
Janneke H. Gerards

University of Leiden, Department of Public Law
In: Brems, E. (ed.), Conflicts between Fundamental Rights, Antwerp/Oxford: Intersentia 2008

Abstract:     
When speaking about conflicts between fundamental rights, we have the impression that we speak about something special. Courts appear to be willing to decide a case concerning an infringement of a classic fundamental right, such as a civil or political right, since they feel they can do so on the basis of clear legal standards. On the other hand, they are reluctant to adjudicate claims concerning social or economic interests, as they consider political and policy arguments to be of more importance there. Accordingly, courts generally show a larger measure of deference in the latter type of case than in cases concerning clearly identifiable individual interests or rights.The question is, however, whether the distinction we make between classic fundamental rights and other interests is always reasonable and if it is justifiable to attach far-reaching judicial consequences to the distinction. The choice of judicial method and intensity of review should not solely depend on the question whether an individual interest is protected by national or international instruments containing enforceable fundamental rights. This thesis is elaborated in this paper on the basis of the case law of the European Court of Human Rights, the European Court of Justice and administrative courts in the Netherlands and the United Kingdom. On basis of these case law analyses, conclusions are reached regarding the difference between fundamental rights and interests in the assessment methods of national and European courts. Also, a tentative effort is made to formulate an alternative approach.

Aici (*).