General principles of fundamental rights II: limitations, proportionality, and the margin of appreciation
6 important questions on General principles of fundamental rights II: limitations, proportionality, and the margin of appreciation
Different categories of rights ECHR
- Absolute/non-dergable rights
- interference is impossible
- if there is an interference immediate violation
- ex. Prohibition of torture
- relative/ derogabel rights with specific limitation clause
- only the justification ground in the article specifically is allowed to be a justification
- ex. 5(1) ECHR/ 2 ECHR
- relative/ derogable right with general limitation clause
- general limitations are mentioned in the article, but there are certain conditions to be met
- ex. 8-11 ECHR/ protocol no. 4
- relative/ derogable rights with implied limitation clauses
- there are certain ways to limit this right. Reasonableness/logic is the main factor in restricting there rights
- ex. Art. 2 protocol no. 1
Limitation clause of CFR
This can be problematic because the article does not leave any fundamental right out of justification. In theory states can talk their way into interfering with absolute rights
HOWEVER -> homogeneity clause (52(3) CFR)
- the meaning and scope of the rights in the ECHR are the also guaranteed by the CFR.
Justification requirements art. 8 -11 ECHR
- Provided by law
- no procedural requirement
- incl case-law or policy regulations
- CJEU follows ECtHR's line
- sub-requirements
- the law needs to be accessible and foreseeable
- ECtHR Gillan and Quinton §76
- prohibition of arbitrariness
- ECtHR Gillan and Quinton §77
- pursue a legitimate aim (see article)
- necessary to achieve the aim (proportionate)
- synonyms: ''indispensible'', ''admissible'', ''ordinary'', ''useful'', ''reasonable'', ''desirable'', etc
- pressing social need
- ECtHR Varvricka v. Czech Rep.
- margin of appreciation
- relevant and sufficient reasons
- other measures possible?
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Justification requirements CFR
- provided by law
- respect for the essence f the right
- genuinely meet objectives of a general interest recognized by the EU OR need to protect the rights and freedoms of others
- necessary and proportionate to the aim
- CJEU Centraal Isrealistische Conistorie van Belgie
- CJEU Sky Ostenreich
- CJEU Digital rights Ireland
ECHR v. CFR on justification grounds
- limitation clause for each provision
- ECHR does not mention the 'essence' of rights
- ECHR does not mention a 'test of effectiveness'
- codified legitimate aims
CFR
- one limitation clause
- express mention of core rights formula (''essence'' of rights and freedoms must be respected)
- express of test of effectiveness
- genuinely meet objectives
- wider set of legitimate objectives
Other proportionality tests within justification
- Necessity test
- fair balance test
- inherent to the convention. It is a search for a fair balance between the demands of the general interest and the requirements of the individuals FR
- individual or excessive-burden test
- the rule may be reasonable in the abstract, however it can have very negative impact for the individual
- core rights protection
- ECHR
- CFR - any limitation must respect essence of those rights and freedom
application
- ECtHR
- generally overall balancing review, however many variations
- ECtHR Animal Defenders
- CJEU
- proportionate
- necessity
- core of the right
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