Supra national courts and individual rights: Europe and its constitutional conscience

Mer, 05/25/2022 - 13:00 / 14:30

206AB, Viale Romania

Speaker: Takis Tridimas , King’s College London

Abstract

Constitutional courts engage in balancing conflicting rights, principles, and interests. This balancing exercise raises profound questions about the separation of powers and the proper limits of the judicial province. When balancing takes place at a supra-national level by the CJEU or the ECtHR, the judicial exercise acquires added dimensions of complexity. This paper attempts to explore some of the issues arising in CJEU adjudication. In contemporary EU law, constitutional clashes occur in the backdrop of three developments: the proliferation of EU rights, greater emphasis on the values of Article 2 TEU, and enhanced prominence of EU structural principles. The paper first defines the universe of conflicts that arise in EU law and seeks to provide a typology of conflicts. It then attempts to identify some of the factors that the CJEU should take into account in resolving them. It focuses, in particular, on what factors may determine whether the CJEU does the balancing or whether it leaves it to the Member State, where EU or interests conflict with rights or interests protected by national law.