Author: Matej Avbelj
European Court of Justice and the Question of Value Choices:
Fundamental human rights as an exception to the freedom of movement of goods
This paper is divided
into three parts. The first part is focused on the analytical assessment
of the meaning of value choices, regulatory autonomy and identity
in the EU, which is characterized by the complex constitutional relationship
between the Member States and supranational polity. I have conducted this analysis
on the basis of the jurisprudence of the European Court of Justice (hereinafter
Court or ECJ) in the field of freedom of movement of goods which in the most
colorful way depicts the problems, tensions and consequences that arise in
the judicial balancing between the economic values of the Community and other
prevailing values of the Member States.
The second part of the paper is more specifically oriented to
the free movement cases in which the Member States purport to
justify their violation of Article 28 TEC by invoking the need
for protection of fundamental human rights of their citizens.
Avoiding completely abstract approach, I have conducted a short
case study on the basis of the recently decided case Eugen Schmidberger
v. Republik Österreich in which the Court for the first
time directly faced the oppositional relationship between the
Community fundamental freedom of movement of goods and the fundamental
human rights of freedom of expression and association. I have
evaluated the approach of the Court in the light of its current
human rights jurisprudence and through the prism of various critical
theoretical views of this issue.
The purpose of the third
part of the paper is to sum up and to conceptualize the relationship
between freedom of movement of goods and fundamental human rights.
The guiding line of this part is a question whether human rights
as a ground of justification differ from the other grounds of justification
of the obstacles to the freedom of movement and if they therefore
call for a different judicial approach and why.
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