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Los conflictos entre libertades económicas yderechos fundamentales en la jurisprudencia del Tribunal de Justicia de laUnión Europea
Revista de Derecho Político (2011)
  • Joaquín Sarrión Esteve, Universidad de Valencia
Abstract

As it is known, fundamental rights protection has changed a lot in European Union. At first, the Treaties constituting European Communities were silent on human rights protection, and ECJ had to make it possible. Unlike fundamental rights, market freedoms have always enjoyed an explicit relevance in the Treaties as instruments to serve the attainment of market and economic integration. Nevertheless, fundamental rights have become more relevant with years in the ECJ case law and in European Union Law. And finally fundamental rights have started to clash with fundamental freedoms. Really, there are two types of relationship between market freedoms and fundamental rights: a positive relationship where fundamental rights serve to protect market freedoms; and a negative one with situations where market freedoms and fundamental rights come into a conflict and ECJ must balance between them. In the first type of relationship, the most representative cases begin with Elliniki (1991), and continue with Carpenter (2002), and Karner (2004). In these cases, ECJ stipulates that Member States must respect fundamental rights not only when they implement European Law, moreover this respect is also required to practice an exclusion of treaty obligations. Therefore, a measure restricting market freedom must not only be justified, it should also respect fundamental rights as general principles of European Law. Anyway, a positive synergistic relationship is not a problem to fundamental rights protection. It is in conflicting cases like Schmidberger (2003), Omega (2004), Viking (2007), or Laval (2007), when problems came out. In fact, the question is how ECJ balance between market freedoms and fundamental rights in a conflicting case?

Disciplines
Publication Date
2011
Citation Information
Joaquín Sarrión Esteve. "Los conflictos entre libertades económicas yderechos fundamentales en la jurisprudencia del Tribunal de Justicia de laUnión Europea" Revista de Derecho Político Iss. 81 (2011)
Available at: http://works.bepress.com/joaquin_sarrion_esteve/4/