Conflicts Between Fundamental Freedoms and Fundamental Rights in the Case Law of the Court of Justice of the European Union: A Comparison With the US Supreme Court Practice

Abstract

This Article analyses how the Court of Justice decides on conflicts between fundamental freedoms and fundamental rights in the EU. The practice of the Court will be compared with similar cases from the practice of the US Supreme Court where rights protecting economic activity and other rights come to conflict. This comparison demonstrates that the challenges faced by the Court of Justice regarding conflict of rights cases are not peculiar. The relevant case law of the Court has been the subject of criticism. The criticisms raised in relation to the way of resolving conflicts of rights by the Court of Justice could be eliminated either by the refinement of judicial argumentation of the Court or, following the example of US law, by legislation.

Keywords: Fundamental Rights, Fundamental Freedoms, Conflict of Rights, Tests, Balancing, Proportionality