The mutltilevel protection of fundamental rights under European Union law: the economic freedoms’ moulding role | 2015

Author(s) Maria Ana Prelada Correia Ferraz
Advisor(s) Alessandra Silveira
Year 2015

Synopsis The present study examines the multilevel protection of fundamental rights under European Union law focusing on the economic freedoms’ moulding role over that protection. The concept of a multilevel protection of fundamental rights derives both from INGOLF PERNICE’s “multilevel constitutionalism”, widely accepted by national and international doctrine, and from article 53.º of the Charter of Fundamental Rights of the European Union. The original designation by the Portuguese doctrine to describe such phenomenon would be “interconstitutionality” – which reproduces, perhaps in a more accomplished way the idea of an interconnection model where there is no space for levels in a hierarchical sense, as explain ALESSANDRA SILVEIRA/MARIANA CANOTILHO. Due to all the fundamental rights spheres of protection there coexisting, the system of fundamental rights’ protection applicable in the European Union territory assumes itself as one of the most sophisticated systems in the protection of those rights. There you can find several distinct legal orders that have application over that same territory – from national legal orders, to the European Union legal order, and the international legal order. Each of those legal orders has it’s own institutions, rules and mechanisms to protect fundamental rights and they all overlap and intertwine in order to, at least theoretically, assure a higher and more advanced level of protection to the individuals to whom they apply. Nevertheless the coexistence of different legal orders raises several problems concerning essentially the delimitation of the application scope of each of them and the consequent articulation/interconnection of the distinct levels of protection that they grant. The introduction of the European Union in the fundamental right’s equation, given the specificity of its’ own protection model along with the constant evolution of the integration process, makes it impossible to make a static analysis of this phenomenon specially after the entry into force of the Lisbon Treaty. What we set ourselves to do with this study is mainly to analyse the way how – departing from a fundamental rights’ protection forged by the Court of Justice of the European Union’s case-law, based on the general principles of European Union law and of the economic freedoms – the system evolved towards the current protection in light of the alterations brought by the entry into force of the Lisbon Treaty. It matters to scrutiny if the economic freedoms’ moulding role – present at the beginning and through the development of fundamental rights’ protection by the European Union’s legal order – has been weakened by the development of a formal protection of those rights by the Charter of Fundamental Rights of the European Union and of the Treaties after the entry into force of the Lisbon Treaty. Or whether on the contrary, the economic freedoms’ moulding role on the protection of fundamental rights by the European Union’s legal order is still a reality and in what way it is still so. Underlying this analysis we have always the uneasiness of unveiling the current function of the internal market in the integration process, since the economic freedom’s moulding role in the protection of fundamental rights by the European Union’s legal order didn’t appear by chance but because the political project for European integration has been materialized through the market, first common, than single, now internal. It has been the importance of the market as an instrument of realization of the political project of the European integration that led to the “constitutionalization of the economic freedoms” in which the market is founded – and in which we included the “freedom” of competition – thus converted in a vehicle of substantiation of that political project in constant evolution, and through which the integration project has been led to areas not strictly economic as happens with the protection of fundamental rights.

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2018-02-08T12:23:28+00:00