Jean Monnet Center at NYU School of Law


Author: Matej Avbelj

Title: 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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Last updated on October 12th, 2004

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