Search and seizure procedures at lawyers’ and doctors’ premises put pressure on professional secrecy. In order to protect secrecy Belgium, France and The Netherlands introduced procedural guarantees based on the interplay of the examining magistrate, the representative of the professional association and the lawyer or doctor. Although the actors are similar, the level of protection differs. Under the terms of the European Convention on Human Rights a minimal level of protection is nevertheless vital. This contribution compares the interplay between the actors in Belgium, France and The Netherlands and evaluates whether all three countries meet the minimal level of protection required by the European Court of Human Rights. It subsequently concludes that an evaluation based on human rights is blind at one eye: although the rights protected by professional secrecy are decently preserved, professional secrecy itself is not.
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- Author or Editor: Tim Opgenhaffen x
Valerie Dhooghe, Rosanne Franken and Tim Opgenhaffen
This article analyses two aspects of judicial activism at the European Court of Justice.* First, four German landmark cases concerning European law demonstrate the dialogical relationship between the European Union and their member states with regard to judicial activism. Here, the question of whether the interaction between the ecj and the German Constitutional Court (das Bundesverfassungsgericht) has consequences for the amount of judicial activism arises. Second, on the basis of rulings on discrimination law and the internal market law, it is substantiated that activism is not a negative, but a normal feature of the ecj and that rather judicial restraint constitutes an interesting deviation. Consequently, we conclude that judicial activism at the ecj is a natural feature in a dialogical context.