The ECJ has applied fundamental rights and the principle of proportionality for decades. This book tries to elucidate the Court's approach to these fundamental tenets of Community law. It starts with establishing a firm theoretical foundation. Then, the book analyzes the case law of the ECJ and other constitutional courts to find out which method courts actually apply. Next, it is discussed why the courts follow a particular approach. Then, it is considered whether the approach fulfils constitutional requirements. Finally, a rationalizing model of balancing is developed. The book is useful for the practitioner as well as for the researcher. It does not present a mere summary of the Court's case law but a systematization of the underlying rationales.
Davor Šušnjar, Dr. (2009) in Legal Theory, Legal Philosophy, and European Law, University of Bremen (Germany) is currently attending the German legal preparatory service.
Table of contents
Excerpt of table of contents:
Abbreviations; Note on Citations; List of Symbols; Table of Cases;
1 Standards of Legal Reasoning;
II The Application of Fundamental Rights and the Proportionality Principle:
2 Case Law;
3 Case Law of the ECJ;
III Theoretical Treatment of Balancing:
4 Balancing and Decision Theory;
5 Balancing—A Legal Perspective;
6 A Rule Based Model of Balancing;
General Summary; The Plan of this Study Revisited; A Summary of Concrete Results—in Theses; References; Translations.
All those interested in legal theory and the philosophy of law, constitutional rights and theories of legal justification. Also legal practitioners who deal with the case law of the ECJ.