Afweging van grondrechten in een veellagig rechtssysteem. De toepassing van het proportionaliteitsbeginsel in strikte zin door het EHRM en het HvJ EU

Abstract

Balancing nowadays seems to be omnipresent, in particular in the continental European fundamental rights discourse. The notion has also permeated the case-law of the two supranational courts on which this study focuses: the European Court of Human Rights and the Court of Justice of the European Union. In a reaction to the growing critique on both Courts for a lack of clarity of their rulings, especially those rulings in which they rely on balancing, this study aims at answering the question whether the Courts__ frequent references to the notion of balancing contribute to the intelligibility and transparency of their decisions in cases concerning conflicts of fundamental rights and/or interests. In order to do so, this study combines a legal-theoretical research into balancing with an analysis of the __balancing case-law__ of the two European Courts. The legal-theoretical research leads to an __ideal type__ of balancing that provides a yardstick for the evaluation of the balancing case-law of the Courts. As it is found that the rulings of both Courts can be improved with regard to the application of the notion of balancing, proposals are made to improve the Strasbourg and Luxembourg balancing practices. When doing so, the study pays heed to the challenges the Courts face as a result of the multi-levelness of the European system of fundamental rights protection.