General principles of fundamental rights II: limitations, proportionality, and the margin of appreciation
6 important questions on General principles of fundamental rights II: limitations, proportionality, and the margin of appreciation
Different categories of rights ECHR
- Absolute/non-dergable rights
- interference is impossible
- if there is an interference immediate violation
- ex. Prohibition of torture
- relative/ derogabel rights with specific limitation clause
- only the justification ground in the article specifically is allowed to be a justification
- ex. 5(1) ECHR/ 2 ECHR
- relative/ derogable right with general limitation clause
- general limitations are mentioned in the article, but there are certain conditions to be met
- ex. 8-11 ECHR/ protocol no. 4
- relative/ derogable rights with implied limitation clauses
- there are certain ways to limit this right. Reasonableness/logic is the main factor in restricting there rights
- ex. Art. 2 protocol no. 1
Limitation clause of CFR
This can be problematic because the article does not leave any fundamental right out of justification. In theory states can talk their way into interfering with absolute rights
HOWEVER -> homogeneity clause (52(3) CFR)
- the meaning and scope of the rights in the ECHR are the also guaranteed by the CFR.
Justification requirements art. 8 -11 ECHR
- Provided by law
- no procedural requirement
- incl case-law or policy regulations
- CJEU follows ECtHR's line
- sub-requirements
- the law needs to be accessible and foreseeable
- ECtHR Gillan and Quinton §76
- prohibition of arbitrariness
- ECtHR Gillan and Quinton §77
- pursue a legitimate aim (see article)
- necessary to achieve the aim (proportionate)
- synonyms: ''indispensible'', ''admissible'', ''ordinary'', ''useful'', ''reasonable'', ''desirable'', etc
- pressing social need
- ECtHR Varvricka v. Czech Rep.
- margin of appreciation
- relevant and sufficient reasons
- other measures possible?
- Higher grades + faster learning
- Never study anything twice
- 100% sure, 100% understanding
For my 1st exam I got a C. Then, I started looking for ways to learn better and I came across Study Smart. Since then I have scored a A+, A, A- and another A. I highly recommend it to everyone who wants to hear it. I am so happy with it!!
I was struggling to finish all my first-year subjects for 3 years. Then I discovered Study Smart, which helped me to finish all of them within 3 months.
Because of StudySmart, things are going well in many ways. Before, I always had study stress and no time for anything. Now I feel calm and confident (because of the program). I used to score a B, now I usually score an A or A+.
Hey Chris, I really want to thank you very much for developing the platform, I usually got around C for my exams, now I scored an A+, an A and a A- !!
Since using Study Smart, my average has increased significantly. I even completed a statistics course with a A+ while I'm bad at statistics. I took on extra courses this year, because of Study Smart. Thanks so much!
Ever since I started studying with StudySmart I passed all my exams !!! No more re-sits!! At first, I was happy with a pass and now I only get good grades. Many thanks!
I aced all the courses I studied with Study Smart. For law, I first scored a D, and now an A! I’m 100% sure that I’ll pass all the courses I study with Study Smart.
I always thought I studied well. My grades were fine. I could never have imagined that applying these study skills would have such a huge and direct impact on my grades, my speed and the pleasure I have in learning.
For the first time, I finally feel totally confident about the way I learn. I have the perfect overview and make great progress in terms of speed and the grades I get. Thanks, Chris!
I immediately started to enjoy learning again, and my grades soared. All of a sudden, everything went better. I highly recommend Study Smart to all students..
Being able to create my materials online made the process of studying so much smoother and quicker. I no longer have to spend a huge amount of my time on creating my summaries.
At first, my notes were a mess. Now I use Study Smart to take my notes in a perfectly structured way. It helps me to save a lot of time and do other things I enjoy.
Students that study with Study Smart get better grades. The system applies all the learning methods in such a way that both well-performing students and students who struggle perform much better.
Hi Chris, I would like to thank you very much. Last year I scored C on a course, and this year I got an A+ thanks to your method! Thank you very much!
The largest effect is that my child is more enthusiastic about school! Every parent wants their children to be happy at school, Study Smart made it happen.
In high school, I failed several exams, and that has really changed now. I actually needed this tool very much back then. Since I started studying with StudySmart, I haven't had any D's. My average score is now an A and those are results I would have never had in the past
With my old method, I passed only 3 out of 8 courses. Since I started taking my notes digitally in Study Smart, I have passed all my courses on the first try. For me, StudySmart takes away the stress of wondering if I will pass or not.
Thanks to StudySmart, I passed all my exams, and with better grades than before! On top of that, I have mastered a very good study method now, which I am confident will help me earn my degree.
Justification requirements CFR
- provided by law
- respect for the essence f the right
- genuinely meet objectives of a general interest recognized by the EU OR need to protect the rights and freedoms of others
- necessary and proportionate to the aim
- CJEU Centraal Isrealistische Conistorie van Belgie
- CJEU Sky Ostenreich
- CJEU Digital rights Ireland
ECHR v. CFR on justification grounds
- limitation clause for each provision
- ECHR does not mention the 'essence' of rights
- ECHR does not mention a 'test of effectiveness'
- codified legitimate aims
CFR
- one limitation clause
- express mention of core rights formula (''essence'' of rights and freedoms must be respected)
- express of test of effectiveness
- genuinely meet objectives
- wider set of legitimate objectives
Other proportionality tests within justification
- Necessity test
- fair balance test
- inherent to the convention. It is a search for a fair balance between the demands of the general interest and the requirements of the individuals FR
- individual or excessive-burden test
- the rule may be reasonable in the abstract, however it can have very negative impact for the individual
- core rights protection
- ECHR
- CFR - any limitation must respect essence of those rights and freedom
application
- ECtHR
- generally overall balancing review, however many variations
- ECtHR Animal Defenders
- CJEU
- proportionate
- necessity
- core of the right
The question on the page originate from the summary of the following study material:
- A unique study and practice tool
- Never study anything twice again
- Get the grades you hope for
- 100% sure, 100% understanding
