engleski

Balancing Free Market and Fundamental Rights in a Post-Communist European State – A Mission Impossible?

According to standing case law of the ECJ, the Member States must, when transposing the directives, take care to rely on an interpretation which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Also, in application of implementing legislation, national courts must respect the principle of proportionality (see e.g. Case C-275/06 Promusicae). While Croatia has a long pre-democratic history of social rights guarantees, experience of their exercise, especially judicial protection, in circumstances of market economy is largely absent. In my presentation I will focus on Croatian constitutional foundations of proportionality in order to contrast it to the demands of EU membership. My main proposition is that the concept of public interest, as expressed by the Parliament and as interpreted by Croatian courts, typically precludes proportionality analysis. I will try to explain this phenomenon by a specific understanding of separation of powers and the role of courts. That understanding, I claim, will need to change if Croatian courts are to take their share of responsibility in balancing fundamental rights and market freedoms.

fundamental rights, market freedoms, balancing, European Union

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