Naslov
Balancing Free Market and Social Rights in a Post-communist European State

Autori
Rodin, Siniša

Vrsta, podvrsta i kategorija rada
Radovi u zbornicima skupova, cjeloviti rad (in extenso), znanstveni

Izvornik
Ceci n'est pas une Constitution- Constitutionalism without a Constitution? European Constitutional Law Network- Series Vol. 7 / Ingolf Pernice i Evgeni Tanchev - Baden-Baden : Nomos Verlag, 2008, 212-224

ISBN
978-3-8329-4132-1

Skup
Ceci n'est pas une constitution - Constitutionalisation without a constitution

Mjesto i datum
Sofija, Bugarska, 17.04.2008. - 19.04.2008

Vrsta sudjelovanja
Plenarno

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
Market freedoms; proportionality; courts; social rights

Sažetak
It is nothing new to say that the Constitution of the EU is a fragmentary one. Moreover, it is fragmentary in at least two respects. First, it is not codified and contained in a single document, or a set of documents. And the ratification of the Lisbon Treaty will not change anything in this respect. Second, it is fragmentary in the sense that it is underinclusive and covers only some elements of a fully-fledged constitutional order. The mentioned underinclusiveness enabled the European Court of Justice to gradually develop substantive constitutional law of the European Union. However, regardless of being fragmentary, the legal order of the European Union is nevertheless a constitutional order. Being so it, by necessity, affects constitutional orders of the Member States. In my presentation I will address one specific issue, namely, how the Union's constitutional order affects justiciability of fundamental rights on the national level. More specifically, I will address issues related to adjustment of the Croatian legal order to the requirements of EU membership. Similar to other post-communist European states Croatian constitutional heritage is characterised by tradition of non-justiciability of fundamental rights guarantees. Those guarantees were either absent, or, in case of social rights, unjusticiable. Indeed, 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. 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.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA