Fundamental Rights and Fundamental Freedoms: A Symbiosis on the basis of Subsidiarity

Abstract

The article examines the problematic relationship between fundamental rights and fundamental freedoms. The argument is that the relationship has now changed after the decision in Schimdberger and especially after the subsequent clarifying judgments in Omega and Herbert Karner. It is submitted that the ECJ created the conditions for a harmonious symbiosis between fundamental rights and fundamental freedoms by distinguishing between three types of case (classic/ERT, hybrid/Schmidberger and hard/Omega) which reveal differing levels of intensity of judicial scrutiny. The deciding factor for intensity is the nature of the fundamental right and the existence, or lack of, common European ground for to the right in question. The principle of judicial subsidiarity will apply by recognizing a wide margin of discretion for national authorities and delegating the responsibility for scrutinizing State action to the national courts.