Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution

Abstract:  This article deals with how the Court of Justice balances fundamental rights protection and Common Market freedoms. From the particular perspective of the Charter and the ECHR, whose legal status will be upgraded upon entry into force of the European Constitution, it studies the Court of Justice's approach to fundamental rights invocations by Member States in the context of Common Market freedoms. For this purpose the judgments in Schmidberger and Omega will be discussed both in the current setting and that envisioned by the European Constitution. It will emerge that the Court of Justice's reasoning in Schmidberger and Omega can be criticised on different levels, and alternative approaches are proposed. At a later stage some further elements for refining the methodology for assessing Member States' fundamental rights invocations are addressed with a view to facilitating the Court of Justice more satisfactorily to take account of the current and likely future setting of fundamental rights protection in Union law.