LIMITING CLAUSES:ON THE CONTINENTAL EUROPEAN TRADITION OF SPECIAL LIMITING CLAUSES AND THE GENERAL LIMITING CLAUSE OF ART 52(1) CHARTER OF FUNDAMENTAL RICHTS OF THE EUROPEAN UNION
Author: Borowski, Martin
Source: Legisprudence, Volume 1, Number 2, 2007 , pp. 199-240(42)
Publisher: Hart Publishing
Abstract:In the Continental European tradition, provisions granting fundamental rights frequently include a written limiting clause such as art 11(2) ECHR: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ….” Instead of the traditional system of special limiting clauses, in which provisions granting rights include their own limiting clauses, one finds in the Charter of Fundamental Rights of the European Union in art 52(1) a general limiting clause. The introduction of this provision is a welcome basis for analysing the nature of limiting clauses in general and the respects in which general limiting clauses differ from systems of written and unwritten special limiting clauses in particular. The formal requirement of limitation by law and the substantive requirement of proportionality prove to be the essential limiting criteria.
Keywords: Charter of Fundamental Rights; qualified rights; limiting clause; absolute rights; outworking; prescribed by law; proportionality; intensity of review; level of protection; most favoured nation clause
Document Type: Research article
Publication date: 2007-01-01
- Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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