Proportionality in Fundamental Rights Conflicts in National Measures Implementing EU Law

Abstract

In this paper, proportionality and balancing of fundamental rights conflicts in national measures implementing EU law are examined. Different contexts of proportionality evaluation and fundamental rights are identified, with the focus on the aforementioned conflicts. A five-step procedure is submitted for evaluating proportionality. The procedure entails identifying the context and depth of evaluation, identifying different parties' interests, identifying the principles and national law, formulating the concrete criteria used in evaluation, and finally applying the criteria in proportionality test. The procedure is illustrated with examples of intellectual property rights enforcement using faultless third-party intermediaries and in particular website blocking orders.

Keywords: proportionality, balancing, fundamental rights conflicts, IPR enforcement