The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights?

Posted: 9 Jan 2013

See all articles by Massimo Fichera

Massimo Fichera

University of Helsinki -Faculty of Law

Ester Herlin-Karnell

Uppsala University

Date Written: January 8, 2013

Abstract

The area of freedom security and justice (AFSJ) is currently one of the most dynamic EU integration areas. Largely absent from the debate on mutual recognition, which is the main regulatory practice in this policy field, within the AFSJ has been the need to ensure a better balance between security focused instruments and due process rights in national courts. This paper discusses the impact of a proportionality test in the AFSJ and the function of the European Court in this balancing exercise. In addition the paper discusses the consequences, dangers and merits, of applying a margin of appreciation test in this area and what the EU can learn from Strasbourg with regard to the adequate protection of human rights.

Keywords: freedom, security and justice, human rights, margin of appreciation, proportionality, Court of Justice of the European Union

Suggested Citation

Fichera, Massimo and Herlin-Karnell, Ester, The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights? (January 8, 2013). European Public Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2197739

Massimo Fichera (Contact Author)

University of Helsinki -Faculty of Law ( email )

Helsinki
Finland

Ester Herlin-Karnell

Uppsala University ( email )

Box 513
Uppsala, 751 20
Sweden

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