Judge the Nudge: In Search of the Legal Limits of Paternalistic Nudging in the EU
Alberto Alemanno and Anne Lise Sibony (eds.), Nudging and the Law. What Can EU Law Learn from Behavioural Sciences? (Oxford: Hart Publishing) 2015, Forthcoming
34 Pages Posted: 11 Feb 2015 Last revised: 18 Jun 2015
Date Written: February 10, 2015
Nudges having paternalistic purposes (paternalistic nudges) pose special legal problems in liberal States. Surprisingly, the discussion on regulation-by-nudging has not focused on the constitutional limits to nudging. Although the property rights of firms potentially infringed by nudging measures are dealt with in more detail in the literature as well as by national and international courts and tribunals, the potential infringement of the rights of those being nudged is neglected. But judges may at one point be confronted with a nudge regulation challenged by the individuals being nudged; and even before reaching a court, the legality of nudging should be scrutinised by legislators.
I explore the legal limits of paternalistic nudging under the European Convention of Human Rights and the EU Charter of Fundamental Rights, judging different types of nudges by the proportionality principle. At issue is the question of how much paternalistic nudging and what types of paternalistic nudges the fundamental rights protection in the EU permits. Before the EU uses paternalistic regulation-by-nudging, we need to “judge the nudge.”
Keywords: Nudging, Law, European Convention of Human Rights, EU Charter of Fundamental Rights, fundamental rights protection
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