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

U. of St. Gallen Law & Economics Working Paper No. 2015-01

34 Pages Posted: 11 Feb 2015 Last revised: 18 Jun 2015

See all articles by Anne van Aaken

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Date Written: February 10, 2015

Abstract

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

Suggested Citation

van Aaken, Anne, Judge the Nudge: In Search of the Legal Limits of Paternalistic Nudging in the EU (February 10, 2015). Alberto Alemanno and Anne Lise Sibony (eds.), Nudging and the Law. What Can EU Law Learn from Behavioural Sciences? (Oxford: Hart Publishing) 2015, Forthcoming; U. of St. Gallen Law & Economics Working Paper No. 2015-01. Available at SSRN: https://ssrn.com/abstract=2563296

Anne Van Aaken (Contact Author)

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

Register to save articles to
your library

Register

Paper statistics

Downloads
436
rank
64,291
Abstract Views
1,811
PlumX Metrics