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When Interests Collide: The Example of Diverging Levels of Protection of Fundamental Rights in the EU

Darinka Piqani

Fundamental rights protection in Europe is based on a multilayered system and therefore divergences may potentially arise in practice. One expression of this is the judgment of the CJEU in case C-399/11 Melloni [2013] in which a conflict between the level of protection of fundamental rights as interpreted by the Spanish Constitutional Court and the protection of fundamental rights in the EU was apparent. The ECHR, as the bridge between the national and EU system represents a minimum level in the protection of fundamental rights. At the EU level, the protection of fundamental rights is not the only interest: the completion of the internal market and the achievement of other policies which at times may be at odds with protection of fundamental rights by national courts or ECtHR, constitute central pillars for the existence of the EU. After defining the concept of interest in this context, the paper sets out the potential collision in the levels of protection and investigates ways of dealing with this issue: is it reasonable and legally sound to give Member States some leeway in accommodating their level of protection within the scope of application of EU law? If yes, to what extent so that this is compatible with EU law? Is lowering down the level of protection of fundamental rights by the Member States a desirable way of dealing with this issue? Despite the doubts casted by Opinion 2/13 on a future accession of the EU to the ECHR, would accession offer a solution?

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