Lena Güldenstein Schutzbereich und Eingriff in der Europäischen Grundrechtsdogmatik

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Both the European Court of Human Rights and the European Court of Justice are guided by the three-step scheme in their case-law on fundamental rights. It includes the steps of the scope of protection, the interference and the justification and is well known from German fundamental rights doctrine. This paper examines whether the ECtHR and the ECJ interpret the scope of protection and the interference in a broad or narrow manner by setting abstract and general limits that exclude certain activities or sovereign measures from the fundamental rights' prima facie-protection. This is particularly relevant with regard to the complete protection of freedom in Europe, since neither the fundamental rights regimes of the European Union nor the ECHR contain any fundamental right to general freedom of action or any similar subsidiary fundamental right. Moreover, limiting the scope of protection or the interference removes the pressure from the Union legislator and the Commission or the Member States to justify the making or implementation of Union law, which restricts the sovereign freedom of action. Against this background, the ECJs interpretation of the scope of protection and the interference of the so-called economic fundamental rights, namely the freedom to choose an occupation, the freedom to conduct a business and the right to property, is of particular inter- est. The question arises whether the ECJ attempts to resolve the Union-typical conflicts between economically exercised freedom and its protection under procedural rights, in particular under the legal privilege, on the one hand, and the sovereign enforcement of the single market and the promotion of competition, on the other hand, by means of limitations of the scope of protection and the interference of the economic and procedural fundamental rights. It gets also examined how rationally justifiable such approaches can be with regard to the case-law of the ECtHR. Finally, the alternative possibilities of solving the concrete conflicts at the level of justification are outlined. In particular it shall be considered wether and under which conditions the level of justification preserves the flexibility of the legislature and executive by granting only limited scope for judicial review.