Balancing Conflicting Fundamental Rights: The Sky Österreich Paradigm

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Series Details Vol.39, No.1, February 2014, p111-124
Publication Date February 2014
ISSN 0307-5400
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Publishers Abstract:
Is the Audiovisual Media Services Directive compatible with the Charter of Fundamental Rights of the European Union? The Charter guarantees the right to property and the freedom to conduct a business, insofar as it limits the compensation for broadcasting short news events of high interest to the public to the additional costs incurred in providing access to the signal only. This was the essence of the question referred in Sky Österreich, which gave the Court of Justice the opportunity to explain the circumstances in which legislative provisions intended to safeguard the right to receive information and the pluralism of the media may impose restrictions on other fundamental freedoms protected by the Charter. The ruling suggests that when several fundamental rights guaranteed by EU law are at stake, the EU legislature is given considerable leeway to reconcile their requirements in order to strike a fair balance between them. At the same time, it implies that the balancing of fundamental rights under the Charter will be assessed in accordance with the requirements of EU law without reference to either national constitutional standards of protection or their interpretation by national constitutional courts. The judgment also indicates the role that the Court reserves for itself as regards the determination of the level of fundamental rights protection applicable in the European Union.

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