The Compatibility of the UTPR with Fundamental Rights: A Critical Assessment

Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading ‘solidarity'. In this article two basic questions will be addressed. The first question will address the ‘old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test ‘light' in order to limit the interference of EU law with the essence of fundamental rights.

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

This study puts into historical perspective the balance defined by the European treaties between the economic and social dimensions of the European project. It highlights the two main characteristics of the building of social Europe. First, rather than constituting an objective for its own sake, social Europe has until recently developed as an accompanying measure of the economic integration between the Member States of the European Community, and now the European Union. Second, it has developed through a diversity of legal methods, including in the process a large array of actors. Social Europe today results, first, from certain provisions of the Rome Treaty, from legislative measures, and from the case-law of the European Court of Justice. But it also has developed from the adoption of political declarations which are not legally binding – such as the 1989 Community Charter of fundamental social rights of workers and the 2000 Charter of fundamental rights –, from European social dialogue, and from the “open” coordination between the Member States in the fields of employment and social inclusion. The study identifies the different historical stages in the building of social Europe, and it replaces those stages in a theoretical framework in order to shed light on the logic which connects them with one another.

Abstract. It has been argued that human rights politics is detrimental to social integration. But human rights are not merely abstract principles which, when positivated, secure negative freedom. When they are constitutionalised and turned into fundamental rights they contain a guarantee for equal freedom to all citizens. A charter of fundamental rights is a means to enhance the legal certainty of the citizens, reduce arbitrariness and moral imperialism and to institutionalise the right to justification. However, as the principle of popular sovereignty points to a particular society, and human rights point to an ideal republic, only with a cosmopolitan order can the problem of human rights politics be resolved.

It is rather trendy to talk about the ‘horizontal effect’ of fundamental rights in a society where the dividing line between public and private power is increasingly blurred. However, as soon as one tries to define the exact meaning of horizontal effect and its conditions, several issues swiftly arise. This article explores the past, the present, and the future of the horizontal direct effect in the European Union (EU) legal order, by focusing on the application of this doctrine to the fundamental labour rights today protected in the Charter of fundamental rights. Most notably, with the approaching of the fifth birthday of Bauer and Max-Planck, by looking at the case of the fundamental right to paid annual leave under Article 31(2) of the Charter, this article aims at unravelling the actual meaning of the conditions for the horizontal direct effect of the EU fundamental rights and the actual perimeter of this direct effect. Although the effectiveness of minimum labour rights mandatorily enhanced by this case law should be welcomed, it is argued that the doctrine of the horizontal direct effect of EU fundamental rights seems still stuck between being a proper constitutional doctrine and a mere type of direct effect. It is also claimed, first, that horizontal direct effect is not a unitary phenomenon in EU law. In spite of the continuity in the ECJ’s technical reasoning, there is indeed a striking contrast between the language of ‘perfect equalisation’ of the Charter to the treaties and its actual approach to the assessment of the horizontal direct effect of fundamental (labour) rights. The ECJ’s case law analysis on the fundamental right to paid annual leave will prove this point. Secondly, it is suggested that horizontal direct effect can be defined as a sui generis, on-call, subsidiary, corollary, and ‘amputee’ doctrine, and we will offer some considerations on each of these features by reference to the Court’s practice under investigation. Thirdly, we suggest that the horizontal direct effect of fundamental (labour) rights relies more on the history and trajectory of the EU regulation of that specific right in the EU legal order rather than on the wording of the Charter’s provision or other technicalities.

1 Legislative Powers and Normative Instruments I. INTRODUCTION II. LEGISLATIVE POWERS AND NORMATIVE INSTRUMENTS UNDER THE CURRENT TREATIES III. SIMPLIFICATION OF THE UNION'S NORMATIVE INSTRUMENTS AND THE TRANSFORMATION OF EUROPEAN ADMINISTRATIVE LAW IV. NEW NORMATIVE INSTRUMENTS UNDER THE CONSTITUTIONAL TREATY 1. Legislative Level: European Law and Framework Law 2. Delegated European Regulations (a) On Requirements and Limits (b) Mechanisms of Control 3. Implementing Acts (a) Areas where Implementing Acts might be Used (b) The Form and Mechanism for the Control of Implementing Acts V. A THIRD TYPE OF EUROPEAN REGULATION 1. Competition Policy 2. State Aids 3. Economic and Monetary Policy 4. Area of Freedom, Security and Justice VI. THE CHOICE BETWEEN PRIMARY LAW AND SECONDARY LAW: CONSEQUENCES 2 Implications of a Binding European Charter of Fundamental Rights for the Individual Decisions Made by the European Public Administration I. INTRODUCTION II. THE RIGHT TO GOOD ADMINISTRATION 1. Origin of the Right to Good Administration in Community Law 2. Content of the Right to Good Administration 3. Implications of a Binding Right to Good Administration for the Community Administration III. THE RIGHT OF ACCESS TO DOCUMENTS 1. Origin of the Right of Access to Documents 2. The Current Meaning of the Right of Access to Documents (a) Which Bodies are under an Obligation to Provide Access to their Documents? (b) Who Can Access Institutions' and Bodies'Documents? (c) Judicial Protection of the Right of Access to Documents 3. Implications of a Binding European Charter of Fundamental Rights for the Right of Access to Documents IV. THE RIGHT TO PROTECTION OF PERSONAL DATA 1. Its Origins in EU Law 2. Scope of the Right to Protection of Personal Data (a) The Rundfunk Case (b) The Lundqvist Case (c) The PNR Case 3. Personal Data Protection in the Charter and in the Constitutional Treaty (a) Introduction (b) Implications 3 The Impact of the Charter of Fundamental Rights on Decisions Adopted by Member States I. FUNDAMENTAL RIGHTS OF THE UNION AND MEMBER STATES: WHAT DOES 'IMPLEMENT'MEAN? 1. General Considerations: The Relevance of the Topic 2. Subjecting National Administration to the Fundamental Rights of the Union (a) Case Law on the Application of Fundamental Rights of the Union to Member States (b) The Formula in Article 51 (1) of the Charter: Subjecting Member States to Community Fundamental Rights 'only when they are implementing Union law' 3. A Theory of the Concept of Implementing EU Law from the Perspective of the Protection of Fundamental Rights against the Acts of Member States II. THE RIGHTS TO GOOD ADMINISTRATION,ACCESS TO DOCUMENTS AND PROTECTION OF PERSONAL DATA: EFFECTS OF RECOGNITION IN NATIONAL LEGAL SYSTEMS 1. A Preliminary Question 2. The Field of Application of the Right to Protection of Personal Data, Access to Documents and Good Administration (a) The Right to Good Administration (b) The Right of Access to Documents (c) The Right to Protection of Personal Data III. FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION AND MEMBER STATES: THE CASE OF STRUCTURAL FUNDS IV. CONCLUSION 4 Towards a Law on Administrative Procedure I. AN OLD ISSUE REVISITED:WHY NOW A EUROPEAN LAW ON A COMMON ADMINISTRATIVE PROCEDURE? 1. General Considerations 2. A Public Administration without a Law of Administrative Procedure (a) Separated Procedural Norms in Primary and Secondary Law (b) Shaping of the General Principles of Administrative Procedure by the Court of Justice 3. New Arguments for the Creation of a Law on Administrative Procedure II. CODIFYING EUROPEAN ADMINISTRATIVE PROCEDURE 1. Legal Foundation (a) Formal Basis: Article III-398 of the Treaty establishing a Constitution for Europe (b) Substantive Basis: The Right to Good Administration as a Binding Fundamental Right and the Principles of Democracy and Legality 2. Content: Putting the Individual at the Centre of Procedure (a) Prior Considerations: A Law of General Principles or a Law of Particulars? A Law on European Administrative Procedure or a Law of European Administrative Procedures? (b) General Considerations regarding the Content of the Law on European Administrative Procedure (c) The Development and Guarantee of the Rights of the Parties in Procedure (d) The Rise of Transparency, Impartiality, Equality and Legal Certainty (e) The Strengthening of Participation Rights: Towards a More Democratic and Open European Administration III. CONCLUSION 5 Judicial Protection I. INTRODUCTION II. THE RULE OF STANDING AND THE RIGHT TO EFFECTIVE JUDICIAL PROTECTION 1. Brief Description of the Current Rule of Standing found in Article 230(4) of the EC 2. UPA and Jego-Quere Cases and the Gaps in Judicial Protection in the Union 3. Modifications to the Rule of Standing of Private Parties Introduced by the Constitutional Treaty 4. Modificatio

1. Introduction 1.1. The new legal status of the Charter of Fundamental Rights: The much anticipated entry into force of the Lisbon Treaty brought about a number of changes and additions to the existing body of Union law. A significant addition can be found in Article 6 TEU which reads: Article 6 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. These recent developments may be viewed in light of criticism that has been raised against the EU for an inconsistent and incoherent approach to fundamental rights protection. In particular, criticism has been voiced over how the EU’s strong insistence on fundamental rights protection in its external relations did not appear to be matched by an equally strong “internal” focus on such fundamental rights protection. Some commentators also took the view that the EU at its then current state (at the turn of the millennium) was inappropriate as a human rights organisation in its own right. In this light, it is clear that with the new Article 6 TEU the protection of fundamental rights in the EU context has been taken to a new level. While the EU perhaps cannot be said to have become a proper “human rights organisation”, clearly steps have been taken in the Lisbon Treaty to highlight the EU’s commitment to fundamental rights protection. An immediate example would be the obligation for the EU to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR/the Convention). Moreover, Article 6 TEU also brings about changes for the Member States. By turning the Charter of Fundamental Rights into a legally binding instrument, Article 6 TEU also obliges the Member States to respect the provisions of the Charter. The new legal status of the Charter raises several questions. First of all, however, it should be noted that the Member States’ obligation to respect fundamental rights is not a new creation. In fact, this obligation has been enforced by the European Court of Justice (the ECJ) on numerous occasions in the past. With the new legal status of the Charter, has the obligation to respect and even protect fundamental rights also been elevated to a new and higher status in Union law? If so, what does that entail?

Правовое пространство Европейского Союза в целом относится к степени распространения правовых норм этой организации. Политико-правовое значение Хартии основных прав Союза в ее правовом пространстве вытекает из юридической силы и состояния реализации положений указанного документа. Поэтому роль Хартии Европейского Союза об основных правах в сфере регулирования и надзора за деятельностью структур, действующих на ее основе, определяется новым политико-правовым значением Хартии (имеющим обязательную юридическую силу) в правовом пространстве ЕС. Однако несмотря на то, что со временем в этой области были проведены фундаментальные исследования, а в результате анализа литературы и научных статей на тему участия Казахстана в международном сотрудничестве с государствами Европейского Союза по защите прав человека и основных свобод, стало известно, что данная тема недостаточно изучена в отечественной юридической науке. Это, безусловно, важные факторы, определяющие актуальность данной темы. Основная цель статьи – доказать место и значение Хартии Европейского Союза об основных правах в системе защиты прав человека и основных свобод. В статье выделяются некоторые актуальные политико-правовые вопросы, связанные с Хартией Европейского Союза об основных правах, состоянием ее реализации и перспективы. Также в статье рассмотрены реальные и возможные аспекты вопроса о получении Республикой Казахстан соответствующих международно-правовых обязательств в качестве партнера Европейского Союза по вышеупомянутой Хартии. Выводы, представленные в статье, могут быть использованы при практической реализации Хартии основных прав Европейского Союза. Также это может учитываться при выполнении международных обязательств Республики Казахстан. Ключевые слова: Хартия, соглашение, международная организация, государства-члены, государства-партнеры, европейское право.

The article analyses the impact of the EU Charter of Fundamental Rights on the development of the case-law of the European Court of Justice after the Lisbon Treaty. The codification of fundamental rights in EU law and the recognition of the Charter as a binding primary EU law of the highest level have determined the beginning of a new stage in the protection of fundamental rights concerning the caselaw of the European Court of Justice. Before the Lisbon Treaty, the European Court of Justice formed its case-law around the core of the fundamental rights protection system created by the Court itself. The Court used the instrument of general principles of EU law and based the interpretation of fundamental rights on common constitutional traditions and the international instruments’ protection of fundamental rights.Since the Lisbon Treaty, the starting position of the Court of Justice has been defined by the EU Charter of Fundamental Rights. The role of the Court of Justice as the interpreter and the developer of the protection of fundamental rights under EU law is displayed by its case-law, which establishes the status of the Charter as the primary and most important source for the protection of fundamental rights, as well as its autonomy in the interpretation of the Charter. Moreover, the Court’s interpretation also defines the scope of the application of the Charter and its limits and forms the concept of the interaction between the Charter and other systems involved in the protection of fundamental rights (the Charter and constitutional protection, the Charter, and the ECHR or other international instruments). The Charter serves as a legal instrument to ensure the quality of the EU legal system in helping to eliminate secondary EU legislation acts that violate the standards of the protection of the fundamental rights provided for by the Charter. The Court’s case-law takes into account the specificities of the EU legal system (autonomy, primacy, unity and effectiveness). This case-law makes the Charter a living instrument for the protection of fundamental rights under EU law.

This article explores the potential contribution of the EU Charter of Fundamental Rights to building a system of industrial relations at EU level, in particular, by introducing fundamental trade union rights into the legal order of the European Union. The first part of the article describes the role of the EU Charter in the context of the history of European integration. The second part explores the legal prospects of the EU Charter as a political declaration and if it is incorporated into the Treaty. The role of the European Court of Justice in developing the fundamental trade union rights provided in the Charter is analysed and the potential scope of these rights in the context of an EU system of industrial relations is examined. The third part of the article explores the potential of the EU Charter to act as a catalyst by stimulating initiatives for measures implementing Charter rights which would support a system of industrial relations system at EU level. Two central issues are analysed. First, the scope of EU competences to create a system of industrial relations at EU level and, secondly, the institutional framework for such a system of industrial relations at EU level.

The objective of this article is to describe the development of the perception of human rights’ issues pertaining to the field of labour law under the new jurisdiction and legal order created by the European Communities. The progress in the human rights area shall be illustrated by changing approaches of the European Court of Justice and Member States and of course by the greater awareness of the citizens of the “ever closer Union” of their fundamental rights. The gist of the work tackles the most interesting labour law cases which the European Court of Justice was deciding and which are sometimes of trailblazer character. This article commences by a necessary introduction of human rights protection in the context of labour law. It further briefly tackles the development of the European Court of Justice’ case law regarding human rights’ aspects generally. It also describes various instruments of the other EC institutions tackling the controversial subject of human rights, up to the most recent document, The Charter of Fundamental Rights of the European Union and the Europe’s Constitution. The principal part of this article concentrates on social human rights case law and outlines some of the basic general principles that the European Court of Justice employed when deciding such cases. However, it was never the aim of this paper to provide a complete list of Community fundamental social rights in the field of labour law as the author is well aware of the fact that such task would require much more elaborate analysis of this topic. Quite contrarily, the purpose of this article is to highlight labour law aspects connected with the judicial protection of fundamental rights of employees within the framework of the European Union and to enable a more clearer insight into some of the key judgments in this area. The final part reflects protection of fundamental social rights of employees provided by the Community in the Czech legal order. The article was written with the ultimate purpose of illustrating that fundamental social rights of employees are bound to enjoy more and more respect and the values comprised in some of the cases of the European Court of Justice and certain key Community instruments such as the Charter, are to become a necessary part of the foundations of the future European integration.

The interplay of EU law and fundamental social rights has been shaped by a series of landmark cases, such as the Viking-Laval saga, AGET Iraklis , and AMS . These cases, decided in the EU Court of Justice's Grand Chamber, have drawn criticism for privileging market freedoms over social rights. Similarly, another series of landmark cases has framed the horizontal effect of the fundamental rights in the EU Charter of Fundamental Rights, i.e., whether they can be invoked in private disputes. However, a 2024 decision went missing from both groups of landmark cases: C-196/23 Plamaro . This decision by the CJEU's Second Chamber offers critical insights into the Charter's evolving effectiveness and the unresolved tension between market and social imperatives in the EU legal order. Though ostensibly a technical interpretation of the Collective Redundancies Directive 98/59/EC, the Second Chamber considered the Charter's rights to information and consultation within the undertaking and to protection against unjustified dismissal to lack substance, and therefore justiciability. This extends a third category of ‘ineffective Charter provisions’ beyond the textually mandated dichotomy between Charter rights and principles, and their different justiciabilities rooted in the Charter's general provisions. By so far including only social – and more specifically labour – rights, this category entrenches a hierarchy of rights that undermines the Charter's effectiveness and its very constitutional promise of indivisibility giving equal value to all types of fundamental rights. Moreover, Plamaro disrupts the scholarship developed after Bauer which had posited a trend toward horizontality for ‘most’ CFR rights, stronger EU social and labour rights, and the capacity of EU legislative instruments to inform Charter obligations. Based on the Charter's indivisibility, its effectiveness and the rich yet ignored substantive foundations of the Charter rights concerned, this article argues that a third category of ineffective Charter provisions should neither exist, nor be extended. Instead, the article provides pathways for a reimagination of the Charter's effectiveness in light of the principle of indivisibility.

The adoption of the Charter of Fundamental Rights has strengthened the position of the European Ombudsman, since the Charter contains an article specifically dedicated to the Ombudsman. At the same time, the Ombudsman, through her/his practice, contributes to the implementation in the everyday life of the provisions of the Charter and their further development. The consolidation and development of the provisions of the Charter by the European Ombudsman have proceeded especially rapidly since the Charter of Fundamental Rights received the status of a binding act. Due to the fact that the right to “good administration” contained in the Charter of Fundamental Rights has become one of the basic human rights in the EU since the Charter became legally binding, the competence of the European Ombudsman has acquired a new substantive and factual (functional) content, expanding her/his ability to positively influence the EU administration in the field of governance and respect for fundamental rights. This article examines, based on legal acts, statistical and other factual data, the interrelated issues (such as institutional and human dimensions of European integration) of ensuring the effectiveness of the Charter of Fundamental Rights through the activities of the European Ombudsman.

The Consequences of the “Constitutionalization” of the Charter of Fundamental Rights of the European Union

The Viking and Laval cases have reignited persistent concern within the literature, first remarked upon following the Schmidberger ruling, that fundamental rights are structurally subjugated to free movement, within the European Union legal order, by the Court of Justice’s adjudicative methodology. Specifically, criticism has focused on the procedural disadvantage faced by fundamental rights as a result of the Court’s two-stage breach/justification approach. At stage one, a restriction of the applicable market freedom is established. At stage two, the relevant fundamental right is required to ‘defend’ itself against this prima facie unlawful conduct and therefore overcome the evidential hurdles operating at the justification phase, namely, legitimacy of aim, necessity, appropriateness, and general proportionality. It has been frequently argued that this places fundamental rights on the ‘back-foot’. Nevertheless, a two-stage breach/justification model still dominates, even after the extensive criticism that Viking and Laval provoked. Moreover, to date, a large-scale examination of why the Court approaches conflicts between the market freedoms and fundamental rights in this way, precisely why it is problematic, and how it might be overcome, in conformity with the Union’s constitutional requirements, is generally absent from the literature. This thesis seeks to plug this gap. It conducts an essential diagnostic analysis in order to identify the causes of the procedural prioritisation of free movement and the impact of the imbalanced architecture of the Court’s decision-making on fundamental rights. Significantly, it demonstrates that the use of a two-stage breach/justification framework is the product of an historical hangover rooted in the economic foundations of the EU’s predecessor, the EEC. Since the central purpose of the Rome Treaty was economic integration through the creation of a common market, and a key tool in achieving this was the free movement of goods, workers, services/establishment, and capital, it was logical for the Court to employ a method of adjudication that presented conflicting Member State law and policy as a prima facie ‘wrong’ in need of justification. Critically, since the market freedoms were not initially directly effective and could only be triggered by protectionist and/or directly discriminatory Member State conduct, they were generally unlikely to interact with fundamental rights. However, crucially, the thesis identifies a trinity of significant and overlapping constitutional developments, all of which have contributed to an escalation of conflict between free movement and fundamental rights but which have also, ironically, reinforced the breach/justification framework, and therefore the procedural prioritisation of free movement. Specifically, this constitutional trinity is comprised of: the expansion of the material and personal scope of the free movement provisions; the recognition of the direct effect of the market freedoms; and the introduction of Union citizenship. The thesis also offers an important assessment of the effects of this exacerbation of structural bias from practical, theoretical and Union constitutional perspectives. In particular, a trio of negative consequences emerges from the fact that, under the two-stage model, only fundamental rights, and not free movement, face questions of proportionality. Crucially, this issue is normally assessed by reference to whether there are means of safeguarding fundamental rights that are less restrictive of free movement. This can limit the legal space for the consideration of crucial factors including, first, the need for idiosyncratic rights protection within particular Member States; second, the fact that, in some situations, certain fundamental rights, such as the right to strike, are inherently restrictive of free movement; and, third, that measures less restrictive of free movement will not always be feasible when budgetary or administrative considerations are taken into account. This is especially true of fundamental rights of a programmatic nature. From a theoretical point of view, the structural subjugation of fundamental rights presents a challenge to their status as universal inviolable absolutes that represent the basic needs central to our human dignity. Alternatively, a procedural preference for free movement over fundamental rights undermines the ‘social fact’ of fundamental rights within the EU legal order, which the Treaties explicitly commit the Union to respecting. Indeed, an interrogation of the constitutional implications of the breach/justification framework demonstrates that it is out of line with the EU’s contemporary constitutional framework. In particular, the thesis charts the evolution of the Union’s goals beyond economic integration and notes that, in relation to some of its new objectives, the Treaties confer only shared or complementary legislative competence upon the Union. This necessitates a model that permits the Member States sufficient space to pursue these aims, many of which overlap with fundamental rights concerns, away from the shadow of a breach of free movement. A procedural preference for free movement is also particularly unsuitable in the post-Lisbon era in which the Union is formally obliged to accede to the European Convention on Human Rights and in which the Union’s own Charter of Fundamental Rights enjoys primary law status. Ultimately, the thesis advances a balancing model as an alternative method of adjudication more suited to the Union’s contemporary constitutional requirements. Study of this model is pertinent due to its increasing relevance both in the academic commentary and in the case-law of the Court of Justice concerning rights clashes occurring at the level of secondary Union legislation, and in the approach of the European Court of Human Rights in the context of conflict between Convention rights. A balancing methodology recognises the equal legal status of conflicting norms and seeks to reconcile and find compromise between opposing rules in order to locate an outcome that is least restrictive of both norms. Nevertheless, the commentary to date has not yet dealt fully with the potential practical and conceptual obstacles to adopting a balancing methodology. Specifically, equal legal status does not provide a concrete means of resolving tensions between free movement and fundamental rights when they collide. Moreover, balancing introduces the conceptual question of whether free movement should be treated as (equal to) a fundamental right. The thesis argues that these challenges can be overcome. Specifically, balancing can offer concrete outcomes through a process of reciprocal proportionality assessment whereby the relative impacts of free movement and fundamental rights on each other are analysed. Finally, drawing on the undeniable constitutional significance of free movement within the Union legal order, and its importance to the EU citizen, the thesis argues that free movement should be recognised as a fundamental right within the Union’s own legal framework or, at the very least, as a norm of equal rank.