The Dynamics of Interpretation and Context
Chapter 3: Regulation and human rights in the EU
Regulation is the principal instrument for delivering public policy in the EU. It offers the possibility of direct interference with the relevant segment of the economy and society, and as a matter specific to the EU, also with regulation at the level of the Member States. Its direct impact makes regulation an especially attractive policy instrument for a supranational polity in which most policies are delivered at the national level with the mediation of national regulation and national administrative and judicial organs. Because EU regulatory activity is capable of affecting the status and circumstances of individuals in the Member States directly, it is responsible for a significant share of interferences with the human rights protected in EU law. EU regulatory instruments are frequently challenged on human rights grounds by individuals claiming that the provisions introduced, often in the context of complex policy reforms, interfere with their private economic autonomy. In the law of the single market, the regulatory impact of the Treaty provisions on the fundamental economic freedoms also affects human rights. In this context, human rights are raised to enable departure from the obligations arising from the fundamental freedoms or to examine whether the derogations from the fundamental freedoms introduced by the Member States are lawful. While controlling the legality of EU regulation and protecting human rights provide the fundamental motivation for the jurisprudence, the interpretation of human rights in the context of EU positive and negative regulatory activity is governed by a broader set of considerations.
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