The Passive Form of Judicial Activism: Judicial Self-restraint while Balancing Fundamental Rights and Public Interest in the Age of Economic Crisis

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EURPOL_2_2015_Perakis.pdf

EURPOL_2_2015_Perakis.pdf

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The Passive Form of Judicial Activism:
Judicial Self-restraint while Balancing Fundamental Rights
and Public Interest in the Age of Economic Crisis

Manolis Perakis
Attorney at Law, Research Fellow in European Law, National and Kapodistrian University of Athens

The main aim of this paper is to examine the stance of the national and international judiciary, towards the alleged infringement of fundamental rights by the governmental austerity measures during today's economic crisis, and to locate the legal thinking and balancing which lie in its foundations. For this purpose, selected decisions issued by the Greek Council of State, the European Court of Human Rights and the EU Courts are re¬viewed, and their main points and arguments are emphasized and analyzed. The main position of this essay is that the judicial power, be it national or international, considers the current economic crisis as a "state of emergency", and exercises the enhanced powers granted to it by the Constitution not with the purpose of restricting and replacing the executive, but to make sure that the latter withholds its democratic legitimacy.