HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

A DELICATE BALANCE: HOW TO SOLVE CONFLICTS OF INDIVIDUALISTIC AND COMMUNITARIAN DIGNITY Václav Lipš and Marek Švajda Annotation The traditional adjudication of human dignity conflicts fails to provide adequate reasoning in cases where dignity confronts dignity. The balancing formula is the most effective methodological approach to resolving these complex conflicts. We build upon Klatt and Meister’s framework of applying the balancing formula to these cases and weighing dignity against dignity. Our key modification is that courts should explicitly establish and justify different abstract weights of dignity, reflecting the distinction between individual and communitarian aspects. This refinement will fulfil the essence of the proportionality test – the right to justification. Introduction 1 When we heard about Wackenheim v. France 2 ( hereafter “Wackenheim” ) and C-36/02, Omega 3 ( hereafter “Omega” ) cases as examples of decisions resting on the absoluteness of human dignity, we were intrigued. Can decisions in complex cases like these rest almost entirely on the concept of human dignity as an absolute fundamental right or value that trumps all other arguments because nothing can be weighed against it? We believe that they cannot. 1 We would like to thank Karel Řepa and Helena Hofmannová for their advice, comments, and support in making this paper possible. A special thank you goes to Tomáš Koref for his insightful feedback and tremendous help. The present paper was created under the Specific University Research (SVV) project of Charles University No. 260 622, “Technological Progress and Social Changes as Challenges for Research on Fundamental Questions of Law”. AI tools were used to assist with the preparation of parts of this paper. We employed Elicit to identify and review relevant literature, ChatGPT to create concise summaries of the cases discussed and Grammarly for proofreading. All interpretations, conclusions, and opinions expressed in this paper are solely our own. 2 International covenant on civil and political rights, Wackenheim v. France, Comm. 854/1999 , U.N. Doc. A/57/40 [online]. Vol. II, at 179 (HRC 2002) [cit. 2024-07-04]. Available at: https://juris.ohchr. org/casedetails/1010/en-US. 3 Court of Justice of the European Union. C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [online]. Judgement of 14 October 2004 [cit. 2024-07-04]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62002CJ0036.

21