CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ movement which is acceptable only if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons in public interest. And even if that is the case, it would still have to be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (paras 75, 78). Protection of workers could, according to the CJ, represent such an overriding reason, however the action securing it would be legitimate only if jobs or conditions of employment at issue were jeopardized or under serious threat (paras 80, 81, 83). Therefore the collective action initiated by trade unions could have prevailed over the fundamental freedom only if it were capable to ensure the achievement of the objective (protection of jobs or conditions of employment that were jeopardized or under serious threat) and did not go beyond what was necessary to attain that objective (para 84). If that was the case, it was for the referring court to ascertain based on the specific circumstances of the case. The CJ thus applied the so-called proportionality test consisting of justification of a breach of an EU market freedom by an overriding reason in public interest and of an assessment of suitability and necessity of trade unions’ actions for its attainment. The decision to reflag the ship, i.e. to exercise the freedom of establishment, however, was not questioned as to its justification, suitability and necessity, as if this fundamental freedom were the real overriding principle that objectively stands always for itself, while the fundamental right at issue was an unwelcomed hurdle that eventually could be tolerated and prevail only under strict conditions. The strictness in these conditions was even specifically stressed by the CJ. The jobs or conditions of employment must have been jeopardized or under serious threat, thus a mere risk of loss of jobs or just an ordinary level of threat would not have been enough. Trade unions could not announce the possibility of a collective action as a preventive measure, could not use the threat of organizing one as a bargaining tactic. They were required to prove that a serious threat was present and only then their action, suitable in means and necessary in extent, could have prevailed over the company’s freedom of establishment. Such one-sided testing looks neither like an equal treatment of market freedoms and fundamental rights nor like a real balancing between them. The CJ has been criticized for its decisions in “Laval Quartet” not only by a large part of legal science but also by international organizations such as the ILO and the Council of Europe (its European Committee of Social Rights). 10 Less than a year after the judgments of the CJ in the Viking and Laval cases, the European Court of Human Rights (ECtHR) emphasized in the ruling Demir and Baykara v. Turkey the importance of trade unions’ collective bargaining right that became one of the essential elements of the right to form and join trade unions and could be restricted only if it is “necessary in a democratic society“. 11 Maintenance and functioning of its internal market is undoubtedly a priority goal of the EU, however the CJ and the ECtHR would probably not agree whether the use of the freedoms of this market by individual business entities can be valued as an overriding “necessity in a democratic society“, which would, without further justifying its urgency, enjoy preferential treatment in conflict with a fundamental social right. And in the light of the legislative developments that became effective with the Treaty of Lisbon on the 1 st December 2009 – namely the inclusion of the objective of the social market economy in Article 3(3) TEU, the so-called horizontal social 10 See for detail in PECINOVSKY, P., Evolutions in the Social Case Law of the Court of Justice. The Follow-Up Cases of the Laval Quartet: ESA ad Regiopost. European Labour Law Journal , Vol. 7 (2016) No. 2, p. 295. 11 EcHR Judgment of 12. 11. 2008, Case Demir and Baykara v. Turkey (GC) – 34503/97.

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