CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TEN YEARS AFTER THE VIKING JUDGMENT … clause in Article 9 TFEU, and in particular the CFREU in the primary EU law – it seemed almost impossible that the CJ would not re-evaluate its Viking-Laval case law. As it was for instance expressed in the Study for the EMPL Committee of the European Parliament (just in case that human rights in the CJ’s jurisprudence would not be given higher order than economic freedoms): “ Even if we accept for a moment the idea that the Treaties guarantee an uncivilised market, and award the economic freedoms in themselves the same status as human rights, the CJEU case law would have to change. Under this assumption, collective labour rights have to be exercised in line with Internal Market Law and economic freedoms have to be exercised in line with collective labour rights as well. If there is a conflict between those rights, mutual optimisation of those rights will have to be achieved.“ 12 The one-sided proportionality test applied to the exercise of a fundamental right as to a potentially tolerated exception from a fundamental internal market freedom simply appeared untenable in a European Union of the second decade of the 21 st century. Notwithstanding the critical reception of the “Laval Quartet” decisions, this case law remained relevant for the CJ even in the post-Lisbon period. In at least 12 of its judgments the CJ quoted Viking or Laval as good precedent, of which in at least 4 cases it did so to the detriment of collective bargaining and agreements. 13 On the other hand, it cannot be argued that a reference to that case-law has always meant the failure for social protection measures since, in particular, when the CJ had to interpret the possibilities of Member States to regulate the conditions of registration, performance, remuneration and representation of workers posted under Directive 96/71/EC, its decisions were very balanced or directly social friendly. 14 Although in several cases the CJ applied in restrictions of freedoms of movement under the Treaty, respectively on the conditions of their performance laid down by Directive 96/71/EC, the very same test as in the Viking and Laval cases (i.e. whether the outcome of social bargaining or the socially protective measure of a Member State was justified, appropriate and necessary), its decisions were not always negative for the “barrier to free movement“. In two cases (C-297/10 and C-447/09) the results of social bargaining did not pass the test and vice versa in three others (C-515/08, C-115/14 and C-315/13) the measures of a Member State under Directive 96/71/EC satisfied (at least partly) its requirements. Quite surprisingly however, the CJ handled these cases without using in its reasoning or conclusions the arguments derived from social novelties of the Lisbon treaty, i.e. no references were ever made to the social market economy goal, to the horizontal social clause of article 9 TFEU or to any general enhancement of social values after the Lisbon Treaty’s entry into force. This happened notwithstanding the Advocates-General arguing that the new quality of the EU social priorities in the Lisbon Treaty called for a change of the approach. In particular, 12 SCHIEK, D. et al., EU Social and Labour Rights and EU Internal Market Law. Study for the EMPL Committee. European Parliament, 2015, p. 89. 13 Cases C-297/10 and C-298/10 Sabine Hennings EU:C:2011:560, C-447/09 Reinhard Prigge EU:C:2011:573, C-271/08 European Commission v. Germany EU:C:2010:426, C-83/13 Fonnship A/S EU:C:2014:2053. 14 Cases C-515/08 Santots Palhota EU:C:2010:589, C-115/14 Regio Post EU:C:2015:760, C-396/13 Sähköalojen ammattiliitto ry EU:C:2015:86, C-315/13 Edgar Jan De Clerq EU:C:2014:2408. 3. CJ’s way to the AGET Iraklis judgment and the test applied ten years after Viking

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