CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ two Opinions of Advocates-General (AG) merit attention in this context. These are Opinion of AG Trstenjak in the case C-271/08 European Commission v. Germany and Opinion of AG Cruz Villalón in the case C-515/08 Santos Palhota . AG Trstenjak firstly stressed that the Lisbon Treaty (not relevant, ratione temporis , in the case discussed) expressly incorporated in primary law the CFREU which had in its Article 28 the right to bargain collectively. The rulings Viking and Laval she assessed as sitting uncomfortably alongside the principle of equal ranking for fundamental rights and fundamental freedoms (para 183) and thus, if in an individual case, as a result of exercising a fundamental right, a fundamental freedom is restricted, a fair balance between both of those legal positions must be sought (para 188). AG suggested to the CJ to refer to its older case C-112/00 Schmidberger , where it also applied the test of proportionality to the conflict of freedom of movement with a fundamental right but did so on both sides, i.e. examined whether the exercise of the fundamental right was capable of restricting the exercise of the fundamental freedom but also whether the exercise of the fundamental freedom could pass the proportionality test and limit the exercise of the fundamental right. Thus the solution to all similar cases should be based on the idea of equal ranking for conflicting fundamental rights and fundamental freedoms which requires an examination of the proportionality of the opposing restrictions, i.e. their mutual fair balancing (para 195). AG Cruz Villalón suggested in his Opinion another social friendly solution. He described, quite more extensively, the changes brought to EU law by the Lisbon Treaty and underlined a number of its provisions of primary social law, then Art 9 TFEU laying down the cross- cutting social protection, Art 3(3) TFEU according to which the internal market is to be realized by means of policies based on a highly competitive social market economy, aiming at full employment and social progress, and also finally he emphasized the importance of the CFREU 15 becoming now part of the primary EU law (paras 51, 52). He drew then the following conclusion (para 53): “As a result of the entry into force of the Treaty of Lisbon, when working conditions constitute an overriding reason relating to the public interest justifying a derogation from the freedom to provide services, they must no longer be interpreted strictly.” This means that it is necessary to apply the proportionality test in such a way that basic social rights are not treated as simple derogations from a freedom, still less as an unwritten exception inferred from case-law, but are to be given the weight recognized by the Lisbon Treaty. In contrast with AG Trstenjak, however, AG Cruz Villalón did not propose that the CJ should follow its approach in the Schmidberger case, i.e. to apply the proportionality test on both sides, both with regard to the restriction of fundamental freedoms and the limitation of fundamental rights, but to submit the justification of the social protection measure to a standard of review which, in accordance with the Treaty, would have to be particularly sensitive to the social protection of workers (para 55). The proportionality test can therefore continue to be applied unilaterally but not strictly because social rights and their protection are no longer an “ordinary” reason for limiting freedoms of movement. A milestone in the further development of CJ’s argumentation can be seen in the decision of case C-201/15 Anonymi Geniki Tsimenton Iraklis (AGET Iraklis) from the end of December 2016, which in the comments raised questions about the confirmation or rejection of Viking-Laval 16 15 The fundamental right at stake in the case was that of Article 31 CFREU (every worker has the right to working conditions which respect his or her health, safety and dignity). 16 See MARKARIS, M., The New Viking Laval? AG Wahl argues that requirement for prior authorization of

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