CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ In the choice of social policy measures the EU law leaves to Member States a wide discretion (paras 76-78). After that the CJ accepted that a measure taken by a Member State in the name of the above mentioned overriding reasons in the public interest could restrict both the freedom of movement and the freedom to conduct a business if it is capable of guaranteeing the attainment of those public interest objectives and does not go beyond what is necessary to attain it (paras 80 and 94).The CJ therefore applied its usual breach-justification-proportionality test. At the same time, however, it stressed that the purpose of such an assessment must be a reconciliation and a fair balance between the interests related to the protection of workers and employment and the interests related to freedom of establishment and freedom to conduct a business (para 90). The very existence of a protective mechanism consisting in the need of the consent of the Ministry of Labor with collective redundancies was not tested strictly by the CJ. Quite on the contrary, it found it able to contribute to raising the level of effective protection of employees and to do it in a proportionate manner (paras 92, 93). It was in conclusion the generality and inaccuracy of the criteria by which the Minister of Labor was to decide, and hence the unpredictability of its decisions for employers, which caused the Greek mechanism of protection of jobs against collective redundancies ultimately to be found contrary to Article 49 TFEU and Article 16 CFREU. Notwithstanding this result, which, according to the CJ, could not be mitigated by the importance of the crisis in the Greek labor market (para 105), the short description of the decision reveals the similarity of the CJ’s approach with the recommendation addressed to it by AG Cruz Villalón six years ago in the Santos Palhota case: recognize the newly emphasized weight of the EU’s social priorities, yet maintain the test of one-sided proportionality, however do not treat social protection and social rights as unwanted exceptions that can outweigh the freedom of movement only under strict conditions. This means to give them the rank of values really important for the EU (but left to the Member States to secure and regulate them) not only verbally, but also by applying a light proportionality test to them. Under this test the justification, suitability and necessity of social measures (or the exercise of social rights) still would formally be required, however practically, it would rather be the rule of reason approach, which would just eliminate the excesses of apparent inappropriateness, arbitrariness or hidden discrimination, but otherwise would be receptive to national-specific needs of maintaining employment, social peace and workers’ rights. This light, social-friendly proportionality test can also be described in contrast to what was proposed, also six years ago, by the above quoted AGTrstenjak. Although in AGET Iraklis the CJ admitted that Article 30 CFREU (i.e. protection in the event of unjustified dismissal) was relevant to the case and also that the limitation of a fundamental right could, under Article 52 (1) CFREU, only be allowed in accordance with the principle of proportionality, if it is necessary and if it genuinely meets recognized objectives of general interest or the need to protect the rights and freedoms of others, the limitation of this fundamental social right was not dealt with at all in its judgment. By the test of proportionality, only the protective measures of the Greek state had to pass, not the conditions and methods of intended collective redundancy, viewed as an interference with the fundamental right protected by Article 30 CFREU. Thus, the CJ did not proceed to a two-sided proportionality test, based on the fact that, in every conflict of freedom of movement and social protection measures, there is today, given the extent of the rights protected by the Charter, virtually always also a conflict

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