CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ current CJ decisions does not imply one and the same result of the conflict of liberal business freedoms with the social measures of Member States. After AGET Iraklis Member States should have fewer reasons to argue that EU law, interpreted and applied by the CJ, does not allow them to implement the social policy for which they are largely themselves responsible within the framework of the division of competences under the Lisbon Treaty. The new “AGET Iraklis standard” is particularly noticeable in contrast to CJ’s decision in Case C-426/11 Alemo Herron of 2013, which the CJ also recalled in the decision of AGET Iraklis , arguing that the measures considered by the Greek State could not (unlike in the other case) deny the essence of freedom to conduct a business protected by Article 16 CFREU (paragraph 87). In a highly criticized 22 solution adopted in the case Alemo Herron , the CJ was strikingly brief (38 paras in total) and unconditionally condemned certain extension of collectively agreed workers’ rights allowed by British law in the event of a transfer of undertaking. The rights of employees were paid no attention at all by the CJ, no value was given to the significance of collective bargaining, almost as if the EU’s mission was just to enforce economic freedoms epitomized nowadays in the broadly interpreted right to conduct a business. The Grand Chamber in AGET Iraklis now seems to have corrected the impression created by the Alemo Herron judgment and has shown far greater reverence for the rights of workers and their protection. 23 This optimism based on an apparent finding of a “new balance” in the CJ’s approach should not however be overrated. The EU is now going through a politically, economically and socially very turbulent and substantially less liberal phase of its development, which cannot be without impact on the clashes between the social welfare and the market. Some Member States, as well as influential non-state actors, suggest and promote, very loudly and strongly, such changes in EU legislation that should prevent the prevailing of the freedoms of movement over their national models of social protection and rights. Pitfalls of the decision- making on economic and social conflicts that the CJ had to deal with in the above-mentioned judgments could be resolved once and for all by the legislatures’ will. Instead of a difficult balancing between clashing values, it seems that, in some respects, the permanent supremacy of one value over the other could be imposed by changes of the relevant EU legal acts – to the detriment of liberal freedoms. 24 It can be therefore critically asked whether the CJ shouldn’t, 22 See for instance WEATHERILL, S., Use and Abuse of the EU’s Charter of Fundamental Rights: on the improper veneration of ‘freedom of contract’. European Review of Contact Law 2014; 10(1): 167-182; also BARTL, M., LEONE, C., Minimum Harmonisation and Article 16 CFR: Difficult Times Ahead for Social Legislation? In COLLINS, H., GRUNDMANN, S. (eds.), European Contract Law and the Charter of Fundamental Rights (European Contract Law and Theory No. 2). Cambridge: Intersentia 2017, pp. 113-124, also VEDLMAN, A., DE VRIES, S., Regulation ad enforcement of economic freedoms and social rights: a thorny distribution of sovereignty. In VAN DEN BRINK, T. et al., Sovereignty in the Shared Legal Order of the EU: Core Values of Regulation and Enforcement . Cambridge: Intersentia 2015, p. 65-92, also PRASSL, J., Business Freedoms and Employment Rights. Cambridge Yearbook of European Studies, Vol 17, Dec 2015, pp. 189-209. 23 An interesting detail in this context is the fact that although CJ’s approaches to Alemo Herron and to AGET Iraklis were quite contrasting, the composition of the Third Chamber in the first case and the Grand Chamber in the other partly overlapped: K. Lenaerts, R. Silva de Lapuerta and D. Šváby participated in both so different decisions. 24 See for instance Regulation (EC) No 988/2009 amended Regulation (EC) No 883/2004 on the coordination of social security systems in a restrictive way towards frontier worker entitlements to certain benefits. A currently debated amendment to Directive 96/71/EC tends to eliminate price competitiveness of companies from poorer Member States posting their employees to provide services in richer Member States. At the EU summit in

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