CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TEN YEARS AFTER THE VIKING JUDGMENT … in this difficult stage of EU development, play better its role as a stabilizing anchor of its legal system – by further clarifying and removing the controversy of its approach to the conflicts of fundamental freedoms and fundamental rights. The answer should undoubtedly be “yes”, but it needs to be further explained and elaborated on. The EU now has a very broad catalog of EU fundamental rights, which, moreover, is not strictly limited to the CFREU content. 25 Almost every conflict of freedom of movement with social protection measures can therefore be interpreted as a conflict of two or more fundamental rights. If the common ideal of the freedoms of movement is the least restrictive “market access”, then market players demanding these freedoms will very often find support in one of these Articles of CFREU: Article 15 (freedom to choose an occupation), Article 16 (freedom to conduct a business), Article 17 (right to property), Article 21 (non-discrimination), Article 45 (right of movement and residence). On the other hand, supporters of the social market economy and of the high standard of social and employment protection can refer to Article 12 (freedom of assembly and association, including trade unions), Article 15 (right to engage in work), Article 23 (equality between men and women), Article 25 (the rights of the elderly), Article 26 (integration of persons with disabilities) and, in essence, to the whole of Title IV CFREU, entitled Solidarity (specifically Articles 27-36), covering both employee rights (information, consultation and collective bargaining, protection in the event of unjustified dismissal, fair and just working conditions) and social protection (access to placement services, prohibition of child labor, work-life balance, social security and social assistance, health protection, access to services of general economic interest). Unfortunately, if uncertainty about the interpretation and application of EU law is particularly noticeable, it concerns especially the fundamental rights contained in the CFREU. This catalog of rights with the status of fundamental rights is so extensive and so formulated, 26 that some of the rights contained therein must be “lowered” down to the status of so-called principles. Because of their generality, conditionality and rather programmatic nature, they cannot be invoked in a specific dispute. 27 In addition to that, the extent of the applicability of the rights contained in the CFREU by national courts of Member States February 2016, Member States promised (at the time of trying to keep the UK in the EU) a limit on EU migrant workers’ entitlement to social assistance, a requirement that apparently will not disappear with Brexit. The European Trade Union Confederation (ETUC) has tried since 2008 to prevent preeminence of market freedoms over social rights by pushing for the addition of the so-called Social progress protocol to the Lisbon Treaty. The gist of this proposal is contained in its Article 3: in case of conflict fundamental social rights shall take precedence. See https://www.etuc.org/proposal-social-progress-protocol. 25 See Article 6 (3) TEU, according to which fundamental rights derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as from the constitutional traditions common to the EU Member States are the general principles of EU law. Thus, the EU‘s catalog of fundamental rights is not given and limited by the CFREU. 26 The CFREU does not categorize fundamental rights according to any hierarchy or level of importance (apart from the distinction between rights and principles), and thus puts into the same limelight the “traditional” rights to life, human dignity, freedom of thought, expression, assembly ... and besides them the right to information and consultation in the company, the right of access to services of general economic interest or of consumer protection whose inclusion in fundamental rights, i.e. into a fundamental element defining the individual‘s legal position vis-à-vis society and political authority, must necessarily give rise to discussions and practical problems. 27 The CFREU itself does not establish any clear distinction between a list of directly claimable rights and a list of “mere“ principles. Legal usefulness of its provisions is thus to be construed by interpretation and its confirmation in CJ’s judgments. See for details in ŠMEJKAL, V., ŠAROCH, S. SVOBODA, P., European Union as a Highly Competitive Social Market Economy. Legal and Economic Analysis . RWW Passau-Berlin-Prague 2016, pp. 113-127.

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