CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ is a permanent object of judicial clarification, whereby the CJ is on one hand accused of extending its scope of applicability and also sometimes of restricting its usefulness for the weaker and socially needed. 28 Uncertainty and controversy are nourished for instance by the importance given to the freedom to conduct a business in some judgments, such as Alemo Herron , and rather cautious treatment of the same freedom in some others, 29 or by the fact that the existence of a fundamental right, as in the case of AGET Iraklis , is mentioned but then not worked with. Only part of such discrepancies can be explained by the difference in the cases that the CJ has to deal with. However, let’s return to the many times stated fact that the scope of fundamental rights application is broadening and hand in hand with this trend there is also their growing overlap (in form and content) with fundamental freedoms. 30 As pointed out AG Trstenjak in her already quoted opinion in C-271/08 Commission v Germany : “… the relationship between fundamental freedoms and fundamental rights is characterised by a broad convergence both in terms of structure and content. Thus, it is possible, for example, to formulate the substantive guarantee inherent in fundamental freedoms in terms of fundamental rights, in particular, using fundamental rights which protect economic activity.“ (para 187). And although there are authors with doubts about this “convergence thesis“, 31 and in general the further expansion of fundamental rights may lead to more clashes and less respect for them, 32 such an approach may nonetheless simplify the solution to the problem discussed in this paper. It can help to find an adequate model of their balancing in the cases of conflicts of fundamental freedoms (i.e. “market- based” fundamental rights) and fundamental social rights. In the event of a conflict of two or more fundamental rights, the CFREU itself – i.e. the primary EU law - requires, in Article 52 (1), the following: “Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” This clearly means that of all the variants of the proportionality test, or the tests at large that the CJ applies in its decision-making sometimes without using the term proportionality as such, 33 in the case of conflicts of a freedom of movement with a fundamental (social) 28 See the CJ judgment in Case C-617/10 Akerberg Fransson EU:C:2013:105 as an example of an extensive interpretation of the scope of CFREU application, and in contrast to it the CJ judgment in Cases C-176/12 Association de médiation sociale EU:C:2013:491 or C-333/13 Dano EU:C:2014:2358 as examples of a restrictive application (or non-application) of the CFERU provisions. 29 See for instance the CJ judgment in Case C-544/10 DeutschesWeintor eG v. Land Rheinland-Pfalz EU:C:2012:526 30 Well before the Lisbon Treaty and the binding nature of CFREU the fundamental freedoms were sometimes called “quasi fundamental rights” due to the status they enjoyed in EU law. See GRYGAR, J., Ochrana základních práv v Evropské unii ( Protection of Fundamental Rights in the European Union ). Praha: IFEC 2001, p. 27, for a detailed review see TRSTENJAK, V., BEYSEN, E., The Growing Overlap of Fundamental Freedoms and Fundamental Rights Case Law of the CJEU. European Law Review Issue 3/2013, pp. 293-315. 31 See for instance de CECCO, F., Fundamental Freedoms, Fundamental Rights and the Scope of Free Movement Law German Law Journal No 15/2014. 32 See the deeply founded criticism of such a trend in DE BENOIST, A., Au-delà des droits de l’homme . Paris: Pierre Guillaume de Roux, 2016, pp. 58-61, for a comprehensive overwiev n MANTOVALOU, V., Are Labour Rights Human Rights? European Labour Law Journal No 2/2012, pp. 151-173. 33 See for details in SAUTER, W. Proportionality in EU law: a balancing act? SSRN Workig Paper 25. 1. 2013 http://ssrn.com/abstract=2208467, also HATZOPOULOS, V., The Court’s Approach to Services (2006-2012): From Case Law to Case Load? Common Market Law Review No 50/2013 pp. 459-502. The CJ sometimes narrows down its control to “manifest inappropriateness“, especially when the conformity of EU secondary measures with the primary EU law is to be assessed, sometimes the CJ prefers the criterion of “the

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