CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TEN YEARS AFTER THE VIKING JUDGMENT … right, the CJ should, in accordance with the provisions of Article 52 (1) CFREU, select the two-sided proportionality test which it had already applied in the Schmidberger judgment and which was recommended by AG Trstenjak in its Opinion in the European Commission v Germany case. This is not a novelty either for the CJ’s practice or for the legal theory, as it is basically a three-step test devised by R. Alexy for cases of clashes between constitutional rights. A potential victory of a fundamental freedom over a fundamental right and vice versa should be assessed under the angle of suitability, necessity and proportionality (in the narrower sense) in order to find Pareto optimum of satisfaction (or limitation) of each of them. 34 It does not mean at the same time that the outcome of the CJ’s decision-making would have to be significantly different in the future from what it has been so far. In many cases, the exercise of a collective right could be found collectively protectionist insofar as it would effectively eliminate business freedom, and indeed one side of such two-sided test would decide the whole case. The advantages of such a two-sided testing would be numerous. There is no doubt that fundamental rights, including social ones, would be treated in a manner consistent with their fundamental status. Such rights would not have to hide behind overriding reasons in public interest and would not be treated as potentially justified exceptions from an unquestioned rule. There would not be the danger that if, in one extreme case, a fundamental social right (or principle) contained in the CFREU does not fit to any overriding reason in public interest, it would not be protected at all against the freedom of market access. This would also eliminate the inconsistency or contradiction between the approach at the Member State and EU levels. Constitutional protection at the national level usually requires (in accordance with the standard of international human rights conventions) to restrict human rights just for reasons of necessity in a democratic society, in order to protect public interest or the rights and freedoms of another. 35 Contrary to that the maintaining of a “classic” one-sided proportionality test would mean that at the EU level the entrepreneurial freedom would keep a more prominent place than a fundamental social right and the latter has to be tested if it could possibly restrict the former. The CJ would still be able to seek the effet util e of broadly defined, sometimes open- ended social rights by requiring suitability and necessity of their practical implementation, but the way it would do that would be far more acceptable to constitutional lawyers and international organizations protecting workers’ rights. The approach that, at the first glance, may appear to be an artificial search for a fundamental right on each side of a potential conflict between internal market freedom and certain social protection measure, would, on the contrary, rather lead to a judicious refinement of the content and scope of fundamental rights embodied in the CFREU. There would be no hints without follow-ups, as in a situation when the existence of a fundamental right was mentioned but then not dealt with in the CJ’s decision. The Court would always be required to either confirm the existence of conflict of least burdening measure“, often applied when it tends to respect a Member State’s wider autonomy to regulate the issue at stake. 34 ALEXY, R., Constitutional Rights and Proportionality. Revus (Online) No 22/14, April 2014 http://revus. Revues.org/2783. 35 See for instance Art 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or Art 31 of the European Social Charter.

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