CYIL vol. 8 (2017)

VÁCLAV ŠMEJKAL CYIL 8 ȍ2017Ȏ two or more fundamental rights (and then apply the two-sided proportionality test), or to refute it (and continue to test, as up to now, the possibility of an exemption from internal market rules). Conclusion The above explained facts and their analysis lead to the conclusion that, even ten years after the Viking and Laval decisions, the CJ has not consistently adopted a useful test to apply to resolve conflicts between the freedoms of the EU internal market and the fundamental social rights. The CJ did not proceed in parallel with its approach to conflicts of competition rules with the collective protection of employees’ rights (which would essentially mean excluding the application of internal market rules in such cases) and also did not abandon the unilaterally applied proportionality test, which assesses the exercise of a fundamental right as a protection of an overriding reason in public interest, i.e. as a potential exception, which must be justified, appropriate and necessary. The only change, documented by the analysis of the AGET Iraklis case and by a list of other recent decisions, is the change of accent. For the first time, the CJ, in the AGET Iraklis decision, referenced the new socially-oriented provisions of the Treaty of Lisbon, deducting from them the requirement of parity between the EU’s social and economic objectives and, therefore, a welcoming attitude towards the assessment of social measures and rights. This is a change in the approach that can be described as the filling of old barrels with a new wine. More appropriate to the content of primary EU law in the post-Lisbon period, to the need to clarify the scope and applicability of fundamental rights in the EU, and also more in line with the current EU political priorities (The Rome Declaration 2017 calls for not only a prosperous and sustainable, but straightforwardly for a “social” Europe) would be a bilateral or two-sided proportionality test. Such a test would subject fundamental rights and freedoms to an equal assessment and balancing as if fundamental (constitutional) rights clash between themselves. It is thus a proper way of solving conflicts between two fundamental rights, values and principles of the EU, which the CJ already applied in the Schmidberger case and which is both legally and politically the best response to the criticism that it has so far to face because of the Viking, Laval, and, more recently, Alemo Herron and similar case decisions. 5.

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