HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

stating that the proportionality test presumes external justification, especially in assigning an abstract weight to a principle or the intensity of interference. 36 When applied to a dignity–dignity conflict, where the individualistic aspect of dignity is on one side and the communitarian is on the other, the court has to precisely explain why it gives a certain weight to one of the given aspects to justify the decision. This will ultimately fulfil the purpose of the proportionality test, which is to institutionalise the necessary part of every right: the right to justification. 37 4. Omega case In 1993, OMEGA GmbH applied to convert a former glazier’s shop into a Laserdrome, a facility featuring six shooting lanes for laser gun competitions. The facility, approved and opened in August 1994, soon attracted public protests and political attention over concerns that it simulated killing and trivialised violence. Local authorities warned OMEGA GmbH that a prohibition order would be issued if the games simulated killing. OMEGA GmbH denied such intention, stating the games were harmless target-shooting competitions. However, investigations revealed that players did shoot at one another in a maze-like setting, resembling combat. As a result, in September 1994, authorities banned the Laserdrome, arguing that it trivialised violence and violated the principle of human dignity under German law. OMEGA GmbH contested the order, arguing that it violated their rights under Articles 12 (freedom of occupation) and 14 (protection of property) of the Basic Law and that similar facilities in Germany were not banned. These arguments were rejected at all legal levels, including the Higher Administrative Court, which found the game violated human dignity. The case was referred to the Court of Justice of the European Union hereafter “CJEU” to determine whether the prohibition violated EU law on the free movement of services. In October 2004, the CJEU ruled that EU law did not prevent such a ban, as it was justified by the need to protect public order and human dignity. Following the CJEU’s ruling, the German Federal Administrative Court considered the case in December 2006. The court upheld the prohibition, emphasising that the operation of the Laserdrome violated the constitutional guarantee of human dignity. The court noted that even though the acts in the game were simulated, the game encouraged participants to engage in and derive pleasure from the representation of 36 KOREF, T. Test proporcionality jako nástroj zdůvodňování, nikoli nalézání rozhodnutí. In: Právník [online]. Vol. 162, p. 15 [cit. 2024-07-13]. Available at: https://www.ilaw.cas.cz/upload/web/files/ pravnik/issues/2023/12/3_Koref_1156-1175_12_2023.pdf. 37 KLATT, M. Proportionality and Justification. In: HERLIN-KARNELL, E. – KLATT M. – MORALES ZÚÑIGA H. A. (eds.). In: Constitutionalism Justified: Rainer Forst in Discourse . Oxford: Oxford University Press [online]. 2019, p. 32 [cit. 2024-07-13]. Available at: https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3518502.

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