HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

killing. This, according to the court, trivialised violence and degraded the sanctity of human life 38 , which the German Constitution, particularly considering the historical context of the post-World War II era, sought to protect rigorously. 39 The court also addressed the company’s arguments concerning equal treatment and professional freedom. It found that protecting human dignity took precedence over OMEGA GmbH’s claims under Articles 12 and 14. It further rejected the argument that similar games operated in other cities should influence the court’s decision. The principle of “no equality in injustice” 40 was invoked, meaning that any potential misapplication of the law elsewhere did not justify permitting such violations in this case. Application of Our Approach We believe that the court failed to consider the aspect of individualistic dignity on the side of OMEGA. Part of people’s human dignity is deciding what they engage in and do not. By banning the laser game enterprise of OMEGA outright, an individual cannot decide whether he wants to partake or not but is forced not to participate. This is an intrusion into his individualistic dignity. Human dignity is present on both sides. The court should have recognised this and engaged in the proportionality test. First, the court would have to assign an abstract weight to each aspect of dignity. The court would probably (due to its actual decision) assign a greater weight to communitarian dignity. Thus, the result of the case might be the same. Still, our approach’s added benefit is that, by using the proportionality test and assigning a weight, it provides adequate justification for the decision. 5. Wackenheim case The 1995 case of Commune de Morsang-sur-Orge before the French Conseil d’État revolved around the controversial practice of “dwarf tossing”. On October 25, 1991, the mayor of Morsang-sur-Orge issued an order banning a dwarf tossing event scheduled at a local nightclub. The event organiser, Fun Production, and the individual who would be tossed, Mr. Wackenheim, contested the mayor’s decision. They argued that the ban violated their freedom to work and freedom of trade and sought damages for the prohibition. The Administrative Tribunal of Versailles initially sided with Fun Production and Mr. Wackenheim, ruling on February 25, 1992, that such a ban could not be 38 Court of Justice of the European Union. C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [online]. Judgement of 14 October 2004, paras. 7, 25 [cit. 2024-07-12]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62002CJ0036. 39 Ibid, para. 25. 40 Ibid.

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