HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

imposed without specific local circumstances justifying it. The tribunal also ordered the municipality to pay 10,000 French Francs in compensation. The case was subsequently brought before the Conseil d’État. The key legal question was whether the prohibition of dwarf tossing could be justified as a measure to maintain public order, even when the individual involved consented to the activity. The Conseil d’État ruled that human dignity is an integral part of public order and that it could be protected by the state even without specific local conditions. 41 The court held that dwarf tossing degrades the dignity of the individual involved, regardless of consent or protective measures taken to ensure safety. 42 Thus, the court overturned the Administrative Tribunal’s decision, reinstating the ban on the grounds that the municipal police had the right to prohibit such events to preserve public order, with human dignity being a core element of this order. 43 The court also dismissed the claims for compensation made by Fun Production and Mr. Wackenheim, ordering the company to pay 10,000 French Francs to the municipality for costs incurred during the litigation. Application of Our Approach Similarly to the previous case, the court failed to consider that human dignity is also present on the other side. The aspect of dignity on Mr. Wackenheim’s side is his individualistic dignity in deciding whether to be tossed. It is also important to mention that it was his profession that was banned, which infringes upon his right to employment. The court should have recognised that individualistic dignity is present and should have engaged in balancing via the proportionality test. The court should have first assigned a weight to each aspect of dignity. This would probably (due to the actual decision) end in the assignment of a greater weight to communitarian dignity. The other variable would be the intensity of infringement, which could play a role in Mr. Wackenheim’s favour. His individualistic dignity might be given a lesser abstract weight, but the intensity of infringement could be considered greater. We cannot say for certain how the court would have decided the case. Using our approach, the court would provide more justification for the decision and weigh the competing aspect of dignity, which is crucial. Conclusion Although one might conclude that our arguments and critique of the judgments suggest we prioritise individual dignity over communitarian dignity, we aim to 41 International covenant on civil and political rights, Wackenheim v. France, Comm. 854/1999, U.N. Doc. A/57/40 [online]. Vol. II, at 179, para. 5.1 (HRC 2002). [cit. 2024-07-13]. Available at: https:// juris.ohchr.org/casedetails/1010/en-US. 42 Ibid. 43 Ibid. paras. 5.1, 5.2 and 5.3.

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