The Balance between Fundamental Freedoms and Fundamental Rights in the European Community
Abstract: Fundamental rights and the four fundamental freedoms co-exist in Community law. These two fundamental interests have been placed on the highest normative level by the ECJ. Notwithstanding its similarities, fundamental rights and fundamental freedoms are two different notions, where the former is typically human rights and the latter applies primarily to economic circumstances. When these two fundamental interests come in to direct conflict with each other, it is necessary for the ECJ to strike a fair balance. This was imperative in the cases of Schmidberger, Omega, Viking Line and Laval. Case C-112/00 Schmidberger  ECR I-5659, Case C-36/02 Omega  ECR I-09609 , Case C-341/05 Laval  ECR I-00000 and Case C-438/05 Viking Line  ECR I-00000. It is in those conflicting situations that one can really see the relationship between these two fundamental interests in the EU. In the balancing process between fundamental rights and fundamental freedoms, the Court applies the principle of proportionality. This general principle of Community law has been applied in a flexible manner. Nevertheless, in the proportionality test one can distinguish three steps that can be summarised as suitability, necessity and proportionality stricto sensu. Generally, the Court does not reach the third step of the test. In Schmidberger, however, the Court reached the proportionality stricto sensu and formulated the principle of proportionality as an explicit balance of interests. In Omega, the Member State inflicted human dignity under the heading of public policy as a justification of the restriction of free movement. As regards to the vague notion of human dignity, the Court held that it is not necessary that the Member State's conception of this fundamental right is shared by all other Member States. Even though that the proportionality principle must be respected, the approach suggest a rather wide margin of discretion to the Member State. In Viking Line and Laval, the trade unions' fundamental right to take collective action came into direct conflict with the free movement. The Court left it to the national court to apply the proportionality test in Viking Line, whereas in Laval the Court itself applied the test. The examined cases demonstrate that the Court applies a nuanced case-by-case analysis when a fair balance needs to be struck between a fundamental right and a fundamental freedom. The conclusion can be drawn that the type of fundamental right at stake seems to be of particular importance in that analysis. Following the ratification of the Lisbon Treaty, the EU Charter of fundamental rights will acquire binding force. The impact that that will have for the balance between fundamental rights and fundamental freedoms is uncertain. By giving fundamental rights, and specifically social rights, a more prominent position in the Union, it could have an effect on the balance in favour of fundamental rights.
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