Tipping the scales: exploring structural imbalance in the adjudication of interactions between free movement and fundamental rights

The Viking and Laval cases have reignited persistent concern within the literature, first remarked upon following the Schmidberger ruling, that fundamental rights are structurally subjugated to free movement, within the European Union legal order, by the Court of Justice’s adjudicative methodology. Specifically, criticism has focused on the procedural disadvantage faced by fundamental rights as a result of the Court’s two-stage breach/justification approach. At stage one, a restriction of the applicable market freedom is established. At stage two, the relevant fundamental right is required to ‘defend’ itself against this prima facie unlawful conduct and therefore overcome the evidential hurdles operating at the justification phase, namely, legitimacy of aim, necessity, appropriateness, and general proportionality. It has been frequently argued that this places fundamental rights on the ‘back-foot’. Nevertheless, a two-stage breach/justification model still dominates, even after the extensive criticism that Viking and Laval provoked. Moreover, to date, a large-scale examination of why the Court approaches conflicts between the market freedoms and fundamental rights in this way, precisely why it is problematic, and how it might be overcome, in conformity with the Union’s constitutional requirements, is generally absent from the literature. This thesis seeks to plug this gap. It conducts an essential diagnostic analysis in order to identify the causes of the procedural prioritisation of free movement and the impact of the imbalanced architecture of the Court’s decision-making on fundamental rights. Significantly, it demonstrates that the use of a two-stage breach/justification framework is the product of an historical hangover rooted in the economic foundations of the EU’s predecessor, the EEC. Since the central purpose of the Rome Treaty was economic integration through the creation of a common market, and a key tool in achieving this was the free movement of goods, workers, services/establishment, and capital, it was logical for the Court to employ a method of adjudication that presented conflicting Member State law and policy as a prima facie ‘wrong’ in need of justification. Critically, since the market freedoms were not initially directly effective and could only be triggered by protectionist and/or directly discriminatory Member State conduct, they were generally unlikely to interact with fundamental rights. However, crucially, the thesis identifies a trinity of significant and overlapping constitutional developments, all of which have contributed to an escalation of conflict between free movement and fundamental rights but which have also, ironically, reinforced the breach/justification framework, and therefore the procedural prioritisation of free movement. Specifically, this constitutional trinity is comprised of: the expansion of the material and personal scope of the free movement provisions; the recognition of the direct effect of the market freedoms; and the introduction of Union citizenship. The thesis also offers an important assessment of the effects of this exacerbation of structural bias from practical, theoretical and Union constitutional perspectives. In particular, a trio of negative consequences emerges from the fact that, under the two-stage model, only fundamental rights, and not free movement, face questions of proportionality. Crucially, this issue is normally assessed by reference to whether there are means of safeguarding fundamental rights that are less restrictive of free movement. This can limit the legal space for the consideration of crucial factors including, first, the need for idiosyncratic rights protection within particular Member States; second, the fact that, in some situations, certain fundamental rights, such as the right to strike, are inherently restrictive of free movement; and, third, that measures less restrictive of free movement will not always be feasible when budgetary or administrative considerations are taken into account. This is especially true of fundamental rights of a programmatic nature. From a theoretical point of view, the structural subjugation of fundamental rights presents a challenge to their status as universal inviolable absolutes that represent the basic needs central to our human dignity. Alternatively, a procedural preference for free movement over fundamental rights undermines the ‘social fact’ of fundamental rights within the EU legal order, which the Treaties explicitly commit the Union to respecting. Indeed, an interrogation of the constitutional implications of the breach/justification framework demonstrates that it is out of line with the EU’s contemporary constitutional framework. In particular, the thesis charts the evolution of the Union’s goals beyond economic integration and notes that, in relation to some of its new objectives, the Treaties confer only shared or complementary legislative competence upon the Union. This necessitates a model that permits the Member States sufficient space to pursue these aims, many of which overlap with fundamental rights concerns, away from the shadow of a breach of free movement. A procedural preference for free movement is also particularly unsuitable in the post-Lisbon era in which the Union is formally obliged to accede to the European Convention on Human Rights and in which the Union’s own Charter of Fundamental Rights enjoys primary law status. Ultimately, the thesis advances a balancing model as an alternative method of adjudication more suited to the Union’s contemporary constitutional requirements. Study of this model is pertinent due to its increasing relevance both in the academic commentary and in the case-law of the Court of Justice concerning rights clashes occurring at the level of secondary Union legislation, and in the approach of the European Court of Human Rights in the context of conflict between Convention rights. A balancing methodology recognises the equal legal status of conflicting norms and seeks to reconcile and find compromise between opposing rules in order to locate an outcome that is least restrictive of both norms. Nevertheless, the commentary to date has not yet dealt fully with the potential practical and conceptual obstacles to adopting a balancing methodology. Specifically, equal legal status does not provide a concrete means of resolving tensions between free movement and fundamental rights when they collide. Moreover, balancing introduces the conceptual question of whether free movement should be treated as (equal to) a fundamental right. The thesis argues that these challenges can be overcome. Specifically, balancing can offer concrete outcomes through a process of reciprocal proportionality assessment whereby the relative impacts of free movement and fundamental rights on each other are analysed. Finally, drawing on the undeniable constitutional significance of free movement within the Union legal order, and its importance to the EU citizen, the thesis argues that free movement should be recognised as a fundamental right within the Union’s own legal framework or, at the very least, as a norm of equal rank.

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