8.3.1.1 The key issue: the interests of private parties

378. The grounds of justification for restrictions of fundamental freedoms – both the Treaty exceptions1 and the rule of reason exceptions – are tailored to Member States, not to private parties.2 The current grounds primarily concern issues of public interests, such as public health, public safety, or public policy.3 As a rule, the interests of private parties differ to a considerable extent from the interests and objectives of a State entity.4 As Streinz and Leible note:

Streinz and Leible thus plead for an approach in which private interests are taken into account in the assessment of whether or not a restriction of a fundamental freedom by a private party can be justified.

379. Private parties predominantly have private – i.e. personal, individual – interests of an economic nature6 or of a non-pecuniary nature, for example in respect of their fundamental rights such as the freedom of contract, the right to privacy, or the right to non-discrimination.7 In relation to Member States the Court of Justice has ruled that purely financial interests are not acknowledged as grounds of justification.8 It is debatable whether it makes sense to uphold such an approach with regard to interests that can be invoked as grounds of justification by private parties.9 Be that as it may, thus far the Court’s case law on grounds of justification that can be invoked by private parties is fragmented and nebulous.

380. In Bosman the Court of Justice stated that “there is nothing to preclude individuals from relying on justifications on grounds of public policy, public security or public health” and that “neither the scope nor the content of those grounds of justification is in any way affected by the public or private nature of the rules in question”.10 Nonetheless, thus far the Court has not delivered a ruling in which it concluded that a restriction of a fundamental freedom by a private party was justified.

381. In Angonese the Court stated that a restriction of Article 45 TFEU can be justified “only if it were based on objective factors unrelated to the nationality of the persons concerned and if it were in proportion to the aim legitimately pursued” [Emphasis added: I.A.].11 The Court’s subsequent considerations leads one to suspect that the criterion “objective factor” is synonymous to “legitimate aim”. Not surprisingly, it is out of the question that arbitrary restrictions are justifiable. The Court of Justice considers that the requirement that an applicant has a certain level of linguistic knowledge may be legitimate and that the possession of a diploma such as the certificate may constitute a criterion for assessing that linguistic knowledge. Yet, the fact that it is impossible to submit evidence of the required linguistic knowledge by any other means, for instance by equivalent qualifications obtained in other Member States, must be considered disproportionate in relation to the aim pursued and this particular requirement can therefore not be justified.12

382. In Laval the Court held that a restriction of Article 56 TFEU by a private party can be justified only if the restriction pursues a legitimate objective compatible with the Treaty and relates to overriding reasons of public interest.13 If that is the case, the restriction must be suitable for securing the attainment of the legitimate objective which it pursues and not go beyond what is necessary in order to attain that objective.14 The Court stated that the right to collective action for the protection of workers may constitute an overriding reason of public interest, which “in principle justifies the restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty”.15 This consideration is valuable for trade unions, which aim to protect, in a collective way, the interests of workers. However, in this specific case the collective actions taken were disproportionate to their aim and did therefore not constitute a justification for the restriction of the freedom to provide services.16

383. Lastly, in Laval the Court of Justice also recalled that “the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods or freedom to provide services”.17 The Court referred to the cases Omega Spielhallen and Schmidberger – both regarding vertical legal relationships – which illustrate that the protection of some fundamental rights may relate to the public order and therefore may serve as a justification for the restriction of a fundamental freedom.18 Two questions arise that have not yet been – exhaustively – answered by the Court of Justice. Firstly, which fundamental interests and rights – besides the right to collective action19 and human dignity20 – can constitute an overriding reason of public interest that can justify a restriction of a fundamental freedom in a legal relationship between private parties?21 The answer to this question is particularly relevant to private parties that pursue public interests, and possibly also organizations that pursue, collectively, social interests.22 And secondly, to what extent can the protection of a fundamental right as a private interest also be put forward to justify a restriction of another private party’s fundamental freedom? In my view, when a fundamental right is invoked as a strictly private interest for the justification of the restriction of a fundamental freedom, it is less ponderous than when a fundamental right is (also) invoked as a public interest. Whether or not a strictly private interest can justify a restriction strongly depends on the concrete circumstances of the case. It is safe to claim that the more ‘public’ the interest is in restricting a fundamental freedom, the more likely it falls in the category of interests that can justifiy a restriction of a fundamental freedom; the more ‘private’ the interest in restricting a fundamental freedom is, the less likely it is that the particular restriction can be justified.