8.3.1.4 No hierarchical superiority of fundamental freedoms

393. For the sake of completeness, this section contains a brief discussion of the following topic: the alleged preferred status of fundamental freedoms over other fundamental rights in the current justification regime. Some scholars argue, on the basis of the case law of the Court of Justice, that the current justification regime for restrictions of fundamental freedoms causes a hierarchy in which fundamental rights are automatically subordinate to fundamental freedoms.1 From their point of view, other (fundamental) rights are automatically subordinate to free movement rights, when they are invoked as a legitimate interest in the context of the justification regime applicable to infringements of free movement rights. For example, in Laval the Court of Justice departed from the assumption that there was an infringement of the freedom to provide services and only then went on to assess whether that infringement could be justified by protection of the right to collective action.2 The approach taken by the Court has been subject to a considerable amount of criticism, as it is conceived of creating a hierarchical order, in which the fundamental freedoms are on top and other (fundamental) rights are lower in rank.3

394. In my view, neither the Treaty provisions nor the Court of Justice have ever suggested the existence of such a hierarchy. The fundamental freedoms were originally introduced to protect private parties and the internal market from intervention by Member States. Different from most (other) Treaty provisions regulating fundamental rights, the free movement provisions have specific justification regimes. The fact that the Treaty provides for a justification regime for infringements of free movement provisions does however not by definition result in a hierarchical order between the free movement provisions and other rights. It is self-evident that the Court of Justice follows the regime stipulated by the Treaty. The fact that it turns out to be hard to justify a restriction of a fundamental freedom does not imply that they have an automatic preferred status over other rights. On top of that, the proportionality test on the basis of which restrictions are assessed, includes all relevant rights and interests in light of the concrete circumstances of the case. This line of reasoning is on a par with what the Court of Justice with reference to Schmidberger and Viking – both cases on fundamental freedoms and fundamental rights – held in Egenberger that “a court may, in a dispute between [private parties], be called on to balance competing fundamental rights which the parties to the dispute derive from the provisions of the FEU Treaty or the Charter, and may even be obliged, in the review that it must carry out, to make sure that the principle of proportionality is complied with. Such an obligation to strike a balance between the various interests involved has no effect on the possibility of relying on the rights in question in such a dispute”.4 This consideration is in line with Article 52(1) Charter in conjunction with Article 15 Charter. Hence, it is not at all excluded that restrictions of free movement rights may be justified by (other) fundamental rights and principles.5 In other words, the justification regime linked to the free movement rights is not at all a mere formality by which the dominant character of the fundamental freedoms is secured time after time. Thus, the assertion that there is a hierarchy in which fundamental freedoms are ranked higher than other (fundamental) rights is baseless.6