8.3.1.3 Reframing the proportionality assessment?

389. To start with, a restriction of a fundamental freedom has to have a legitimate aim. It is not clear how the approach of the Court of Justice in Angonese (objective factors)relates to the approach of the Court of Justice in Laval (overriding reasons of public interest). Be that as it may, from both cases it becomes clear that the question whether or not a restriction of Article 45 TFEU or Article 56 TFEU – and presumably of any fundamental freedom – is permitted, is answered on the basis of a proportionality assessment. This proportionality assessment applies regardless of whether it concerns a restriction by a State authority or a restriction by a private party.1 The fact that a proportionality assessment applies, follows not only from the Treaty provisions, but also from Article 52(1) Charter2 in conjunction with Article 15 Charter, which covers the free movement of workers, the freedom of establishment and the freedom to provide services3. Yet, this takes us back to square one. After all, the proportionality test which determines whether a restriction of a fundamental freedom can be justified, is tailored to Member State action and to public interests, not to private interests. Those proportionality tests primarily assess whether the restriction has a legitimate aim (a public interest) and whether that aim is pursued by an appropriate and necessary means.4 In these assessments, proportionality stricto sensu is generally absorbed by the element of necessity rather than being explicitly and separately assessed.5 Such a proportionality test is in principle unsuitable for horizontal legal relationships in which the interests involved are of a private nature rather than of a public nature.

390. In relation to restrictions to free movement provisions by Member States, Van Gerven argues that the more complex the balancing of interests is, the more appealing it is for a court to apply a general reasonableness test instead of a full-fledged proportionality test.6 This statement is illustrated by the preliminary ruling of the Court in Familiapress.7 The case concerned a restriction of the free movement of goods: on the basis of an Austrian provision prohibiting prize games in press, a German weekly magazine containing cross word puzzles and other prize games was banned from the Austrian market. Austria held that the prohibition was justified becauses it promotes press diversity, which for its part would safeguard the freedom of expression.8 After articulating the various interests at stake9 the Court delegates the actual proportionality assessment to the national court. The Court offers rather concrete criteria for the assessment of whether the legislative provision is a permitted restriction of the free movement of goods. Although the criteria for justification include the element of necessity,10 they strongly reflect a general balancing of interests with press diversity on one scale, and freedom of expression and free movement of goods on the other.11

391. A general reasonableness test like in Familiapress, which formed the framework in which various clashing fundamental rights were balanced with the aim to assess whether or not a restriction of the free movement of goods was permited,could mutatis mutandis also be applied in horizontal proceedings in which a fundamental freedom is restricted and the party that restricts the fundamental freedom invokes a fundamental right to justify that restriction. That is, for the assessment of whether or not a restriction of a fundamental freedom is permitted, the application of a reasonableness test is more advisable than that of a proportionality assessment along the lines of the constitutive elements of the proportionality principle, which are not tailored to conduct of private parties.12 For a civil lawyer it may be logical that such a balancing exercise applies in cases in which private parties have clashing interests that may result in the restriction of a right of either one of them; under national tort law it is not uncommon that the unlawfulness of the restriction of a right resulting from the exercise of a colliding right is assessed on the basis of a reasonableness test in which the interests are balanced in light of the concrete circumstances of the case.13 In that respect it is however important to recall that, as discussed in §7.3.1, the unlawfulness of a restriction of a fundamental freedom is determined under Union law, not under national law. Only when it has been established under Union law that a fundamental freedom has been infringed14, the door is opened to the application of further requirements for liability on the basis of national private law, which has to respect the principles of effectiveness and equivalence and which aims at the recovery of the aggrieved party. The balancing of clashing interests in horizontal legal relationships in which a fundamental freedom has been restricted, thus takes place in the context of the justification regime under Union law, not under national law.15

392. In my view, the balancing of competing rights and interests in horizontal legal relationships in which a fundamental freedom is at stake, can perfectly well be brought under the element of proportionality stricto sensu, which can be understood as a reasonableness test that takes into account all interests and relevant circumstances of the case.16 When assessing the lawfulness of a restriction on the basis of such a reasonableness test, a national court must balance the interests involved – e.g. a fundamental freedom on the one hand and a Charter provision on the other – irrespective of whether those interests – as rights – have direct horizontal effect and without there being a predetermined hierarchy (see below). Time will tell whether the Court indeed approves of such a global reasonableness assessment, which primarily resembles proportionality stricto sensu, for the determination of the unlawfulness of a restriction of a fundamental freedom in legal relationships between private parties and, if it would not, how restrictions of fundamental freedoms by private parties must then be assessed.