Vaclav Smejkal
Associate Professor of European Law at Charles University in Prague Law School and Senior lecturer in law at SKODA AUTO University in Mladá Boleslav, Czechia. Arbitrator at permanent Arbitration Court attached to the Czech Economic and Agrarian Chambers. Research interests: competition law, social law, consumer law, European intergation - history, policy, law, future.
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Papers by Vaclav Smejkal
The key role should henceforth be played not by Member States, their national priorities and money, but by the EU as a whole, represented primarily by the European Commission. The article considers whether such a concept is in line with EU primary law and whether the EU Chips Act creates sufficient preconditions for the new EU industrial policy not to degenerate into the old competition over who will support the "national
industrial champions" more and thus further divide the EU into centre and periphery. It concludes that while the innovative concept of the EU Chips Act strengthens the role of the Commission, the financial weakness of
the EU's common budget still leaves strong levers in the hands of individual states. It will be up to the Commission, and in addition to the Commission, it will also depend on the activity and support of smaller and
peripheral Member States, whether boosting the development of the chip industry will unite or divide the EU.
largely with car manufacturers, they will become gatekeepers and the entire aftermarket will either fall into complete dependence on them or lose the ability to innovate and compete. Aftermarket leaders and EU institutions are working to ensure that this data is shared from manufacturers to other supply and service providers. However,
the most sensitive data is of a personal nature and its widespread sharing in the name of open competition may conflict with the right to privacy and the protection of drivers' personal data. Protecting both competition and data at the same time can be awfully expensive, with negative impacts on consumption and available mobility. This paper seeks to explain this straitjacket of three not entirely consistent requirements and to show the possibilities for emerging legislation within its framework. It shows that there are not only convincing arguments but also strong lobbies behind each of the demands, which makes finding a compromise solution even more difficult. At the end of the analysis, a solution is proposed which, taking into account all the constraints, appears to be the least detrimental
to the preservation of all protected rights and legitimate interests.
obliges EU, already since December 2009, to ensure that in all its activities certain social principles
are reflected. Although seven years ago a significant potential was attributed to this new Treaty
provision, looking back at the post-Lisbon EU developments, Commission´s documents and decisions
of the EU Court of Justice, it is clear that the horizontal social clause has not changed the EU at all.
The EU is still suffering from the same "social deficit" for which the European left and the unions has
been criticizing it in the pre-Lisbon period and which is depriving it of the support of EU citizens. The
positive effect of the horizontal social clause on EU policies would therefore require a boosting
supplement, e. g. as the one suggested on in the text of this study
appropriateness of the EU Court of Justice (CJ) approach to cases of conflict between the fundamental
freedoms of the EU internal market and the fundamental, especially social, rights protected by EU law as
well. The CJ does not abandon its pre-Lisbon case law, only the accent seems to change. In its recent
decisions however - in particular the AGET Iraklis one from December 2016 - a quite more socially
responsive approach can be traced. The following analysis attempts to sum up the path that the CJ has made
between the Viking and AGET Iraklis judgments. It wonders whether the CJ has found the optimal solution for
clashes between fundamental freedoms and fundamental rights. It shows that this is not yet the case, because
even in the AGET Iraklis judgment CJ did not abandon the one-sided test of proportionality, which treats
basic social rights and their protection as possible exceptions to the freedoms of movement that could be
acceptable only if they are reasonably justified by the protection of overriding reasons in public interest.
field to market forces, the EU competition law has had to cope with the situations of clash
between values of social welfare and free competition. In the post-crisis period the European
Union wants and needs to be more socially responsive, as the strengthening of social justice
and social rights, the fight against poverty and social exclusion has become the key to
political legitimacy of the European integration as well as of its Member States. A question
hence arises how the call for a more social EU would cohabit with the free and undistorted
competition. The paper tries to remedy on the fact that the EU so far has no accepted
methodology of how to integrate public policy considerations in competition decisions. After
sketching such a methodology based on the CJEU pre-Lisbon case law, the present analysis
deals with the post-Lisbon developments inquiring whether the CJEU is paying now more
consideration to social security measures.
2014-2016, changed its traditional approach to the protection of rights of migrating EU citizens. Their
rights that used to be derived primarily from their citizenship status, i.e. directly from the Treaty, seem
now to be exhaustively and restrictively defined by the conditions of Directive 2004/38. The paper
argues however, that the three cases concerned, represented rather a limited set of situations such as
claims to specific social assistance by economically inactive EU-migrants or their request of specific
social assistance at the beginning of their residence and before they found a job in the host Member
State. More importantly and contrary to this development, the CJEU keeps strengthening rights and
entitlements of those who want to be economically active, i.e. of EU migrant workers and selfemployed persons. Thus, regardless of its change of approach in the specific cases Dano, Alimanovic,
Garcia-Nieto, the CJEU remains opposed to the restrictions of rights of economically active EUmigrants as they were discussed and promised by EU statesmen at the European Council summit in
February 2016.
that legitimate interests of their employers are safeguarded. The answer cannot be solely technological, as the
employees right to privacy, even in the workplace, is protected at the highest constitutional as well as
international levels. Employers when defending their rights and interest are therefore far from free to use the
potential of available technological devices in full and without limits. To strike the right balance between
legitimate interests and fundamental rights is by no means easy, as the present text tries to demonstrate by
summarizing and analyzing the existing Czech approach to the issue. On the one hand, Czech law on the
protection of privacy of employees in the workplace, as well as the authorities applying it, are principally in
line with generally accepted European standards. On the other hand, however, this basic consensus on values
and their substantive and procedural legal safeguards does not mean that Czech law currently answers all
questions and leads employers safely outside the restricted zone of prohibited ways of employee monitoring.
The focus of the text is thus directed at those provisions of legal acts, decisions of the highest courts, opinions
of supervisory authorities and arguments of commentators that influence the way in which the aforementioned
rights and interest are balanced in the current Czech legal practice
The key role should henceforth be played not by Member States, their national priorities and money, but by the EU as a whole, represented primarily by the European Commission. The article considers whether such a concept is in line with EU primary law and whether the EU Chips Act creates sufficient preconditions for the new EU industrial policy not to degenerate into the old competition over who will support the "national
industrial champions" more and thus further divide the EU into centre and periphery. It concludes that while the innovative concept of the EU Chips Act strengthens the role of the Commission, the financial weakness of
the EU's common budget still leaves strong levers in the hands of individual states. It will be up to the Commission, and in addition to the Commission, it will also depend on the activity and support of smaller and
peripheral Member States, whether boosting the development of the chip industry will unite or divide the EU.
largely with car manufacturers, they will become gatekeepers and the entire aftermarket will either fall into complete dependence on them or lose the ability to innovate and compete. Aftermarket leaders and EU institutions are working to ensure that this data is shared from manufacturers to other supply and service providers. However,
the most sensitive data is of a personal nature and its widespread sharing in the name of open competition may conflict with the right to privacy and the protection of drivers' personal data. Protecting both competition and data at the same time can be awfully expensive, with negative impacts on consumption and available mobility. This paper seeks to explain this straitjacket of three not entirely consistent requirements and to show the possibilities for emerging legislation within its framework. It shows that there are not only convincing arguments but also strong lobbies behind each of the demands, which makes finding a compromise solution even more difficult. At the end of the analysis, a solution is proposed which, taking into account all the constraints, appears to be the least detrimental
to the preservation of all protected rights and legitimate interests.
obliges EU, already since December 2009, to ensure that in all its activities certain social principles
are reflected. Although seven years ago a significant potential was attributed to this new Treaty
provision, looking back at the post-Lisbon EU developments, Commission´s documents and decisions
of the EU Court of Justice, it is clear that the horizontal social clause has not changed the EU at all.
The EU is still suffering from the same "social deficit" for which the European left and the unions has
been criticizing it in the pre-Lisbon period and which is depriving it of the support of EU citizens. The
positive effect of the horizontal social clause on EU policies would therefore require a boosting
supplement, e. g. as the one suggested on in the text of this study
appropriateness of the EU Court of Justice (CJ) approach to cases of conflict between the fundamental
freedoms of the EU internal market and the fundamental, especially social, rights protected by EU law as
well. The CJ does not abandon its pre-Lisbon case law, only the accent seems to change. In its recent
decisions however - in particular the AGET Iraklis one from December 2016 - a quite more socially
responsive approach can be traced. The following analysis attempts to sum up the path that the CJ has made
between the Viking and AGET Iraklis judgments. It wonders whether the CJ has found the optimal solution for
clashes between fundamental freedoms and fundamental rights. It shows that this is not yet the case, because
even in the AGET Iraklis judgment CJ did not abandon the one-sided test of proportionality, which treats
basic social rights and their protection as possible exceptions to the freedoms of movement that could be
acceptable only if they are reasonably justified by the protection of overriding reasons in public interest.
field to market forces, the EU competition law has had to cope with the situations of clash
between values of social welfare and free competition. In the post-crisis period the European
Union wants and needs to be more socially responsive, as the strengthening of social justice
and social rights, the fight against poverty and social exclusion has become the key to
political legitimacy of the European integration as well as of its Member States. A question
hence arises how the call for a more social EU would cohabit with the free and undistorted
competition. The paper tries to remedy on the fact that the EU so far has no accepted
methodology of how to integrate public policy considerations in competition decisions. After
sketching such a methodology based on the CJEU pre-Lisbon case law, the present analysis
deals with the post-Lisbon developments inquiring whether the CJEU is paying now more
consideration to social security measures.
2014-2016, changed its traditional approach to the protection of rights of migrating EU citizens. Their
rights that used to be derived primarily from their citizenship status, i.e. directly from the Treaty, seem
now to be exhaustively and restrictively defined by the conditions of Directive 2004/38. The paper
argues however, that the three cases concerned, represented rather a limited set of situations such as
claims to specific social assistance by economically inactive EU-migrants or their request of specific
social assistance at the beginning of their residence and before they found a job in the host Member
State. More importantly and contrary to this development, the CJEU keeps strengthening rights and
entitlements of those who want to be economically active, i.e. of EU migrant workers and selfemployed persons. Thus, regardless of its change of approach in the specific cases Dano, Alimanovic,
Garcia-Nieto, the CJEU remains opposed to the restrictions of rights of economically active EUmigrants as they were discussed and promised by EU statesmen at the European Council summit in
February 2016.
that legitimate interests of their employers are safeguarded. The answer cannot be solely technological, as the
employees right to privacy, even in the workplace, is protected at the highest constitutional as well as
international levels. Employers when defending their rights and interest are therefore far from free to use the
potential of available technological devices in full and without limits. To strike the right balance between
legitimate interests and fundamental rights is by no means easy, as the present text tries to demonstrate by
summarizing and analyzing the existing Czech approach to the issue. On the one hand, Czech law on the
protection of privacy of employees in the workplace, as well as the authorities applying it, are principally in
line with generally accepted European standards. On the other hand, however, this basic consensus on values
and their substantive and procedural legal safeguards does not mean that Czech law currently answers all
questions and leads employers safely outside the restricted zone of prohibited ways of employee monitoring.
The focus of the text is thus directed at those provisions of legal acts, decisions of the highest courts, opinions
of supervisory authorities and arguments of commentators that influence the way in which the aforementioned
rights and interest are balanced in the current Czech legal practice