1 Name: Lucie Plasseraud
Student number: 12296813
E-mail and telephone number: lucie.plasseraud@gmail.com ; +33 6 68 78 42 08 Master track: EU Law
LL.M. Thesis
-
The relationship between the Internal Market and Fundamental Rights:
strengthening Freedom to conduct a business in the service of the
European Union Economic integration
2
Abstract
As the concept of Fundamental Freedom is at the crossroads of other freedoms, namely Freedom of contract, Freedom to pursue an economic activity and Free competition, which are part of Article 16 itself, it will be argued that it is difficult to position the Freedom to conduct a business, especially when it is in relation to other Fundamental Freedoms, such as religious freedom for example. Due to the absence of an official hierarchy established in the Charter, its potential involvement in the European construction remains highly topical. Analysing whether it has changed the balance between economic and non-economic interests, it will be researched whether the Freedom to conduct a business has been interpreted and used in a way that strengthens (or even constitutionalises) the Internal Market, leading to more economic integration. Defending that Freedom to conduct a business and Internal Market can be mutually beneficial, the objective of this work would therefore be to contribute to the academic debate by following a classical legal method and adopting an evaluative approach to analyse the Freedom to conduct a business as a Fundamental right and its potential role as a stimulus to the Union's economic power and integration through Article 16.
3
Table of content
Abbreviations and acronyms
Introduction
***
Chapter I: The EU as an economic construct?
I) The omnipresence of economic concerns in the European construction as a backdrop to the arrival of the Freedom to conduct a business
A) The EU as a regional integration through economy
a) The European Economic Community, the four Freedoms and the strengthening of the Internal Market
II) Article 16 of the Charter of the fundamental rights of the European Union as a liaison concept based on national experience
A) Article 16 as a liaison concept between economic concern and fundamental rights
a) Article 16 of the Charter as a link between the four Freedoms and the Internal Market b) Article 16 of the Charter as a link between Fundamental Rights and the Internal Market
B) The elevation of economic freedom as a Fundamental right
a) Article 16 as a notion inspired by Member States b) The premise of a fundamental concept
4
Chapter II: The legal nature offered to Article 16 of the Charter
I) The role of the Court of Justice of the European Union in the use of Freedom to conduct a business
A) The confirmation of a multifaceted concept
a) The freedom to conduct a business as a wide three-fold Freedom b) A multitude of rights: the need to find a fair balance
B) The relation between the Freedom to conduct a business and other fundamental rights: A difficult place to find among the other rights
a) The conflicting Fundamental rights and the ‘theory of balancing’ b) A fundamental yet not absolute concept
II) From an economic integration to economic freedoms A) The introduction of Article 16: a political choice?
a) A difficult introduction of the concept in the Charter
B) An economic freedom in search of its boundaries
a) A notion in the grip of its localisation? b) From a principle to a right
5
Chapter III: The freedom to conduct a business in the service of
further economic integration
I) The strengthening of the Freedom to conduct a business in favour of further economic integration?
A) A freedom to conduct a business reinforced?
a) Is unity a strength? b) A self-standing Article?
B) A (better) use of the freedom to conduct a business
a) A cautious use of Article 16 for more legitimacy
b) An increasing use of Article 16 as a synonym for a better EU economic grip?
***
6
Abbreviations and acronyms
AMD Audio-visual Media Directive
Article 16 Article 16 of the Charter of the fundamental rights of the European Union CJEU Court of Justice of the European Union
CFR Charter of the fundamental rights of the European Union EU European Union
Ibid. Ibidem
TEU Treaty on the European Union
7
Introduction
Finishing my sixth year of law school, I have been juggling between Human Rights and business law tracks from the beginning of my studies. By discovering the possibility to combine both (or more specifically, the possibility to combine Fundamental Right – to stay in the EU – and business law), my attention was quickly drawn to Article 16 of the Charter.
Rather than ensuring that businesses comply with human rights obligations, this Article recognizes the Freedom to conduct a business as a Fundamental Right. And more than just protecting the business (wo)man’s subjective position, it actually insures a free, competitive and properly functioning Market. This dynamic and evolving field therefore appears to be a very interesting subject for study.
***
Originally called the European Economic Community, the European Union (EU) has evolved over the past fifty decades, with the adoption of the Charter of Fundamental Rights (CFR) in 2000, to become more than a purely economic construction. Combining economic and non-economic preoccupations, this Charter not only strengthens the Union as a community of law, but also contributes to its economic clout with its Article 16 interpreting the Freedom to conduct a business as a Fundamental Right. Thus, while the Court of Justice of the European Union (CJEU) began to give priority to non-economic concerns over economic interests in the early 2000s1, it is interesting to observe how the Court now understands the Four Freedoms in the light of the Freedom to conduct a business. By elevating “Freedom to conduct a business” to the status of Fundamental Rights, this Article seems to further complicate the relationship between economic and non-economic concerns. Article 16, which could be a new factor in the equation, could tip the balance in favour of economic integration rather than social integration.
8 Given the recent developments in the CJEU case law on Article 16 and the relationship between economic and Fundamental Rights since the entry into force of the EU Charter in 2009, it will therefore be interesting to analyse the current relationship between economic and non-economic concerns. Indeed, while the question of the relationship between economic and non-economic concerns in the EU have been in tension since the early 1950s, the recent developments proposed by the ECJ on the importance of fundamental principles as legally binding standards deserve, for their part, real attention. In this respect, the fact that the Charter has elevated Freedom to conduct a business to the rank of fundamental principles raises a number of questions, especially after a case such as Achbita2, where the Court considered that Freedom to conduct a business prevailed over Freedom of religion. Does this mean that Freedom to conduct a business takes precedence over any other rights? Does this mean that the EU is becoming a purely economic construction, without any sensitivity to other issues? Does Article 16 tip the balance in favour of economic integration rather than non-economic integration?
In the search for answers to these questions, this thesis will examine the impact of Freedom to conduct a business in the relationship between the Internal Market and Fundamental Rights, as well as its implication in strengthening the EU's economic integration.
By briefly describing the European Community's initial main concern, it will first be useful to shed light on the concepts of Fundamental Principle and Freedom to conduct a business in order to better understand the hidden involvement behind this concept (I). As it will be argued that this notion is based on national laws, it will be interesting to see that Freedom to conduct a business is found in most of Member States' constitutions and that the notion of property, which is linked, is even found in international texts such as Article 1 of the Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. However, while national and international law is a source of inspiration, the nature of Article 16 remains unclear and raises new questions about its implications. Indeed, issues related to its economic or non-economic nature and its qualification as a right or principle remain relevant, particularly in the light of recent ECJ case law, such as Bauer3, where the legally binding nature of the Charter's provisions seems to have received new impetus. Therefore, its legal effect in horizontal and vertical disputes deserves to be analysed, as well as its very nature (II) in order to understand its implications (III).
2 Judgment of the Court of 14 March 2017, Achbita, C-157/15, ECLI:EU:C:2017:203.
3 Judgement of 6 November 2018, Bauer, Joined Cases C-569/16 and C-570/16, ECLI:EU:C:2018:871, paragraph
9
Chapter I: The EU as an economic construct?
Created to end frequent and terrible wars between neighbours, European integration has been seen as an antidote to the extreme nationalism that has devastated the continent. The emphasis on economic integration, which is the result of a consensus between the (future) Member States, has therefore formed the basis for an economic context in which the concept of Freedom to conduct a business could flourish (I). First mentioned in national legislation before being gradually evoked by the European Court of Justice, this freedom was then reinforced in the early 2000s by its inclusion in the Charter. This concept, which seems to be a linking concept between economic concerns and fundamental rights, therefore has a potentially important role to play, beyond national borders (II).
I) The omnipresence of economic concerns in the European construction as a backdrop to the arrival of the Freedom to conduct a business
From the outset, the European leaders were convinced that by uniting their national industries together, conflicts between connected nations would be much less likely to occur4. On the basis of this idea, it will be argued that economic integration has proved essential in the construction of the European Union and with it, Freedom to conduct a business has emerged as a logical continuation.
A) The EU as a regional integration through economy
The objective of economic integration has led to an increasing number of economic provisions in the EU, until the introduction of Freedom to conduct a business, enshrined in Article 16 of the Charter.
4 Europa, About the Union, The history of the European Union, A peaceful Europe – the beginnings of cooperation.
10
a) The European Economic Community, the four Freedoms and the strengthening of the Internal Market
Peace, forced or at least reinforced by economic integration, was the initial objective of the European Union, which in the 1960s was called the European Economic Community. It was at this time that the common market was developed to offer free movement of goods, persons, services and capital.
Then, despite the initial reluctance of Member States to remove intangibles tariff barriers, the Single European Act was adopted and launched the Single Market on 1 January 1993. Combining positive and negative integration – the first consists of prohibitions imposed on Member States when the second consists of approximating laws and standards – the Union began to play an active role in the Single Market. In 1997, the integration of the Schengen area, which then removed physical barriers through the internal market, marked an important step in the European Union's constant evolution towards further integration, which was even strengthened by the entry into force of the Lisbon Treaty and its Protocol (No 27) on the internal market and competition. Providing for further implementation of the Internal Market, this Protocol recognised that the Union shall “take action”5 to ensure that competition is not distorted. It thus (re)instituted a link between Internal Market and competition, as it was described in the CE Treaty6. Later on, the Charter of the Fundamental rights of the European Union gave further teeth to the European economic integration with its Article 16, dedicated to the Freedom to conduct a business.
II) Article 16 of the Charter of the fundamental rights of the European Union as a liaison concept based on national experience
Clearly linked to the economy – since it is defined as a three-fold freedom, consisting of Freedom of economic activity, Freedom of contract and Free competition – but also linked to fundamental right since it is enshrined in the Charter, the Freedom to conduct a business appears as a liaison concept (A). Linking fundamental rights and economic interests at EU level, from
5 Protocol (No 27) on the internal market and competition, 2008.
6 Maria Teresa D'Alessio, Valerio Placco, Vincent Kronenberger, Mélanges en l'honneur de Paolo Mengozzi, De
11
Nold to today, this right is not without reminding of what had already been constitutionalised
by the (future) Member States (B).
A) Article 16 as a liaison concept between economic concern and fundamental rights Drafted in 2000 and in force since December 2009, it could be argued that the Charter has taken economic integration to a new level by elevating the Freedom to conduct a business to the rank of a Fundamental Right. Introducing a crucial and omniscient concept into modern and globalised society, the Charter could thus be seen as creating a link between economic interests and Fundamental rights, hitherto associated with non-economic concerns.
a) Article 16 as a link between the four Freedom and the Internal Market
Enabling individual inspiration and encouraging entrepreneurship and innovation, Article 16 is a specific expression of the Freedom to pursue a trade or profession7 and applies to a wide range of EU policies related to the Single Market. It therefore appears to be very beneficial for the development of the Union, and even “vital for the EU’s future prosperity”8.
The Freedom to conduct a business is also supported by a wide range of EU instruments, including the EU's growth strategy "Europe 2020"9 or the "Stockholm Programme", which, without necessarily mentioning Article 16, also contribute to the economic grip of the Union by aiming to establish a “smart, sustainable and inclusive economy”10. To ensure that such an objective is achieved, the Commission therefore monitors the development of all relevant EU legislation and publishes an annual scoreboard dedicated to this purpose. Highlighting the legal and practical problems faced by entrepreneurs in the Internal Market, this “Traffic light chart” is an interesting indicator of entrepreneurial freedom. Indeed, highlighting the efforts to be made in terms of market access, an entirely green chart would be a sign of total freedom in terms of entrepreneurial freedom.
7 Opinion of Advocate General Trstenjak, delivered on 24 November 2010, MSD Sharp & Dohme, C-316/09,
ECLI:EU:C:2010:712, paragraph 83.
8 FRA, European Union Agency for fundamental rights, EU Charter. Freedom to conduct a business: exploring
the dimensions of a fundamental right, August 2015, page 13. Available online at <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-freedom-conduct-business_en.pdf >.
9 Communication from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions. The EU Justice Agenda for 2020 - Strengthening Trust, Mobility and Growth within the Union, COM/2014/0144 final, 2014.
10 FRA, European Union Agency for fundamental rights, EU Charter. Freedom to conduct a business: exploring
the dimensions of a fundamental right, August 2015, page 51. Available online at <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-freedom-conduct-business_en.pdf >.
12 Traffic light chart: Single Market governance tools11
b) Article 16 of the Charter as a link between Fundamental Rights and the Internal Market
Although it may appear to be one of the least traditional Fundamental rights in the common spirit, Freedom to conduct a business, enshrined in Article 16 of the Charter, can be described as a crucial concept in modern society where the place given to business, trade and commerce is essential. Because it is about encouraging entrepreneurship and innovation, social and economic development, but also because it is about enabling individual aspirations and expression to flourish, the Freedom to conduct a business is becoming increasingly important. First guaranteed in the different legal systems of those that will become Member States, this Freedom has gained in importance by being enshrined in the Charter. Raised to the rank of Fundamental Rights, it “acts to protect economic initiative and economic activity, obviously within limits but nevertheless ensuring that there are certain minimum conditions for economic activity in the internal market”12. It thus became a link between the economy and Fundamental
Rights, or more precisely, between the Internal Market and Fundamental Rights.
11 European Commission, the EU single Market. Traffic light chart: Single Market governance tools. Available
online at <http://ec.europa.eu/internal_market/scoreboard/performance_overview/index_en.htm>.
12 Opinion of Advocate General Cruz-Villalón delivered on 19 February 2013, C-426/11, Mark Alemo-Herron v.
13 B) The elevation of economic freedom as a Fundamental right
Nowadays recognised by the Court’s case-law, Freedom to conduct a business seems to have acquired an important stature within the framework of the EU Charter of Fundamental Rights. However, before being taken up by the Court of Justice of the European Union, it was inspired by national law. But to what extent Freedom to conduct a business is also (and above all) reflected in the national legal systems of the Member States?
a) Article 16 as a notion inspired by Member States
From the early 18th, 19th or 20th century, this Freedom enshrined in most Member States’
Constitutions was often “part of the process of the countries’ transition to parliamentary democracy, or as part of their return to free market economy”13.
Timeline showing the introduction of the freedom to conduct a business in the constitutional law of EU Member States14
13 FRA, European Union Agency for fundamental rights, EU Charter. Freedom to conduct a business: exploring
the dimensions of a fundamental right, August 2015, page 25. Available online at < https://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-freedom-conduct-business_en.pdf >.
14 European Union Agency for Fundamental Rights, Freedom to conduct a business: exploring the dimensions of
14 Recognised by the French Constitution itself even before the 18th century, this did not prevent the Conseil d’Etat from expressing its hesitation about the extent of such Freedom. Thus, in a 1989 decision, it stated that “the freedom to conduct a business is neither general nor absolute; it is permissible for the legislator to make limitations required by the general interest, provided that they do not have the effect of distorting their scope”15.
Offering a so-called “minimalist” protection to this Freedom16, this approach seems to have subsequently been taken up by the Court of Justice of the European Union.
b) The premise of a fundamental concept
The Freedom to conduct a business was first recognised as a general principle of law in the
Nold case17, which led the Court to recognise, as early as 1974, a fundamental Freedom to
exercise an economic or commercial activity. Built and enshrined by the superposition of objectives and freedoms, it has thus been described as a broad concept in the Explanation
relating to the EU Charter of Fundamental Rights18. Inspired by the three elements of the Freedom to conduct a business included in the Constitutions of the Member State, it thus defined it as a combination of a “Freedom to exercise an economic or commercial activity” and a “Freedom of contract” while recognising some connection with “free competition”.
15 Conseil d’Etat, Décision n° 89-254 DC du 4 juillet 1989, Loi modifiant la loi n° 86-912 du 6 août 1986 relative
aux modalités d'application des privatisations, paragraphe 5. Available online at <https://www.conseil-constitutionnel.fr/decision/1989/89254DC.htm>.
16 Fabien Schaeffer, Liberté d’entreprendre et marché intérieur de l’Union, une limitation de la libre prestation
de service, Le petit Juriste,2014. Available online at
<https://www.lepetitjuriste.fr/liberte-dentreprendre-et-marche-interieur-de-lunion-une-limitation-de-la-libre-prestation-de-service/>
17 Judgment of 14 May 1974, Nold, Case 4/73. ECLI:EU:C:1974:51, paragraph 14.
18 Explanations relating to the charter of fundamental rights ((2007/C 303/02). Official Journal of the European
Union. Available online at
15 Constitutional inclusion of the three constitutive elements of the freedom to conduct a
business, by EU Member State19
The multidimensional nature of this concept therefore led the CJEU to name it under different names20 until the adoption of the Charter.
***
Although the Union seems to have an economic dimension in the light of what has been set out in this Chapter, it is now necessary to examine the weight of this economic component since the entry into force of Article 16. Indeed, if the question of the involvement of Freedom to conduct a business may arise as to whether it tilts the balance towards a more economic Union, this question only makes sense if this Freedom has a real legal effect. If the constitutionalisation of entrepreneurial freedom seems to be in little doubt at the national level, can we talk about consitutionalisation of Freedom to conduct a business at the European level? Does Article 16 imply such a consequence? The question of the legal implications of this article is therefore addressed in the next Chapter.
19 European Union Agency for Fundamental Rights, Freedom to conduct a business: exploring the dimensions of
a fundamental right. August 2015, page. 28.
20 Judgment of 14 May 1974, Nold, Case 4/73. ECLI:EU:C:1974:51, paragraph 13; Judgment of 13 December
1979, Hauer v Land Rheinland-Pfalz, C-44/79, ECLI:EU:C:1979:290, paragraphs 16; 32; Judgment of the Court of 21 February 1991, Zuckerfabrik, Joined cases C-143/88 and C-92/89, ECLI:EU:C:1991:65, paragraph 72-76; Judgment of the Court of 6 December 2005. ABNA, Joined cases C-453/03, C-11/04, C-12/04 and C-194/04, ECLI:EU:C:2005:741, paragraphs 86-87.
16
Chapter II: The legal nature offered to Article 16 of the Charter
In order to know the true breadth of Article 16, or at least its potential, this Chapter aims to examine the legal nature of Freedom to conduct a business. In discussing the possibility of making this Freedom a binding concept that can be invoked before courts, it will therefore be suggested to examine the role of the European Union's judicial body in clarifying this concept (I). By giving an overview of the legal effect of this article, its applicability and scope, the implication of the existence of the Freedom to conduct a business in the Charter will therefore be examined (II).
I) The role of the Court of Justice of the European Union in the use of Freedom to conduct a business
The fact that the Freedom to conduct a business is difficult to define leads to certain difficulties in its application. The CJEU’s intervention in this respect was therefore more than welcome in order to better define the notion itself (A), but also to identify its relationship with the other concepts (B), in order to be able, in fine, to know its legal effect.
A) The confirmation of a multifaceted concept
Because it recalls the principles and objectives already enshrined in the Treaties22 and because it is composed of different underlying concepts, Freedom to conduct a business reflects the values of the Union, but it is also a heterogeneous concept23.
22 EC Europa, The Charter of Fundamental Rights in Constitution of the European Union, Ingolf Pernice. Available
online at
<http://ec.europa.eu/dorie/fileDownload.do;jsessionid=1ZpXVhSJYQS1X1XJlYFpCgBYT6cy7Xs3T6SGx0xM T322xKYSHbg8!1782169932?docId=8616&cardId=8616>.
23 See Judgment of 14 May 1974, Nold, Case 4/73. ECLI:EU:C:1974:51, paragraph 13; Judgment of 13 December
1979, Hauer v Land Rheinland-Pfalz, C-44/79, ECLI:EU:C:1979:290, paragraphs 16; 32; Judgment of the Court of 21 February 1991, Zuckerfabrik, Joined cases C-143/88 and C-92/89, ECLI:EU:C:1991:65, paragraph 72-76; Judgment of the Court of 6 December 2005. ABNA, Joined cases C-453/03, C-11/04, C-12/04 and C-194/04, ECLI:EU:C:2005:741, paragraphs 86-87.
17
a) The freedom to conduct a business as a wide three-fold Freedom
As the term “Freedom to conduct a business” is not defined in the Charter, its contours had to be delineated separately. In carrying out this mission, the European Union Agency for
Fundamental Rights has stated that “this Article is based on Court of Justice case-law which
has recognised freedom to exercise an economic or commercial activity […] and freedom of contract […] and Article 119(1) and (3) of the TFEU, which recognises free competition.”24 Accordingly, “in a Community which must observe the principle of an open market economy”25, Freedom to pursue an economic or commercial activity, Freedom of contract as well as free competition are “inseparably linked to the Freedom to conduct a business”26. Article 16 thus appears to be a three-fold Freedom27, interpreted in the continuity of EU and national
case-law (See supra, Chapter I, I, B, a).
b) A fundamental yet not absolute concept
Interpreting the Freedom to conduct a business in the light of national case law, the Court could provide some clarification regarding the Freedom to carry out economic or commercial activities before the entry into force of Article 16. Thus, as early as the 1990s, the Court stated that the “Freedom to conduct a business, which coincides with the Freedom to pursue an occupation”28, is one of the general principles of Community law29. Nevertheless, as important as they may be, they must be considered in relation to their social function30. These freedoms are therefore not absolute rights and “restrictions may be imposed on their exercise, provided that the restrictions correspond to objectives of general interest and do not constitute in relation
24 FRA, European Union Agency for fundamental rights, EU Charter. Article 51 – Field of application. Available
online at <https://fra.europa.eu/en/charterpedia/article/51-field-application#group-info-explanations>.
25 Opinion of Advocate General Kokott, delivered 17 September 2009, Commission of the European Communities
v Alrosa Company Ltd, C-544/10, ECLI:EU:C:2009:555, paragraph 225.
26 Ibid.
27 Judgment of the Court of 22 January 2013, Sky Österreich, C-283/11, ECLI:EU:C:2013:28, paragraph 42. 28 Judgment of the Court of 21 February 1991, Zuckerfabrik, Joined cases C-143/88 and C-92/89,
ECLI:EU:C:1991:65, paragraphs 72-77.
29 Judgment of 5 October 1994, Federal Republic of Germany v Council of the European Union, C-280/93,
ECLI:EU:C:1994:367, paragraph 78; Judgment of 17 July 1997, SAM Schiffahrt GmbH and Heinz Stapf v
Bundesrepublik Deutschland, Joined cases C-248/95 and C-249/95, ECLI:EU:C:1997:377, paragraph 72.
30 Judgment of the Court of 22 January 2013, Sky Österreich, C-283/11, ECLI:EU:C:2013:28, paragraph 45;
Judgment of the Court of 4 May 2016, Pillbox 38, C-477/14, ECLI:EU:C:2016:324, paragraph 157; Judgment of the Court of 30 June 2016, Lidl GmbH, C- 134/15, ECLI:EU:C:2016:498, paragraph 29.
18 to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed”31.
Clearly emphasised in the AGET Iraklis case, the Court has indeed stated that “the wording of Article 16 of the Charter […] may be subject to a broad range of interventions on the part of public authorities that may limit the exercise of economic activity in the public interest”42. Consequently, drawing on the national laws of the Member States allowing limitations for “general interest”43 or “important public reasons’44, the CJEU recognised that this right may be limited45 to ensure public safety46, public health47 or in the context of the fight against terrorism48.
In addition to these restrictions, which occur in “exceptional” circumstances, the very nature of the internal market, namely competition law, is another important limitation. With many rules that could be interpreted as an obstacle to the Freedom to conduct a business, competition law can indeed lead to a refusal of contract in order to avoid an abuse of a dominant position. Recently, the Commission has therefore refused the merger between Alstrom and Siemens49, which could clearly be interpreted as a violation of contractual Freedom. Indeed, “generally speaking, any undertaking, whether dominant or not, should have the right to choose its trading partners and to dispose freely of its property”50. For this reason, the Commission recognises “that intervention on competition law grounds requires careful consideration”51, to the extent
that it sometimes refuses to recognise an abuse of a dominant position in the name of the
31 See inter alia, Judgment of the Court of 28 April 1998. Metronome Musik GmbH v Music Point Hokamp GmbH,
C-200/96, ECLI:EU:C:1998:172, paragraph 21; Judgment of the Court of 9 September 2004, Kingdom of Spain
and Republic of Finland v European Parliament and Council of the European Union, Joined Cases C-184/02 and
C-223/02, ECLI:EU:C:2004:497, paragraph 52.
42 Judgment of the Court of 21 December 2016, AGET Iraklis, C-201/15, ECLI:EU:C:2016:972, paragraphs
85-86.
43 WIPO, Constitution de la République Portugaise VIIe révision constitutionnelle [2005], Article 61. Available
online at <https://www.wipo.int/edocs/lexdocs/laws/fr/pt/pt045fr.pdf>.
44 Constitution Poland (1997), Articles 20 and 22.
45 Judgement of 20 December 2017, Global Starnet, C-322/16, ECLI:EU:C:2017:985; Judgments of 30 April
2014, Pfleger and Others, C-390/12, EU:C:2014:281, paragraph 60; Judgments of 11 June 2015, Berlington
Hungary and Others, C-98/14, EU:C:2015:386, paragraph 91.
46 See Judgment of the Court of 9 September 2004, Kingdom of Spain and Republic of Finland v European
Parliament and Council of the European Union, Joined Cases C-184/02 and C-223/02, ECLI:EU:C:2004:497,
paragraph 51.
47 Judgment of the Court of 5 October 2000, Federal Republic of Germany v European Parliament and Council
of the European Union, C-376/98, ECLI:EU:C:2000:544.
48 Judgement of 3 September 2008, Kadi and Al Barakaat, Joined Cases C-402/05 P and C-415/05,
ECLI:EU:C:2008:461.
49 European Commission - Press release, Mergers: Commission prohibits Siemens' proposed acquisition of Alstom,
2019. Available online at <http://europa.eu/rapid/press-release_IP-19-881_en.htm>.
50 Communication from the Commission, Guidance on the Commission's enforcement priorities in applying
Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. Text with EEA relevance, 2009/C 45/02, 2009, paragraph 75.
19 Freedom to conduct a business. In the remarkable Vivendi v Commission case, for example, it actually refused to recognise an abuse of dominant position by Orange by claiming that its conduct constituted a simple use of the Freedom to conduct a business52. However, this case is clearly an exception, as such reasoning could systematically rule out competition law. Therefore, even if Freedom to conduct a business and competition law share the same objective, namely the protection and deepening of the Internal Market – which ultimately allows all private economic operators to have access to the market and therefore to operate freely – they can clearly hinder each other53.
Therefore, despite its status as a fundamental right, Article 16 CFR must be balanced against other rights. Offering the Court an important opportunity to tip the balance in favour of a ‘heavier’ Freedom to conduct a business, it is interesting to analyse how Luxembourg Judges balance the rights at stake.
B) The relation between the Freedom to conduct a business and other fundamental rights: A difficult place to find among the other rights
Since Freedom to conduct a business is subject to limitations, a solution had to be found in the event of a conflict. In accordance with the principle of proportionality referred to in the general framework of Article 52(1) of the Charter, in addition to taking into account the public interest at stake, the Court has therefore provided a detailed technique for solving these problems. In this way, and if this leads to the use of the Freedom to conduct a business instead of another Freedom, it could be argued that this has some impact on the EU's economic integration agenda. Due to this significant outcome, if it proves to be real, then the question must be asked as to whether and how the Court legitimises such a result.
a) The conflicting Fundamental rights and the ‘theory of balancing’
Because the Charter provides for potential conflicting objectives which are not hierarchized, there is “the need to find a sound balance between the different rights and values, principles
52 Judgement of 16 October 2013, Vivendi v Commission, T-432/10, ECLI:EU:T:2013:538.
53 Andrea Usai, The Freedom to Conduct a Business in the EU, Its Limitations and Its Role in the European Legal
Order: A New Engine for Deeper and Stronger Economic, Social, and Political Integration. German Law Journal,
20 and objectives in case of conflicting interests”54, a “need to reconcile the requirements of the protection of different fundamental rights”55. Indeed, even if the Freedom to conduct a business is a general principle56, “fundamental rights such as those are not absolute rights but must be considered in relation to their social function.”57 Thus, the restriction may be justified as long as it does not constitute an intolerable interference affecting the very substance of that right58. In other words, as emphasises by Advocate General Cruz-Villalón in the Alemo-Herron case, “Freedom to conduct a business is a Fundamental Right that is very much open to being used as a counterweight […] to other fundamental rights, such as the right to the protection of privacy, health, and intellectual property rights”59. On the basis of the theory of balancing60, the Court has thus found a way to “reconcile the requirements of the protection of […] fundamental rights protected by the Union legal order, and striking a fair balance between them”61. Article
16 has thus been reconciled with other provisions of the Charter such as Article 38 on consumer protection62, Article 11 guaranteeing in particular freedom of information and plurality of the media63, or Article 17(2) to protect intellectual property64.
b) A multitude of rights: the need to find a fair balance
It follows that, in addition to the formal and traditional requirement of fundamental rights which imposes a legal form, the exercise of Freedom to conduct a business must be balanced with other rights. To do so, it is therefore “subject to the principle of proportionality”65, which means,
54 EC Europa, The Charter of Fundamental Rights in Constitution of the European Union, Ingolf Pernice. Page 26.
Available online at
<http://ec.europa.eu/dorie/fileDownload.do;jsessionid=1ZpXVhSJYQS1X1XJlYFpCgBYT6cy7Xs3T6SGx0xM T322xKYSHbg8!1782169932?docId=8616&cardId=8616>.
55 Judgement of the Court of 10 January 2008, Promusicae. C-275/06, ECLI:EU:C:2008:54, point 65.
56 Judgment of the Court of 9 September 2004, Kingdom of Spain and Republic of Finland v European Parliament
and Council of the European Union, Joined Cases C-184/02 and C-223/02, ECLI:EU:C:2004:497, paragraph 51.
57 Opinion of Advocate General Mazàk, delivered 29 March 2012, Deutsches Weintor eG v. Land
Rheinland-Pfalz, Case C-544/10, ECLI:EU:C:2012:189, paragraph 66.
58 Judgement of the Court of 10 January 1992, Kühn C-177/90, ECLI:EU:C:1992:2, paragraph 16.
59 See Opinion of Advocate General Cruz-Villalón delivered on 19 February 2013, C-426/11, Mark Alemo-Herron
v. Parkwood Leisure, ECLI:EU:C:2013:82, paragraph 52.
60 Sybe de Vries, Balancing Fundamental Rights with Economic Freedoms According to the European Court of
Justice, Utrecht Law Review, 2013.
61 Judgment of the Court of 6 September 2012, Deutsches Weintor, C-544/10, ECLI:EU:C:2012:526, paragraph
47.
62 Ibid., paragraph 47.
63 Judgment of the Court of 31 January 2013, McDonagh, C-12/11, ECLI:EU:C:2013:43, paragraph 68; Judgment
of the Court of 22 January 2013, Sky Österreich, C-283/11, ECLI:EU:C:2013:28, paragraphs 30–68.
64 Judgment of the Court of 24 November 2011, Scarlet Extended, C-70/10, ECLI:EU:C:2011:771. 65 Charter of the fundamental rights of the European Union, Article 52(1).
21 in short, that it must pursue a legitimate objective, be necessary and appropriate and not impose a disproportionate burden on the right-holder.
In the Deutsches Weintor case for example66, the CJEU ruled that the general prohibition for wine producers or distributors to use 'easily digestible' health claims, even if this statement is correct, is compatible with the Charter. Accordingly, such a prohibition would not substantially restrict the Freedom to conduct a business, but would only limit the way in which producers and distributors promote the products concerned. The Court further stressed that this Freedoms is not absolute and must be balanced with other fundamental rights. Thereupon, balanced with Article 35 which requires a high level of human health protection within the EU, the Court recalled that because of the risks of dependence, abuse and harmful effects of the consumption of alcoholic beverages, strict regulations are allowed or even necessary. In this context, the CJEU ruled that the total prohibition of any health claim for alcoholic beverages may be considered necessary and proportionate67.
In developing the principle of proportionality, the Court also carried out a remarkably comprehensive examination of the compatibility of a provision of a directive with the Freedom to exercise a profession in the Sky Osterreich judgement. In this case, the validity of Article 15(6) of the Audio-visual Media Directive (AMD), allowing to broadcast short fragments of sporting events on television, without having to pay a compensation to the rights holder, was at stake. Stressing that Freedom to conduct a business was not absolute and should “be viewed in relation to its social function”68, the Court carried out a progressive assessment of proportionality with exemplary discipline and clarity. Examining the proportionality stricto
sensu in addition to assessing the legitimate aim and suitability of the measure, the Court
undertook a thorough examination of the need for the measure by verifying the possible alternative regime and the discretionary power left to the legislator69. Holding that the AMD provision did not violate the right to property neither the right to conduct a business, the Court concluded that “the European Union legislature was lawfully entitled to impose the limitations on the freedom to conduct a business”70.
66 Judgment of the Court of 6 September 2012, Deutsches Weintor, C-544/10, ECLI:EU:C:2012:526.
67 FRA, European Union Agency for fundamental rights, EU Charter. Freedom to conduct a business: exploring
the dimensions of a fundamental right, August 2015, page 23. Available online at <https://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-freedom-conduct-business_en.pdf >.
68 Judgment of the Court of 22 January 2013, Sky Österreich, C-283/11, ECLI:EU:C:2013:28, paragraph 45. 69 Ibid., paragraphs 51-53; 55; 57.
22 While the principle of proportionality was designed to justify actions, or legitimise limitations71, it should be noted that it leaves a significant part of the assessment to the discretion of Judges who act subjectively to determine which values are at stakes in priority in the concrete circumstances of the cases. Thus, “balancing” these values, the important power left to Judges has been criticized by many scholars, including Lord Hoffman, who once said that “the real problem about applying the principle of proportionality, or for that matter any other test of rationality, in hard cases is not whether the principle should be observed but who should decide whether it has been observed or not.” This proportionality test, which leads to Judges being placed in the legislatures’ seats by checking what must be attached to the public interest or other fundamental values, is highly controversial. However, on the other hand, in an effort to go into the details of Fundamental Rights and because of the particularly impressive attention given to the protection of these rights72, the Luxembourg Court was even compared
to the Strasbourg Court. Thus, the term “European system of protection of fundamental rights” has already been used, either to refer to the European Convention on Human Rights and its jurisdiction73 either for the protection granted by the European Union74 or for the consolidation of both75.
II) From an economic integration to economic freedoms
The Freedom to conduct a business seems to result from an exchange between national, EU and conventional creations. Inspired by the interpretation of national Courts, it has therefore been incorporated into the Charter while knowing its political involvement (A), but also its very nature (B).
71 Judgment of the Court of 22 January 2013, Sky Österreich, C-283/11, ECLI:EU:C:2013:28, paragraph 67. 72 European Law Blog, Case C-283/11 Sky Österreich: taking proportionality seriously, Benedikt Pirker, 2013.
Available online at <https://europeanlawblog.eu/2013/01/29/case-c-28311-sky-osterreich-taking-proportionality-seriously/>.
73 Stéphanie Hennette-Vauchez and Diane Roman, Droits de l’homme et libertés fondamentales, Dalloz,
Hypercours, 2017, page 151.
74 See Fabrice. Picod, Pour un développement durable des droits fondamentaux de l’Union européenne, Chemins
d’Europe, mélanges en l’honneur de Jean Paul Jacqué, Dalloz, 2010, page 541.
75 See Delphine Dero-Bugny, La cohérence dans le système européen de protection des droits fondamentaux,
23 A) The introduction of Article 16 of the Charter: a political choice?
By safeguarding the freedom of everyone in the EU to pursue an economic activity, the transposition of the concept into Article 16 of the EU Charter aims to clarify its scope, but also implies a political strategy for further economic integration.
a) A difficult introduction of the concept in the Charter
Despite a remarkable effort by the EU legislator to clarify Freedom to conduct a business, the Court made an interesting observation as to its place in the Charter by pointing out that “Article 16 of the Charter, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter”88.
Curiously, the judgement refers to the “Title” of the Charter, even though this text is divided into Chapters. While this error is found in the 22 language versions of the judgement, which has the effect of reducing the credibility of the Court's reasoning, this remark remains relevant insofar as it highlights the lack of clarity as to the application of this Freedom.
Moreover, by recalling that the wording of Article 16 is closer to the provisions of Title IV of the Charter than to those of Title II (where it is located), the Court seems to challenge the wording of the Charter. In other words, it would be more in conformity with the provisions of the Chapter corresponding to Solidarity than with those corresponding to Freedom. Thus, despite the recent nature of this text, it could be argued that Judges seem to consider this article to be misplaced. Nevertheless, rather than seeing this as a surprising place in the Charter, one could argue that Article 16 is simply composed of these two elements. It could therefore be placed under both the Chapter “Freedom” and the Chapter “Solidarity”. Indeed, since the Freedom to conduct a business maintains a close link with Freedom of contract (see supra Chapter II, I, A, a), there is a real link between fundamental ideas and liberalism. Yet, as Martijn Hesselink rightly pointed out, “contract law is best understood as being based on two fundamental - and conflicting - ideas, i.e. autonomy and solidarity”. On the one hand, there is the idea of autonomy that is politically linked to liberalism (‘the right’) and its typical dogmas in contract law are ‘freedom of contract’ and ‘binding force of contract’. On the other hand, there is the idea of solidarity, politically linked to socialism (‘the left’) and its main dogmas in contract law are the ‘duty of good faith’ and the ‘need for specific mandatory rules for the
24 protection of weaker parties”89. Therefore, although it can be argued that Article 16 is misplaced, this location can also be seen as a liberal choice by the drafters of the Charter: Article 16 is more a question of liberalism than of solidarity.
B) An economic freedom in search of its boundaries
By being granted a place in the Charter, the Freedom to conduct a business seems to be strengthened and, consequently, the EU's economic integration could also benefit. Nevertheless, the level of this benefit may vary considerably depending on the nature of the provisions of the Charter or, more precisely, of Article 16 itself.
a) A notion in the grip of its location?
With a relatively limited scope, classic in European Union law, “the provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”90. Confirmed by the Court in the Pfleger case, “the fundamental rights guaranteed in the
legal order of the European Union are [indeed] applicable in all situations governed by EU law, but not outside such situations”91. As a result, a whole series of acts likely to infringe the rights recognised in the Charter are beyond the Court's control. This problematic consequence also occurs when the situation falls within the scope of the Charter, but its provisions are not invoked. Indeed, because of the procedural autonomy of the Member States, if a provision is not mentioned by the national Court making use of Article 267 TFEU, the CJEU lacks the competence to invoke it in its place. Thus, recently, while the Constitutional Court of Bulgaria referred to the Charter in the context of a constitutional revision of a provision of a national act prohibiting Judges and Prosecutors from their duties by resigning when a disciplinary proceeding is still pending, it concluded that the provision violated the Bulgarian Constitution,
89 Martijn Hesselink, The Horizontal Effect of Social Rights in European Contract Law, Social Science Research
Network, Privaatrecht tussen Autonomie en Solidariteit, Boom Juridische Uitgevers, 2003, page 119.
90 Charter of the fundamental rights of the European Union, Article 51(1).
91 Judgment of the Court of 30 April 2014, Pfleger and others, C-390/12, ECLI:EU:C:2014:281, paragraph 33 See
also Allan Rosas, When is the EU Charter of Fundamental Rights Applicable at National Level? 2012. Available online at <https://www.mruni.eu/upload/iblock/c5c/002_rosas.pdf>.
25 but referred to Article 15 of the Charter, which enshrines the right of freedom of work, but not to the right to conduct a business guaranteed in Article 1692.
Nevertheless, if its introduction into the Charter seems to lock the Freedom to conduct a business within the scope of the Charter, this does not only imply limitations. Indeed, in addition to Article 6(1) TEU, which stipulates that the Charter has the same legal value as the Treaty, recent case law of the Court93 has shown that the direct effect of the Charter’s provisions has become a hotly debated issue. While it is now clear that some, but not all, provisions of the EU Charter have a horizontal direct effect94, Article 16 leaves doubt in cases such as Achbita95, where this Freedom appears as an autonomous concept, not necessarily requiring a cross-border element and benefiting from a horizontal direct effect (see infra, Chapter II, II, A, b). Far from being under the grip of its location, the freedom to undertake rather has a hold on a set of situations governed by Union law.
b) From a principle to a right
As stated in its Preamble, the Union “recognises the rights, freedoms and principles” set out in the Charter. Stressing the difference between these concepts, the Virtual Centre for Knowledge
on Europe stated that “in some cases, an Article of the Charter may contain both elements of a
right and of a principle”96, which nonetheless have certain implications in terms of level of protection. Indeed, even if the Charter seems to demonstrate the contrary by surprisingly including "Right" (Articles 6), "Principle" (Article 14) and "Freedom" (Article 16) in its Chapter II entitled "Freedoms", the legal regime of principles is less protective than that of rights”97.
It is therefore important to know to which category belongs the Freedom to conduct a business. In answering this question, Léonard Thierry98 concluded that it was a matter of knowing
92 European Commission, Report on the application of the EU Charter of Fundamental Rights, 2017. Available
online at <https://ec.europa.eu/info/sites/info/files/2017_annual_charter_report_en.pdf>.
93 Judgement of the Court of 6 November 2018, Bauer, C-569/16, ECLI:EU:C:2018:871. 94 Judgement of the Court of 22 November 2005, Mangold, C-144/04, ECLI:EU:C:2005:709. 95 Judgment of the Court of 14 March 2017, Achbita, C-157/15, ECLI:EU:C:2017:203.
96 CVCE, Explanations relating to the Charter of Fundamental Rights. Available online at
<https://www.cvce.eu/content/publication/2010/6/9/11b81cf7-22fc-4463-873f-1db65a733a8c/publishable_en.pdf>.
97 European Union Agency for Fundamental Rights, EU Charter of Fundamental Rights, Title VII: General
provisions governing the interpretation and application of the Charter. Available online at
<https://fra.europa.eu/en/charterpedia/title/vii-general-provisions>.
98 Léonard Thierry, L'article 16 de la Charte des droits fondamentaux de l'Union : une nouvelle verdeur pour la
liberté d'entreprendre? La liberté d'entreprendre ou le retour en force d'un fondamental du droit économique,
26 whether or not concrete internal measures to make the concept effective were necessary. Thus, if a provision is directly enforceable (such as the Freedom to conduct a business), it is qualified as a right. On the contrary, if it cannot be invoked without an implementing text, it is given the status of a principle.
Although this approach is not entirely convincing in the sense that it seems to confuse direct enforceability, direct effect and direct application, it has the merit of reflecting the Explanations given by the European Union Agency for Fundamental Rights, and, above all, of concluding that Freedom to conduct a business must be interpreted in such a way as to be most effective.
***
While the analysis of the nature of Article 16 seems to show that the Court has modelled Freedom to conduct a business in recent decades, the main idea is that it has been offered the status of a right, not absolute, but legally binding. This follows from Article 6(1) TEU which, by stating that the provisions of the Charter have the same legal value as the Treaties, in a way constitutionalises Freedom to conduct a business and thereby strengthens it.
On this dynamic, the Court adopted a rather bold approach, on the one hand, by giving direct effect to the provisions of the Charter, and on the other hand, by recognising that a cross-border element was not necessarily required. Therefore, due to the apparently strong legal effect of Article 16 and the EU economic background, the implication of Freedom to conduct a business has the potential to be significant. The way in which the EU institutions use the potential of this concept will therefore be the subject of the third Chapter.
27
Chapter III: The freedom to conduct a business in the service of
further economic integration
Given the relationship between Article 16 of the Charter, the Internal Market and the four Freedoms, the Court has had the opportunity to strengthen the use of the Freedom to conduct a business to boost the EU’s economic clout. Using the relationship with other rights to strengthen its use, the Freedom to conduct a business appears to be strengthened in favour of economic integration.
I) The strengthening of the Freedom to conduct a business in favour of further economic integration?
The concept of Freedom to conduct a business seems to have evolved in the last few years and seems to have been reinforced by the Court, as demonstrated by its recent case law (A).
A) A freedom to conduct a business reinforced?
In addition to increasing the legitimacy of the CJEU (by comparing it to the ECHR), the theory of balancing emphasises that several fundamental rights can be invoked in the same case. While these rights must sometimes be confronted with each other, in other cases, they may in fact be combined, to the benefit of the concept enshrined in Article 16 of the Charter.
a) Is unity a strength?
As illustrated by recent CJEU judgements, Freedom to conduct a business can be used in combination with other rights. Accordingly, in April 2017, the Commission initiated an infringement proceeding against Hungary on the grounds that a national law was not compatible with the right to academic freedom, the right to education and, even more relevant for this paper, the Freedom to conduct a business. As Hungary has maintained its position in its replies to the letter of formal notice, reasoned opinion and the additional reasoned opinion and has not brought its national law into line with EU law, the Commission has decided to refer Hungary
28 to the Court of Justice of the European Union110. Although Freedom to conduct a business was only one of many rights in this procedure, it is conceivable that the Commission's approach may be, in a way, more legitimate because of the multitude of rights invoked.
Similarly, in addition to its involvement in the Commission's monitoring of the proper application of Union law in the Member States, Article 16 seems to have benefited from the support of other rights in Court decisions (national111 and EU). In the Scarlet Extended judgement, for example, where the Court was called to reconcile, on the one hand, Freedom to conduct business and, on the other hand, the protection of intellectual property rights, this Article was offered an interesting new twist. In a nutshell, one company, SABAM, wanted to force Scarlet Extended to use a filter that would not allow its customers to download works protected by SABAM’s copyrights. In the Court’s view, the imposition of an obligation to install a filtering system would not have made it possible to strike a fair balance between these conflicting needs. This would have been too complicated, too costly and contrary to the privacy rights of Internet users. Therefore, basing its statement on the right to the protection of personal data and Freedom of information, “which are rights safeguarded by Articles 8 and 11 of the Charter respectively”112 in addition to Freedom to conduct a business113, the Court concluded that these rights were infringed. In such a case, by strengthening the use of Article 16 through the use of other fundamental rights, the Court concluded that there had been a breach of the requirement of a fair balance “between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other”114. In addition to demonstrating that Article 16 can be applied in horizontal situations, i.e. when such a Freedom may be invoked by one individual against another, this case has shown that it can be used in combination with and can benefit from other rights.
Stressing that these articles constitute a logical follow-up115, the criticisms made of the (wrong) location of Article 16 (see supra, Chapter II, II, A, a) may not be as relevant. Indeed, by emphasising that it is part of a block that is relatively homogeneous with the other Articles surrounding it, or at least pursues a similar goal, Article 16 is not necessarily so misplaced.
110 European Commission, Press release, Commission refers Hungary to the European Court of Justice of the EU
over the Higher Education Law. Available online at <http://europa.eu/rapid/press-release_IP-17-5004_en.htm>.
111 Judgement of the Germany, Higher Administrative Court North Rhine-Westphalia, 22 June 2017, case 13 B
238/17; Judgement of the Germany, Federal Court of Justice, 14 June 2017, case IV ZR 141/16.
112 Ibid., paragraph 50.
113 Judgment of the Court of 24 November 2011, Scarlet Extended, C-70/10, ECLI:EU:C:2011:771, paragraph 49. 114 Ibid., paragraph 53.
29 Therefore, although it can be argued that by including this Freedom in an undifferentiated set of Freedoms, Article 16 loses its particularity, it could also be argued that this combination strengthens its hold.
Thus, rather than being interpreted as a threat to the Freedom to conduct a business, the multitude of fundamental rights can therefore be considered a force. Sometimes combined for the benefit of Article 16, they have allowed the Court to use the Freedom to conduct a business in a more systematic way, to such an extent that it now seems that Article 16 can be used alone.
b) A self-standing Article?
First helped by other Articles in order to gain in strength, Article 16 recently appears as a self-standing Article. Accordingly, in the Achbita case116, the Court, following the Opinion of Advocate General Kokott, concluded that the “employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate”117. The Court therefore stated that this policy of neutrality was sufficiently linked to Article 16 to reject the existence of any direct discrimination as long as the prohibition on wearing the Islamic headscarf was limited to workers who interact with customers118. Using the Freedom to conduct a business without even requiring a cross border element, the Court takes an even bolder approach by abstaining from specifying how it was able to take such a decision. Indeed, by not following a comprehensive test as it did in the Sky Osterreich case (see supra Chapter II, I, B, b), the Court did not detail how the company's protected right to plan a policy of neutrality (Article 16) was balanced with the protected right of employees to manifest or practice their religion (Article 10). As in the
Alemo-Herron case, the Court then surprisingly ignores the test it had used in the Sky Osterreich
case119 but nevertheless concluded that Article 16 was a legitimate objective. Considering that its “very essence” must be preserved120, the Court considers neutrality to be an essential element of the concept121. Knowing that this principle of neutrality had already been the subject of a
116 Judgment of the Court of 14 March 2017, Achbita, C-157/15, ECLI:EU:C:2017:203. 117 Ibid., paragraph 38.
118 Ibid., paragraphs 38-42.
119 Marija Bartl and Candida Leone. Minimum Harmonisation and Article 16 of the CFREU: Difficult Times Ahead
for Social Legislation? European Contract Law and the Charter of Fundamental Rights, 2017. Pages 113-124.
120 Judgment of the Court of 18 July 2013, Mark Alemo-Herron and Others v Parkwood Leisure Ltd, C-426/11,
ECLI:EU:C:2013:521, paragraphs 35-36.
30 judgement of the European Court of Human Rights, which gave Judges a wide margin of appreciation122, this strengthens the Freedom to conduct a business.
B) A (better) use of the Freedom to conduct a business
Gaining strength and autonomy in recent years, Freedom to conduct a business seems to have been used by the Court, but also by other EU institutions, to tip the balance in favour of further economic integration.
a) A cautious use of Article 16 for more legitimacy
According to the report of the European Union Agency for fundamental rights, in 2014, Article 16 was invoked in twelve of the one-hundred-sixty-one cases mentioning the Charter. In other words, despite the steady increase since its introduction, this share remains well below that of other Articles of the Charter. For example, according to European Commission data, the right to an effective remedy and to a fair trial (Article 47) was invoked in about a quarter of cases referring to the Charter in 2013, the right to good administration (Article 41) in almost a fifth and the right to property (Article 17) in about a tenth123.
122 Judgment of the European Court of Human Rights (ECtHR) of 15 January 2013, Eweida and Others v. United
Kingdom, Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10, paragraph 94.
123 FRA, European Union Agency for fundamental rights, EU Charter. Freedom to conduct a business: exploring
the dimensions of a fundamental right, August 2015, page 22. Available online at < https://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-freedom-conduct-business_en.pdf >.
31 The CJEU judgements referring to Article 16 of the Charter 2010-2014124
Relativizing the use of Article 16, Professor Leonard and Attorney Salteur go so far as to wonder whether it is not a “second zone right”125, given that the use of Article 16 is currently relatively exceptional and that only a few examples such as the Achbita case can be cited at the moment. However, rather than considering its use as marginal, it should be argued that Freedom to conduct a business is a “weak right with a strong potential”126. Indeed, rather than adopting a ‘right versus right’ approach, it would be preferable to carry out a thorough analysis of the interests at stake. Striking a balance between them, the Court therefore refers to an Article 16 "in principle "127 legitimate. Excluding any automatism, it leaves an essential margin of manoeuvre to take into account the particularities of the case. The Bougnaoui decision, handed down on the same day as the Achbita judgment, perfectly illustrates this idea. On that occasion, the Court commendably admitted that an employer's willingness to take account of a clients’ wish to no longer benefit from the employer's services provided by a worker wearing an Islamic
124 FRA, European Union Agency for fundamental rights, EU Charter. Freedom to conduct a business: exploring
the dimensions of a fundamental right, August 2015, page 25. Available online at < https://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-freedom-conduct-business_en.pdf >.
125 Fabrice Picod, Charte des Droits Fondamentaux de l'Union Européenne. Commentaire Article par Article,
Bruylant, 2017.
126 Xavier Groussot, Grunnar Thor Pétursson and Justin Pierce, Weak Right, Strong Court, The Freedom to
Conduct Business and the EU Charter of Fundamental Rights, 2014, Lund University Legal Research Paper, 2014,
page 6.
32 headscarf cannot be considered as a real and determining occupational requirement that could exclude any discrimination128.
Therefore, while the Court used the notion of Freedom to conduct a business as a strong and autonomous concept in the Achbita case, it also keeps in mind its relative nature, which is to his credit. Indeed, if Catherine Barnard and Steve Peers were entitled to wonder whether the freedom of Member States to better protect minorities was limited by the Court’s interpretation of the Freedom to conduct a business129 and the general policy of “neutrality”, the non-absolute nature of the concept leaves no doubt. Between strengthening and taking into account the interests at stake, the Court seems to have found a balance that gives credibility to Article 16, while reassuring its detractors.
b) An increasing use of Article 16 as a synonym for a better EU economic grip?
Although this trend could have been more pronounced, it cannot be denied that Freedom to conduct a business was a (decisive) factor in the recent decision and drafting of the EU institutions. The increased use of Article 16 then prompted the EU institutions to intervene in different areas to ultimately strengthen the EU’s economic clout. For example, the Commission has played a particularly active role in establishing and promoting strategies related to Freedom to conduct a business130 and although “more efforts”131 could be made, many instruments based on this Freedom have been recently adopted. Among them, it is possible to mention texts relating to the resolution of tax disputes132, land sales markets133 or the Mobility package134 for example. More recently, the European Parliament and the Council adopted a Regulation on the
128 Judgment of the Court of 14 March 2017, Asma Bougnaoui, C-188/15, ECLI:EU:C:2017:204, paragraph 41. 129 EU Law Analysis, What is the point of minimum harmonization of fundamental rights? Some further reflections
on the Achbita case, 2017. Available online at <http://eulawanalysis.blogspot.com/2017/03/what-is-point-of-minimum-harmonization.html>.
130 European Commission, Report on the application of the EU Charter of Fundamental Rights, 2017, page 67.
Available online at <https://ec.europa.eu/info/sites/info/files/2017_annual_charter_report_en.pdf>.
131 European Commission, Study to support the evaluation of the EU Adaptation Strategy Final Report, 2018, page
17. Available online at
<https://ec.europa.eu/clima/sites/clima/files/adaptation/what/docs/adapt_strat_eval_report_en.pdf>.
132 Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European
Union.
133 Commission Interpretative Communication on the Acquisition of Farmland and European Union Law (2017/C
350/05), Articles 2(c) and 4(d).
134 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No
561/2006 as regards on minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) 165/2014 as regards positioning by means of tachographs, 2017.
