The introduction of the ‘freedom of
contract’: A change in social direction of
European Private Law?
Universiteit van Amsterdam. Thesis Supervisor: mw. dr. Marija Bartl. Master: European Private Law. Name: Eric Oppenoorth. Student Number: 10078649.
1. Introduction 3
2. The EU background 5
2.1 The freedom of contract within the EU legal order and its effect on the EU social
order. 6
3. EU Charter of Fundamental Rights 8
3.1 Scope of application of the Charter 8
3.2 Derogation from the Charter 11
3.3 Horizontal effect of the Charter 12
3.4 General principles and the Charter 13
3.5 Rights and Principles within the EU Charter of Fundamental Rights 14 4. Article 16 of the EU Charter of Fundamental Rights 17
4.1 What rights does Article 16 of the Charter include? 17
4.2 Connection article 16 with article 15 and 17 of the EU Charter 18
4.3 The formulation of article 16 of the EU Charter 19
4.4 Scope of Application of article 16 and Application in relevant Case Law 20
5. The Freedom of Contract 22
5.1 The Freedom of Contract before the EU Charter of Fundamental Rights 22
5.2 The Freedom of Contract in the EU Charter of Fundamental Rights 25
6. Social Dimension and the Freedom of Contract 36
6.1 EU’s Social Dimension 36
6.2 Article 16 of the Charter and ‘social’ Directives 37
6.3 Social Dimension EU and the Freedom of Contract 38
1. Introduction
Human rights have taken a prominent position in EU law. This is confirmed by the creation of the EU charter of Fundamental Rights. This document brings together the fundamental rights protected in the EU.1 After the entry into force of
the Treaty of Lisbon, the EU Charter of Fundamental Rights has become legally binding.2 It has become a core element of the Unions legal order and the starting
point for the ECJ judge for assessing the compatibility of EU or Member States measures with EU fundamental rights.3 The EU started of as an economic
institution and created the four freedoms as a foundation; the free movement of people, goods, services and capital.4 To further improve the market the
realisation came that ‘social’ regulation was needed. The main focus became the ‘weaker party’. These weaker parties, such as workers and consumers, have gain more and more protection true European legislation.5 This legislation is for
instance the unfair term directive6 or the regulation on air passengers’ rights.7
The fundamental rights included in the EU Charter of Fundamental Rights can, also realize this social protection for the weaker party. These ‘social’ regulations could have the ability of reducing the economic freedoms the EU initially provided, if mandatory provisions set aside economic freedoms.
In the Charter there is an explicit provision on the freedom to conduct a business. This provision is Article 16 of the Charter.8 The ECJ explains in its case
law that there are three freedoms involved in this article: the freedom to exercise economic and commercial activity, the right to free competition and the freedom of contract.
1 Christopher McCrudden, The Future of the EU Charter of Fundamental Rights, Queen's University
Belfast - School of Law; University of Michigan Law School.
2 Thomas Papadopoulos, Criticizing the horizontal direct effect of the EU general principle of
equality, European Human rights law review, Issue 4 (2011).
3 X. Groussot, G.T Pétursson, J. Pierce, Weak Right, Strong Court – The Freedom to Conduct a
Business and the EU Charter of Fundamental Rights, Lund university: April 2014.
4 H. Micklitz, On the Intellectual History of Freedom of Contract and Regulation, EUI Working Paper
Law: 2015, p. 18.
5 O. Cherednychenko, Public Regulation, Contract Law, and the Protection of the Weaker Party:
Some Lessons from the Field of Financial Services, European Review of Private Law 5-2014 [663–
684]
6 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. 7 Directive 90/314/EEC on air passengers rights.
The ECJ has in its case law used fundamental rights for social interpretation of EU law.9 In a recent case, the Alemo-herron case,10 the ECJ uses fundamental
rights and especially article 16 of the EU Charter of Fundamental Rights to lower the level of social protection. In this case the ECJ said that there needed to be a fair balance between the rights of the employer and the employee. The ECJ decided in favour of the employer and his freedom of contract. Because of the controversy the ECJ invokes with this judgement, my research question for my thesis will be: ‘Will the freedom of contract, introduced and interpreted by the ECJ, change the social dimension of European Private Law’?
To answer this question I will first discuss the background of the EU. Then I will elaborate on the place the EU Charter of fundamental rights and the general principles of EU law have in the system of the European Union. I will address the content and scope of article 16 in the EU Charter of Fundamental Rights. After examining article 16 of the Charter in general, I will focus on the freedom of contract included in article 16. To address the concept of the freedom of contract in the EU, I will discuss the relevant cases of the ECJ on the ‘freedom of contract’. With the discussion of these cases, the existence of the freedom of contract before the Charter as general principle and the position of the freedom of contract within article 16 of the Charter will be shown.
In the last Chapter of my thesis I will examine the EU social dimension and the impact of the freedom of contract and article 16 of the Charter. Where the EU legislator and the ECJ have decided to protect the weaker party. The ECJ seems to choose a different direction with the use of the ‘freedom of contract.’
The Alemo-Herron case could indicate a new way of social interpretation of the ‘freedom of contract’ in the EU Charter of Fundamental Rights, other cases seem more hesitant in using the ‘the freedom of contract’ for this purpose. I will end my thesis with a conclusion.
9 M. Bartl, C. Leone, Minimum Harmonisation after Alemo-Herron: The Janus Face of EU
fundamental Rights review, European Constitutional Law Review (forthcoming 1/2015).
2. The EU background
With the creation of the European Union the goal was to create peaceful and prosperous future for the member states and the people in the European Union.11 Economic integration between the member states was the first point on
the agenda. The four freedoms became the foundation on which this economic integration got build.12 The aim was to create and open market where everybody
within the European Union could participate and benefit from, which got titled the common market. Later on it got changed to the single market and more recently it got rephrased to the internal market.
The recent developments within the EU show a change in direction. Where at first the EU seemed to be a focused on building an economic constitution, the EU is becoming a political Union where new competences and values have been added to the core of the European Union.13 One of the main examples for this
change is the incorporation of EU Charter of Fundamental Rights to the EU legal order. Another example is the introduction of ‘social regulation’ by the EU. The realisation came that ‘social standards’ where evident to further develop the internal market within the EU. These ‘social standards’ had to be reached through regulation, where the main focus was the protection of the ‘weaker party’. Regulation was created; the consumer became the main focus. Next to consumers, regulation was also created to protect employees, tenants and in the field of labour law.14 Where as private law was usually regulated by member
states themselves, the need for social regulation within the internal market, has resulted in EU private law regulation for the protection of ‘weaker parties’.15
To elaborate on the place of the freedom of contract within the EU economic constitutional order, I will describe the freedom of contract within the EU legal
11 H. Micklitz, On the Intellectual History of Freedom of Contract and Regulation, EUI Working
Paper Law: 2015, p. 18.
12 The four freedoms contain; the free movement of people, goods, services and capital.
13 M. Bartl, Legitimacy and European Private Law, European University Institute: Department of
Law 2012, p. 15.
14 Examples of directive protecting the ‘weaker party’; Directive 93/13/EEC, Unfair Consumer
Contract Terms Directive, Directive 91/553/EEC, Employment Information Directive, Directive 2008/88/EC, Working Time Directive,
15 S. Whittaker, The Optional Insturment of European Contract Law and Freedom of Contract,
order and its effect on the EU social order. This will illustrate the conflict between the economic and social directions within the EU.
2.1 The freedom of contract within the EU legal order and its effect on the EU social order.
The freedom of contract is commonly seen as one of the most important principles of contract law.16 Within the principle of ‘freedom of contract’ two
elements can be found. These two elements both are principles for themselves. First, the principle of self-determination and second the principle of responsibility of the individual.17 The individual within a legal order can see
these two principles as a benefit for their private autonomy, which is also a principle of private law. The use of a person’s self-determination to freely decide to be bound by a contract and to determine on there owns the content of the contract. ‘It understands private law as only a system of reciprocal limits on freedom and contract law as a legal institution that, in general, recognizes and respects the power of private individuals to effect changes in their legal relations inter se.’18
The market has to provide the possibility of pursuing personal interest and exchanging information. This shows the intrinsic relationship the organisation of a market economy and the freedom of contract have with each other.19 It is
states responsibility to provide such a market for individuals to participate in. Within Europe this is done by the member states and by the European Union itself. However, next to providing the market, the European Union regulates the market as well.
16 N. Reich, General Principles of EU Civil Law, Intersentia: 2014, p19.
17 C. Herresthal, Constitutionalisation of Freedom of Contract in European Law. In K. S. Ziegler and
P. M. Huber, Current Problems in the Protection of Human Rights: Perspective from Germany and
the UK, Hart Publishing: 2013.
18 T. Gutmann, Theories of Contract and the Concept of Autonomy, Münster: 2013/55, p. 3. 19 C. Herresthal, Constitutionalisation of Freedom of Contract in European Law, p. 76. In K. S.
Ziegler and P. M. Huber, Current Problems in the Protection of Human Rights: Perspective from
Fundamental principles of private law can be distinctive enough to be considered to shape a legal system. With this they have the ability to shape economic and social orders.20 One of these principles is the principle of private
autonomy, which is traditionally seen as the freedom of individuals to determine their own legal relations. 21 This liberty of the principle of private autonomy
shows a more specific manifestation in the freedom of contract as explained above.
Scholars have interpreted the fundamental freedoms of the EU as an acknowledgement of the freedom of contract at the highest level.22 Member
states only have the ability to derogate from these freedoms in particular situations. The freedom of contract in this interpretation forms an important part of the EU economic constitution.
As mentioned before the EU moved to more ‘social’ regulation to further improve the market. However, if these regulations are mandatory this means that individual preferences, within a legal relationship, are no longer decisive by themselves. Mandatory regulation will influence a legal relationship and could limit individual autonomy. This means that the free market and the freedom of contract could be limited.23
Where the root of the EU is its economic rationality, the ‘social’ regulations put into place, form a social deficit.24 This deficit also seems to create a problem for
the ECJ, when balancing the freedom of contract against EU ‘social’ regulation.
To further assess my research question, an understanding of the EU Charter of Fundamental Rights and the freedom of contract within the Charter are needed. I will discuss the EU Charter of Fundamental Rights in the next chapter.
20 G. Comparato and H. Micklitz, Regulated Autonomy between Market Freedom and Fundamental
Rights in the Case Law of the CJEU, 121. In U. Bernitz, X. Groussot and F. S. Eds, General Principles of EU Law and European Private Law, Kluwer Law International: 2013.
21 Idem. 22 Idem. 23 Idem.
24 M. Bartl, Legitimacy and European Private Law, European University Institute: Department of
3. EU Charter of Fundamental Rights
On the first of December 2009 the Treaty of Lisbon entered into force. This makes the treaty a legally binding, core element of the Unions legal order and has become primary EU law.25 This means that together with general principles of
EU law the Charter is the leading standard to ensure the protection of fundamental rights within the EU.26 Because the Charter has become primary EU
law, it brings about a triple function.27 Primarily, EU law and national law that
fall within the scope of EU law must be interpreted in consideration of the Charter. Secondly, the Charter may be relied upon as serving grounds for judicial review. Last of all it operates as a source for the finding of general principles of EU law.28
3.1 Scope of application of the Charter
Before the Charter entered into force the ECJ established in its case law to what extend EU fundamental rights could be binding on Member States. The Court of Justice confirmed this case law as follows: ‘In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules ...’. In other words: The obligation to respect fundamental rights in the context of the Union is only binding on the Member States if they act within the scope of the European Union.29
Article 51 of the Charter was written to codify this line of cases and make it applicable for the fundamental rights in the Charter.30
25 J. Kokott and C. Sobotta, The Charter of Fundamental Rights of the European Union after Lisbon,
EUI Working papers, Academy of European law (2010) No. 2010/06.
26 Article 6 TEU.
27 K. Lenaerts, J. Gutiérrez-Fons, The Constitutional Allocation of Powers and General Principles of
EU law, 47 CML Rev (2010), p. 1629.
28 K. Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European
Constitutional Law Review, 8, p. 376.
29 Case 5/88 Wachauf [1989] ECR 2609; Case 260/89 ERT [1991] ECR I-2925; Case
C-309/96 Annibaldi [1997] ECR I-7493) and Case C-292/97 [2000] ECR I-2737, paragraph 37.
Article 51(1): ‘The provisions of this Charter are addressed to the institutions and
bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.’
Article 51(2): ‘This Charter does not establish any new power or task for the
Community or the Union, or modify powers and tasks defined by the Treaties.’
Compliance with the principle of subsidiarity is guaranteed with this article, the Charter is only applicable if member states are implementing Union law.31 The
field of application of Union law isn’t extended because of the Charter. The Charter on itself doesn’t offer legal basis for the EU to legislate. 32
To further define the scope of the Charter the meaning of the terms ‘implementing Union law’ of article 51(1) of the Charter has to be further assessed. The cited cases in the explanations relating to article 51 of the Charter, which are used to explain the meaning of the terms of the article, are the following: Wachauf, ERT, Annibaldi and a quote from paragraph 37 of Karlsson.33
From this case law, two different types of obligations for member states to be bound by the Charter seem to be determined. First, EU obligations that requires member states to take action. Secondly, EU obligations that has to be complied with if a member states derogates from EU law.34
In the Warchauf and Karlsson cases the ECJ decides that member states that adopt national measures with the aim to apply to EU legislation are implementing EU law, this means that they are bound by the fundamental rights of the Charter.35
31 K. Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European
Constitutional Law Review, 8, p. 377.
32 S. de Vries, U. Bernitz and S. Weathrill, The Protection of Fundamental Rights in the EU After
Lisbon, Oxford and Portland, Oregon: 2013, p. 100.
33 Case 5/88 Wachauf [1989] ECR 2609; Case 260/89 ERT [1991] ECR I-2925; Case
C-309/96 Annibaldi [1997] ECR I-7493) and Case C-292/97 [2000] ECR I-2737, paragraph 37.
34 K. Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European
Constitutional Law Review, 8, p. 378.
The ERT case seems to indicate that in case of derogating from EU obligations member states are implementing EU law. In the ERT case the ECJ decides that national laws which form a restriction on the freedom to provide services may be justified on the grounds in article 52(1) TFEU.36 The requirement for national
laws to fall within the scope of article 52(1) TFEU is that they have to be ‘compatible with the fundamental rights the observance of which the (ECJ) ensures’.37 If a member state wants to derogate from implementing EU law, EU
law itself imposes conditions. The ERT case seems to indicate that this means by doing so member states are implementing EU law.38 This means that it has to
comply with the fundamental rights in the Charter. These national laws must not only meat the requirements of derogation, but also have to comply with the fundamental rights of the Charter.
Another question, which arises, is if member states go beyond EU minimum rules, do these rules fall within the scope of EU law? This means that they will be subject to EU fundamental rights review. Minimum harmonization is often used in social regulations, this makes it possible for the EU to set minimum social standards. It is up to the member states to decide if they want to give more protection.39 The ECJ has not given a clear answer, rather or not measures that
go beyond minimum harmonization are within the scope of EU law. When it comes to the treaty freedoms, national legislation can’t go beyond minimum harmonization if this means it violates the Treaty.40 This could indicate that
member states that implement measures, which go beyond minimum harmonization also have to recon with the Charter. In the Alemo-Herron case, which will be discussed more extensively later on, the Court does not consider the issue and applies the Charter to the rules. This silence from the Court could mean that the Charter applies to rules that go beyond minimum harmonization.41
36 Case C-260/89 ERT [1991] ECR I-2925. 37 Ibid., para 43.
38 K. Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European
Constitutional Law Review, 8, p. 378.
39 Directive 93/13/EEC, Unfair Consumer Contract Terms Directive, Directive 91/553/EEC,
Employment Information Directive, Directive 2008/88/EC, Working Time Directive.
40 M. Bartl, C. Leone, Minimum Harmonisation after Alemo-Herron: The Janus Face of EU
fundamental Rights review, European Constitutional Law Review (forthcoming 1/2015), p. 7.
3.2 Derogation from the Charter
Article 52(1) of the Charter contains a general limitation clause. This clause establishes the conditions, which every limitation of the Charter has to fulfil to comply with EU law. The article is mostly based on case law by the ECJ.42 Article
52(1) contains the following;
‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’43
Three requirements for a limitation can be distracted from article 52(1) of the Charter.
1. Every limitation must be provided for by law.
2. The essence of the right must be respected and the limitation must comply with the principle of proportionality.
3. Limitations can only be made if they are necessary and meet the objectives of general interest.
Provided for by law means that there must be some basis in EU law or domestic law. The person concerned has to be able to know the limitations in advance.44
If a limitation is in compliance with the principle of proportionality depends on if there is a legitimate aim for the limitation and if the measure is necessary to achieve the aim.45
The requirement that the limitation must be in the general interest recognised by the Union can be very broad. The ECJ has provided in its case law for categories, which can be recognised as general interest; the protection of public
42 Explanations relating to the Charter of Fundamental Rights (2007), OJ C303/17, p 16. 43 Article 52(1) Charter of Fundamental Rights.
44 K. Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, European
Constitutional Law Review, 8, p. 389.
health and safety, requirements of international security and the establishment of a common organisation of the market.46
3.3 Horizontal effect of the Charter
At first sight on would say that the Charter of Fundamental rights protect the interest of the individual against the interest of the state. Their rights must be protected and may not be violated by the state. However, the question if fundamental rights could be exercised in horizontal relationships between individuals remains.
The Mangold case and the Kücükdeveci47 both discuss the principle of
non-discrimination on the grounds of age. In both cases the source for this principle wasn’t the directive,48 but it was seen as a general principles of EU law. In
Kücükdeveci the ECJ restated that the directive couldn’t have horizontal direct effect. However, it then applied horizontal indirect effect through the backdoor by introducing it as a general principle of EU law. The duty imposed by the ECJ on national courts was to disapply conflicting provisions of national law.
This line of case law has given indirect horizontal effect to general principles of EU law. The question is rather if this line of case law has to be limited to non-discrimination on the grounds of age or if it’s also applicable to other general principles of EU law. Particular interesting is if it is then also applicable to the rights in the EU Charter of Fundamental Rights that are equal to these general principles of EU law.49
The thought that the ECJ wants to give the general principle of equal treatment law a special position in comparison to other general principles of EU law and in that way give it a preferred function doesn’t seem likely. However, even if
46 Case 44/79 Hauer, Case C-293/97 Stanley and others. 47 Cases, C-144/04 Mangold and C-555/07 Kücükdeveci.
48 Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for
equal treatment in employment and occupation
49 X. Groussot, L. Pech and G. T. Petursson, The Scope of Application of Fundamental Rights on
Member States’ Action: In Search of Certainty in EU Adjudication, Eric Stein Working Paper No 1:
general principles can be used in horizontal relationships and with this the rights of the Charter that resemble these general principles, the Charter can only be applied if national measures fall inside the scope of EU law as I explained earlier. It seem likely that in the future more cases will follow and seek to asses the applicability of the Charter in horizontal relationships.50 For now it remains
unclear, without any helpful guidance by the ECJ, if the Charter is applicable in horizontal situations.51
3.4 General principles and the Charter
Since the entry into force of the Charter, the Charter has codified most of the general principles of the EU. General principles where used to protect fundamental rights before the Charter. Art. 6 TEU still leaves room to recognize other fundamental rights, which are not provided by the EU treaties, the Charter or the ECHR, as general principles of EU law. The ECJ can create new general principles; this will only happen if the principle is widely accepted in international law or in the constitutions of the member states.52
The role, that general principles would play to protect fundamental rights, was questioned. As stated earlier, general principles where the main element through, which fundamental rights where protected in the European Union. Article 6(1) TEU states;
‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union .. , which shall have the same legal value as the Treaties’
This article sets out the binding force of the Charter. However, next to the binding force of the Charter it also becomes the ‘key fundamental right standard’ of the EU legal order.53 General principles which root from article 6(3) TEU are
50 Idem., p. 30.
51 Case C-282/10 Maribel Dominguez, Opinion of AG Trstenjak.
52 I. Solanke, The application of the EU Charter of Fundamental rights to asylum procedural law,
EU: October 2014.
only ancillary to the rights in the Charter.54 General principles of EU law can only
be relied upon by the ECJ, ‘to expand the material scope of the Charter on the basis of external norms, that is the European Convention of Human Rights and the constitutional traditions common to the Member States.’55
What can be concluded is that the Charter has adopted the position general principles of EU law once had in the European legal order. However, they still remain a position in EU law, yet ‘they no longer constitute autonomous standards of protection’.56 On the one hand, this seems to give a clarification
about the relationship between Charter and the general principles. On the other hand, these new circumstances where there are two sources of fundamental rights could mean the complex overlapping between these two norms.57
3.5 Rights and Principles within the EU Charter of Fundamental Rights
In the preamble of the Charter the last phrase states that the Union ‘recognizes the rights, freedoms and principles set out hereafter’.58 This distinction made in
the preamble shows that articles within the Charter can contain a right, freedom or principle. Rights are enforceable where as the less characterized principles can be unenforceable.59 This distinction made between ‘right’ and ‘freedom’ as
mentioned in the preamble is also made in several articles in the Charter.60 The
differentiation cannot be seen as consistent or even seen as a legally relevant distinction within the Charter.61
54 Idem.
55 X. Groussot, L. Pech and G. T. Petursson, The Scope of Application of Fundamental Rights on
Member States’ Action: In Search of Certainty in EU Adjudication, Eric Stein Working Paper No 1:
2011, p. 2.
56 Idem., p. 2. 57 Idem., p. 16.
58 Preamble EU Charter of Fundamental Rights.
59 A.W. Heringa and L. Verhey, The EU Charter: Text and Structure, 8 MJ 1: 2001.
60 Articles 2, 3, 6, 9 and 14 of the EU Charter of Fundamental rights are noted as rights whereas
the articles 10, 11, 12, 13, 15 and 16 are noted as freedoms.
61 D. Anderson and C. Murphy, The Charter of Fundamental Rights: History and Prospects in
The Charter seems to indicate that the distinction between rights and freedoms on the one hand and ‘principles’ on the other is significant.62 Article 51 and 52 of
the Charter are the general provisions, which provide the scope of the Charter. In article 51(1) the same distinction mentioned in the preamble is made again. Institution and bodies of the Union and the Member States when they are implementing Union law, ‘shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective power.’63 The rights within the Charter have to be respected, whereas
the principles that the Charter contains must be observed. Article 52(5) of the Charter provides what the implementation possibilities are for member states and the EU with the ‘principles’ containing in the Charter.
‘The provisions of this Charter which contain principles may be implemented by
legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.’64
This article seems to indicate that principles only become important for courts if the EU and member states implement the principles by legislation or executive acts and the legislation or the executive acts have to be reviewed. Principles do not create the possibility of making direct claims for positive obligations on the EU or member states. This line of reasoning is consistent with earlier case law of the ECJ.65
The distinction was made in drafting the Charter, because the difficulty in the debate between member states on how to implement social and economic rights in the Charter, this in contrast to the ‘individually justiciable’ civil and political rights in the Charter. These rights are usually not justiciable in a similar way as other rights. They give the legislator an indication on which policy direction should be taken.66 It is for national governments to decide, which principle
62 Idem.
63 Article 51(1) of the EU Charter of Fundamental Rights. 64 Article 52(5) of the EU Charter of Fundamental Rights.
65 C 303/35, Explanation to the EU Charter of Fundamental Rights.
66 Lord Goldsmith, A Charter of Rights, Freedoms and Principles, Common Market Law Review 38:
should be given more importance then the other and which resources are available to obtain the highest level of accomplishment of these ‘principles’.67
To quote Lord Goldsmith, the UK Government’s representative on the Convention which drafted the Charter, ‘Expressing these provision therefore as
principles tied to national law or Community law provides the possibility of identifying these important areas as ones where the Union institutions, where they do act within their fields of competence, should not act to violate those principles’.68
This means if member states or the Union provide legislations or acts on ‘principles’ then there is the possibility to make sure that this legislation or act is accordance with the ‘principle’ provided by the Charter.
AG Cruz Villalón has expressed the difference between ‘rights’ and ‘principles’ within the Charter. Where as ‘principles’ contain the obligation for public authorities to promote and transform the principles into a judicially cognisable reality, ‘rights’ have the purpose to directly protect defined individual legal relations; public authorities have the obligation to protect this individual situation.69 This means that the obligation for public authorities in the case of
‘principles’ isn’t exactly defined, the wording covers general matters that govern actions of all public authorities.70
Even though the difference between ‘rights’ and ‘principles’ within the Charter isn’t stated clearly. ‘Rights’ do seem to contain a stronger notion within the Charter. Where ‘rights’ define an individual legal situation, the obligation for ‘principles’ seem to be more of a general indication for public authorities to interpret.
67 Idem.
68 Idem., p. 1213.
69 Case C-176/12, AG Para, 50 and 51. 70 Idem.
4. Article 16 of the EU Charter of Fundamental Rights
The European Union has at the start of its existence been formed for the ‘common market’. The economic freedoms and competition are the foundation of the EU. Next to the social fundamental rights, which are regarded as the primary fundamental rights of the Charter, there are economic fundamental rights. At the heart of the fundamental economic rights lie three articles; article 15; ‘The
freedom to choose an occupation and the right to work’, article 16; ‘Freedom to conduct a business’ and article 17; ‘Right to property’.71Article 16 is often related
and intimately connected with article 15 and 17 of the Charter. Where most fundamental rights are drawn from the existing rules of international law, article 16 finds its origin from the ‘constitutional traditions’ of the EU Member States.72
For the first time the Court states the right ‘freedom to conduct a business’ as a general principle of EU law. The ECJ stated:
‘The Court is bound to draw inspiration from constitutional traditions common to
the member states’.73
The unique formulation and the little resonance the rights appears to have with the ECJ, reveals the political compromise between the Member States on the formulation of the right in the Charter.74 In this chapter will discuss which rights
are included in article 16, elaborate its connection with article 15 and 17 of the Charter, accentuate the specific wording that is used in article 16 and define the scope of application of article 16 supported by the relevant case law of the ECJ.
4.1 What rights does Article 16 of the Charter include?
In the first chapter the relationship between fundamental rights in the Charter and general principles of EU law have been discussed. In the case of article 16 of the Charter the ECJ in its case law refers to cases, which originated before the
71 Articles 15, 16 and 17, EU Charter of Fundamental Rights. 72 Case 4/73 Nold [1974].
73 Idem. Para 13.
74 S. Peers, T. Hervey, J. Kenner, A. Ward, The Charter of EU Fundamental Rights; a Commentary,
treaty of Lisbon.75 This seems to indicate that the right in the Charter has
replaced the general principle previously formulated by the ECJ. To identify the scope of article 16 the explanation to the Charter of fundamental rights has to be consulted first.
‘This Article is based on Court of Justice case law which has recognised freedom to exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraph 14 of the grounds, and of 27 September 1979, Case 230-78 SPA Eridiana and others [1979] ECR 2749, paragraphs 20 and 31 of the grounds) and freedom of contract (see inter alia Sukkerfabriken Nykøbing judgment, Case 151/78 [1979] ECR 1, paragraph 19 of the grounds, and judgment of 5 October 1999, C-240/97 Spain v. Commission [not yet published], paragraph 99 of CHARTE 4473/00 ket/GBK/jrb 19 JUR EN the grounds) and TEC Article 4(1) and (2), which recognises free competition. Of course, this right is to be exercised with respect for Community law and national legislation. It may be subject to the limitations provided for in Article 52(1) of the Charter.’
The explanation of the article contains several important provisions. First, the article contains three rights. Two of them are recognized in the ECJ’s case law; the freedom to exercise an economic or commercial activity and freedom of contract. The last right is based on the Treaties; free competition.
4.2 Connection article 16 with article 15 and 17 of the EU Charter The historical case law by the ECJ has created a connection between the freedom to conduct a business and the freedom to pursue an occupation, respectively article 16 and 15 of the Charter. These two rights not only coexist with each other but they also form general principles of EU law.76 The court has formed a
same correlation that article 15 and 16 have with article 16 and 17 of the
75 Case C-544/10 Deutsche Weintor, Case C-1/11 Interseroh Scrap.
76 Case C-177/90 Kühn, Para. 16. Joined Cases C-184/02 and C-223/02 Spain and Finland v
Charter. The ECJ has recognized the freedom to conduct a business as a consequence of the right to property.77
In its case law the ECJ seems to not only want to create rights to work and to property, but also wants to conclude a freedom of business with them. The ECJ seems to have the ambition to use these economic rights in connection with each other to institutionalise an internationalised Economic Constitution. This constitution could realise the protection of the liberal entrepreneurial individual European.78
In the Alemo-Herron case, which will be discussed later on more extensively, Advocate General Curz Villalón makes a distinction between the right to property and the freedom to conduct a business. Right to property applies to tangible and intangible assets, while the freedom to conduct a business only means the ability and possibility to participate in the market, whereas the profit made isn’t relevant.79 If this distinction made by the AG will be used more often
by the ECJ and if it is a useful distinction is still to be seen. However, the consistent use of these fundamental rights of the Charter in correlation with each other seems to be knowingly and well thought through. The connection of the rights in the Charter will be discussed more extensively later on, on the basis of case law.
4.3 The formulation of article 16 of the EU Charter
I mentioned earlier that the distinct wording of article 16 of the Charter seems to indicate the political compromise that is behind the formulation of the Charter. The wording of article 16 is especially important, because it seems to attenuate the strength of the right in comparison with other fundamental rights in the Charter. Article 16 is phrased in the following way:
77 Case C-59/83, SA Biovilac NV v European Economic Community, Para. 21.
78 S. Peers, T. Hervey, J. Kenner, A. Ward, The Charter of EU Fundamental Rights; a Commentary,
Oxford; Hart Publishing: 2014, p. 443.
‘The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.’
Where other articles such as article 15 and 17, start with the phrase ‘everyone has the right..’, article 16 merely recognizes the freedom to conduct a business. This doesn’t have to mean that it is a weaker right, however the distinction made seems to indicate that there is a difference and raises the presumption that it is more restricted then the right to work and the right to property. The phrase in the article; ‘in accordance with Union law and national laws and practices’ further decreases the strength of the wording of the freedom to conduct a business.80
This distinctive formulation of the article gives the suggestion of an on-going conflict between the member states on what the ‘European Economic Constitution’ should contain. Together with the disagreement it seems to show on what its relationship to the European ‘social’ order should be.81
4.4 Scope of Application of article 16 and Application in relevant Case Law
The scope of the Charter, as I mentioned in the first chapter, is set in article 51 and 52 of the Charter. In article 51 the scope of the Charter is limited to member states and bodies of the Union, if they are implementing Union law. The aim of article 52 is to define the scope of the rights and principles in the Charter and lay down the rules for interpretation. The first paragraph formulates the limitations that can be apposed by member states and Union bodies on the rights in the Charter. These limitations are developed by the ECJ in its case law.82
Article 52(5) of the Charter sets out the scope of application in case of ‘principles’, rather then a right. ‘Principles may be implemented by legislative power and executive acts taken by institutions, bodies, offices and agencies of
80 U. Bernitz, X. Groussot and F. Schulyok, General Principles of EU law and European Private Law,
Kluwer: 2013. Article by P. Oliver, What Purpose Does Article 16 of the Charter Serve?, p. 285.
81 S. Peers, T. Hervey, J. Kenner, A. Ward, The Charter of EU Fundamental Rights; a Commentary,
Oxford; Hart Publishing: 2014, p. 439.
the Union, and by acts of member states when they are implementing Union law, in the exercise of their respective powers’. This means that article 16, if it contained mere principles, would only be relevant if implementations have to be reviewed by a court.
To further discuss the scope and application of article 16, I will discuss relevant case law and their judicial consequences.
In the Nold v Commission case83 the Commission made a decision under the ECSC
Treaty, this decision intended to rationalize and modernize coal production and amended distribution requirements. This meant that German coal producers could only sell to wholesalers and had to enter in large two-year contracts. Nold wasn’t able to buy in such quantities and lost its right to act as a wholesaler. He contended that it deprive him of the ability to continue its business, violating its right to property and freedom to pursue a business activity.
The court dismissed the action, although these rights where protected by the constitutional laws of all the member states, they had to be viewed in the light of the social function of the property and activities protected thereunder.84
The ECJ in the Hauer case confirmed this line of reasoning. In this case the applicant claimed that due to the Council regulation imposed on the prohibition of the planting of new vines, her right to property and the freedom to choose her occupation was breached. 85 With regard to the right of property the court stated
that the right in the Charter must be regarded in the light of the ‘social function’ the restriction opposed must be ‘disproportionate and intolerable interference of the rights of the owner impinging on the very substance of the right to property’.86 The ECJ then said that the same line of reasoning applied to the
freedom to pursue trade.87
Two principles where laid down in these two judgments:88
83 Case C-4/73 Nold [1974]. 84 Idem., Para. 14. 85 Case C-44/79 Hauer [1979]. 86 Idem., para. 23. 87 Idem., para 32.
88 U. Bernitz, X. Groussot and F. Schulyok, General Principles of EU la wand European Private Law,
1. The freedom to pursue a business activity is not an absolute right and has to be considered in relation to its social function.
2. Restrictions on the right have to be in the public interest and can’t be a disproportionate interference.
The ECJ has set out that the ‘freedom to conduct a business’ is not an absolute right and has to be seen in the light of its social function. The wording of the article affords the possibility to allow broader restrictions. To limit the ‘freedom to conduct a business’ two main principles have to be fulfilled. Restrictions have to be proportional and can only be made if they are in the public interest.89
Secondly, the ‘freedom to conduct a business’ contains three fundamental elements; the freedom to exercise a commercial or economic activity, the freedom of contract and the recognition of free competition.90
5. The Freedom of Contract
The principle of the freedom of contract existed before the EU Charter entered into force. To give a better view of the interpretation of the freedom of contract I have divided this Chapter into two parts. First I will elaborate on the freedom of contract before the EU Charter and in the second part I will elaborate on the freedom of contract after the Charter entered into force.
5.1 The Freedom of Contract before the EU Charter of Fundamental Rights
The ‘freedom of contract’ is not constituted into the Charter, as already mentioned earlier it is one of the rights that is included in article 16 of the Charter by the ECJ. However, the ECJ had stated the ‘freedom of contract’ as a general principle of EU law before the Treaty of Lisbon entered into force in 2009. As I mentioned in the first Chapter, general principles didn’t cease to exist with entry into force of the Charter and still have a role to play in the European
89 Case C-4/73 Nold [1974].
legal order. Because of the importance these general principles still play, I will discuss the leading cases.
The ECJ first mentioned the principle in 1970; this was done in the
Sukkerfabriken case.91 The Court dismissed the preliminary reference, which
questioned the member states discretion on the EU sugar production quotes. However the Court did go into the plea given by the claimant that his private autonomy, and with that his ‘freedom of contract’, was effected. The Court stated the following; ‘’No rules or information are provided on the prescribed procedure,
the forms or the competent authorities for the action contemplated, such as would be expected if a restriction were to be placed on the freedom of contract.’’92 In the
view of the Court, European legal measures can only intrude in the principle of the freedom of contract, if these measures gave explicit authority to a public authority to interfere in private law relationships, and if they do there must be prescribed procedures and forms to do so.93
The ECJ later confirmed their decision and even defined a more narrow definition. This was done in the Spain v. Commission case.94 In this case a
regulation by the EU provided for state aid to agricultural concerns.95 The
inspectors in Spain discovered that contracts where pre-dated to receive the state aid and designated the contracts as fraudulent. The ECJ states the following; ‘’It must be observed, first of all, that the right of parties to amend contracts
concluded by them is based on the principle of contractual freedom and cannot, therefore, be limited in the absence of Community rules imposing specific restrictions in that regard.’’96 To impose restrictions on the principle Community
rules are needed. In this case the parties exercised their contractual freedom, which wasn’t contrary to the public interest.97 More importantly the freedom of
contract seems to be recognized as a principle within EU law.
91 Case C-151/78, Sukkerfabrikken Nykøbing Limitered v Ministry of Agriculture. 92 Idem., Para. 20.
93 S. Peers, T. Hervey, J. Kenner, A. Ward, The Charter of EU Fundamental Rights; a Commentary,
Oxford; Hart Publishing: 2014, p. 440.
94 Case C-240/97, Spain v Commission. 95 Regulation No 2601/69.
96 Case C-240/97, Spain v. Commission, Para. 99. 97 Idem., Para. 105.
In the Neu case,98 the ECJ interpreted the general principle of the freedom to
pursue a trade or profession, which is now enclosed in article 16 of the Charter, in such a way that a new element was added to the principle. The court stated the following:
‘In that respect, it must be stated that the freedom to pursue a trade or profession, which, according to the consistent case-law of the Court, forms part of the general principles of Community law, includes, as a specific expression of that freedom, the freedom to choose whom to do business with.’99
The freedom to pursue a trade or profession and its interpretation by the ECJ resulted in the including of the freedom to choose with whom to do business. The freedom to choose with whom to do business is a component of the freedom of contract.
In the Werhof case100 the ECJ had to decide on a European labour law case. The
minimum requirements that should be in effect in the European Union in case of collective agreement enforceability after the transfer of an undertaking. Mr. Werhof claimed he was entitled to a higher wage, because of a collective agreement he made in 2002 between IG Metall and AGV. However, Freeway KG, which was his employer, wasn’t a member of the AGV. The undertaking DUEWEG, which was a member of the AGV, was transferred to Freeway KG. Mr. Werhof claimed that his collective agreement should have been transferred to his new employer. The ECJ starts by stating that a contract is characterized by the principle of the freedom of parties to arrange their own affairs. This means that the defendant, that wasn’t part of the collective agreement, under that principle can’t be bound by the agreement.101 However, in case of transfer of an
undertaking and the consequences on employment relationships, unconditional application of this principle can result in the erosion of employees rights.102 The
Court refers to its case law that the directive was designed to safeguard the
98 Case C-90/90 Neu [1991]. 99 Idem., Para. 13.
100 Case C-499/04, H. Werhof v Freeway Trafic Systems GmbH & Co. KG. 101 Idem., Para. 23.
rights employees in case of a change of employer and concludes that the directive is mandatory. This means that member states aren’t allowed to derogate from the directive if this means that the rights for employees are less favourable.103 Although according to the directive the rights of employees must
be protected, the rights of the transferee cannot be disregarded.104 If the
‘dynamic’ interpretation where to be applied, this would mean that future collective agreements apply to the transferee who is not a party to the agreement, the fundamental right of not being able to join an association could be affected.105 The ‘static’ interpretation would avoid the situation for a
transferee to be bound by collective agreements made after the transfer.106 The
ECJ ruled that Art. 3.1 of the Directive:
‘Must be interpreted as not precluding, in a situation where the contract of employment refers to a collective agreement binding the transferor, that the transferee, who is not party to such an agreement, is not bound by collective agreements subsequent to the one which was in force at the time of the transfer of the business.’107
The case law from the ECJ seems to show that the ‘freedom of contract’ was a general principle of EU law, before the EU Charter of Fundamental Rights entered into force. However, this is done without going into the substance of the principle, the ECJ merely states that there is no restriction on the ‘freedom of contract’ in the particular cases.108
5.2 The Freedom of Contract in the EU Charter of Fundamental Rights In the second Chapter we have seen that the explanation on the EU Charter of Fundamental rights provides us with the content of article 16 of the Charter. The general principle of the ‘freedom of contract’ in pre- Lisbon case law is expressed
103 Idem., Para 25 and 26. 104 Idem., Para. 31. 105 Idem., Para. 34. 106 Idem., Para. 35. 107 Idem., Para. 37.
108 Case C-125/05, VW- Audi Forhandler Foreningen obo Vulcan Silkeborg v. Skandinavisk Motor
in article 16 of the Charter, the freedom to conduct a business.109 Hereby
referring to the pre-Lisbon case law. This seems to declare that the freedom of contract as a general principle before the Charter is replaced by article 16 of the Charter. Peter Oliver applies this same reasoning in its article on the purpose of article 16 of the Charter.110 Nevertheless, the ECJ hasn’t given a clear ruling on
this point. General principles still exist next to the EU Charter of Fundamental Rights. Its case law on the principle is getting more extensive and we have seen recent success in appeals using article 16 of the Charter and more specifically the freedom of contract as included in article 16 of the Charter.
The case history of the ECJ provides us with fact that the success rate on appealing in front of the Court on the basis of article 16 of the Charter has been low. The ECJ continuously stated that in case of public interest the European legislator or member states are allowed to a broad range of restriction on the freedom to conduct a business. However, there are a few cases where an appeal on the freedom to conduct a business has worked.
The Scarlet Extended case111 is one of these rare cases where the ECJ held that
the measure taken was in breach of article 16 of the Charter. This breach was however not only based on article 16, but also read in combination with Union legislation.
A Belgium company representing authors, composers and editors called SABAM, tried to end the growing practice of illegal downloading containing protected musical works on the Internet. SABAM brought proceedings against Scarlet Extended, which is a service provider, in front of the Belgium court. They wanted to stop the illegal downloading of music that belonged to the repertoire of SABAM. The downloading of the costumers of Scarlet Extended to send or receive the music of SABAM is a copyright infringement and should be made impossible by Scarlet Extended.
109 Explanations relating to the Charter of Fundamental Rights (2007), article 16.
110 U. Bernitz, X. Groussot and F. Schulyok, General Principles of EU law and European Private Law,
Kluwer: 2013. Article by P. Oliver, What Purpose Does Article 16 of the Charter Serve?, p. 284.
The first Belgium Court did found that Scarlet Extended infringed SABAM’s copyright. The Belgium higher court referred the case to the ECJ. The question referred to the ECJ was, if member states where allowed to authorise a national court to order an internet service provider, in this case Scarlet Extended, to install a system for filtering all electronic communications, to identify if files are illegally downloaded from their server. The installing of the filtering system should be on the costs of the Internet service providers.
It was for the ECJ to decide whether injunction, to let internet service providers install such a system, was compatible with the European Directives concerning the protection of data protection and copyright infringements112 and the
fundamental rights that are applicable.113 The ECJ started by saying that the
protection of the intellectual property right is enshrined in article 17(2) of the EU Charter of Fundamental Rights. However, the wording of the article or previous case law by the Court, does not compose an absolute right.114 The Court
then went on to conclude that on the basis of previous case law the fundamental right on the protection of the intellectual property right has to be balanced against the protection of other fundamental rights.115 In the circumstances in the
main proceedings meant that there had to be struck a fair balance between the protection of the intellectual property, rights enjoyed by copyright holders and that of the freedom to conduct a business as enshrined in article 6 of the Charter, enjoyed by Internet service providers such as Scarlet Extended.116 The balancing
of these two fundamental rights was done by the ECJ in the next to paragraphs.
‘In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communication made through the network of the Internet service provider (ISP) concerned in the interest of those right-holders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing
112 Directive 95/46 of the European Parliament and the Council on data protectipon, Directive
2000/31 of the European Parliament and the Council on electronic commerce, Directive 2001/29 of the European Parliament and the council on certain aspects of copyright and related rights on the information society, Directive 2002/58 of the European Parliament and the Council on privacy and electronic communications and Directive 2004/48 of the European Parliament and the Council on the enforcement of intellectual property rights.
113 Case C-70/10, Scarlet Extended SA v SABAM, Para. 28. 114 Idem., Para 43.
115 Idem., Para 44. 116 Idem., Para 46.
works, but also future works that have not yet been created at the time when the system is introduced’.117
‘Accordingly, such an injunction would result in serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expanses..’.118
The ECJ ruled that the injunction by the Belgium Court to install the filter system wasn’t based on a fair balance between the applicable fundamental rights.119 The
injunction made will not only limited the ISP’s, but would also infringe the rights of the ISP’s costumers. In particular the right to receive information and their right to protection of their personal data, which are safeguarded by article 8 and 11 of the Charter.120 The ECJ ruled that the injunction made by the Belgium court
was incompatible, because of the wrongful balancing of the right to intellectual property, on the one hand, and the freedom to conduct a business, the right to protection of personal data and the freedom to receive or impart information.121
In this judgment it is clear that the ECJ primarily decides that the freedom to conduct a business is infringed in this case. However, it is not read on its own, the Court adds article 8 and 11 of the Charter, which are playing a supportive roll in the balancing of the fundamental rights.
Another important more recent case, which did not result in a successful appeal on article 16 of the Charter, is the Sky Österreich case.122 This case provides us
with important judicial consequences for article 16 of the Charter and in particular, the freedom of contract. It concerned the right of a broadcaster using short pieces from the transmitting broadcaster’s signal of events, which where in high interest of the public. These where then used with the intention to air small news reports. In al these cases where the broadcaster had used short pieces, the 117 Idem., Para 47. 118 Idem., Para 48. 119 Idem., Para 49. 120 Idem., Para 50. 121 Idem., Para 53.
transmitting broadcaster had obtained exclusive broadcasting rights. The conditions to use extracts of the broadcaster who owned these rights where set out in article 15(6) of the Directive.123 This Directive sets out the maximum
compensation a broadcaster can ask for using the extract, these costs may not go beyond the additional costs directly incurred in providing access. The Austrian Bundeskommunikationssenat doubted that these provisions in the Directive where compatible with the rights enclosed in article 16 and 17 of the Charter. The important judicial consequence the ECJ provided in this case is that it set out a clear statement in to what the content of ‘the freedom of contract’ in article 16 of the Charter is. The freedom of contract includes the freedom with whom to do business and the freedom to determine the price of a service.124
Even though the ECJ gave a better view on what the ‘freedom of contract’ contained, they then went on to refer to their pervious case-law on the non-absoluteness of the freedom to conduct a business.125 Even a more crucial notion
is made in paragraph 47 of the case:
‘’On the basis of that case-law and in the light of the wording of article 16 of the
Charter, which differs from the wording of other fundamental freedoms laid down in Title II thereof, yet similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on part of public authorities which limit the exercise of economic activity in the public interest.’’126
The impression the ECJ gives in this paragraph is that the words in article 16 of the Charter, ‘In accordance with Union law and national laws an practices,’ give the possibility for even broader restrictions to limit the freedom to conduct a business in the public interest.127 Where as the ECJ is comparing article 16
123 Directive 2010/2013 of the European Parliament and the Council (2010 OJ L95/1 and
corrigendum 2010 OJ L263/15).
124 Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk [2013]. Para. 47. 125 Idem., Para. 47.
126 Idem.
wording to the provisions of Title IV of the Charter shows that the ECJ seemingly treats the freedom to conduct a business on the same status as social rights.128
In paragraph 49 the ECJ ruled that the ‘core content of the freedom to conduct a business’ wasn’t affected. Article 15 of the Directive was put in place to ‘safeguard the fundamental freedom to receive information’. This right is guaranteed under article 11(1) and (2) of the Charter.129 The restriction imposed
on article 16 of the Charter was justified; because of the legitimate aim in general interest.130 An important note to make is that the ECJ seems to treat the freedom
of contract as a right and not just as a principle.131 This would put a stronger
notion on the freedom of contract within article 16 of the Charter. However, because of the wording of article 16, broader restrictions in the public interest are possible.
The ECJ case law discussed has shown that the ECJ allows extensive restrictions in case of public interest on the article 16 of the Charter. Most of the appeals made on the article have failed. In Scarlet Extended The Court has ruled that an infringement of article 16 took place, but this wasn’t the only article of the Charter the Court based its decision on. In a recent judgment the Court however made a different decision. This important decision was delivered in
Alemo-Herron.132 In this case the Council directive 2001/23 on safeguarding employees’
rights in the even of transfers of undertakings was regarded.
Mark Alemo-Herron and 23 other employees where employed in the leisure service department of Lewisham LBC. Their contracts stated the right that their wage would increase in line with the collective agreements made by, National Joint Council for Local Government Services’. Their jobs where transferred twice. First, they got transferred in 2002 to a company called CCL ltd and then they got
128 X. Groussot, G. T. Pétursson and J. Pierce, Weak Right, Strong Court – The Freedom to Conduct a
Business and the EU Charter of Fundamental Rights, Lund University: 2014, p. 6.
129 Article 11(1) of the EU Charter of Fundamental Rights, everyone has the right of freedom of
expression. This right shall include freedom of opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Article 11(2) of the EU Charter of Fundamental Rights, this freedom and pluralism of the media shall be respected.
130 Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk [2013]. Para. 52.
131 U. Bernitz, X. Groussot and F. Schulyok, General Principles of EU la wand European Private Law,
Kluwer: 2013. Article by P. Oliver, What Purpose Does Article 16 of the Charter Serve?, p. 295.
