Business Freedoms and Fundamental Rights in European Union Law

Abstract

The recognition of the freedom to conduct a business as a fundamental right within European Union law has reignited debate as to the proper place of competing economic freedoms and fundamental social rights within the European Union legal order. In particular, the Court of Justice of the European Union has relied on freedom of contract as a component of the freedom to conduct a business in order to undermine the protection of competing employment rights. Using the employment law context as a case study, this book argues that the potential regulatory consequences of the freedom to conduct a business as a fundamental right can only properly be understood within its wider constitutional and social dimensions. A holistic assessment of the value placed on business freedoms within the legal reasoning of the Court of Justice of the European Union demonstrates that there is nothing inherently deregulatory in granting fundamental rights status to such freedoms, with the freedom to conduct a business as a fundamental right also being contoured by competing ‘social’ rights, interests, and values. The freedom to conduct a business is thereby also shown to be a malleable fundamental rights concept in that its precise reach remains dependent on the underlying constitutional context whether that be within national constitutional law, the general principles of EU law, the Charter of Fundamental Rights, or in those arrangements governing the United Kingdom’s departure from—and new relationship with—the European Union.