The freedom to conduct a business : the origins and development of Article 16 of the Charter of fundamental rights of the European Union

Abstract

This thesis undertakes a critical examination of Article 16 of the Charter of Fundamental Rights of the European Union. I address three central questions. First, how did the freedom to conduct a business come to be included in the Charter of Fundamental Rights? Second, can it be said to derive from the case law of the Court of Justice, or the constitutional traditions of the Member States? Third, what has been the impact of the freedom to conduct a business in the case law of the Court of Justice, and how has its impact varied across subject matters? These questions are important, not only by virtue of the mounting significance of the Charter of Fundamental Rights, which entered into force in December 2009, but because the protection of the freedom to conduct a business in Article 16 has not yet been subject to sustained scrutiny. Its origins, the normative interests it shields, and its capacity to serve as a deregulatory force within the European legal order have been under-examined. To many, the entry into force of the Charter of Fundamental Rights in December 2009 marked the moment when the European Union would make a decisive break with its origins as an economic trading organisation, and move towards a Union built on a commitment to non-market values. Yet the ongoing recognition and development of an open-ended right to conduct a business in the Charter of Fundamental Rights indicates that the Union’s commitment to market interests is alive and well.