Questioning the coherence of the freedom to conduct a business: Insights from the Court of Justice of the European Union

Abstract

This article examines the jurisprudential development of Article 16 of the Charter of Fundamental Rights of the European Union in the Court of Justice of the European Union (Court), which safeguards the freedom to conduct a business. The paper argues that the Court has adopted an incoherent approach in interpreting this freedom, leading to legal uncertainty. Through an analysis of the Court's case law, the paper explores the Court's varying interpretations across three policy areas: the Common Agricultural Policy, the information society and labour/social law. The paper posits that the Court's interpretations lack coherence, with some rulings characterizing the freedom to conduct a business as a ‘weak’ freedom, allowing for significant market interventions, while in other decisions the Court adopts a more ‘forceful’ stance, in which it prioritizes businesses freedom over individual social and civil rights. The paper concludes by suggesting that the Court's incoherent application of Article 16 of the Charter has implications for the predictability and reliability of the freedom to conduct business within the EU's constitutional order. It highlights the need for a comprehensive normative framework to guide the Court's balancing act of Article 16 with other fundamental rights recognized in the Charter.