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The Justice Dimensions of the Relationship between Fundamental Rights and Private Law

Published online by Cambridge University Press:  22 September 2018

Martijn W. Hesselink
Affiliation:
Professor of European Private Law and Director of the Centre for the Study of European Contract Law, University of Amsterdam
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Summary

INTRODUCTION

Does a private limited company have a fundamental right freely to conduct a business? Article 16 of the Charter of Fundamental Rights of the European Union (CFREU) proclaims that ‘[t]he freedom to conduct a business in accordance with Union law and national laws and practices is recognised ’. The Charter speaks of a ‘freedom ’that is ‘recognised ’(by the EU, presumably). However, in the recent Alemo-Herron case, the Court of Justice of the European Union (CJEU) referred to this freedom as a ‘fundamental right ’. The turn of phrase may have been due to a slip of the pen, but the Court's use of language may also have been deliberate. This raises the question of what exactly it would mean to have a fundamental right to conduct a business. Would it be a human right? Human rights are rights that we all have as human beings, i.e. by virtue of our humanity. However, in Alemo-Herron, the presumed right-holder was not a natural person but Parkwood Leisure Ltd, a private limited company. Perhaps the shareholders in the company may be the ones who hold the fundamental right to conduct a business, but that does not seem to be what the Court had in mind and, in any case, the shareholders were not a party to the dispute.

If Article 16 were indeed to confer a right, then the next question would be: a right to what and against whom? For, when someone has a fundamental right – or indeed any right – that person is entitled to something against someone. So, against whom do we have a right to conduct a business and what is the content of that right? In other words, who is under a duty to do or abstain from doing what towards the right holder? Alemo-Herron was a case about the interpretation of a directive on the safeguarding of employees ‘rights in the event of a transfer of a business. According to the Court, the ‘fundamental right’ to conduct a business ‘covers, inter alia, freedom of contract’.

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Publisher: Intersentia
Print publication year: 2017

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