Justin Pierce

Weak Right, Strong Court - The Freedom to Conduct Business and the EU Charter of Fundamental Rights

With the entry into force of the Lisbon Treaty, the EU Charter of Fundamental Rights has finally become a legally binding document of primary law, a core element of the Union’s legal order and the starting point for the ECJ judge for assessing the compatibility of EU or Member States measures with EU fundamental rights. Notably, this Charter enshrines an explicit provision (Article 16) on freedom to conduct business. The core question in this Chapter is whether this explicit constitutional provision will bring a change of approach in defining and relying on the freedom to conduct business in the EU. The Chapter is divided into two main sections. The first section (1. A Weak Right with a Strong Potential?) analyses the roots and text of Article 16 of the Charter. It is pointed out that, at first blush, the freedom to conduct business appears to be a ‘weak right’. However, this ‘weak right’ may be given a strong meaning. In the second section (2. A Strong Court with a Weak Reasoning?), looking at the recent case law of the ECJ, it seems that Article 16 of the Charter may strongly impact at the EU level by offering not only a ground of challenging the policies of the Union but also by clashing with the social policies of the Member States in horizontal situations. The principle of proportionality is here often relied on by the ECJ in its reasoning. Is it done in an appropriate way? The concluding section of the Chapter examines who is afraid of Article 16; theorising that the strong interpretation of the Article may be troublesome for the institutions of the Union, especially the EU Commission, and also for the application of social rights. We find that contrary to previous thought the Article 16 is potentially both a powerful tool for challenging Union acts, decisions and legislative interpretation in the future, and also impacting Member States’ measures, even if originating in (purely) private conduct.

Standards: Competition and Innovation?

In the European Union, the Commission has identified the use of standards as a mechanism of innovation sharing, European competitiveness and further economic integration within the Union. Additionally, the Union has developed and promoted a dynamic approach to research and development, largely supported by a robust intellectual property and antitrust exemption regime. The underlying purpose of which is to provide protection for inventions, facilitate cost recovery and enhance the exploitation of profits from the developed invention. Nonetheless, innovators face a continuous struggle not only to stay ahead of the pack but also to develop strategies to secure capital to continue research and development. The difficulties associated with technological advancement in standardised areas is exasperated given that the lack of guarantee the developed technology will be included within the standard, alongside other associated difficulties arising as a result of the existing standard. This paper explores whether driving standardisation in innovation markets is potentially counter effective and ultimately, an impediment to innovation and development.