8.3.2 Private autonomy versus fundamental freedoms

395. Hartkamp states that justifications of restrictions of Union rights can exist in the grounds of justification listed in the Treaties,1 but also in other interests of the parties, including the freedom to act and the freedom of contract.2 Article 16 Charter on the freedom to conduct a business includes the principle of private autonomy and contractual freedom of private parties.3 Most rules of mandatory law restrict the autonomy of private parties, and so do the fundamental freedoms with direct horizontal effect.4 The direct horizontal effect of the free movement of persons and the freedom to provide services is highly criticized – particularly by German scholars – for its restrictive effect on private autonomy.5 For example Schweitzer complains:

Also Streinz and Leible conclude that the direct horizontal effect of Article 45 TFEU disproportionately restricts the principle of private autonomy and wonder whether the effectiveness of Article 45 TFEU cannot be guaranteed in other ways “die das Kompetenzgefüge zwischen EG und Mitgliedstaaten sowie zwischen Judikative und Legislative weniger beeinträchtigt”.7

396. Indeed, private autonomy is an important internal market principle, which is even entrenched in the fundamental freedoms.8 In that sense, the mandatory provisions on the fundamental freedoms are meant both to protect and to restrict private autonomy of private parties. In Angonese the Court illustrated that there are situations in which other fundamental rights and principles favour protection at the cost of private autonomy.9 In my opinion, such a restriction of the principle of private autonomy is not problematic per se, as this principle, like many other principles and fundamental rights, is “not absolute and must be viewed in relation to its social function”.10

397. Private autonomy cannot be employed to simply bypass obligations stemming from Union law.11 On the contrary, in relation to restrictions of fundamental freedoms by Member States the Court points out that “the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest”.12 When the principle of private autonomy clashes with a(nother) fundamental right – the effective protection of which is not only of private but also of public interest – a meticulous appraisal of the interests involved is required.13 Pursuant to the case law of the Court of Justice and Article 52(1) Charter the proportionality principle forms the basis of such an appraisal.14

398. Concerning the use of Article 16 Charter to justify a restriction of a fundamental freedom, three points should be observed. First, considering its legal nature and its phrasing, it is unlikely that Article 16 Charter has direct horizontal effect or that it can be invoked to require a national court to disapply a legislative provision that restricts private autonomy: the provision cannot be said to be sufficient in itself to confer on private parties a subjective right which they may invoke as such.15 The difference in the ways in which private parties can utilise the fundamental freedoms with direct horizontal effect opposed to the principles and Charter provisions, like Article 16 Charter, that do not (yet) have direct horizontal effect has caused debate.16 However, as pointed out in §8.3.1.1 in relation to Article 28 Charter, it is irrelevant for the justification of a restriction of a fundamental freedom whether or not Article 16 Charter has direct horizontal effect; justifications of restrictions of fundamental freedoms are assessed on the basis of a proportionality assessment in which the interests of the parties involved are balanced in view of the circumstances of the case. As argued in the preceding section, in this proportionality assessment there is no such thing as a presupposed hierarchical ranking ab initio.

Second, in the realm of the fundamental freedoms, the Court of Justice is not unequivocal about the weight that should be awarded to the principle of private autonomy.17 Thus far, Article 16 Charter has not been successfully invoked to restrict a fundamental freedom by a private party. However, Article 16 Charter was successfully invoked as a ground of justification for a restriction of other fundamental rights that Union law confers on private parties.18 This implies that also in the context of the fundamental freedoms it should not be excluded that under certain circumstances the principle of private autonomy prevails over the protection of a fundamental freedom.

However, and this is the third and last point to be observed, although in theory Article 16 Charter can be invoked as a ground of justification for a restriction of Article 45 TFEU or Article 56 TFEU19, it is insufficient to invoke the protection of private autonomy as such: more is needed to successfully claim that in the specific circumstances of the case private autonomy should be protected at the cost of a fundamental freedom.20