1 Charter of Fundamental Rights of the European Union art. 16, Oct. 26, 2012, 2912 O.J. (C326) 399 [hereinafter CFR] (“The freedom to conduct a business in accordance with Community law and national laws and practices is recognized.”).Google Scholar

2 See Consolidated Version of the Treaty on European Union art 6(1), Oct. 26, 2012, 2012 O.J. (C326) 19 [hereinafter Consolidated TEU] (“The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”).Google Scholar

3 See id. at art. 3(3).Google Scholar

4 As it will be explained below, the fundamental freedoms must be read in light of European citizenship.Google Scholar

5 See generally Human Rights in Europe: Commentary on the Charter of Fundamental Rights of the European Union (William B.T. Mock & Gianmario Demuro eds., 2010); Lucia Serena Rossi, How Fundamental Are Fundamental Principles? Primacy of the EU Law, Principles of the National Constitutions and Fundamental Rights after Lisbon, in Diritti individuali e giustizia internazionale: Liber Fausto Pocar 801–22 (G. Venturini & S. Bariatti eds., 2009); Lucia Serena Rossi, I principi enunciati dalla sentenza della Corte Costituzionale tedesca sul Trattato di Lisbona: Un'ipoteca sul futuro dell'integrazione europea?, in Rivista di diritto internazionale 993–1020 (2009).Google Scholar

6 See id. Google Scholar

7 It should be noted that the CFR does not create any new rights but simply recognizes pre-existing rights. Even so, the impact of the official recognition of the right of economic initiative is significant.Google Scholar

8 See generally Marco Gestri, Regolamentazione del mercato e libertà d'iniziativa privata: L'incidenza del diritto comunitario sulla costituzione económica, in Istituzioni e dinamiche del diritto: Mercato, amministrazione, diritti 141–76 (A. Vignudelli ed., 2006).Google Scholar

9 Treaty on European Union (Maastricht Text) art. F(2), July 29, 1992, 1992 O.J. (C 191) 5 [hereinafter Maastricht] (“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”).Google Scholar

10 See id. Google Scholar

11 See supra note 5.Google Scholar

12 See infra Section 2.Google Scholar

13 CFR, supra note 1, at art. 52(1).Google Scholar

14 See Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 197/83, Oct. 22, 1986, 73 BVERFGE 339 [hereinafter Solange II].Google Scholar

15 See Gestri, supra note 8.Google Scholar

16 See generally Armin Von Bogdandy et al., Reverse Solange–Protecting the Essence of Fundamental Rights against EU Member States, 49 Common Mkt. L. Rev. 489 (2012).Google Scholar

17 For further details on convergence of the fundamental freedoms, see generally Alina Tryfonidou, Further Steps on the Road to Convergence Among the Market Freedoms, 35 Eur. L. Rev. 36–56 (2010). For further details about the fact that the EU citizenship provisions could trigger the application ratione personae of EU law, see generally the case law of the ECJ on the citizenship provisions; David Halberstam, Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States, in Ruling the World? Constitutionalism, International Law, and Global Governance (Jeff Dunoff & Joel Trachtman eds., 2009).Google Scholar

18 It is arguable that economic and political integration would indeed be fostered if the ECJ exercised an even more active role in the protection of fundamental rights through the application of EU law according to the ratione personae criterion embedded in the concept of EU citizenship.Google Scholar

19 See Gestri, supra note 8.Google Scholar

20 See generally Takis Tridimas, The General Principles of EU Law (2006) (according to which the issue of whether the general principles of EU law may give rise to obligations against private parties acquires importance in the protection of fundamental rights). Indeed, it has already been stressed that the right to economic initiative may be applied both against the EU and against Member States, not only when implementing Union law, but also whenever the genuine substance of a EU citizen's rights is undercut. In other words, according to the “reverse Solange” idea, citizenship may trigger the application of EU law ratione personae. Moreover, the right to economic initiative may serve as a tool for solving the problem of reverse discrimination, which could be overcome especially after the case law on EU citizenship and through the general principle of equality. Apart from the discourse on fundamental rights, it should be borne in mind that the right to economic initiative is also a general principle of EU law. General principles are also a source of fundamental rights under Article 6 TEU. According to Tridimas, although the criticism against the horizontal direct effect of general principles in general is that the historical purpose they were recognized for was to protect individuals against public authorities, in a modern and pluralist state, the traditional dichotomy between public and private is no longer valid. It might happen that protecting fundamental rights against the public only, and not also against private parties, may undermine effective protection. Therefore, it may be argued that the right to economic initiative has horizontal direct effect, also in light of the ECJ's case law. See, inter alia, the latest judgments on the general principle of age non-discrimination, Case C-144/04, Werner Mangold v. Rudiger Helm, 2005 E.C.R. I-9981; Case C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co. KG, 2010 E.C.R. I-365.Google Scholar

21 Case 4/73, Nold, 1974 E.C.R. 491.Google Scholar

22 Case C-161/97, Kernkraftwerke Lippe-Ems v. Comm'n, 1999 E.C.R. I-2057.Google Scholar

23 Case C-240/83, Procureur de la République v. Assoc. de Défense des Bruleurs d'huiles Usagées, 1985 E.C.R. 531 [hereinafter ADBHU case].Google Scholar

24 Case C-177/90, Kuehn, 1992 E.C.R. I-35.Google Scholar

25 Case 44/79, Hauer, 1979 E.C.R. 3727.Google Scholar

26 See Opinion of AG Stix-Hackl, Cases C-184/02 and C-223/02, Spain & Fin. v. Parliament & Council, 2004 E.C.R. I-07789 [hereinafter Opinion of AG Stix,-Hackl]Google Scholar

27 See id. ¶ 51.Google Scholar

28 Council Directive 2002/15, 2002, O.J. (L 80) 35.Google Scholar

29 See Opinion of AG Stix,-Hackl, ¶ 51.Google Scholar

30 See Gestri, supra note 8.Google Scholar

31 See Case C-234/85, Keller, 1986 E.C.R. I-2897, ¶ 18.Google Scholar

32 See Case C-200/96, Metronome Musik GmbH v. Music Point Hokamp GmbH, 1998 E.C.R. I-1953, ¶ 26.Google Scholar

33 See Case C-84/95, Bosphorus, 1996 E.C.R. I-3953, ¶ 26.Google Scholar

34 See Opinion of AG Stix,-Hackl.Google Scholar

35 Case C-1/11, Interseroh Scrap v. Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH, ¶ 43, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=116103&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2468952.Google Scholar

36 See generally Case C-280/93 Ger. v. Council, 1994 E.C.R. I-4973; Joined Cases C-20/00 & C-64/00, Booker Aquaculture v. Scottish Ministers, 2003 E.C.R. I-7411; Joined Cases C-154/04 & C-155/04, Queen v. Sec'y of State for Health, 2005 E.C.R. I-6451; and Joined Cases C-453/03, C-11/04, C-12/04 & C-194/04, ABNA v. Sec'y of State for Health, 2005 E.C.R. I-10423.Google Scholar

37 See GestrI, supra note 8.Google Scholar

38 Opinion of AG Mazàk, Case C-544/10, Deutsches Weintor eG v. Land Rheinland-Pfalz, ¶ 29, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=121155&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2469251.Google Scholar

39 See Case C-184/02, Spain v. Parliament & Council, 2004 E.C.R. I-7789, ¶ 51 [hereinafter Spain case].Google Scholar

40 See joined Cases C-143/88 & C-92/89, Zuckerfabrik Süderdithmarschen & Zuckerfabrik Soest, 1991 E.C.R. I-415, ¶¶ 72–77.Google Scholar

41 See Joined Cases C-20/00 & C-64/00, Booker Aquaculture v. Scottish Ministers, 2003 E.C.R. I-7411, ¶ 68; Joined Cases C-37/02 & C-38/02, Di Lenardo v. Ministero del Commercio, 2004 E.C.R. I-6911, ¶ 82; Case C-22/94, The Irish Farmers Ass'n v. Minister of Agriculture, 1997 E.C.R. I-1809, ¶ 27.Google Scholar

42 See Joined Cases C-570/07 & C-571/07, Blanco Pérez v. Consejería de Salud y Servicios Sanitarios, 2012 E.C.R. I-0000, ¶ 90; See also Case C-183/95, Affish BV v. Rijksdienst voor keuring van Vee en Vlees, 1997 E.C.R. I-4315, ¶¶ 42–43.Google Scholar

43 Opinion of AG Trstenjak, Case C-316/09, MSD Sharp v. Merckle GmbH, 2011 E.C.R. I-nyr, ¶ 83, http://curia.europa.eu/juris/document/document.jsf?text=&docid=79732&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2472626.Google Scholar

44 See generally Luigi Ferrari Bravo, Francesco M. Di Majo & Alfredo Rizzo, Carta dei Diritti Fondamentali dell'Unione Europea, commentata con la giurisprudenza della Corte di Giustizia CE e della Corte europea dei diritti dell'Uomo e con i documenti rilevanti (2001).Google Scholar

45 See generally Richard Whish & David Bailey, Competition Law (2012). The EU courts and the European Commission have taken differing approaches to enforcement priorities in Article 102 TFEU cases: the Commission is more efficiency-oriented, while the courts tend to protect competitors as such.Google Scholar

46 See id. Google Scholar

47 See Case C-438/05, Int'l Transp. Workers’ Fed. v. Viking Line, 2007 E.C.R. I-10779; Case C-341/05, Laval un Partneri v. Svenska Byggnadsarbetareförbundet, 2007 E.C.R. I-11767.Google Scholar

48 Opinion of AG Trstenjak, Case C-271/08, Comm'n v. Ger., 2010 E.C.R. I-07091, ¶ 178.Google Scholar

49 See Spain, supra note 39.Google Scholar

50 See Opinion of AG Mengozzi, Case C-341/05, Laval un Partneri, 2007 E.C.R. I-11767, ¶ 84, available at http://curia.europa.eu/juris/showPdf.jsf?text=&docid=62532&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2474777; Opinion of AG Mengozzi, Case C-354/04, Gestoras Pro Amnistía v. Council, 2007 E.C.R. I-1579, ¶ 177; Case C-355/04, Segi v. Council, 2007 E.C.R. I-1657, ¶ 177.Google Scholar

51 See v. Skouris, Das Verhältnis von Grundfreiheiten und Grundrechten im europäischen Gemeinschaftsrecht, 3 Die Öffentliche Verwaltung 59, 89–97 (2006); S. Prechal & S.A. De Vries, Viking/Laval en de grondslagen van het internemarktrecht, in 1 Sociaal-economische Wetgeving: Tijdschrift voor Europees en economisch recht 425, 434– 35 (2008) (pointing out that a conflict between fundamental rights and fundamental freedoms can often be reformulated as a conflict between two fundamental rights).Google Scholar

52 See Case C-171/11 Fra.bo SpA v. Deutsche Vereinigung des Gas und Wasserfaches, ¶¶ 56 & 57, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=121104&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2480352 [hereinafter DVGW].Google Scholar

53 See supra note 5.Google Scholar

54 See generally Catherine Barnard, Social Dumping and the Race to the Bottom: Some Lessons for the European Union from Delaware?, 25 Eur. L. Rev. 57 (2000).Google Scholar

55 The Cologne European Council of June 1999 resolved to establish a charter of fundamental rights in order to make the overriding importance and relevance of these rights more visible to EU citizens. Indeed, as Lord Goldsmith brilliantly emphasized, the work of the convention—a novel EU body composed of representatives of governments, the European Commission, the European Parliament, and national parliaments—was steered by national governments in such a way as to ensure that discussions were not about “minting new rights but rather an exercise in increasing the visibility of existing rights.” Lord Goldsmith, A Charter of Rights, Freedoms and Principles, 38 Common Mkt L. Rev. 1201 (2001).Google Scholar

56 See infra Section 1.Google Scholar

57 Goldsmith, Lord, The Charter of Rights: A Brake Not an Accelerator, 5 Eur. Hum. Rts. L. Rev. 473 (2004).Google Scholar

58 See generally Jeff Kenner, Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility, in Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Tamara Hervey & Jeff Kenner eds., 2003).Google Scholar

59 The argument, then, is that social rights are more enforceable now that the CFR is legally binding. But it is also important to bear in mind that although social considerations are not applied as fundamental rights, they are in fact applied as internal market derogations and overriding reasons. What the CFR essentially does is to conceptualize social considerations as fundamental rights.Google Scholar

60 See generally S. Deakin & Jude Browne, Social Rights and Market Order: Adapting the Capability Approach, in Economic and Social Rights Under the EU Charter of Fundamental Rights: A Legal Perspective (Tamara Hervey & Jeff Kenner eds., 2003) (commenting that the CFR's provisions on solidarity are not as strong as they might be, since they were watered down in the process leading to the agreement on the text of the CFR; there is no attempt to subordinate social rights to civil, political, and economic rights).Google Scholar

61 The difference the CFR assumes between rights and principles reflects the common law approach.Google Scholar

62 Charter of Fundamental Rights of the European Union art. 51, Dec. 13, 2007 reads as follows:Google Scholar

63 See infra Section 2.Google Scholar

64 On the question of private enforcement, a detailed analysis of the debate about the Amnesty Plus program and leniency procedures is offered, see generally Criminalization of Competition Law Enforcement: Economic and Legal Implications for the EU Member States (Katalin J. Cseres, Maarten-Pieter Schinkel & Floris O. W. Vogelaar eds., 2006). The view I present in this paper—that the right to economic initiative can be used to foster and further implement the system for enforcing competition law—is to the best of my knowledge a fresh idea never before considered.Google Scholar

65 See id. Google Scholar

66 See id. Google Scholar

67 It is worth mentioning the debate between the European Commission and the European courts as regards the aims of Article 102 TFEU. The courts take a formalistic approach, defending and protecting competitors rather than competition itself. The Commission, by contrast, has made it clear that its enforcement priorities are based on the converse approach, focused on protecting the process of competition rather than competitors. The Commission's approach seems closer to the line of reasoning presented in this article. Indeed, it is argued that even the right to economic initiative ought to be read in light of its social function.Google Scholar

68 See generally Tryfonidou, Alina, Further Steps on the Road to Convergence among the Market Freedoms, 35 Eur. L. Rev. 36 (2010).Google Scholar

69 See Joined Cases C-267/91 & C-298/91, Criminal Proceedings Against Keck & Mithouard, 1993 E.C.R. I-06097; [1995] 1 CMLR 101.Google Scholar

70 See supra note 61.Google Scholar

71 See generally Case C-441/04, A-Punkt Schmuckhandels v. Schmidt, 2006 E.C.R. I-2093. In this case the Court seemed to extend the purview of Article 30 TFEU to cases where it was unsure whether or not there was an interstate movement of goods. What was certain is that it was the trader who was moving within the internal market. Is the Court admitting the possibility of a new freedom, namely, the free movement of traders? Although this approach was not subsequently taken up in similar other cases, I would argue that if it is true that the fundamental freedoms must be reinterpreted in light of European citizenship provisions, as European citizenship is destined to become the fundamental status of the Union, a free movement of traders ought to be recognized. Therefore, the legal basis for this approach can be said to lie in the right to economic initiative and in the citizenship provisions. As regards the market-access test and the debate about it, see generally Jukka Snell, The Notion of Market Access: a Concept or a Slogan?, 47 Common Mkt. L. Rev. 437 (2010), where the author strongly criticizes the usefulness of the test. It is not the aim of this article to go deeply into the debate and the notion of market access. However, what is worth mentioning is that the market access approach has been useful in bringing convergence among the fundamental freedoms and it can also be useful in bringing a more economic approach to the internal market rules.Google Scholar

72 For a detailed analysis of the case law where the EU courts have recognized a horizontal direct effect for the market freedoms, see generally Catherine Barnard, The Substantive Law of the EU: The Four Freedoms (2009). See also S. Van den Bogaert, Horizontality: The Court Attacks?, in The Law of the Single European Market: Unpacking the Premises 123, 123–53 (Catherine Barnard & Joanne Scott eds., 2002).Google Scholar

73 See id. Google Scholar

74 Case 8/74, Procureur du Roi v. Dassonville, 1974 E.C.R. I-837, ¶ 5 (“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.”).Google Scholar

75 See Tryfonidou, supra note 17. The ECJ's determination to promote convergence among the market freedoms in the name of the citizenship provisions reinforces this position. Moreover, it is argued in this paper that the right to economic initiative could also be a legal basis for this approach and for fully recognize horizontal direct effect to the free movement of goods as well.Google Scholar

76 See generally Alina Tryfonidou, Reverse Discrimination in EC Law (2009).Google Scholar

77 See generally Case C-184/99, Grzelczyk v. Centre Public d'Aide Sociale d'Ottignies Louvain la Neuve, 2001 E.C.R. I-6193.Google Scholar

78 Opinion of AG Jacobs, Case C-168/91, Konstantinidis v. Altensteig, 1993 E.C.R.I-1191, ¶ 1211–12.Google Scholar

79 See supra note 67.Google Scholar

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81 See the debate surrounding the recent proposal by the European Commission to let the EU close its public-procurement market to firms based in countries that exclude European competitors from their own public contracts: Proposal for a Regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union's internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries, Brussels, March 21, 2012, COM (2012) 124 final, 2012/0060 (COD). See Unfree Trade. The European Commission is flirting dangerously with protectionism, The Economist, Mar. 24, 2012, http://www.economist.com/node/21551064; See also Kamala Dawar, The Proposed ‘Buy European’ Procurement Regulation: An Analysis, 11^TH GTA Report on Protectionism, http://www.globaltradealert.org/sites/default/files/.Google Scholar

82 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, Mar. 2, 2012, available at http://european-council.europa.eu/media/639235/st00tscg26_en12.pdf.Google Scholar

83 As evidence in support of this view, one need only consider the difficulty experienced in setting up a Eurobond system and providing for a true system of solidarity among Member States.Google Scholar

84 See Opinion of AG Tesauro, Case C-292/92, Hünermund v. Landesapothekerkammer Baden-Württemberg, 1993 E.C.R. I-6787 (“Is Article 30 of the Treaty a provision intended to liberalize intra-Community trade or is it intended more generally to encourage the unhindered pursuit of commerce in individual Member States?”); Opinion of AG Maduro, Joined Cases C-158/04 and C-159/04, Alfa Vita Vassilopoulos v. Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon, and Carrefour Marinopoulos v. Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon, Access to European Law, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62004C0158:EN:HTML.Google Scholar

85 This right can be derived on the reasoning that once the internal market has been created and established, the main concern of the EU in the single market must be to assure its proper functioning.Google Scholar