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------A EU
BBREVIATIONS IV. 3. 2. I: ------
F B
------J
REEDOM OF CONTRACT A CONTRACT OF REEDOM I ETWEEN ETWEEN UDICIAL ACTIVISM V ACTIVISM UDICIAL
------MPACT OF THE CONSTIT THE OF MPACT
era” andera” “economic due process” ------
------ver Lochner ver
------Lochner Lochner
------L M OTECTION OF FREEDOM OTECTION OF CTION OF FREEDOM OF CTION OFFREEDOM JUDICIAL AND OCHNER
------EMBER EMBER the Era”and Post ECHR EU contract law
------S ------. TATES AND THE TATES T
constitutionalityof freedom with interferences of JUDICIAL RESTRAINT JUDICIAL ------ABLE OF CONTENTS ABLE
------UTIONALIZATION OFFR UTIONALIZATION ND CONSTITUTIONAL LA CONSTITUTIONAL ND omic system ------New DealNew judicial restraint ii
------
------
DEFERENCE CONTRACT ON THE EXAM ON THE CONTRACT ------OF CONTRACT IN THE THE IN OF CONTRACT –
------judicial activism in EU –
------Poland andPoland
SECONDARY LAW
– ------
TWO DIFFERENT APPROA TWODIFFERENT ------:
E ------
EEDOM OF CONTRACT ON CONTRACT OF EEDOM on theEU law UROPEAN APPROACH TO UROPEANTO APPROACH W ------
the ------
------EU ------US protection of
------
------
PLE OF PLE ------
------P OLAND OLAND
------CHES ------
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CEU eTD Collection Law199. Contract Reviewof Jac 653; Journal Law 6 Europea 17 accessed 5
Martijn W Hesselink, ‘The European Commission’s Action Plan: To Plan: Action Commission’s European ‘The Hesselink, W Martijn (eds), others and HughBeale Martijn W Hesselink and others, ‘Social Justice in European Contract Law: A Manifesto’ (2004) 10 European 10 (2004) Manifesto’ A Law: Contract European in Justice ‘Social others, and Hesselink W Martijn Jacobien W Rutgers, ‘The European Economic Constitution, Freedom of Contract and the DCFR’ (2009) 5 (2009) DCFR’ the and Contract of Freedom Constitution, Economic European ‘The Rutgers, W Jacobien See: See: Lucinda Miller, Miller, Lucinda omsin ‘ Commission, 5 n Review of Contract Law ofContract n Review
We can divide participants of the debate over European contract law into two gro two into law contract European over debate the of participants divide can We economies the on only not impact great have may law contract European of shape The h The and that it should be necessarily limited by such values as fairness or social justice. social or fairness as values such by limited necessarily be should it that and
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armonization – particularly in the area o area the in particularly 146. cnrvris eae n atclr o h rl o fedm f otat n the in contract of freedom of role the to particular in relate controversies e
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be W ugr, A Otoa Isrmn ad oil upn’ 20) European 2 (2006) Dumping’ Social and Instrument Optional ‘An Rutgers, W obien h Eegne f U otat a: xlrn Europeanization Exploring Law: Contract EU of Emergence The
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Contract Law Contract
of European contract law is o is law contract European of
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level of protection of fundamental rights in the EU. It is is It EU. the in rights fundamental of protection of level
t (2nd edn, Hart Publishing 2010) 4. 2010) Publishing Hart edn, (2nd
he Commission Commission he working I f consumer law or anti or law consumer f NTRODUCTION COM(2004) 651 final 651 COM(2004) 1
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o raises serious controversies among legal legal among controversies serious raises
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Charter ofCharterFun e.g.: See, u se e.g.: see, But factor Jürgen Basedow, ‘Freedom of Contract in the in Contract of ‘Freedom Basedow, Jürgen in Contract of Freedom of ‘Constitutionalisation Herresthal, Carsten See, e.g.: See, – 923.
There are There rarely relatively discussion this of side each Surprisingly,
limiting - Horst Eidenmuller and others, ‘The Common Frame of Reference for European Private Law Private European for Reference of Frame Common ‘The others, and Eidenmuller Horst W. Micklitz, however their paper focuses on the connection between freedom of of freedom between connection the on focuses paper their however Micklitz, W. M urn P Current artijn artijn damental Rights ofthe E Rights damental 8 Chantal Mak, ‘Unchart(er)ed Territory: EU Fundamental Rights and National Private Law’ Law’ Private National and Rights Fundamental EU Territory: ‘Unchart(er)ed Mak, Chantal
If the If
contractual liberty toprotect inorder , of course, of , W Hesseli W olm i te rtcin f ua Rgt. esetvs rm emn ad h UK the and Germany from Perspectives Rights. Human of Protection the in roblems
EU – ; 116. Matthias E Storme, ‘Freedom of Contract: Mandatory and Non and Mandatory Contract: of ‘Freedom Storme, E Matthias Charter nk, ‘The Horizontal Effect of Social Rights in European Contract Law’ (Social (Social Law’ Contract European in Rights Social of Effect Horizontal ‘The nk, and appropriate necessary, to have restrictions which right al authors who use constitutional arguments to analyze the position the analyze to arguments constitutional use who authors –
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of Fundamental Rights Fundamental of ; uropean uropean Hugh Colli Hugh – 164. mnaoy rvsos n srn antidiscrimination strong and provisions mandatory t EU U The Many Concepts of Social Justice in European Private Law Private European in Justice Social of Concepts Many The
nion ’ (2008) 16 Europ 16 (2008) ’ ns, ‘The Constitutionalization of European Private Law as a a as Law Private European of Constitutionalization ‘The ns,
2 [2012] OJ C326/02. OJ [2012]
fundamental rights. social 9
is invoked, it invoked, is ean Review of Private Law 901, 907 901, Law Private of Review ean – EU 195.
12 Law’ in Katja S Ziegler and Peter M M Peter and Ziegler S Katja in Law’
Extensive analysis of the role role the of analysis Extensive
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CEU eTD Collection 15 Bernitz, Ulf 14 in CJEU’ the Law Private European and Law EU of Principles of Law Case the in Rights the of 13 reasoning the analyze I choices. legislature’s towards deferential completely liberty contractual of approaches toconstitutional radically opposite example oftwo an as the first serves European the and Poland of Tribunal Constitutional the Court, Supreme of impact potential of analysis the on emphasis put constitutional protection of theerosion freedom ofcontract socialinthe EU. on protection I regard, this In law. contract th of laws domestic the on contract of freedom constitutionalizationof the of impact possible the present to also is thesisthe of aim Moreover,developments.futurethe potential what and areits EU the rightin protecti of state current the is what question the answering by doctrine legal in gap abovementioned the fill to but law contract European of law interpret to court domestic transposingin away employ EUdirectivefriendly more to the disallow to contract of freedom constitutional used test. proportionality by protected Sky e visible is law contract EU on impact its and right fundamental independent an as freedom autonomous right in protected o not and freedoms fundamental four and contract specially in the light of recent developments in the jurisprudence of the of jurisprudence the in developments recent of light the in specially
CaseC Case Guido Comparato and Hans W Micklitz, ‘Regulated Autonomy between Market Freedoms and Fundamental Fundamental and Freedoms Market between Autonomy ‘Regulated Micklitz, W Hans and Comparato Guido Österreich C To addr To vision particular a against or favor in argue to not is thesis present the of purpose The contractual of protection the on reflection comprehensive more a of necessity The - - 426/11 426/11 283/11 CFREU
Mark Alemo Mark Rundfunk Österreichischer v GmbH Österreich Sky ess these questions I use a comparative analysis of the jurisprudence of the the of jurisprudence the of analysis comparative a use I questions these ess te C epiil hl ta fedm f otat s fnaetl right fundamental a is contract of freedom that held explicitly ECJ the , 14 e Member States, EU secondary law and harmonization of the European the of harmonization and law secondary EU States, Member e
under art. 16, and 16, art. under Moreover, in the subsequent decision in decision subsequent the in Moreover, – -
Herron Herron eoe 97 ey tit ams lbrain n atr ht year that after and libertarian almost strict, very 1937 before
CFREU and Others v Parkwood Leisure Ldt. Leisure Parkwood v Others and . 13
its limitations of limitations its
(Kluwer Law International 2013) 121 2013) LawInternational (Kluwer 3
Xavier Groussot and Felix Schulyok (eds), (eds), Schulyok Felix and Groussot Xavier on of freedom of contract as a fundamental fundamental a as contract of freedom of on n the analysis of contractual liberty as an an as liberty contractual of analysis the n
[2013] [2013] have to be consis be to have ees andees tradeunions.
[2013] OJ C 260/06. OJ [2013] OJ C 71/05. OJ Alemo - Herron Herron ECJ – 153.
ECJ tent with the strict the with tent . The case law of of law case The .
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do not allow not do actors which may have an impact on the constitutional protection of of protection constitutional the on impact an have may which actors o n a completely deferential approach. On the other hand, other the On approach. deferential completely a
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CEU eTD Collection 39 Scientific 2011) World 23 22 21 Law Roman 257 Ideas of History the of Journal 23 (1962) Contract’ of Conception ‘Aristotle’s
Chapin F Cimino, ‘Virtue and Contract Law’ (2009) 88 Oregon Law Review 703, 724. Oregon 703, Law88 Review Law’Contract (2009) and ‘Virtue F Cimino, Chapin 70. (nAtiyah19) Papers Working and Preprints [2013] Autonomy’ of Concept the ofContract and ‘Theories Gutmann, Thomas Arthu See, e.g.: See, 41. 17) (n Chrenkoff oprt ad ikiz n 3 121 13) (n Micklitz and Comparato Patrick S Atiyah, Atiyah, S Patrick r Chrenkoff, ‘Freedom of Contract: A New Look at the History and Future of the Idea’ (1996) 21 Austl. 21 (1996) Idea’ the of Future and History the at Look New A Contract: of ‘Freedom Chrenkoff, r Although t Although of Freedom 19 ;
showed that freedom of contract does not have to be interpreted only in a formal, formal, a in only interpreted be to have not does contract of freedom that showed
Eray Canterbery, Canterbery, Eray (Clarendon Press 1956) 146 1956) Press (Clarendon ”
way andwayreconciled may justice. be withsocial what manner he thinks proper without injury to his neighbour, is a plain a is neighbour, his to injury without proper thinks he manner what his a strength of this dexterity employing from and him strength hinder to the and in hands; lies man poor a of patrimony inviolable.The and sacred most the is it so property, other all of foundation which property The C HAPTER ia/md/content/kfg
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60. Smith treated principle:contract freedom asa and of sacred inviolable e n Fl o Fedm f Contract of Freedom of Fall and se ished in 17 in ished I Atiyah’s Introdution t Introdution Atiyah’s A Brief History of Economics: Artful Approaches to the Dismal Science Dismal the to Approaches Artful Economics: of History Brief A : 21
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every man has in his own labour, as it is the original the is it as labour, own his in has man every pro wo s iey osdrd o be to considered widely is who person a – .
122; Norbert Reich, Reich, Norbert 122; - ” th and 18 and th Outlines of Historical Jurisprudence Historical of Outlines . 17
, Therefore, the essence of contractual freedom is linked contractual offreedomlinked is essence Therefore, the Westfälische Wilhelms Westfälische y. 18 o the Law o Contract of
However, legal developments in 20 in developments legal However,
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eea Picpe o E Cvl Law Civil EU of Principles General h li dw te onain of foundations the down laid who ND CONSTITUTIONAL LA CONSTITUTIONAL ND
Caedn rs 17) 681 1979) Press (Clarendon . In this period, primarily under the the under primarily period, this In . s roots in antiquity in roots s -
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(Clarendon Press 2005) 11 2005) Press (Clarendon , vol 2 (Oxford University Press Press University (Oxford 2 vol , nd dexterity in dexterity nd ; Fritz Schultz, Schultz, Fritz
of of or her interests than than interests her or
c a father of liberal liberal of father a ontract law. ontract ,
; 20 3 its – - 779 lip Shuchman, Shuchman, lip th and 21 and th Principles of of Principles theoretical – (Intersentia (Intersentia ; 20. - (2nd edn, (2nd arc S Patrick 16 It is is It the - st - CEU eTD Collection Review477. 32 31 30 29 28 27 26 654. Review647, Law UMKC 77 (2008) Continues’ 25 24 harsh the reflect contrac alsofreedomimplies contract, conclude from notto right to that is a contract. t to gave “ depend contract. the of content contract”, “innominate called so conclude or law the in regulated types the of one on contract their base can parties that partner” party. other with agreement an conclude contractua their of elements restraint and right natural of limitation a as rejected was freedom good”. common the and welfare “individual bargainthe of terms the establish to and contract decidewhetherto to 19 Ibid 906 Ibid Ibid. Ibid. 906. Ibid 905. 12) Basedow(n 655. Ibid Smith,Adam aoy dad, ‘Fr Edwards, Carolyn Todd D Rakoff, ‘Is Freedom from Contract Necessarily a Libertarian Freedom’ [2004] Wisconsin Law Law Wisconsin [2004] Freedom’ Libertarian a Necessarily Contract from Freedom ‘Is Rakoff, D Todd - th century. It was based on the premise that freedom of contract, understood as “ as understood contract, of freedom that premise the on based was It century. th t became the subject of significant criticism. It thesubjectcriticism. t became ofsignificant argued that “ was n h lt 19 late the In all about decide to freedom parties gives liberty contractual understood Liberally Sm . 28 - he parties right to freely amend their agreement. their amend freely to right parties he nahrnet aypriua otata form contractual particular any to adherence on 907. ith’s views had a great impact on the classical theory of contract developed in the in developed contract of theory classical the on impact great a had views ith’s Third, itgrantsparties “freedomclassification and content”. of (…) (…) to employto him. disposed be mightwho those of and workman,the of both liberty just the manifestencroachmentupona mostsacredproperty.It is thisof violation Wealth of Nations of Wealth realities of the marketplace in the late nineteenth century. Equal parties did parties Equal century. nineteenth late the in marketplace the of realities protect the right to individual ofthe eedom of Contract and Fundamental Fairness for Individual Parties: The Tug of War War of Tug The Parties: Individual for Fairness Fundamental and Contract of eedom - h n i te 20 the in and th 30 “Freedom of form implies that binding nature of contract cannot cannot contract of nature binding that implies form of “Freedom 24 l relation. First, it protects it First, relation. l (Hayes Barton Press 2001) 106 2001) Press (Hayes Barton while the latter relates to the right to decide about the shape and shape the about decide to right the to relates latter the while - h century th 27 Second, it im it Second, 7 25 h saes nefrne ih contractual with interference state’s The lsia formal classical – contract freely – duty of a government was to “ to was government a of duty 107. freedom to take initial decision as to as decision initial take to freedom plies “freedom plies ” while “freedom of modification” of “freedom while ” 31 In addition, freedom of contract of freedom addition, In ”. ”, is i is ”, 26 concept of freedom of of freedom of concept contract theory did not contract theory didnot 29 to select contractual contractual select to nevitable to protect to nevitable The means former 32 the power the exercise exercise - CEU eTD Collection DaphneBarak and Friedmann 297 263, Review Financial Risky on also: Emphasis with Law, Contract of 38 Constitutionalisation Transactions the of Analysis Comparative 37 36 35 34 33 contractuallibe shape the of impact on significant development had which ofcontract 1.2. Freedom constitutional and law substa “ rather but limitations its as considered intervene. to pa weaker that ensure which to according contract of freedom substantive of concept the is important wages, minimum cons as such contract, of freedom eventual declineofthe classicalcontract. theory of many other nottrue terms. is consent”. This no on rope a him throw will who one to fortune his all give to consent might precipice over m weaker “the because free, be cannot parties unequal between c of freedom the of foundations vulnerable and weak were who oppressi and unfair impose to able were parties strong and exist not See, e.g.: See, 693 (nAtiyah19) Hobhouse, T Leonard 647 (n25) Edwards Stefan Grundmann, ‘The Future of Contract Law’ (2011) 7 European Review of Contract La Contract of Review European 7 (2011) Law’ Contract of Future ‘The Grundmann, Stefan Olha O Cherednychenko, Cherednychenko, O Olha Mark Pettit J Pettit Mark ntive freedom motn eooi ad oil rbes hc eegd n h 19 the in emerged which problems social and economic important n diin o hs vlto, 20 evolution, this to addition In 20 in developments legal The address to failure its and doctrine liberal of criticism this that contended Atiyah S. P. E Allan Farnsworth, Allan E Farnsworth, (Sellier 2007) 10 2007) (Sellier 37 ; As a consequence, certain regulations of contractual freedom are no longer longer no are freedom contractual of regulations certain consequence, a As r, ‘Freedom, Freedom of Contract, and the Rise and Fall’ (1999) 79 Boston University Law Law University Boston 79 (1999) Fall’ and Rise the and Contract, of Freedom ‘Freedom, r, Roger Brownsword, ‘Freedom of Contract, Human Rights and Human Dignity’ in Daniel Daniel in Dignity’ Human and Rights Human Contract, of ‘Freedom Brownsword, Roger – 36 715. – 648. but also emergence of new definitions of contractual liberty. Especially Especially liberty. contractual of definitions new of emergence also but Liberalism (…) rty has true autonomy and is not subordinated to stronger party, law has has law party, stronger to subordinated not is and autonomy true has rty - Fundamental Rights, Contract Law and the Protection of the Weaker Party: A A Party: Weaker the of Protection the and Law Contract Rights, Fundamental – of bothparties tothecontract Erez (eds), (eds), Erez 11. Contracts (Oxford University Press 1964) 50. 1964) Press University (Oxford ontract. Leonard Hobhouse, for example, argued that contract that argued example, for Hobhouse, Leonard ontract. ”. Human Rights in RightsLaw in Private Human (3rd ed (3rd 33 mr a, anti law, umer 34 - h etr bogt o ol sgiiat iiain of limitations significant only not brought century th Many scholars began to question the ideological ideological the question to began scholars Many n, Aspen Publishers 1999) 20 n,1999) Aspen Publishers - s n nevu wih s ie a maximizing at aimed is which endeavour an as th century brought yet another very important important very another yet brought century th 8 35 - discrimination law, affirmative action, action, affirmative law, discrimination ”. 38 (Hart Publishing 2001) 187. 2001) Publishing (Hart an consents as one slipping slipping one as consents an – 21. ve bargains upon those upon bargains ve rty and contract law contract law rtyand - th century led to to led century th w 490, 505 490, w in order to order ; See ; CEU eTD Collection ReviewCEPAL 51. [1999] Peru’ in Policy Macroeconomic Contract of Freedom of 43 236. Dreptul 42 5 2013) ResearchNetwork Science 41 281 2008) International England Italy and Netherlands, the Germany, in Relationships Contractual on Rights Fundamental 40 Geoffrey P Miller, ‘Choice of Law as a Precommitment Device’ in Francis H Buckley (ed), (ed), Buckley H Francis in Device’ Precommitment a as Law of ‘Choice Miller, P Geoffrey See Teodoro Ribera Neumann, ‘Constitutional Basis of the Economic Public Order in Chile’ [2010] Revista Revista [2010] Chile’ in Order Public Economic the of Basis ‘Constitutional Neumann, Ribera Teodoro See: See: ; : Collins, ‘The Constitutionalization of European Private Law as a Patch to Social Justice’ (n 10) 135 (n10) Justice’ Social to LawPatch as a Private European of Collins,Constitutionalization ‘The upon a . One of One . Olha Cherednychenko, ‘The Constitutionalization of Contract Law: Something New under the Sun?’ Sun?’ the under New Something Law: Contract of Constitutionalization ‘The Cherednychenko, Olha hna Mk ‘nhr(re Trioy E Territory: ‘Unchart(er)ed Mak, Chantal Chantal Mak, Mak, Chantal Constitutions of all European countries do not contain any direct references to to references direct any contain not do countries European all of Constitutions rarely rather happens constitutions in contract of freedom of protection Explicit freedom ofcontract the the ny person has the right to freely contract [for] and to the free choice [of] [of] choice free the to and [for] contract freely to right the has person ny – 40 – examples , while strengthening while , udmna Rgt i Erpa Cnrc Lw A oprsn of Comparison A Law: Contract European in Rights Fundamental 286. h Cnttto wa Constitution the Dk Uiest Press University (Duke L imitations imitations n – - fti relation this of 7 itself. 41 a be may aotd n 90 n is otn ws ie at aimed was content its and 1980 in adopted s may be result of conferring a status of fundamental of status a conferring of result be may 99 366 1999) U Fundamental Rights and National Private Law’ (Social (Social Law’ Private National and Rights Fundamental U is the Constitution o Constitution the is 9 strengthen and weaken the level of protection of level the weaken and strengthen osqec o hrzna apiain of application horizontal of consequence – 367 ; Oscar Dancourt, ‘Neoliberal Reforms and and Reforms ‘Neoliberal Dancourt, Oscar 43 derstood as a fundamental right, right, fundamental a as derstood a tog elbrl economic neoliberal strong f Chile, which art. 19(16) 19(16) art. which Chile, f - .tl acse 8 February 8 accessed 3.html> 39 ta i growing is that , The Fall and Rise and Fall The the Impact of of Impact the (Kluwer Law(Kluwer 42 – but if but 141. Also Also CEU eTD Collection 1 Bv July 26 2005, 49 the Right in Fundamental 48 47 46 45 (eds), Sarcevic 44 the for consequences onerous” “unusually to lead to have parties between inequalities that requirement the from resignation by contract of freedom substantive of scope the expanded principle inthe this established Court Constitutional The freedom. contractual substantive of concept the on freedom. contractual with legislature’snot unlimited is interfering discretion laws many upheld it thus and policy choo in discretion wide a has legislature the relations. contractual the in interferences government’s excessive dimension 12) and2 theBasic art. inparticular Lawgeneral guarantees which ofaction. freedom occupation(art.of protectingfreedom 14), property(art. provisions from derived contractwas In Germany. of Court Constitutional Federal the of jurisprudence Ibid 93 Ibid 92 Ibid 90 Ibid BVerfG 26 July 2005, 1 BvR 782/94 and 1 BvR 957/96, Neue Juristische Wochenschrift 2005, 2363; BVerfG 2363; 2005, Wochenschrift Juristische Neue 957/96, BvR 1 and 782/94 BvR 1 2005, July 26 BVerfG Axel Flessner, ‘Freedom of Contract and Constitut and Contract of ‘Freedom Flessner, Axel VrG 9 coe 19, VrG 8, 214 89, BVerfGE 1993, October 19 BVerfG In t But constit The the is freedom contractual of protection indirect of example notable most The - - - 96. 93. 96. two more recent recent more two is based on a classical concept of freedom of contract and and contract of freedom of concept classical a on based is he constitutional freedom of contract has also a second dimension, based d based dimension, second a also has contract of freedom constitutional he Freedom of contract and constitutional law constitutional and contract of Freedom dt t itrrt n apy h gnrl lue s a t esr that ensure to as so clauses general the contracts notshall serve as a means hetero to apply and interpret to duty a fundamental state social the the of principle from the and GG)15 2(1) follows (Article autonomy private That of guarantee measures. corrective enable and react must law civil the then onerous, unusually are party inferior the for conseque the and party contracting one of inferiority (…) Suretyship R 80/95, Neue Juristische Wochenschrift 2005, 2376. 2005, Neue Wochenschrift Juristische R80/95, f hr i a yia cs seai, hc rvas structural a reveals which scenario, case typical a is there if toa fedm f contract of freedom utional EU ’ (2010) 6 European Review of Contract Law306 Contract Review 6of European (2010) ’ case: (Arti ie nuac Contracts Insurance Life cles 20(1), 28(1) GG) (…) GG) 28(1)20(1), cles 47 . , quoted in: in: quoted , sing goals in the sphere of social and economic and social of sphere the in goals sing ional Law in Germany’ in Alfredo M Rabello and Petar Petar and Rabello M Alfredo in Germany’ in Law ional 10 (Sacher Inst 1998) 88 (Sacher 1998) Inst n Ger in Aurelia Colombi Ciacchi, ‘Party Autonomy as a a as Autonomy ‘Party Ciacchi, Colombi Aurelia - determination cases civil courts civil many 49 nces of the contract the of nces h Constitution the has – 45 307. – . (…) The Court underlines that that underlines Court The 48 89. t cs lw fedm of freedom law, case its w dmnin. First dimensions. two are under are rtcs against protects l or even Court al 46 However, 44 irectly CEU eTD Collection (ed), S Ziegler inKatja Prot the and Law Contract 57 56 55 54 22. Policy 2009) Public Lawand 53 52 51 constitutional 50 that accepted is it currently rights, fundamental of applicability vertical law. private on rights fundamental or of elimination contract terms social utility which conflict with the and contract, of freedom of operation the for conditions restrictive of setting freedoms and rights other of case in initiative. economic of freedom the der is contract of by contract can limited ofgeneral be interest. onlygrounds legislature public on power of separation “[a] that provides which Citizen the of liberty individual’s the of one is which state, foundations ofGerman “economic constitution”,and ofstate. theory duties ofpositive social of principle the were contract of freedom substantive adopti to contributed which factors two party self substantive its exercise longer party. inferior Ibid 313 Ibid 313. 48) (n Ciacchi Colombi 2011 2000 2 308. Ibid 307 48) (n Ciacchi Colombi Roger Errera, ‘The Right of Property and Freedom of Enterprise in French Constitutional Law’ (Institute of of (Institute Law’ Constitutional French in Enterprise of Freedom and Property of Right ‘The Errera, Roger See: (…) - Mak, 177 QPC October 7th 2011, pa 7th2011, October QPC 177 nte iprat edny hc eegd n 20 in emerged which tendency important Another of freedom of protection constitutional Italy in Germany, and France in Unlike fr of protection France in Also - 47 DC, December 19, 2000, p. p. 190 2000, DecemberDC, 19, 47 - 314. gives rise to a State’s duty to intervene and provide a legal remedy. legal a provide and intervene to duty State’s a to rise gives udmna Rgt i Erpa Cnrc Law Contract European in Rights Fundamental 50 ived not from the provisions guaranteeing general freedom of action, but from but action, of freedom general guaranteeing provisions the from not ived It follows, that n that follows, It 52 Human Rights and Private Law : Privacy as Autonomy as Privacy Law : Private and Rights Human s not determined does not have a Constitution” a have not does determined not s and, additionally, and, ection of the Weaker Party Weaker the of ection – 308. ra ra ow " ow 6 55 . - eemnto ad s hrfr dmntd y h other the by dominated therefore is and determination 57 . The constitutional protection of the latter is weaker than than weaker is latter the of protection constitutional The every situation where situation every – Contrary to older approach which recognized only only recognized which approach older to Contrary society in which human rights are not guaranteed and and guaranteed not are rights human which in society – eo o cnrc ws eie fo gaate of guarantee from derived was contract of eedom “ on by the German Constitutional Court concept of of concept Court Constitutional German the by on h ne t ahee oil tlt justifi utility social achieve to need the art. 16 of the Declaration of the Rights of Man and and Man of Rights the of Declaration the of 16 art. (n 26) (n 11 ; Lorenz Fastrich, ‘Human Rights and Private Law’ Law’ Private and Rights ‘Human Fastrich, Lorenz (n 29); Cherednychenko, Cherednychenko, 29); (n - one contracting party contracting one h etr i goig impact growing is century th ”. (Hart Publishing 2007) 23 2007) (Hart Publishing 56 . 53 . Constitutional freedom Constitutional . udmna Rights, Fundamental ” modification 51 54 (…) s oh the both es Therefore, can no can – 34. of CEU eTD Collection ofPr Constitutionalization 65 198 7, 64 63 62 61 60 59 (eds), 58 contract of freedom substantive of doctrine theoretical. only are rights constitutional of application horizontal of models indirect and direct between differences courts. constitutional of practice the in accepted practice. classic individuals state”. the of actions all govern that respect i live to individuals permits and state the to than individuals to freedom more allows law “the because state the against as way same the in persons private against applied be cannot rights fundamental that argue interpreted withthe fundamental theConstitution]”. [of inaccordance values as well as formulated be (…) should law private of provision “[e]ach dispute, law private not are rights human although that implies rights State the in asway same indirectly. eithe disputes law private to applied horizontally be may rights fundamental Barak (n 58) 22 (n58) Barak 145 Ibid 144. 10) Justice’ (n Social to Patch as a Law Private ofEuropean Constitutionalization ‘The Collins, 59. Ibid Mak, See Aharon Barak, ‘Constitutional Human Rights and Private Law’ in Daniel Friedmann and Daphne Barak Daphne and Friedmann Daniel in Law’ Private and Rights Human ‘Constitutional Barak, Aharon ata Km, Wos fad f h Ttl Constitution Total the of Afraid ‘Who’s Kumm, Mattias Private Law in Rights Human jurisprudence of the German Federal Constitutional Court, especially: Court, Constitutional Federal German the of jurisprudence (so al proportionality test. proportionality al Fundamental Rights in European ContractLaw in European Rights Fundamental Theory of indirect horizontal effect of fundamental rights is definitely more frequently more definitely is rights fundamental of effect horizontal indirect of Theory various on criticized be can model Direct - 63 – called “L called 146. 58 , Direct application “implies that fundamental rights are used in contract law in the in law contract in used are rights fundamental that “implies application Direct oh ate ae rtce b hmn ihs wa mks t mosbe o use to impossible it makes what rights, human by protected are parties both – 25. ü th case”). th ivate Law’ (2006) 7 German L 7 Law’ ivate (2006) - citizen relationship”. citizen 65 n ways that depart from the requirements of neutrality and equal equal and neutrality of requirements the from depart that ways n In this context, Olha Cherednychenko underlines that the German the that underlines CherednychenkoOlha context, In this 62 (Hart Publishing 2001) 14 2001) Publishing (Hart For these reasons these For 61 What is more is What 12 59 mle ta “ that implies (n 40) 46. (n40) aw aw Indirect horizontal application of fundamental of application Indirect horizontal 64 direct model direct J grounds. For instance, some legal scholars scholars legal some instance, For grounds. directly enforceable against other party in in party other against enforceable directly ournal oee, some However, – 42. - Constitutional Rights as Principles and the the and Principles as Rights Constitutional 341, 352 341, , contractual parties are in reality reality in are parties contractual in cases of disputes between two two between disputes of cases in is relatively rarely accepted in accepted rarely relatively is BVerfG 15 January 1958, 1958, January 15 BVerfG – 359. ea shlr age that argue scholars legal 60 r directly or or directly r BVerfGE - Erez Erez CEU eTD Collection 42. 2006) Press University 71 70 ofCont 69 68 67 66 In property. of protection guarantees which 1 No. Protocol the of 1 art. the over jurisprudence has anatural place”. prota as company the which in state, liberal the of system value the embraces it since system capitalist a of values core from model democratic Convention’s the surprise aspects libertyart.1. ofcontractual 1of theProtocol under aspect narrow to exception ofcontract1.3. Freedom and autonomy orconsumer rights. rights and social contract understanding. substantive its adopting by contract of freedom of redefinition to leads often law contract weakens good”. collective protectio a of basis the on defence a or claim constitutional right a have may and rights constitutional by bound For instance: Italy or Poland instance: Italyor For 160 Ibid of Constitutionalization ‘The Collins, (n Law’39). Contract of Constitutionalization ‘The Cherednychenko, Maria R Marella, ‘The Old and the New Limits to Freedom of Contract in Europe’ (2006) 2 European Review Review European 2 (2006) Europe’ in Contract of Freedom to Limits New the and Old ‘The Marella, R Maria ais Embe Marius ract Law ract rcs f rtcin f reo o cnrc cud e on piaiy n the in primarily found be could contract of freedom of protection of Traces ECHR the by freedom contractual of aspects some of Protection rights human international constitutions, domestic to contrast In constitutional deserve to order in that implies law contract of Constitutionalization . As Markus Emberland correctly points out “[i]t would be meaningless to disconnect disconnect to meaningless be would “[i]t out points correctly Emberland Markus As . 70 n, freedom of contract “needs to be used for worthwhile purposes or for the the for or purposes worthwhile for used be to “needs contract of freedom n, - formal 161. osiuinlzto ipis eest o blnig forma balancing of necessity implies constitutionalization CFREU rland, rland, 257, 257, Ti is This . 69 contractual liberty. contractual n hs cutis hc dd o aot usatv cnet f reo of freedom of concept substantive adopt not did which countries those In 67 267 (…)”. ua Rgt o Cmais Epoig h Srcue f CR Protection ECHR of Structure the Exploring Companies: of Rights Human 71 osqety i srntes oiin f ekr at o cnrc but contract of party weaker of position strengthens it Consequently, , – usually 268. true 66 . n atclr n h cnet f h EH wih oes some covers which ECHR the of context the in particular in do not protect freedom of contractof freedomprotect not do ECHR European Private Law as a Patch to Social Justice’ (n 10) 162. 10) Justice’ (n Social to Patch as a Law Private European 68 It is therefore not surprising that constitutionalizat that surprising not therefore is It 13 at all or recognize it in a verya recognize orin all it gonist of private enterprise enterprise private of gonist lly understood private private understood lly instruments oe a lit as comes (Oxford (Oxford with , ion of ion tle CEU eTD Collection 77 76 75 Autonomy 74 73 2014). no app 72 been had “ in born not were testamen the of enforcement concerned significantly ofcontract. freedom restrict provide freedoms and rights time same the constitution domestic by granted protection of level to compared be cannot and limited might se contracts”. certain into enter freely to right the as concretised self to right (the autonomy personal to right the also but (…) to right guarantee which privacy. ECHR the of 8 art. from derived be could contract of freedom assess compatibilitygiven regulation ofProtocol of art.No.1: with 1 property. to right the of violation as qualified be can contract, lease terminate or rent increase to landlords of rights restricted ruled ECtHR the cases several Pla and Puncernau v. Andorra Puncernau and Pla 108. Ibid Ibid Malta v. Ghigo Henricus J Snijders, ‘Privacy of Contract’ in Katja S Ziegler (ed), (ed), Ziegler S Katja in Contract’ of ‘Privacy Snijders, J Henricus See: 106. Hutten 17647/04 The most notable example is here the case of of case the here is example notable most The of protection 1, No. Protocol of 1 art. to addition in that argues Snijders Henricus It follows that protection of contractual freedom on the grounds of ECHR is seriously is ECHR of grounds the on freedom contractual of protection that follows It 74 em plausible, however (Hart Publishing 2007) 105 (Hart Publishing2007) adopted satisfied requirement specified in the will. The Andorran courts ruled that it it that ruled courts Andorran The will. the in specified requirement satisfied adopted According to him, broad him, to According - Czapska v. Poland Poland v. Czapska that the operation of the system and its impact on a landlord's property landlord's rights a on impact its and system the of operation the that ensuringsafeguards procedural of existence the also but market lease the in relations contractual and contract of freedom with interference State's land individual by received rent the reducing in interests issue various the of examination overall an make must Court the (ECtHR, 24 October 2 October 24 (ECtHR, App noApp a le a are are neither arbitrary unforeseeable.nor (…) 31122/05 gitimate and canonical marriage”. The problem was whether child who child whether was problem The marriage”. canonical and gitimate ht seset a ivle o ol te odtos for conditions the only not involve may assessment that ECHR2004 ECHR 2006 ECHR (ECtHR, 26 September 2006), para 62. 62. para September2006), 26 (ECtHR, that disproportionate regulations on rent control, which severly severly which control, rent on regulations disproportionate that it ha it – 116. 006); 006); 72 ly ly In the case of case the In d defined not - Bitto and others v. Slovakia Slovakia v. others and Bitto - VIII. VIII; VIII; t in which testatrix discriminated descendants who who descendants discriminated testatrix which in t yet been Scollo v. Scollo i te CH cn ucin as function can ECtHR the in d privacy includes “not only the right to intimacy intimacy to right the only “not includes privacy 14 Ghigo v. Malta v. Ghigo confirmed Italy Pla and Puncernau v. Andorra v. Puncernau and Pla (…). lords and the extent of the of extent the and lords (1995) Series A no A Series (1995) Human 73 - in the case law determination)” App no App 76 Rights and Private Law : Privacy as as Privacy Law : Private and Rights Such interpretation of art. 8 art. of interpretation Such the ECtHR clarified that t that clarified ECtHR the 30255/09 315 - C of theECtHR. (ECtHR, 28 January January 28 (ECtHR, 75 ; Edwards v. Malta Malta v. Edwards which “can be “can which atr which factors 77 which s. At s. o CEU eTD Collection Review Law Rights 479 466, Human European 5 (2005) Law’ Private of Control the and Rights Human on Convention Maast 13 83 86. 71, Problems 82 81 80 79 the 78 in time long a for accepted been horizontal has indirect rights above, fundamental discussed was certain as of that, application mind in keep to have one however private on fundamentalrightsofgrowing impactthat autonomy. private and freedom contractual the for consequences” “disastrous have may disputes law private purely discriminatory of interpretation with dealing contracts. cases to reasoning similar apply would as Convention the to and interpreted intheCo law domestic to corresponds closely most that manner the in “ overlook cannot courts domestic testatrix of the deathof economictheandmoment existingatrealitiessocial the interpreted of light the onlytestament in erroneously courts domestic the case instant the in that ruled ECtHR The ofdisputes a purely nature private adoption. of institution the because not did Ibid. Ibid. 62 para Ibid, 59. para Ibid, 18. para Ibid, Olha Cherednychenko, ‘Towards the Control of Private Acts by the European Court of Human Rights’ (2006) (2006) Rights’ Human of Court European the by Acts Private of Control the ‘Towards Cherednychenko, Olha uh oln, Te aihn Fedm o hoe Cnrcul ate’ 21) 76 (2013) Partner’ Contractual a Choose to Freedom Vanishing ‘The Collins, Hugh . Although the judgment concerned testation, one could easily imagine that the Court Court the that imagine easily could one testation, concerned judgment the Although ih Junl f uoen Cmaaie a 15 207 195, Law Comparative & European of Journal richt 82 , la hrdyhno rud ht oiotl plcto o application horizontal that argued Cherednychenko Olha n inrd chang ignored and c, e t tsaetr dsoiin a rvt cnrc, public a discrof contract, appears private practice prohibition administrativethe a with inconsistent blatantly (…) or an arbitrary unreasonable, disposition, or provision testamentary statutory a a document, it be act, national a where passive remain cannot imination established by 14 Article urt’s caseurt’s law of Andorra at the moment of making a will did not recognize the the recognize not did will a making of moment the at Andorra of law 83 78 In my opinion such statement is exaggeration. It is undoubtedly true true undoubtedly is It exaggeration. is statement such opinion my In The ECtHR held that although it “ it although that held ECtHR The - law. s hc hpee later. happened which es ” nevertheless it the importance of interpreting the testamentary disposition disposition testamentary the interpreting of importance the ” 81 15 : court’s interpretation of a legal a of interpretation court’s . 79 law restrictslaw ; see also: also: see ; 80 is not in theory required to settle to required theory in not is oevr te or add that added Court the Moreover, formal ihr S a, Te Eu ‘The Kay, S Richard te ovnin in Convention the f contractual freedom, contractualfreedom, Law & Contemporary Contemporary & Law ropean ropean CEU eTD Collection 86 85 437. Princ General EU the of Effect Direct Horizontal 84 be definitelyclassical rejected byof liberals asviolation would which contract, of freedom on restrictions reaching far imposing of necessity implies ri human of application time horizontal of possibility same and law private the of constitutionalization at However, legislature. the of encroachments excessive against protects contractual countries many In justice. social and rights fundamental of protection of name the in limit to tendencies and principle this of interpretation liberal classical, between struggle a of result the economy. on impact negative have and liberty individual’s of violation to excessive lead its may other, restrictions the On parties. weaker of protection at aimed law private of reforms abs its to lead may liberty contractual of protection strong too hand justice. social and autonomy between balance proper find to how but abandoned and law contract a of principle contract” 1.4. Conclusions of tendencies similar in than laws contract national and courts constitutional domestic that mind on Moreov courts. domestic certain of jurisprudence Cherednychenko, Cherednychenko, (nAtiyah19 C Case C conclusion, In - 144/04 144/04 onstitutional position of freedom o freedom of position onstitutional 85 r udutdy xgeain Fedm f otat s tl tetd s guid a as treated still is contract of Freedom exaggeration. undoubtedly are reo i cniee a a udmna rgt ht teghn is oiin and position its strengthens what right fundamental a as considered is freedom ). Werner Mangold v Rüdiger Helm Rüdiger v Mangold Werner Fun damental Rights, Contract Law and the Protection of theWeaker of Party the Protection and Law Contract Rights, damental s tatements of some legal scholars who announced “fall of liberty of of liberty of “fall announced who scholars legal some of tatements the jurisprudence of the ECtHR couldlead jurisprudence results. ofthe tocatastrophic the ECtHR the ECtHR the relevant the , it is difficult to agree with agree to difficult is it iple of Equality’ (2011) 5 European Human Rights Law Review Review Law Human Rights European 5 (2011) ofEquality’ iple [2005] ECR [2005] f contract in 20 in contract f question 16 the er, it is also accepted accepted also is it er, ECJ have much greater influence on the on influence greater much have ECJ I - is not is 09981 a sacred human’s liberty. - th and 21 and th ; whether it should be completely be should it whether Thomas Papadopoulos, ‘Criticizing the the ‘Criticizing Papadopoulos, Thomas the olutization and can block block can and olutization - st century is is century st opinion that emergence that opinion by the ECJ. the (n 37) 10 (n37) 86 On the one the On therefore 84 Having Having – 11. ghts ing a CEU eTD Collection 90 142 1990) Press University (eds), 89 2014. March 23 accessed C In Infra Anthony Ogu Anthony Law Hall Osgoode 46 (2008) Exceptionalism’ Constitutional American and Review ‘Judicial Schor, Miguel HAPTER fra ractual liberty but also against the whole concept of judicial review. judicial of concept whole the against also but liberty ractual osiuinls ad ihs Te nlec o te ntd tts osiuin Abroad Constitution States United the of Influence The Rights: and Constitutionalism European countries and the ECJ the and countries European 26. 27 to answer the question why the Suprem the why question the answer to The casethe evolutionof the discuss I will followingchapterIn the world the in court constitutional first the was States United the of Court Supreme The - 29. te eooi de rcs” was process”, due “economic the s TO CONSTITUTIONAL PR TOCONSTITUTIONAL doctrine of protection of freedom of contract and whether complete abandonment of of abandonment complete whether contractand of freedom of protection of doctrine 2 US 89 . s, ‘Property Rights and Freedom of Economic Activity’ in Albert Rosenthal and Louis Henkin Henkin Louis and Rosenthal Albert in Activity’ Economic of Freedom and Rights ‘Property s, ; J The economic due process was eventually abandoned and now all restrictions restrictions all now and abandoned eventually was process due economic The Arthur Dreyre, ‘France: Patterns of Argumentation in Constitutional Council Opinions’ 40 Opinions’ Council Constitutional in Argumentation of Patterns ‘France: Dreyre, Arthur UDICIAL ACTIVISM V ACTIVISM UDICIAL otie f osiuinl rtcin f otata fedm Ti doctrine, This freedom. contractual of protection constitutional of doctrine Constitution does not contain any provision which would explicitly protect protect explicitly would which provision any contain not does Constitution and usurpation usurpation and US – 143, 144. 143, Supreme Court is seen as an “anti an as seen is Court Supreme evd o ol a a agmn aant constitutional against argument an as only not served OTECTION OF FREEDOM OTECTION OF of . lawmaking powers lawmaking JUDICIAL RESTRAINT JUDICIAL accept constitutionalization of freedom of contract, the contract, of freedom of constitutionalization accept US 17 by e Court was unable to develop consistent and consistent develop to unable was Court e criticized Consti American tution by the courts the by - OF CONTRACT IN THE THE IN OF CONTRACT y ay as many by model” which by which model” – legal scholars legal TWO DIFFERENT APP TWODIFFERENT law of the of law . 87 an 88 For many For in order to identify identify to order in Even today, when today, Even bouiain of absolutization no means should should means no 90 US US the country. country. the ROACHES ROACHES zto of ization years the the years (Columbia (Columbia Supreme – 42 CEU eTD Collection 29 Policy27, 101 1921). Company 100 99 98 97 96 535. Liberty515, & ofLaw Journal 95 518. 1948) 94 Law97. Transnational 93 92 91 Locke. thought ofJohn liberalism classical and principles market free on based were Fathers Founding the liberties. economic and rights property C tender legal liberty individual provision many contains Constitution myth. neither upon constitutionalprinciple, any nor upon any specific well Constitution. government the of Fathers Founding other”. some or Keynes, Lord Spencer, theory contract seriousalways controversies. has raised the extent what to and whether question that, of Because nttto ws esnily n cnmc ouet wih rmr am a t protect to was aim primary which document” economic an “essentially was onstitution 5 5 Ibid. Article1 v. Skrupa Ferguson v. Lochner Alfred H Kelly and Winfred Harbison, Harbison, Winfred and Kelly H Alfred Ellen F Paul, ‘Freedom of Cont of ‘Freedom Paul, F Ellen Louis Henkin, ‘Economic Rights under the United States Constitution’ [1994] Columbia Journal of of Journal Columbia [1994] Constitution’ States United the under Rights ‘Economic Henkin, Louis James W Ely Jr., ‘The Constitution and Economic Liberty’ (2012) 35 Harvard Journal of Law & Public Public & Law of Journal Harvard 35 (2012) Liberty’ Economic and Constitution ‘The Jr., Ely W James - - Charles A Beard, Beard, A Charles th Amendment. th 14 and Amendment th 91 ay other Many economic particular any embody not does Constitution the view, one to According and so the so and , section10 – New York ” 32. (…) [they] (…) , ” 97 93 due process clause process due It is argued that judicial protection of the freedom of contract “(…) rested rested “(…) contract of freedom the of protection judicial that argued is It 95 , , 372 , , s n cnmc nepeain f h Cnttto o te ntd States United the of Constitution the of Interpretation Economic An , 198 198 , clause 1 clause e.g. legislature is not obliged not is legislature hwvr blee ht cnmc etaiy f the of neutrality economic that believe however, , - th Amendment section 1 section Amendment th US 101 contracts clause, the into commitment that write to proper or necessary it deem not did US US 726, 731 726, of the U.S. Constitution. ofthe U.S. 45 , 47 , ract and the “Political Economy” of Lochner v. New York’ (2005) 1 NYU 1 (2005) York’ New v. Lochner of Economy” “Political the and ract were “ were (1905) - 732 (1963 732 98 The American Constitution: Its Origins and Development and Origins Its Constitution: American The generally committed to the Liberal State and to minimal to and State Liberal the to committed generally or takings clause takings or (Holmes, J., dissenting). (Holmes,J., 100 96 S 92 ) prohibition ofprohibition . . upporter s which limit which s Some legal scholars believe that even though though even that believe scholars legal Some 18 to take “for its textbook Adam Smith, Herbert Smith, Adam textbook its “for take to s of this position position this of s 99 . Some Some “ US making a making powers of government and protect and government of powers C scholars onstitution protects freedom of freedom protects onstitution nything but gold and silver and gold silver but nything - established also even US argue that views of of views that argue conclu C nttto i a is onstitution (The Macmillan Macmillan (The precedent”. , especially , (WW Norton (WW de that the that 94 CEU eTD Collection of Tex 3 (1998) Government’ Federal the and Individuals, States, Among Balance the Redress to Clause Policy Public & Law 109 108 724 Review703, 107 106 105 556 Law Review513, Harvard 87 (1974) America’ Century Nineteenth 104 103 102 “n which to according provision the that argued “ in provided is contract Court r this that argue scholars legal some Although with Saunders v. freedom. contractual of protection the to equivalent be would what effect prospective has also it maybe or contracts existing only Contracts”. protects it of whether question Obligation concerned provision this the regarding problem impairing interpretative Law (…) pass (…) shall State “[n]o that there right fundamental a as freedom contractual of protection of idea the support who scholars libertarian the values 19 of law. natural the to referring by freedom contractual of protection constitutional justified which judgments find can one Court Supreme the of Cons L Erwin Chemerinsky, ErwinChemerinsky, 25 Rights’, ‘ImpliedFundamental others, and RStone Geoffrey e.g.: See, Siegan,H Bernard See, e.g.: e.g.: See, Richard A Epstein, ‘Toward a Revitalization of the Contract Clause’ (1984) 51 University of Chicago Law Law Chicago of University 51 (1984) Clause’ Contract the of Revitalization a ‘Toward Epstein, A Richard ila E esn ‘h Ipc o te nilvr Mvmn uo Sty upon Movement Antislavery the of Impact ‘The Nelson, E William aw titution it was perceived as a part of natural law, naturalof part a asperceived was it titution US existing is no consensus as couldconsensus towhichis noconstitutionalprovision provide proper basis for it. continue &Pol provides which 10 section 1 art. of clause” “contracts is candidates potential of One legal among that underline to worth is it disputes, theoretical these of Regardless of freedom of question the to As Others believe that proper constitutional basis for the protection of freedom of of freedom of protection the for basis constitutional proper that believe Others 213 (1827). 213 Calder v. Bull v. Calder Randy E Barnett, ‘Does the Constitution Protect Economic Liberty?’ (2012) 35 Harvard Journal of of Journal Harvard 35 (2012) Liberty?’ Economic Protect Constitution the ‘Does Barnett, E Randy itics in which it ruled that the Constitution prohibits States retroactive interferences retroactive States prohibits Constitution the that ruled it which in contracts but does not preclude regulation of terms of prospective contracts. prospective of terms of regulation preclude not does but contracts – d this interpretationd this more cases. in recent 730. 41, 41 41, Economic Liberties and the Constitution the Liberties and Economic 5 , 5 , Constitutional Law: Principles and Policies. and Principles Law: Constitutional – 48. – , 3 3 , 12 ; US Kimberly C Sh C Kimberly p - iiee or rivileges th century 386, 388 388 (1798). 386, 105 The Supreme Court resolved this this resolved Court Supreme The antislavery movement. antislavery ankman and Roger Pilon, ‘Reviving the Privileges or Immunities Immunities or Privileges the ‘Reviving Pilon, Roger and ankman i mmunities otat i i age ta in that argued is it contract, 19 estrictive approach is erroneous, is approach estrictive o State shall make or enforce any law which which law any enforce or make shall State o (University of Chicago Press 1980). Press Chicago (Universityof c 102 Constitutional Law Constitutional as” f h 14 the of lause” 103 108 and indeed among early jurisprudence jurisprudence early amongindeed and (Aspen Publishers 2006) 635 2006) Publishers (Aspen e another Yet – 557. 104 les of Judicial Reasoning in in Reasoning Judicial of les (6th edn, 2009) 962. 2009) edn, (6th th question in the in question scholars times of drafting the the drafting of times Amendment. 107 the Supreme Supreme the re – 639. e to fer as 109 Ogden Rev t is It The The the iew iew 106 CEU eTD Collection New Deal weretheby used process” 269. 265, 113 345. 112 111 172. Liberty115, 110 protect economic liberties. to applied process due substantive of doctrine a as defined be should process” due “economic “subs as law constitutional American of doctrine the in known is requirements substantive also includes but matters procedural to only limited influencedto someextent judicial revieweconomic legi of and scholars legal debatedamong still is period, Deal after New criticized widely andrejected so of doctrine developed Court Supreme 1 between contrary, the On Court. Supreme the of jurisprudence the in Clause”, using “ of interpretations discussed previously “ is contract of freedom liberties economic 2 intheCourt “ of understanding states by interference “ as interpreted o immunities or privileges the abridge shall .2. See: 83 Otis H Stephens Jr. and John M Scheb II, II, Scheb M John and Jr. Stephens H Otis Timothy Sandefur, ‘Privileges, Immunities, and Substantive Due Process’ (2010) 5 NYU 5 (2010) Process’ Due Substantive and Immunities, ‘Privileges, Sandefur, Timothy “ US Loch Michael J Phillips, ‘Another Look at Economic Substantive Due Process’ [1987] Wisconsin Law Review LawReview Wisconsin [1987] DueProcess’ Substantive LookEconomic ‘Another at Phillips, Michael J Way of interpreting “ interpreting of Way of protection for basis constitutional as proposed provision important most The 36 (1873). 36 (Harvard University Press 2000) 243 2000) Press University (Harvard It is however worth underlining that neither phrase phrase neither that underlining worth however is It ner Slaughter “ intended to protect a broad range of natu of range broad a protect to intended d era ue ue p ad eooi de process” due “economic and ” p iiee or rivileges rocess rocess Supreme Court justices in the the in Court justices Supreme - ” House cases 110 d including , 113 ue c d lause” to protect economic liberties has not always been rejectedalways been liberties has not economic lause” toprotect ue ue p rocess i p mmunities mmunities rocess . 111 Am – c – as” f h 5 the of lause” 244 erican Constitutional Law Constitutional erican cnmc iete ad reo o cnrc. Such contract. of freedom and liberties economic c lause” in which the content of this provision is provision this of content the which in lause” - c . called “economic due process”, which although although which process”, due “economic called ontract ontract c 20 lause” was however rejected by the Supreme Supreme the by rejected however was lause” “ f citizens of the United States” should be be should States” United the of citizens f Lochner Era” Lochner c atv de process”. due tantive as” r “ or lause” “ – substantive due process” nor nor process” due substantive th uiil ciim n protecti in activism judicial ral and common law rights against against rights law common and ral slation alsoEurope. slation in n te 14 the and – Edward G White, White, G Edward (3rd edn, Thomson/West 2003) 344 2003) Thomson/West edn, (3rd p rivil th gs n immunities and eges mnmns Unl Amendments. 9 ad 97 the 1937 and 897 112 The Constitution and Constitution The J ournal of ournal Consequently, “ economic due due economic n of on L aw not ike & – CEU eTD Collection 122 121 120 &Pub. JL Thomas St. 119 118 117 Chicago 82 (2007) Case’ 116 115 114 ratherbut should Clause” Process “Due regulations may process. violate due as noted courts. state question, in law by the upholding despite Court accepted Supreme the cases earlier widely several in Moreover, was it doctrine, that endorsed fully Court Supreme of case the in judgment Court’s Supreme p Court”, executive. and legislature of sphere the in power judicial the of intrusion excessive as many by criticized “ the from departure Court’s Supreme the with together rejected including doctrine, that of application the with judgments Court’s Supreme several find can one period so during changed substantially was Court procedural j early the rocesswell alive is and See: (n10 Siegan 165 Schwartz, Bernard Infra Lochner See: William R Musgrove, ‘Substantive Due Process: A History of Liberty in the Due Process Clause’ (2008) 2 U. 2 (2008) Clause’ Process Due the in Liberty of History A Process: Due ‘Substantive Musgrove, R William Dre d Scott v. Sandford v. Scott d US Munn v. Illinois v. Munn & Land Hoboken v. Murray 27 In the In the with 1897 in established was process” due “economic the that believed is It In process”. due “substantive of idea the accepted always not has Court Supreme The 118 - 578 (1897) 578 28. (n 117 btr dicta obiter the , and not substantive not and , rsrdne t xlcty underlin explicitly it urisprudence h ie o sbtnie u poes a revived was process due substantive of idea the 9 2 1 However, in 1960’s, during the period of judicial activism of the “Warren “Warren the of activism judicial of period the during 1960’s, in However, ) 41 ) Allgeyer ) infamous infamous . : – 58. A History of the Supreme Court Supreme the of History A . Pol’y 125, 140. Pol’y125, , 94 , - Kent Law Review 141, 141 141, LawReview Kent , 60 , could not be interpreted only as freedom from unwarranted detention unwarranted from freedom as only interpreted be not could US the Supreme Court explained that explained Court Supreme the ht t ant e ex be cannot it that ”. rd Scott Dred 119 US 113, 125 (1877) 125 113, This revival, however, did not includeThis revival,didnot however, 393 (1856); (1856); 393 Improvement Co. Improvement obligations on the government. the on obligations 122 case . Austin Allen, ‘Rethinking Dred Scott: New Context for an Old Old an for Context New Scott: Dred ‘Rethinking Allen, Austin . 116 Allgeyer v. Allgeyer - called “ called – , 59 59 , (Oxford University Press 1993) 275 1993) Press University (Oxford 176. usatv de rcs ws o lre extent large a to was process due Substantive ldd ht n oe icmtne economic circumstances some in that cluded 21 ed US that 272 (1856). 272 Lochner Louisiana de rcs clause” process “due the notion of notion the era” n crety “ currently and 114 . 115 120 This attitude of the Supreme Supreme the of attitude This , however even before t before even however , “economic due process”. However, even before the the before even However, Lochner “ liberty – 276. s j ubstantive urisprudence”, impose ” used in the in used ” d only only d hat hat ue ue 121 CEU eTD Collection 129 128 174. 1965) (Macmillan 127 126 125 124 123 related not was it that underlined Court the Inparticular, purpose. valid any to related not was merely be remote to direct. buthast the to law the of relation the that clarified also Court Supreme The of contract using following test: any oneright“to class protection assumethat has theneedof against another”. party weaker pu the of welfare general and morals, health, absolute is protected themeani as“liberty” within a “t that down the in especially judgments, Ibid 57. Ibid Lochner Ibid Ibid Lochner Louisiana v. Allgeyer Bernard Schwartz, Schwartz, Bernard . he general right to make a contract a make to right general he state 53 Applying this test in the in test this Applying cour Court, Supreme the to According not is freedom contractual constitutional that underlined Court the time same the At subsequent in developed was case that in Court Supreme the by formulated Doctrine . – (n (n it may be limited by the states’ police powers if it is necessary to protect “safety, “safety, protect to necessary is it if powers police states’ the by limited be may it law which set maximum working hours for bakers for hours working maximum set which law 9 9 necessary the for support of himself and his family? or appropriate him to mayseem which labor to relation in contracts those th of right the with interference arbitrary and unnecessary,unreasonable, an it is or state, the [i] successful completion of the purposes above mentioned prope contracts be all may to which in enter to purpose that for and avocation ways; or lawfullivelihood all in them his use all to of free enjoyment be the to in faculties, free be to citizen of right the embrace (…) 1 1 was not considered as legitimate purpose because the legislature did not have not did legislature the because purpose legitimate as considered not was ) ). s this a fair, reasonable, and appropriate exercise of the police powerofpolice reasonable,thea fair, appropriate exercise and this of s 56. A Commentary on the on Commentary A , 165 , 165 US 578 Lochner v. New York New v. Lochner , 589 , idvda t hs esnl iet, r o ne into enter to or liberty, personal his to individual e , eesr ad seta t hs arig u t a to out carrying his to essential and necessary r, Lochner 129 (1897) Constitution of the United States. States. United the of Constitution ”, which included “ included which ”, . , the Supreme Court held that the New York’s law law York’s New the that held Court Supreme the , ng 14 ofthe blic”. 22 ts should review laws interfering with freedom freedom with interfering laws review should ts . 126 124 The mere protection of employees of protection mere The th In this case, this In Amendment. right to purchase or to sell labor sell to or purchase to right 128 . T . (…) (…) . 123 he Supreme Court Court Supreme he Part II: The Rights of Property of Rights The II: Part the Supreme Court struck Court Supreme the opru any pursue to leg 125 itimate 127 aim cannot be be cannot aim reiterated as a a as ”, ”, CEU eTD Collection 135 134 133 132 131 130 laws many invalidate to in favor of liberty”. presumption “general a as it treat rather but contract of freedom the absolutize not did Court th mind on Having Packing f the was extent, largest the to contract of freedom the with interfere labor”. of hours fixing “statutes work interest public a with impressed “ regulations categories: other several fre of protection be excessive withthe interference contractualfreedom. would what professions, all of hours working of regulation to lead could reasoning Such law. t time, bread. of cleanness and quality on impact negative have bakers of hours working protect the to David N Mayer, Mayer, N David 535. Ibid Kansas of State of Relations Industrial v. of Co. Court Wolff Packing Charles 546 Ibid (1923) US 525 261 Ibid , “s ”, 59 he Court rejected the argument that desire to protect health of bakers could justi could bakers of health protect to desire that argument the rejected Court he One cannot ignore, however, that the Court used principles formulated in the in formulated principles used Court the that however, ignore, cannot One the to exception one only the not was states by powers police of exercise Proper 133 - 64. - aue peciig h caatr methods character, the prescribing tatutes 547. clarified shallbedeemedwhat as “impressed businesses interest”: with a public some government regulation. (…) to consequence in subject become have and such be to risen have to said fairly be may inception, their at public not though which, Businesses (3) keepersthe of inns, cabs, and gristmi the re occupations, Certain of (2) member any by demanded service public. Such are the railroads, other common carriers and public utilities. public a rendering affirm of the duty imposes impliedly or expressly either of which grant public privileges a of authority the under on carried are which Those (1) o o pbi health public of ion edom of contract. In the In contract. of edom Liberty Of Contract. Rediscovering a Lost Constitutional Ri a Lost Constitutional Rediscovering Contract. Of Liberty . is 135 wide range of exceptions, it seems that, at least i least at that, seems it exceptions, of range wide 136 which ”, “s ”, 132 interfered with the liberty of contract through protection of of protection through contract of liberty the with interfered as tatutes relating to contracts for the performance of performance the for contracts to relating tatutes Especially important, because allowing government to to government allowing because important, Especially garded as exceptional (…) exceptional as garded there was no evidence that the excessive number of of number excessive the that evidence no was there iig ae ad hre t b eatd y businesses by exacted be to charges and rates fixing Adkins v. Children’s Hospital Children’s v. Adkins 134 23 lls. , and time for payment of wages”, and and wages”, of payment for time and , 130 Such are those of those are Such ght , 2 irst category. In the the In category. irst 62 (Cato Institute 2011) 63 Institute (Cato 2011) n theory, the Supreme Supreme the theory, n 131 US , the Supreme Court Supreme the , 522 ative (1923). At the same same the At Lochner public fy the the fy Wolff – 67. CEU eTD Collection 145 Ame81 (1987) 144 143 Hastings [2008] 142 141 140 139 138 137 Review1049. Law Mercer 48 (1997) Effective?’ questioned: sometimes is Frankfurter, Felix 136 prices. milk fixing orders issue to powers with Board Control Milk established of case the in observed endorsed policy regulat radically different inthe field restraint of ofjudicial economic “ his and President the by exerted pressure under Court, Supreme doctrin judicial a with conflict to lead to had Deal New of policy Roosevelt’s President Depression. of “ 2.3. The demise of the “economic duereason process forabandonmen doctrine”and eventual theits jobs. Bun public health professions maxi setting law the in Forinstance, upheld. wereregulations rights union trade 291 Friedman, LawrenceM 243 208 See: See: the of theonacts basis 220 Court invalidated the Supreme Frankfurter, Justice to According David N Mayer, ‘The Myth of Laissez of Myth ‘The Mayer, N David e, e See, Ibid 421 Ibid ting v. Oregon v. ting 141 US US US Morehead v. New York ex rel. Tipaldo rel. ex New York v. Morehead States United v. Adair fudd n h picpe o cascl cnmc liberalism. economic classical of principles the on founded e h frt in o dprue rm h “cnmc u poes otie cud be could doctrine” process due “economic the from departure of signs first The “ of demise The These jurisprudential inconsistencies are often marked as one of the main weaknesses weaknesses main the of one as marked often are inconsistencies jurisprudential These .g.: 502 (1934) 502 426, 438 (1908). 412 - 422. See also: also: See 422. , rgr A adia ‘ulc pno ad h U Spee or: D’ Court FDR’s Court: Supreme US the and Opinion ‘Public Caldeira, A Gregory rican Political Science Review 1139, 1139 Review1139, Science Political rican and women employees women and 140 Constitutional Law Quarterly 217, 275 217, LawQuarterly Constitutional Mr. Justice Holmes and the Supreme Court Supreme the and Holmes Justice Mr. what - 439 (1917). 439 mum working hours of workers employed in extraordinarily dangerous dangerous extraordinarily in employed workers of hours working mum 137 . the Court upheld maximum working hours regulation for manufacturing manufacturing for regulation hours working maximum upheld Court the Lochner seems r etn mnmm wages minimum setting or ihe J hlis ‘o Mn Tms a Lochner Was Times Many ‘How Phillips, J Michael American Law in the 20th Century 20th the in Law American Holden v. Hardy v. Holden Lochner Lochner , 208 208 , eba . e York New v. Nebbia inconsistent with the reasoning present the inconsistent with US Era” and Post and Era” 161 (1908); (1908); 161 r” a srcl cnetd to connected strictly was Era” - Faire Constitutionalism: Liberty of Contract during the Lochner Era’ Era’ Lochner the during Contract of Liberty Constitutionalism: Faire , , 169 , 169 realize , 298 298 , US Coppage v.Coppage Kansas US d 366 (1898). 366 - Muller v. Oregonv. Muller New Deal 24 – valid police power’s purpose, i.e. protection of of protection i.e. purpose, power’s police valid 587 (1936). 587 . 280. 145 – 1153. 138 T Bt n h ohr ad mn economic many hand, other the on But . e urm Cut ped h lw which law the upheld Court Supreme he (Yale University Press 2002) 151 2002) Press (YaleUniversity (Harvard University Press 1938) 97. 1938) Press University (Harvard judicial restraint judicial , 236 236 , 139 US the Supreme Court ruled that that ruled Court Supreme the the ed 1 - (1915). Era Substantive Due Process Process Due Substantive Era in mrec of emergence c ourt Lochner 143 s rsl, t result, a As p acking 14 – Moreove . Similarly, in . Similarly, in 183. - th Packing Plan’ Plan’ Packing t. Amendment: Amendment: This number number This 142 h Great the ions. p lan”, r , the the , he 144 CEU eTD Collection 152 151 150 149 148 147 146 of existence regulation, the of appropriateness and necessity supporting evidences present not presumpt strong with test basis rational of that explained and law the upheld Court The commerce.interstate in milk filled selling health, public ofprotection of necessity of basis the on prohibited, which statute federal the there reviewed Court Supreme protection of economicliberties. the this realize to aim. mean appropriate an is wage minimum of requirement and end legitimate explicitly criticized and rejected principles basic founding economicdue process: Hospital Children’s Th further. even presumption of constitutionality ofeconomic regulation. by liberty of favor in presumption general replaced which scrutiny of standard new set Court Ibid 152. Ibid Company Products Carolene v. States United 397 Ibid Co. Hotel West Coast Adkins 300 538 Ibid 150 “ Lochner US Socially The new doctrine was clarified in the subsequent the in clarified was doctrine new The constituted employees women of health of protection that argued Court Supreme The judgment, later the In (n 379 (1937) 379 - - 398. 539. 13 1 communitythe process. due is relation in reasonable is which regulation (…) people the of welfare and morals, safety, organizationhealth, social a in liberty the menace which evils the against law is of protection the requires which safeguarded liberty the (…) law. withou liberty of of deprivation the speaks prohibits It and contract. liberty of freedom of speak not does Constitution The freedom? this is What contract. of freedom of deprivation is women for the (…) ) era sensitive e decision overruled one of the leading cases of cases leading the of one overruled decision e ” . , 148 n hrle bgnig f opeey e jdca apoc t the to approach judicial new completely of beginning heralded and (n violation alleged by those attacking minimum wage regulation wage minimum attacking those by alleged violation 14 and upheld a state law setting minimum wage for women. The Court Court The women. for wage minimum setting law state a upheld and regulations 7 arguments used by the Court starkly contrasted liberal reasoning in reasoning liberal contrasted starkly Court the by used arguments ) 391. et os Htl o v Parrish v. Co. Hotel Coast West which interfere with economic liberties were to be subject subject be to were liberties economic with interfere which to its subject and is adopted in the interests of interests the in adopted is and subject its to , 149 304 304 ion of constitutionality. of ion US 25 144 (1938) 144 146 . case of case t due process of process due t , the “ the 147 152 Carolene Products Carolene the Supreme Court went went Court Supreme the Even if the Congress did did Congress the if Even Lochner Era ” , Adkins v. v. Adkins . 151 The The CEU eTD Collection 158 157 156 155 154 153 rejecti – thereforea and dead there process. due of – andto decide utility onthe legislation”. wisdom of courts, not legislatures, to up is “it that underlined and position this reiterated Court Supreme legislative particular the t that way rational a was measure thought be might it that and correction, for hand at evil an is there that enough is an It constitutional. be to aims its with consistent from logically respect every prescription a without lenses ophthalmologist duplicate or fit to optician the In defined inthe rights individual various of protection of level the of basis”. rational some upon rests it that assumption the preclude to as character a such of is it assumed generally or known made facts by 1988 “all but three states have refused t refused have states three but “all 1988 by never has Court Supreme the 1937 since Chemerinsky (n 10 (n Chemerinsky v. Skrupa Ferguson 487 Ibid 348 4. footnote 153, Ibid I bid 152. bid uprig eiltr’ dcso hd o e rsmd uls i te ih o te facts the of light the in “unless presumed be to had decision legislature’s supporting US economic of area the in protection equal and process due substantive of on Williamson v. Lee Optical Lee v. Williamson On the state level, however, the economic due process had never completely declined completely never had process due economic the however, level, state the On pres strong this that showed Practice this continued Court Supreme The 483 (1955) 483 - 488. footnote 158 in many situations may be needless needless be may situations many in 8 . On the level of the federal Supreme Court the economic due process is is process due economic the Court Supreme federal the of level the On (n ) 625. ) 9 2 four four ) 729. ) re could indicating nosigns thatit berevived close future. inthe to the judgment, be reviewed had to o correct it. correct o , 155 153 it underlined that although the law which prohibited an an prohibited which law the although that underlined it Moreover, the Supreme Court introduced Court Supreme the Moreover, ” 156 restrained struck down struck umption of constitutionality is almost irrebuttable almost is constitutionality of umption In the subsequent case of case subsequent Inthe o follow the lead of the of lead the follow o 26 157 approach a approach or wasteful, “the “the wasteful, or any economic any – restrictions of of restrictions lso after the end of New Deal. New of end the after lso with US a strict scrutiny a strict Ferguson v. Skrupa v. Ferguson legislation Supreme law need not be in in be not need law udmna rights, fundamental optometrist or or optometrist differentiation differentiation on the basis basis the on Court in its its in Court . 154 , the , CEU eTD Collection 168 467. Law 467, ofColumbiaEuropean 14 Journal (2007) RightsEurope’ Social in and ofEconomic Recalibration 167 166 89. Review 85, Law AmericanUniversity The 43 (1993) Legislation’ Labor Histo Court Supreme the Underclas the of of ‘Roots Bernstein, E Yearbook David [1983] Era’ Progressive the in Legislation Protective 92 87, Review Law Cornell 79 (1993) Rights’ European 165 the of Jurisprudence Rights 1838 Law Journal International Property the of Analysis An Luxembourg? 1385 1383, Review Law University York New 76 (2001) Lochner’ 164 163 162 671 Review671, Law University Illinois Northern 15 (1994) States’ United Century Twentieth the in Liberties of Regulation and 149 161 160 81. Science76, Social and 159 concept development modern democracy. to threat a poses policymaking. in engaged Court Supreme the by presented categories protected ofcapital interests “superlegislature” became Court the which during activism judicial dangerous of time bases doctrinal weak on founded rights property and personal between distinction false first The opponents. and 2.4. The debates over Lochner invalidated onthebasis ofdue economic process. regulations regulation See: ot Stoneand Laissez ‘Myth of Mayer, (n101 ElyJr. Giles v. Craigmilles Peter J Galie, ‘State Courts and Economic and Courts ‘State Galie, J Peter Max McCann, ‘The True Cost of Economic Rights Jurisprudence’ (2010) 6 The Journal Jurisprudence 149, 149, Jurisprudence Journal The 6 (2010) Jurisprudence’ Rights Economic of Cost True ‘The McCann, Max ae L ann ‘itrcl rmwr fr eiig Constitut Reviving for Framework ‘Historical Kainen, L James e, e.g. See, See: – 197 Jeremy Waldron, ‘The Core of the Case against Judicial Review’ [2006] The Yale Law Journal 1346. Law Yale Journal The [2006] Review’ Judicial ofthe Caseagainst Core ‘The Waldron, Jeremy ; C “ Both a H laoh ‘ Sic i Tm fr the for Time in Switch ‘A Eliasoph, H Ian o Joseph Becker, ‘Procrustean Jurisprudence; An Austrian School Economic Critique of the Separation Separation the of Critique Economic School Austrian An Jurisprudence; ‘Procrustean Becker, Joseph ritical opinions opinions ritical f isiuinl n ad usatv one substantive and one institutional : ”. Barry Friedman, ‘The History of the Countermajoritarian Difficulty, Part Part Difficulty, Countermajoritarian the of History ‘The Friedman, Barry substantive due process was revived in the 1960’s and 1960’s the in revived was process due substantive 159 hers (n 105 hers(n ) 33 ) Lochner – Moreover, one can find also judgments of the federal inferior courts which which courts inferior federal the of judgments also find can one Moreover, 718. – 35. , 312 F.3d 220 (6th Cir. 2002). Cir. (6th 220 F.3d 312 s ) 755. ) - the above, indicated was it As jurisprudence. Court’s Supreme the of jurisprudence Era” Faire Constitutiona Faire regarding – 167 f scholars of 1839. 165 168 Thi . This s criticism is based on the premise that strict judicial review judicial strict that premise the on based is criticism s is a threat to separation of powers because the Court Court the because powers of separation to threat a is 163 . The second group perceives Lochner jurisprudence as as jurisprudence Lochner perceives group second The . s: The Decline of Laissez of Decline The s: “ position Lochne ru ciiie post criticizes group Rights’ (1988) 496 Annals of the American Academy of Political Political of Academy American the of Annals 496 (1988) Rights’ ; lism’ (n 14 (n lism’ Melvin I Urofsky, ‘Myth and Reality: The Supreme Court and and Court Supreme The Reality: and ‘Myth Urofsky, I Melvin and , however, cannot be sustained in the light of the of light the in sustained be cannot however, , r 27 Era” modern judicial restraint judicial modern European Community Community European 2 ) 281 ) . uipuec cn e rue it two into grouped be can jurisprudence 166 – 283. ; 161 is age ta jdca activism judicial that argues First Michael R Antinori, ‘Does Lochner Liv Lochner ‘Does Antinori, R Michael ional Protection for Property and Contract Contract and Property for Protection ional - inrn o faes in framers of ignoring , Faire Jurisprudence and the Rise of Racist Racist of Rise the and Jurisprudence Faire - e Da apoc a bsd on based as approach Deal New 160 it - is still used to invalidate to used still is Lochner Discourse and the the and Discourse Lochner ECJ have their supporters their have Three: The Lesson of of Lesson The Three: (95 1 Fordham 18 (1995) ’ ia Scey 58 Society rical tent de facto de 162 164 and and and e in in e ; CEU eTD Collection 174 173 Brown(n17 172 reason L 1363 Review Law Harvard 171 170 169 pre as principles law common treated Sunstein. C. by presented to opinion dissenting his in expressed Harlan, Justice others, among of, position the was That legislation. interventionist by pursued values social with them balance not did and absolutely liberties economic treated it because wrong third, also is there individual’s liberty thatofithad serious indicate judicial protection a well as Fathers Founding the of beliefs Constitution, the of Text Constitution. the in foundation any have not does liberties such approach. wer liberties economic involving cases that believe they but activism, the to Holmes Justice right fundamental a as freedom justifycould what Constitution the in nothing is there becausewrong to similar the in Court Supreme the by presented reasoning that argued even scholars legal Some rights. fundamental violating regulations federal or state aw Review aw Cass R Sunstein, ‘Lochner’s Legacy’ (1987) 87 Columbia Law Review873. Law Columbia 87 (1987) Legacy’ ‘Lochner’s RSunstein, Cass Lochner 940. 920, Law Yale Journal [1973] v.Wade’ Roe on Comment A Wolf: Crying of Wages Ely, ‘The H John Wade v. Roe Note, Note, Note, Note, ing was presented in the footnote 4 ofthe 4 footnote in the was presented ing Between these two groups based on the radical criticism of the economic due process, due economic the of criticism radical the on based groups two these Between to difficult is it above, indicated was it as However, group Second ‘Resurrecting Economic Rights: The Doctrine of Economic Due Process Reconsidered’ (n 17 (n Reconsidered’ Process Due Economic of Doctrine The Rights: Economic ‘Resurrecting ‘Resurrecting Economic Rights: The Doctrine of Economic Due Process Reconsidered’ (1990) 103 103 (1990) Reconsidered’ Process Due Economic of Doctrine The Rights: Economic ‘Resurrecting (n Lochner 1 65. ). 9 ; , 410 410 , 1 Stone(n17 ; ) 172 Geoffrey R Stone, ‘Selective Judicial Activism’ (2011) 89 Tex 89 (2011) Activism’ Judicial ‘Selective Stone, R Geoffrey 68. US that oe oeae ru o ciis Te blee ht ohe Cut was Court Lochner that believe They critics. of group moderate more 113 (1973) 113 of opponents of the “ the of opponents of ; two cases 1 )1424. Rebecca L Brown, ‘T Brown, L Rebecca Lochner 174 . According to him the Supreme Court was wrong because it it because wrong was Court Supreme the him to According Similar reasoning was presented in the footnote 4 of the ofthe 4 footnote in the presented was Similarreasoning s importance of the freedom of contract for the protection of protection the for contract of freedom the of importance s . . 171 should be considered beshould “twins”. as This position has its roots in the dissenting opinion of the of opinion dissenting the in roots its has position This Supporters of this view may therefore accept judicial judicial accept therefore may view this of Supporters - political state of nature. Therefore, the gov the Therefore, nature. of state political Carolene Products Carolene he Fragmented Liberty Clause’ (1999) 41 W 41 (1999) Clause’ Liberty Fragmented he Lochner 28 Lochner landmark abortion case abortion landmark Era” . . 173 argue that argue Relatively similar arguments were were arguments similar Relatively agree that agree 170 justification. as Law as protection of contr of protection the Supreme Court was was Court Supreme the protection of economic of protection e not appropriate for for appropriate not e Ro Rev e v. Wade v. e Carolene Products Carolene iew illia 1423. ernmental m 1 169 & Mary Mary & ) 1375. ) Similar actual actual is so is . ; CEU eTD Collection (ed), FrancisBuckley H 183 201 1998) Press University (ed), Scheiber N Harry in State’ Administrative the and Labor, Contract of Freedom and 182 181 180 179 178 177 176 175 protect to authorities state or federal authorize least at or require would which provisions ideologybut onthe other was it worriedthat“thecould protectionist easilyget ofhand”. out protectionism, and interventionism of forms all block to want not did Court Supreme the hand task. easy an not was autonomy individual’s of protection and interventionism 19 the le traditional revisit to had Court Supreme the employees, and employers between position bargaining law. case Court’s Supreme of group fourth best solution the is approach modern whether and Court” “Lochner the of failure true the was What 2.5. regulations ofpr restricting establishment liberties civil protecting judgments important several also issued largelydiversified was Such an approach rigid explains test ofconstitutionality applied Court. by theSupreme baseline” unchosen “natural, as chosen was quo status economic for respect and inaction Mayer, ‘Myth of Laissez ‘Myth of Mayer, Tokushige v. Farrington Sisters of Society v. Pierce Ibid See: 877. Ibid 881. Ibid Charles McCurdy, ‘The “Libe ‘The McCurdy, Charles Gregory S Alexander, ‘The Limits of Freedom of Contract in the Age of Laissez of Age the in Contract of Freedom of Limits ‘The Alexander, S Gregory 44 David E Bernstein, ‘Lochn Bernstein, E David th This task was even harder even was task This considerations these of light In jurisprudence the that fact, the ignores however, criticism, This - 48; 48; etr fe lbr ideology. labor free Century Mayer, ‘Myth of Laissez Mayer,of ‘Myth gal concepts regarding contractual liberty and labor law which had their roots in roots their had which law labor and liberty contractual regarding concepts gal “ Lochn The Fall and Rise of Freedom of Contract of Freedom of Rise Fall and The (Stanford University Press 1998) 161 1998) Press University (Stanford – 177 , 273 273 , - 211. er Fai , 268 268 , and that and re Constitutionalism’ (n 14 (n Constitutionalism’ re Era US rty of Contract” Regime in American Law’ in Harry N Scheiber (ed), (ed), Scheiber N Harry in Law’ American in Regime Contract” of rty 181 er’s Legacy’s Legacy’ (2003) 82 Texas Law Review 1, 22 1, Review Law82 Texas (2003) Legacy’ Legacy’s er’s US ’s” 284 (1927) 284 In 510 (1925). 510 - Faire Constitutionalism’ (n 14 (n Constitutionalism’ Faire critics which focus which critics besides protection of protection besides taking into account into taking times , the most reasonable seem the arguments used by the the by used arguments the seem reasonable most the , 182 . f h eooi cie ad rwn inequality growing and crises economic the of ivate schools However, setting boundaries between permissible permissible between boundaries setting However, 29 2 ) 275. ) e – 179 that the that 173. on the excessive inconsistencies in the in inconsistencies excessive the on The State and Freedom of Contract of Freedom and State The economic liberties, the Supreme Court Court Supreme the liberties, economic (Duke University Press 1999) 110 1999) Press (DukeUniversity or foreignschools language 2 Arthur F McEvoy, ‘Freedom of Contract, Contract, of ‘Freedom McEvoy, F Arthur ) 270 ) US – 275. 178 Cons invalidating, for instance, instance, for invalidating, - Faire Constitutionalism’ in in Constitutionalism’ Faire of the Lochner period period Lochner the of titution titution – 43. does n h on the On – 180 113. not (Stanford (Stanford The State The 176 . have 175 of of 183 e . CEU eTD Collection 174. 188 187 186 185 184 that new approachcontrary maytoresults whicharetothe public lead interest. employees.Some ofthe interests not always promote th class working for detrimental and business for beneficial of significance the the “reality i ofmodern to doctrine its adjust not could Court Supreme the ago”, century a of community neighbouagricultural two of matter a only were it “if as treated be cannot personal the of realization to party. weaker harm not but autonomy, lead may freedom contractual the of interpretation coercion, of because contract h for beneficial most the are which choices make freely to him/her allows and person the of autonomy protects liberty society. the in freedom contractual the role the of understanding of lack was of employees, areweakness. consequences ofthis as develop to unable was of freedom balancing Court regarding doctrine coherent Supreme the that prove scrutiny of degree or hours labor paternalism and“classlegislation” were deeply socio Ibid 383 Ibid 384 Ibid 383. 373, Review Law Chicago of University The [2003] Wrong?’ Lochner ‘Why AWas Strauss, David Ibid. Lochner Schwartz, Schwartz, - economic rights. Moreover, strong protection of freedom of contract and reluctance to to reluctance and contract of freedom of protection strong Moreover, rights. economic Paradoxically, the the Paradoxically, Strauss D. wages, minimum on laws of constitutionality concerning divergences Jurisprudential – - 385. 386. , A Commentary on the Constitution of the United States. Part II: The Rights of Property of Rights The II: Part States. United the of Constitution the on Commentary A in which the Court invalidatedCourt the in which correct otata freedom contractual ndustrial society”.ndustrial im or her. or im ly modern suggests that the main the that suggests monopolization jurisprudence is based on similar lack of understanding of of understanding of lack similar on based is jurisprudence 186 187 Thus, if one if Thus, With . 188 reasonable P out acknowledgment that all industrial problems problems industrial all that acknowledgment out oeto o fedm f otat s o always not is contract of freedom of rotection 30 rooted intheAmerican thought.rooted legal r nomto aymtis te formalistic the asymmetries, information or reason for the for reason contract and social values. Decisions such Decisions values. social and contract party of the of the legislation aimed atlegislation aimed is unable to freely decide about the the about decide freely to unable is judgments issued after 1937 show show after1937 issued judgments e same as same e failur r s bargaining in the rural, rural, the in bargaining s e of e judicial restraint judicial protection of health the Supreme Supreme the 185 C ontractual 184 (n 127 (n Court Court does ) CEU eTD Collection see: Ri ofEconomic Jurisprudence rights economic of protection 194 1. Law Review Syracuse 193 192 Illinois Northern Unive 24 (2004) Enough’ ReviewIsn’t 191 1090. Review1065, 190 189 which greater could protection contributeall citizens to of of protection constitutional of concept coherent and moderate more co or social of guarantees constitutional a contribute toadoptionof state, the of obligations positive of theory not is it time same of shape the the at but liberty contractual about protect to obliged decide not is Legislature to law. contract and economy judiciary, the for not legislature, the for is it that premise Post consumers. or employees of rights of protection law andtoheightening calls ofscrutinytoeconomic thelevel applied regulations. of group large that surprising not rights personal of pantheon the in included currently interests cit average monopolies, professional of entrenchment legislative on allowed regulations illogical or unwise even accept will it that admit expressly Court Supreme the eliminate human’ for completelysafe sellin Kai Moller, Moller, Kai 397. SupremeCourt Review 1987 (1987) Products’ ofStoryCarolene True ‘The Miller, GeoffreyP On the necessity of adoption by the Supreme Court coherent and free from Lochnerian flaws doctrine of of doctrine flaws Lochnerian from free and coherent Court Supreme the by adoption of necessity the On as Snti, Wy os h Aeia Constitutio American the Does ‘Why Sunstein, R Cass utn anr ‘cnmc iet ad h Second the and Liberty ‘Economic Raynor, Austin See: g filled milk on the grounds the on milk filled g Furthermore, the in instance, For Timothy Sandefur, ‘Equality of Opportunity in the Regulatory Age: Why Yesterday’s Rationality Rationality Yesterday’s Why Age: Regulatory the in Opportunity of ‘Equality Sandefur, Timothy dangerouscompetito izen, the freedom to enter a trade may be at least as important as many liberty liberty many as important as least at be may trade a enter to freedom the izen, The Global Model of Constitutional Rights Model Constitutional of Global The obliged to protect to obliged bnomn o eooi de rcs does process due economic of abandonment ghts’ (1995) 73 North Carolina Law Review 329. Law Review North Carolina 73 ghts’(1995) doctrine of substantive freedom contract substantive doctrine of of s health and the law was law the and health s Carolene Products Carolene rs Richard E Levy, ‘Escaping Lochner’s Shadow: Toward a Coherent Coherent a Toward Shadow: Lochner’s ‘Escaping Levy, E Richard from of protection of public health. health. public of protection of US weaker groups. weaker the market.the legal scholars criticizes current Supreme Co Supreme current criticizes scholars legal smr rights, nsumer 192 31 rsity Law Review 457. Review Law rsity the Supre the hc o te rud o cnrc law contract of grounds the on which - Order Rational Basis Test’ (2013) 99 Virginia Law Law Virginia 99 (2013) Test’ Basis Rational Order (Oxford University Press 2012) 17 2012) University Press (Oxford 189 n Lack Social and Economic Guarantees’ [2005] [2005] Guarantees’ Economic and Social Lack n Cases such as such Cases the effect of lobbying of dairy industry to to industry dairyof lobbying of effect the - New Deal jurisprudence is based o based is jurisprudence Deal New T he Supre he 193 me Court upheld the law prohibiting law the upheld Court me . 194 d id ” 190 o allow not me Court has never endorsed never has Court me . Having these on mind it is it mind on these Having . But Siegan( WilliamsonLee v. . This, as well as lack of as as lack well of . This, ignor in fact in reo o contract, of freedom n10 not imply stronger stronger imply not n eeomn of development on n that ing , 2 – ) ) 318 the product was was product the 18. 191 – 330. urt’s case urt’s “[t] in whichin o the the o could n the n and CEU eTD Collection Slovakia. of Constitution 195 time economic state’s for basis a as market free declare which provisions 3 protection of freedo I particular In rights. fundamental other with freedom rest of s presentation three first The freedom. contractual of protection of level the affect they do how present and approaches American and European between similarities law mitigation through balancingwithsocial values. pre which provisions to upon approach American older the resembles aspects many under which freedom contractual of protection constitutional of democraticstate. a as Europe in considered widely still is era” .1. Constitutionalregulationsofeconomic system CONSTITUTIONAL PROTE CONSTITUTIONAL C pass e: r. 9 f h Cnttto o Cota at 15 f h Cnttto o Rmna at 5() f the of 55(1) art. Romania, of Constitution the of 135 art. Croatia, of Constitution the of 49 art. See: riction HAPTER f h Pls Cntttoa Tiua ad th and Tribunal Constitutional Polish the of they also they freedom of contract status of fundamental right what implies that all its restrictions have restrictions its all that implies what rightfundamental of status contract of freedom Unlike In e indicated was As proportionality test. However, at the same time European constitutions contain many contain constitutions European time same the at However, test. proportionality this s of freedom of contract while contract of freedom of s 3 . chapter contain provisions referring to social values which exclude radical libertarian radical exclude which values social to referring provisions contain B the ETWEEN ETWEEN It is therefore a paradox that paradox thereforea It is osiuinl bases constitutional m of contractm of in US I will vent against absolutization of contractual liberty and require its its require and liberty contractual of absolutization against vent Constitution much more much L CTION OF FREEDOM OF CTION OFFREEDOM arlier OCHNER AND JUDICIAL JUDICIAL AND OCHNER compare , the each jurisdiction. doctrines of doctrines , US than the AND o sc poeto ad eurmns regarding requirements and protection such for urm Cuts uipuec fo te “ the from jurisprudence Court’s Supreme the last the the new new the uoen osiuin otn oti explicit contain often constitutions European THE 32 European constitutional courts adopted doctrineadopted courts European constitutional ybl f itrin f t of distortion of symbol protection of freedom protection EU CONTRACT ON THE EXAM ON THE CONTRACT one e one. It is visible in particular in particular in visible is It one. DEFERENCE – ECJ Poland and will discuss what factors what discuss will will . I will also show differences and and differences show also will I focus : ection E on balancing of contractual of balancing on the URO s will be dedicated to to dedicated be will s EU PEAN APPROACH TO TO PEAN APPROACH system. of contract of he role of courts in in courts of role he PLE OF PLE 195 may influence influence may At the same the At in the conferring conferring P OLAND OLAND Lochner case CEU eTD Collection 200 7. 1996) Beschäftigung und Arbeitsmarkt 199 198 197 Law Contract Review 5 of European (2009) 196 obligationspositive donotcreate but any individual rights. enforceable of character either have may provisions Such character. social more a of rules with counterbalanced are underlined by theC rules market free respect to state the of obligation The expropriation. for compensation 6 art. and 21 art. and 22 art. in especially protected are values market free 20, art. besides Poland, of Constitution the to As acts. compared two the of provisions substantive in reflected is them of both of protection of Necessity values. social was developedinGermanyIIand: after War World economy market social of Doctrine economy”. market “social the on based be shall systems co provisions These of constitutions” constitution. the of interpretation Decision Art.3 Poland. of ofthe Constitution Art. 20 Sylvain Broyer, Broyer, Sylvain uh oln, Te uoen cnmc osiuin n th and Constitution Economic European ‘The Collins, Hugh Provisions declaring free market and protecting classical negative economic liberties economic negative classical protecting and market free declaring Provisions of composed therefore is economy market social The co Both ofthe of the Constitutional Tribunalof Constitutional ofthe Consolidated Version of the Treaty on Treaty ofthe Version Consolidated oenet bt n hc te oenet a ad hl ifune in influence shall order and may government the which on but the government, by replaced be cannot which mechanisms market free are economy market social the of development the behind force driving primary [t]he negative with the enriched however limiting is complements that consequences of a free market economy social economy, market assured a institutionalized of rules the of whi order, political and economic an to refers so il ihs or rights cial siuin f Poland of nstitution h Sca Mre Eooy Brh f n cnmc Style Economic an of Birth Economy: Market Social The the to mitigateto social effects of functioning of free market (…) onstitutional Tribunal,onstitutional according towhich: Member States and the 4 which guarantee protection of property and inheritance and just just and inheritance and property of protection guarantee which rnils f tt’ policy state’s of principles which provides individual freedom to conduct a business a conduct to freedom individual provides which 197 71, 9 n Tet o the on Treaty and July 2010, ref. no. SK 32/09, SK 32/09, no. ref. July2010, 73 – 79. EU the the 33 . 196 E uropean uropean (…) . 199 e Constitutional Dimension of Private Law’ Law’ Private of Dimension Constitutional e ch is designed on the basis the on designed is ch U nion which EU 198 [20 two elements: free market and and market free elements: two - rae so create OTK 12 elr ta ter economic their that declare moe n h sae certain state the on impose (WZB, Forschungsschwerpunkt Forschungsschwerpunkt (WZB, ] OJ ] - A ZU, No. 5/2010, pos. 5/2010, ZU,ANo. C326/01. . 200 - called “economic “economic called 55, 55, wa 7. s CEU eTD Collection 1337 1335, Review Law CommonMarket Eco Market Social the and Re Law European 35 (2010) Procedure’ to Focus the Shifts Lawyers 207 (eds), Kiiver Philipp and 122. (Intersentia2009) Verhey Luc Wouters, Jan in Policies’ (eds), 206 Schneider 1366 1364, Law Journal International Hildegard and Liebert 205 Ulrike Lisbon of Treaty the after constitutionalism Schiek, Dagmar in 204 203 202 67 201 competences binding” legally not and concrete not are which phrases social beautiful some about “just are Lisbon of Treaty the in contained integration which integration European the of dimension treaties. founding the in provisions social explicit cau 16 (freedom conduct business) to and of a art. 17(protection articles several also the by used were constitution economic European the of bases the constitute which are values Capitalistic market. internal of organiz this – Dagmar Schiek, ‘Re Schiek, Dagmar Watson, Philippa and EvelynEllis Infra Wolf Sauter, ‘T Sauter, Wolf Constanze Semmelmann, ‘The ‘The Semmelmann, Constanze Ibid 34 Ibid Antoine TJM Jacobs, ‘T Jacobs, TJM Antoine 68. sed primarily by lack of, with of, lack by primarily sed 47 explicit However, some However, The In the – - 48. 35 and grantsand ation ; role of social values values social of role E Szyszcak, ‘Building a Socioeconomic Constit Socioeconomic a ‘Building Szyszcak, E to develop “Social Europe”. “Social develop to EU ly he Economic Constitution of the the of Constitution Economic he , significance of the thefact, significancefree of marketresults from purpose of that the main has always been always has refer ECJ - Embedding Economic and Social Constitutionalism: Normative Perspectives for the EU’ EU’ the for Perspectives Normative Constitutionalism: Social and Economic Embedding of binding forcebinding to s nomy: The Emergence of an Ideal and the Conditions for Its Realization’ (2008) 45 (2008) Realization’ Its for Conditions the and Ideal an of Emergence The nomy: to struck down protective, interventionist state regulation state interventionist protective, down struck to CFREU he Social Janus Head of the the of Head Janus Social he legal o oil akt economy market social to EU scholars – EU Anti EU ’s Economic Constitution under the Lisbon Treaty: Soul Treaty: Lisbon the under Constitution Economic ’s 1370. are aimed at protection of free market free of protection at aimed are in the EU economic constitution constitution economic EU the in economic integration through establishment and protection protection and establishment through integration economic exception – 206 1338. (Cambridge University Press 2011) 33 2011) Press (CambridgeUniversity - correctly CFREU Discrimination Law Discrimination because 204 207 . reflected EU It Moreover, social rights contained in contained rights social Moreover, to guarantee of equal pay for men and women and men for pay equal of guarantee to 34 ’ (1998) 4 Columbia Journal of European Law 27, 63 27, Law European of Journal Columbia 4 (1998) ’ is which contain which argue that most of references to social values social to references of most that argue n fact in EU visible : The Social Market Economy versus Ultraliberal Ultraliberal versus Economy Market Social The : , in particular in 203 etos oil ol o the of goals social mentions ution: A Fantastic Object’ (2011) 35 Fordham 35 (2011) Object’ Fantastic A ution: (2nd ed, Oxford University Press 2012) 23. 2012) Press University Oxford ed, (2nd S the EU does not possess sufficient sufficient possess not does EU the uoen osiuinls byn Lisbon beyond Constitutionalism European view especially beun treati ubsequent property). s 516, many social rights.many social European in the four market freedoms freedoms market four the in 521 201 n h Tet o Lisbon of Treaty the in was – – 36. 522 which and values ; less s xadd social expanded es Loïc Azoulai, ‘The ‘The Azoulai, Loïc cnmc n social and economic clear , especially art. art. especially , - Searching among among Searching 202 205 CFREU . Moreover, Moreover, . , what , n t in European e past he was was – ECJ did did 64, 64, , , CEU eTD Collection (n19 213 LawLabour Jour 212 211 210 Viki OÜ and 209 208 the Constituti has basis constitutional the of choice Proper action. of freedom 2, section and 1 section 31 art. second, and business a conduct freedom contractual of protection tothoseknownsimilar from the “ of freedom and Tribunal Constitutional the regulations, economic constitutional relatively detailed to However,freedom.thanks guaranteecontractual 3 and contractualtheexpense of libertysocial at protection. a conduct business of thefreedom to toprioritization maylead economicconstitution possibly rights social principles progress protocol”. “social additional adopt should EU the so and rights social of protection effective sufficiently Lisbon after even values social and freedoms “neo its abandon to ECJ the encourage not .2. Constitutionalguarantees offreedom ofcontract CaseC CaseC Infra Case C Case Andreas Bücker, ‘A Comprehensive Social Progress Protocol Is Needed More Than Ever’ (2013) 4 European European 4 (2013) Ever’ Than More Needed Is Protocol Progress Social Comprehensive ‘A Bücker, Andreas Similarly: 6 ) 91. ) 47 In the Constitution of Poland there are t are there Poland of Constitution the In the to Similarly Th - - - 271/08 271/08 341/05 - 438/05 438/05 49. ese considerations ese – ng Line Eesti Line ng Collins, ‘The European Economic Constitution and the Constit the and Constitution Economic European ‘The Collins, contract from different constitutional provisions, without arousing controversies controversies arousing without provisions, constitutional different from contract . However, . both ECJ as well as other EU institutions have to balance economic freedoms and and freedomseconomic balance to have institutions EU other as well as ECJ both on provides of these limitations different tworights. ofpermissible scope nal4. European Commission v Federal Republic Germany of Republic Federal v Commission European Partneri un Laval International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Li Viking v Union Seamen’s Finnish and Federation Workers’ Transport International . 211 212 This led some scholars to the conclusion that conclusion the to scholars some led This [2007] [2007] US as will be discussed below, discussed be will as , Constituti ECRI and the case line case the and does not mean, of course, that EU law is based on based is law EU that course, of mean, not does v Svenska Byggnadsarbetareförbundet Svenska - Lochner 10779 . First, art. 22, 22, art. First, . on, neither EU neither on, . debate”. debate”. the ECJ the initiated by initiated 35 - iea” approach liberal” wo provisions which could constitute basis for basis constitute could which provisions which unbalanced treaties could derive principle of protection of of protection of principle derive could 213 Viking rvds osiuinl reo to freedom constitutional provides nor Polish Constitution explicitly Constitution Polish nor [2010] ECR [2010] [2007] ECR I [2007] 209 utional Dimension of Private Law’ Law’ Private of Dimension utional 208 construction of construction a CFREU and great significance because because significance great which to balancing four market market four balancing to Laval I - 07091 - urnes general guarantees does not guarantee not does 11767 210 . was continued was . the European the laissez ne ABP ne - faire CEU eTD Collection 42, 18 222 Analiz Biura Prawnicze r.’ 2012 Maja 11 z restrictions drogowym transporcie o Ustawy nowelizacji 221 Constit the of 31(2) ofTribunal art. be would review of basis constitutional proper business typically regarding freedom contractual restricted which statute the 220 219 218 217 216 215 33. 214 conduct abusiness,witho Tribunal Constitutional doctrinelaw constitutional the acceptedin approach is re be should entrepreneurs professional between th to only not and persons by concluded agreements all conduct to applicable to is freedom freedom contractual the of derivative primarily is freedom to the case law the to similar is interpretation the of part constitutes contract” otherwise. provides law the unless contract, a in conditions certain include shall correspondguarantees these law, liberty. individual of guarantees the of light the in seen be should it Constitution, the in provided explicitly not is freedom contractual although that underlined o , Supra Adkins Ibid. Ibid. 10. Ibid See: judgment See: SK Judgment 12 se which are related are which se 14 e, e.g.: See, . ; be forced or prohibited to conclude a contract or to choose to or contract a conclude to prohibited or forced be 24/02 24/02 judgment At the same time, the Constitutional Tribunal rejected argumentation that contractual that argumentation rejected Tribunal Constitutional the time, same the At 24/02. SK judgment the in issue this to responded Tribunal Constitutional The 10 (n 27 - - 11. 13 comments to the novelization of the Act of 11 May 2012 on road transportation'] road on 2012 May 11 of Act the of novelization the to comments (n of the Constitutional Tribunal of Tribunal Constitutional the of November 2006, ref. no. no. ref. 2006, November dm acmrk ‘onś diłloc gsoace i e o jej i gospodarczej działalności ‘Wolność Karczmarek, Adam 1 21 ). of the Constitutional Tribunal of Tribunal Constitutional the of of the Constitutional Tribunal of of Tribunal Constitutional the of of the German Federal the Court. German of Constitutional 4 ) 14 ) ; however, in the in however, ; Sejmowych 208, 210 208, Sejmowych tends to tends to to ut mentioning general liberty. individual’s business. Th business. US focus on the connection of freedom of contract to freedom to freedom to contract of freedom of connection the on focus K 47/04, OTK 47/04, K to Suprem case K 47/04 the Tribunal rejected the challenge under art. 22 against 22 art. under challenge the rejected Tribunal the 47/04 K case osiuinly protected constitutionally one no requirethat and will” “autonomyof of concept the – 211 29 April 2003, ref. no. SK 24/02, 24/02, SK no. ref. 2003, April 29 us , only these contracts which contracts these only , . e Court’s approach presented in e.g. in presented approach Court’s e 22 April 5, 2011, ref. no. P 26/09, OTK 26/09, P no. ref. 2011, 5, April May 2013, ref. no. P 46/11, 46/11, P no. ref. 2013, May - 36 A ZU, No. 10/2006, pos. pos. 153 10/2006, No. ZU, A iwd n h lgt f h at 22. art. the of light the in viewed 221 , but ['Freedom to conduct a business and its its and business a conduct to ['Freedom 219 in to (Judgment ution niiuls freedom. individual’s the - 215 to a particular contractor or to to or contractor particular a bsns. Constitutional business. a - more recent judgments the judgmentsrecent more 222 business contract, arguing that that arguing contract, business On the grounds of private of grounds the On OTK OTK g ,16 ran can be can - iczenia iczenia ). - - A ZU, No. No. ZU, A A ZU, No. No. ZU, A A ZU, No. 3 No. ZU, A 216 of the Constitutional Constitutional the of Such “liberty of of “liberty Such concluded only only concluded Adkins – [2012] Zeszyty [2012] uwagi na tle tle na uwagi 4/2003 4 /201 /201 217 220 , 218 3, pos. 3, 1 214 , pos. , , pos. , This This and and It CEU eTD Collection 230 229 228 Law ofContract Review European 227 226 269 Law269, Review Common 39 Market 225 224 Tribunalof Constitutional the of judgment Tribuna Constitutional the of judgment of Tribunal Constitutional the of judgment 3; 223 rule”. the remain must contract law competition EU of violator a on impose cannot Commission the means, intrusive less are there as long as that more often. refer freedom tothis much rol normative than rather descriptive “a in it used and occasionally only liberty contractual of principle the invoked ECJ the jurisprudence there justificationtotreat isno as contractualpart liberty of law”. primary European of principles general the of part as action ofgeneral freedomthe in as well freeaseconomyamarket of the notion in “is included it that liberty contractual of protection the for basis the be could what to asagree not did scholarsLegal clear. not waslaw Bef evolution. significant concerningrent control legislation T property. of protection to right the guarantees which Constitution the of 64(1) art. under also protected situations CaseT 911 Ibid 911. 12) Basedow(n 98. (n11) Herresthal Supra See: judgment of the Constitutional Tribunal of of Tribunal Constitutional the of judgment See: Stefan Grundmann, ‘Information, Party Autonomy and Economic Agents in European Contract Law’ (2002) (2002) Law’ Contract European in Agents Economic and Autonomy Party ‘Information, Grundmann, Stefan Jacobien W Rutgers, ‘The European Economic Constitution, Freedom of Contract and the DCFR’ (2009) 5 (2009) DCFR’ the and Contract of Freedom Constitution, Economic European ‘The Rutgers, W Jacobien The case law of the ECJ did not contribute to resol to contribute not did ECJ the of law case The EU the In contractual liberty insome may theConstitution, art.be 31of 22and In art. addition to 13 - 24/90 – - 913. 14. Automec Srl v Srl Automec , . h cntttoa psto o te reo o cnrc ws ujc to subject was contract of freedom the of position constitutional the a – n obligation to enter into contractual relations because “the freedom of of freedom “the because relations contractual into enter to obligation n some of them argued that principle that argued them of some ore adoption adoption ore he Constitutional Tribunal confirmed it in the series of judgments judgments of series the in it confirmed Tribunal Constitutional he . Commis 95, 9 95, l of l 5 230 sion of the European Communities European the of sion 223 - 108. 108. – 12 , 2 October 2 271. lo the Also what May 2004, ref. no. May2004, 10 CFREU 229 October 2000, ref. no. P 8/99, OTK ZU, No. 6/2000, pos. 198; pos. 6/2000, No. ZU, OTK 8/99, P no. ref. 2000, October For instance, in 1992 the Court of First Instance held First ofFor Court in1992the instance, 12 resembles e” January 2000, ref. no. P 11/98, OTK ZU, No. 1/2000, pos. 1/2000, No. ZU, OTK 11/98, P no. ref. 2000, January 2002, ref. no. K 48/01, OTK 48/01, K no. ref. 2002, 37 , the position of freedom of contract in primary primary in contract of freedom of position the , 228 ECJ . However, in 1990’s the EU courts began to began courts EU the 1990’s in However, . n eea pre several in the approach ofthe SK 34/02 s the EU primarylaw atthe EU all. ution of free movement free of , OTK , [1992] ECR [1992] 226 of these disputes disputes these of - - A ZU, No. 5/2004, pos. 42. pos. 5/2004, ZU,ANo. ibn ae recognized cases Lisbon Others even even Others - A ZU, No. 5/2002, pos. 62; pos. 5/2002, No. ZU, A ECtHR. I I - 02223 225 ,51. para. 224 while others others while claimed that claimed – 227 in early in CEU eTD Collection 244 243 ECR [1991] 242 227. para 241 240 22. 5, 239 238 237 236 to relating 235 234 (eds), Schulyok Law Private European Felix and Law and Groussot Xavier Bernitz, Ulf in Law?’ EU in Autonomy 233 232 231 understaformalof Adoption contract the amend to freedom contract a into enter contract from freedom and contract into enter contract, to freedom others, among guarantees, contract freedom. contractual substantive of concept endorsed explicitly not have they and contract of freedom freedomcontr of (property). 17 art. and business) a conduct to (freedom 16 art. freedom),(occupational 15 art. particularly provisions, other from man explicitly, contract of freedom recognize character binding conferred Treaty Lisbon the coh liberty. contractual the of rank constitutional CaseC v Commission Spain of Kingdom C Case Automec Judgment Ibid. SK 24/02 (n1 Herresthal Herresthal CaseC Joined Judgment See: ooa ezkeiz ‘oiotl fet f udmna Rgt: n erh f oil Justic Social of Search In Rights: Fundamental of Effect ‘Horizontal Leczykiewicz, Dorota erentapproach ofcontract” tofreedom Sky Österreich Sky t s ot t note to worth is It The 238 ‑ - - C 236 the Charter of Fundamental Rights of the European Union [2007] OJC 303/02. [2007] Union the European of Rights ofFundamental theCharter 2 441/07 437/04 437/04 ases C ases 40/97 40/97 codn t te Polish the to According (n I including (n of the Constitutional Tribunal ofTribunal Constitutional ofthe of the Constitutional Tribunal of Tribunal Constitutional the of - (n 11) 98. (n11) reo t cos cnrcul partner contractual choose to freedom 03617 constitutional 22 21 7 1 4 - Kingdom of Spain v Commission of the European Communities European the of Commission v Spain of Kingdom P ). Commission v Belgium v Commission ) 99 ) 90/90 and C and 90/90 ). act European Commission v Alrosa Company Ltd. Company Alrosa v Commission European , para ,para ; from thefreedom conductfrom business to a (n Basedow (n 12) 908. Basedow(n12) 240 freedom freedom 13. 13. 14) , reo fo contract, from freedom , para 42; Case C Case 42; para , - position of the contractual liberty was strengthened in 2010, when 2010, in strengthened was liberty contractual the of position 91/90 91/90 (Kluwer Law International 2013) 182. 2013) LawInternational (Kluwer ht oh nlzd ors em o ou o the on focus to seem courts analyzed both that nding of freedom of contract may affect the way of balancing this balancingthis ofway the affectmay contract of freedom ofnding (n to s to Jean Neu and others v others and Neu Jean 22 243 234 et the price the et 8 [2007] ECR I [2007] ) The recent jurispru recent The n fedm o eemn cnet f h contract. the of content determine to freedom and osiuinl rbnl h cntttoa fedm of freedom constitutional the Tribunal Constitutional 7 May 2001, ref. no. no. ref. May2001, 7 24 January 2006, ref. no. SK 40/04, SK no. ref. 2006, January 24 - 426/11 426/11 232 . 231 . 38 y legal scholars argued that it could be derived be could it that argued scholars legal y 239 ‑ Nonetheless, 2513, para 2513, Alemo on 241 Similarly, . 237 reo t cos cnrcul partner contractual choose to freedom Secrétaire d'Etat à l'Agriculture et à la Viticulture la à et l'Agriculture à d'Etat Secrétaire CFREU - Herron Herron and freedom to shape the content of of content the shape to freedom and dence of the ECJ shows that it it that shows ECJ the of dence K 19/00, OTK ZU, No. 4/2001, pos. 82, 12 82, pos. 4/2001, ZU, No. OTK 19/00, K [2010] ECR [2010] 51 . 235 . in the EU the in 233 (n the EU courts “did not develop a a develop not “did courts EU the 15) vn though Even , para 32; para , I - 05949 [1999] ECR [1999] OTK it General Principles of EU EU of Principles General - , Opinion of AG Kokott, Kokott, AG Opinion , of to freedom includes A ZU, No. No. ZU, A see also: Ex also: see oml set of aspect formal CFREU I - 6571 e or Private Private or e 1 , para. para. , /200 planations planations i not did derives 6, pos. 6, 99. 242 . 244 , CEU eTD Collection 245 the of one pursue to had stake at law the first, in is framework theeconomic comparable review. to due process liberty contractual the the with by interferences review used to test courts proportionality European Also freedom. this of protection constitutional rejects the during liberty contractual right, fundamental a contract 3 horizontal effectivenesslimits oftheConstitution. acts of constitutionality legislative of review constitutional to consumers. of l other are Tribunal Constitutional Polish protection the of competences under Germany, in declaresunlike Moreover, reviewed which 76 be art. can particular parties in weaker provisions, constitutional protect sufficiently not do which acts autonomy eliminatio liberty.primarily individual’s general the from not and business ECJ of limitations introducing contractual ataimed strengtheningof weaker position liberty party. of possibility limiting by rights consumer or social with right 3 Jdca scr Judicial .3. Mak, ‘Unchart(er)ed Territory’ (n 8) 6. 8) Territory’(n ‘Unchart(er)ed Mak, may be caused by the fact that it that fact the by caused be may The test applied by the by applied test The The of twocourts position hand, other the on Poland, In recognition explicit of Lack , therefore concentration onnegativeaspect ofcontractual liberty naturalseems tn i rveig osiuinlt o itreecs ih reo of freedom with interferences of constitutionality reviewing in utiny n of undue legislative obstacles and not guaranteeing the right to personal to right the guaranteeing not and obstacles legislative undue of n interpretation and interpretation s eiiey oe iia t the to similar more definitely is US “ Lochner regardingrecognition Supreme Court in Court Supreme of t derive his might be caused by the fact that usually legislative usually that fact the by caused be might his application of law by law of application substantive Era s ” 39 contractual freedom from freedom to conduct a a conduct to freedom from freedom contractual hn to than , narrowly set set narrowly what excludes possibility of reviewing reviewing of possibility excludes what dimension of dimension Lochner US its its of the status of freedom of contract as contractas freedom of the statusof modern urm Cuts prah to approach Court’s Supreme P the ordinary the legitimate aims and second, the the second, and aims legitimate oeto o bsns requires business of rotection consisted of two requirements: two of consisted freedom of contract by the the by contract of freedom 245 ae law case courts which t theoretical its and by thus by and e facto de imited . the CEU eTD Collection ofproperty). 248 39. 247 246 applies Tribunal consumers, what rejected inthe was socio guaranteed constitutionally to order protect in liberty contractual limit to allows it because latter the is important Especially diff the by mentioned power police of goals legitimate of theessenceconstitutional rights of orfreedoms. persons other of rights and freedoms morals, public order, public security, is: that Constitution, the in enumerated “ is it when only enacted be may statute.form Second, has it tobe of imposedonlyinthe limitation freedoms. First, of rights or regulatedin Const the of (2) and 31(1) art. is non of case In derived. was it which from basis constitutional addition both stricto sensu fourth and aim legitimate pursue to adopted means the of necessity and examination third and second law, the of aims of examination First, steps. used test proportionality the to similar relatively means The same rules are applicable if the contractual freedom is derived from art. 64 64 from art. derived is freedom contractual the if applicable are rules same The Supra Benedikt Pirker, Pirker, Benedikt erences adopted to pursue these aims had to be appropriate and reasonable. and appropriate be to had aims these pursue to adopted ee o poeto i lwr n ae f uies contracts, business of case in lower is protection of Level to similar is Constitution Polish the in contained aims public of catalogue Closed on depends contract of freedom the of protection constitutional of level Poland In 22 - 23. – art. 31(3) art. , that is balancing between public interest and individual’s right or freedom. or right individual’s and interest public between balancing is that , compared protection of environment and protection of freedoms and rights of others. others. of rights and freedoms of protection and environment of protection Proportionality Analysis and Models of Judicial Review Judicial of Models and Analysis Proportionality r. 2 f h Cnttto, hc poie ta “[l] that provides which Constitution, the of 22 art. , which , legal systems prohibit violat systemsprohibit legal formulates necessary in a democratic state democratic a in necessary tto. n ht iuto, usin f uiil scrutiny judicial of question situation, that In itution. Lochner formal and substantive and formal - . cnmc ihs f mlye o ri or employees of rights economic 40 by 248 . The art. 31(3) fo 31(3) art. The . ing the theessence right orfreedom. of the European courts which requires four four requires which courts European the Lochner - business contracts, proper basis proper contracts, business requirements as to limitations to as requirements (Europa Law Publishing 2013) 2013) Publishing Law (Europa aua evrnet health environment, natural ” to protect to ” court where of the Constitution Constitution the of rbids also infringements also rbids with with mttos pn the upon imitations 246 of appropriateness appropriateness of the Constitutional Constitutional the – Th one of the aims the of one proportionality w important two is approach is is approach (protection (protection ghts of of ghts 247 15 list In is is – , CEU eTD Collection 10. 251 250 8 249 than broader are business] a conduct to freedom of restriction the [of justification of grounds rec is business a conduct practices and laws lawnationaland Union accordancewith to freedom that mind in keep to have one rights, or theneed th toprotect of objectives meet genuinely and necessary are they “[s] that provides former, requirements substantive and formal 52(1) contractual becannot violated. liberty individual. the on imposed burdens to proportionate are freedom of restrictions that and means restrictive less with achieved be not could aim the appropriate is aim, public important particularly pursues law the that prove to has legislator law, of constitutionality defend to order In counterpart. American Ho of aims enumerated i specialis reasons public important activit economic of freedom /201 Carolene Products Products Carolene Judgment e eg: judgment e.g.: See wever, the level of scrutiny applied by the Tribunal is Tribunal the by applied scrutiny of level the wever, ifrn cntttoa rgt as rights constitutional different 0 , pos. pos. , CFREU lhuh eurmns e i at 52(1) art. in set requirements Although In I t may seem may t CFREU oad at 3() and 31(3) art. towards the 74 of the Constitutional Tribunal of Tribunal Constitutional the of , 21 . Similarly as the as Similarly . EU law, limitations of contractual of limitations law, EU - 22. specifies that the restriction the that specifies ubject to the principle of proportionality, limitations may be made only if if only made be may limitations proportionality, of principle the to ubject n art. 31(3) as well asart. as 31(3) well n (n of the Constitutional Tribunal of of Tribunal Constitutional the of that the Tribunal introduced similar differentiation of level of protection protection of level of differentiation similar introduced Tribunal the that 15 1 e rightsfreedomse ofothers”. and ). . codn t t to According ”. y may be imposed only by means of statute and only for for only and statute of means by only imposed be may y Polish Constitution, th Constitution, Polish thus regarding restrictions of all fundamental ri fundamental all of restrictions regarding the the h nto o “motn pbi raos includes reasons” public “important of notion the 8 other July 2008, ref. no. K 46/07, OTK 46/07, K no. ref. 2008, July US he s 41 public purposes public must be provided by law and as to the latter, it latter, the to as and law by provided be must osiuinl rbnl hs rvso i a is provision this Tribunal Constitutional urm Cut n the in Court Supreme 13 freedom CFREU coe 21, e. o K 10, OTK 1/09, Kp no. ref. 2010, October general interest recognised by the Union the by recognised interest general is provision provision is ”. This reference suggests that “the “the suggeststhat reference This ”. ha r apial t al fundamental all to applicable are much ve of constitutional importance to be consistent with the with consistent be to to r to 251 higher of ealize Moreover, the essence of of essence the Moreover, - CFREU A ZU, No. 6 No. ZU, A aoee Products Carolene than th than legitimate aim, legitimate provides ghts at /20 gie “ ognized used by its its by used contractual 08 . As to the the to As . - A ZU, No. No. ZU, A , pos. pos. , certain certain that . 104 art. lex 250 249 all in in . , CEU eTD Collection 259 258 257 256 255 254 28. para 367/07, 253 295. (eds), Schulyok 252 from making ofthem(…)”. use p not does it addition, In rights. broadcasting exclusive of holder the by such as out carried being from activity business a prevent not “does it: because It service”. business do to whom with choose to freedom additional costs directly thesatellite signa incurredto access inproviding events to channels television the of provisions the of legality there reviewed ECJ The thoroughly. Sky prote of level rights, other than extent lesser protection of consumers, public the in activity economic of interest exercise the limit may which authorities public of 16 art. the guaranteedin be” would otherwise they Ibid, para 49. para Ibid, 18. para Ibid, Sky CaseC Case CaseC Sky Sky ee Oie, Wa Proe os Arti Does Purpose ‘What Oliver, Peter lo o allow Österreich Österreich Österreich . C ”. The However, Mo ‑ - - 253 348/12 P, 348/12 12/11 544/10 544/10 hr hnes n h E t use to EU the in channels ther reover, the broadcaster “ broadcaster the reover, held that the law did not infringe the essence of the freedom to conduct a business business a conduct to freedom the of essence the infringe not did law the that held ECJ is which Aims eea Picpe o E Lw n Erpa Piae Law Private European and Law EU of Principles General Denise McDonagh v Ryanair Ltd. Ryanair v McDonagh Denise 257 (n Deutsches Weintor Deutsches (n noticed that the Directive restricted two aspects of contractual freedom: “the freedom: contractual of aspects two restricted Directive the that noticed 14). Council v Manufacturing Support & Procurement Kala Naft & Kala Support Procurement v Manufacturing Council shows that the ECJ examines proportionality of economic regulations very very regulations economic of proportionality examines ECJ the that shows s 14 , imilarly hol ) , para 46; Case C Case 46; para ding 254 CFREU 252 a jsiy limi justify may public health . And in indeed, the ECJ in s in ECJ the indeed, in And . to exclusive rights to broadcast events of high interest to the public the to interest high of events broadcast to rights exclusive 259 oad although Poland, eG v. v. eG “ may be subject to a broad range of interventions on the part the on interventions of rangebroad a to subjectbe may was not entitled to demand remuneration greater than the the than greater remuneration demand to entitled not was - 101/12 Land Rheinland Land cle 16 16 cle 255 tation or peace international and security. [2013] OJ [2013] C86/02. CFREU Herbert Schaible v. Land Baden Land v. Schaible Herbert extracts ction is still higher than in the in than higher still is ction 42 ” and and s CFREU - f freedo of Serve’ in Ulf Bernitz, Xavier Groussot and Felix Felix and Groussot Xavier Bernitz, Ulf in Serve’ Pfalz “ to the freedom to d to freedom the [2012] rnmt hr nw rprs n those on reports news short transmit everal cases underlined that freedom freedom that underlined cases everal rtcs reo o cnrc t a to contract of freedom protects t cnut bsns include business a conduct to m eet h hle o toe rights those of holder the revent OJ C 331/03. OJ (Kluwer Law International 2013) 2013) International Law (Kluwer , [2013] , directive which directive etermine - Württem l”. OJC 39/06. 258 US 256 berg the price o price the . The [201 obliged case of case 3 ] OJ C OJ f a a f , CEU eTD Collection 263 262 261 260 existence the constrainedby is Europe in freedom contractual the of protection of Level guarantees. social the for effects detrimental “ the 3 and thatthe Constitution legislator wantscanpublic aims it any pursue illogi even that held explicitly which contract. of freedom examine 16 art. the with interferences cases some in and consequent always not is ECJ the laws. domestic similar invalidated had past the in which Germany and Austria of decision was forthan judgments lessfavorable contract freedom ofth of broadcasters were not obligedtoshareextracts free. completely for extract used which station the programs, news in only proportionality be would means restrictive less of none that held capacity. financial their of irrespective extracts, to stations television all of accessguaranteed it because pursued aims the of realization in effective be would it argued we them of Both media. of pluralism promoting and information receive to freedom safeguarding .4. Ferguson v. Skrupa v. Skrupa Ferguson McDonagh Ibid, paras Ibid, re legitimate i legitimate re B Lochner alancing offreedom ofcontractalancing para 23. para Abovementioned s Abovementioned A objectives: two pursued Directive the that held ECJ the aims, legitimate the to As tog pootoaiy et sd y h EJ ih se vr strict very seem might ECJ the by used test proportionality lthough comprehensively 51 (n Era” do not not do Era” - 68. 251 sensu stricto sensu n the light the n ), paras 45 ),paras (n 92 This starkly contrasts with modern case law of the of law case modern with contrasts starkly This ). imilarities between the European c European the between imilarities determine that “European that determine - 49, 60 49, ups ad rprinlt of proportionality and purpose : CFREU it CFREU applied only to certain materials and the extracts could be used materials theextractsused applied certain couldbe only and to - 64; 64; Deut . The law passed also test of appropriateness of test also passed law The . cal cal of well developedsocio well of wi as thoroughly. as sches Weintorsches restriction of contractual liberty contractual of restriction t h other fundamental 43 qal efficient. equally (n economic due process” leads to similarly similarly to leads process” due economic Nevertheless 25 262 2 it did not review proportionality of of proportionality review not did it ), paras 54 ), paras hd o dniy h suc and source the identify to had s eiltv at itreig with interfering acts legislative ourts and ourts - economic rights and consumer consumer andrights economic rights - 260 60. , as a rule, the ECJ has to has ECJ the rule, a as h lw epce also respected law The . 263 US e constitutional courtsconstitutional e would not violate the violate not would US Moreov Supreme Court of Court Supreme Supreme Court Supreme 261 – er, the ECJ ECJ the er, , Moreover, Moreover, the Court Court the h final the CEU eTD Collection 268 267 pos. 266 accessed 7 sometimes sometimes Ibid 19 Ibid Ibid Clemens Kaupa, ‘Maybe Not Activist Enough? On the Court’s Alleged Neoliberal Bias in the Recent Labor Labor Recent the in Bias Neoliberal Alleged Court’s the On Enough? Activist Not ‘Maybe Kaupa, Clemens Chantal Mak, ‘Unchart(er)ed Territory: EU Fundamental Rights and National Private Law’ (Social Science Science (Social Law’ Private National and Rights Fundamental EU Territory: ‘Unchart(er)ed Mak, Chantal Judgment 92 was often accused of “neo of accused often was . 18 h Cntttoa Tiua apid hs picpe to principles these applied Tribunal Constitutional The t unlike indicated, was As b cannot contract of freedom time, same the At - - 20. 19. of the Constitutional Tribunal of Tribunal Constitutional the of required by It noticed that the statute did not contain any safeguards protecting in protecting safeguards any contain not did statute the that noticed titos f h cnrcul freedom contractual the of strictions - 264 to business party could abuse its stronger position and easily persuade persuade easily and position stronger its abuse could party business - other constitutional This wou This consumer contracts and employment contracts to choos to contracts employment and contracts consumer n frin agae hc te osmr i nt nw good know not did consumer the which language foreign a in , but - liberal bias”, one cannot exclude that constitutionalization of constitutionalization that exclude cannot one bias”, liberal he at restoring at ld mean that especially in the context of E of context the in especially that mean ld US to 13 stronger contractor. stronger Supreme Court in in Court Supreme September 2005, ref. no. K 38/04, OTK 38/04, K no. ref. 2005, September provisions 44 a balance between balance a nterpretation of the contract should be should contract the of nterpretation Judicial activism at the European European the at activism Judicial , e seen as completely marginal right. marginal completely as seen e e.g. the 267 art. 76 art. are I “ mposition Lochner them aim h saue hc allowed which statute the 8 February 8 2014. (consumers protection) 265 ed to era not of ensure that weaker weaker that ensure but also but " - CJ such A ZU, No. 8 No. ZU, A , both European both , at , which , 266 limiting the the limiting ECJ restrictions e language language e It noticed noticed It economic terests of of terests (Edward in the the in /20 the the . 05 268 , CEU eTD Collection 14 (2013) Integration’ Political and Social, Economic, Stronger 1876 1867, LawJournal German and Deeper for Engine New A Order: Legal 276 Europe: 275 Rheinland 274 273 272 271 270 269 CFREU 38 art. are important most the contract of liberty of case In freedoms. and rights fundamental asbusiness but inherentlyincluded inth socio some scholars legal certain mind, on these a objectives social and t Therefore, and business position t jurisprudence, recent more employmethe principle area inthis law. of guiding a as regarded be still can contract of freedom the whether clear not is it that strong t of restrictions the law labor the in that stated Tribunal the 38/04 K judgment the In liberty. contractual the of limitations reaching party enough C Case Infra Ibid. Ibid Ibid Ibid Alberto Lucarelli, ‘Article 16 16 ‘Article Lucarelli, Alberto Andrea Usai, ‘The ‘The Usai, Andrea o 19. 21 20 f 51. . Similarly as in Poland, freedom to conduct a business in the EU is limited by other other by limited is EU the in business a conduct to freedom Poland, in as Similarly the Also further even accept to seems Tribunal Constitutional the law labor of sphere the In commentary on on commentary 269 . the contract through res - - - - 273 (consumer protection) and principle of eq of principle and protection) (consumer 4/73 22. 21. Pfalz Therefore - he economic rights should not be perceived as limitation of the freedom to conduct a conduct to freedom the of limitation as perceived be not should rights economic od G . Commission v. KG Nold [1979] ECR 3727, para 32. para ECR 3727, [1979] nt law by referring to the contractual liberty has very weak basis. weakvery liberty contractual has the referringto by law nt ic te ey oet f the of moment very the since interpretation of interpretation ECJ Freedom to Conduct a Business in the EU, Its Limitations and Its Role in the European European the in Role Its and Limitations Its EU, the in Business a Conduct to Freedom CFREU the legislator failed to realize its positive obli positive its realize to failed legislator the a nvr bouie cnrcul liberty contractual absolutized never has nd values”, in order to prevent to order in values”, nd – - (Carolina Academic Press 2010) 103. 2010) AcademicPress (Carolina 271 1881. eTiua dpre rm such from departed Tribunal he Freedom to Conduct a Business’ in William BT Mock (ed), (ed), Mock BT William in Business’ a Conduct to Freedom Therefore, tothe Tribunal according art. 16 has 16 art. trictions of contractual freedom.trictions ofcontractual [19 argue 4 ER 491 ECR 74] e definition ofright. this e definition he autonomy of will of contracting parties are so so are parties contracting of will of autonomy he to that compet that ir strike 45 recognition uality. The uality. pr 1; ae C Case 14; para , “a balance between freedom of enterprise of freedom between balance “a ition law, internal market rules market internal law, ition the risk o risk the underlined ECJ view 270 276 oil dumping. social f , conducted balancing of art. art. of balancing conducted - r reo t cond to freedom or 44/79 44/79 justifying liberalization ofjustifying liberalization and adopted more liberal liberal more adopted and gation to protect weaker weaker protect to gation their their ieot Hur Land v Hauer Liselotte oil nature. social 272 Human Rights in Rights Human However, in However,in 275 or even even or Having uct a a uct 274 CEU eTD Collection 283 282 and employment 281 280 279 278 277 liberty contractual far very a was what law EU secondary even or law domestic of a contract employment term national law whichconflict mayCommunity law with cou equal law EU of of principle general the constituted principle age of respect in treatment that ruled ECJ The yet. passed not had Directive this of transposition l Such old. years 52 over persons with contracts employment of type this conclude to easier it made which 56 between concluded contract treatment equal of principle of case the in rather superficially and decisive operators economic certain for consequences protection consumer of objective “ of circumstances’ event ‘extraordinary the in passengers to care provide to airlines 38 art. and 16 Basedow (n 12) 920 12) Basedow(n Mangold also: See Mangold Ibid, McDonagh Council Directive 2000/78/EC 2000/78/EC Directive Council rt a obliged was para 48. para Horizontally applied prohibition of discrimination implied necessity of treating fixed treating of necessity implied discrimination of prohibition applied Horizontally shown was liberty contractual the on equality of principle the of impact restrictive The Case C Case (n (n (n 84 84 Mangold occupation [2000] OJ L303/ OJ [2000] occupation 251 ) ) para. 77. para. - CFREU 555/07 555/07 ). w a icnitn wt te ietv 2000/78 Directive the with inconsistent was aw . 283 – to 921. t s hrfr srrsn ta te C hd o rfre t te r. 16 art. the to referred not had ECJ the that surprising therefore is It urne its guarantee 279 Seda Kücükdeveci v Swedex GmbH &GmbH KG Co. Swedex v Kücükdeveci Seda n the in where the where s of 27 Nov 27 of in private in a d ” - ly gave priority to protectionlygave of priorityconsumers. to permanent despite lack of violation by the employer any rule rule any employer the by violation of lack despite permanent years old man and private employee, on the basis of statute statute of basis the on employee, private and man old years ae of case id ECJ ECJ (…) ember ul effectiveness full not 16 (“Framework Directive”). 16 law confirmed the possibility of horizontal application of of application horizontal of possibility the confirmed M ilt at 16, art. violate a jsiy vn usata ngtv economic negative substantial even justify may 2000 establishing a general framework for equal treatment in in treatment equal for framework general a establishing 2000 . cDonagh 280 ”. 46 278 The case concerned a fixed term employment employment term fixed a concerned case The In all, the ECJ conducted balancing process process balancing conducted ECJ the all, In 277 ”. . It ruled that that ruled It . 282 “ (…) bec cancellation of a flight due to to due flight a of cancellation [2010] ECR [2010] etn aie n poiin of provision any aside setting a u se - ecig iiain f the of limitation reaching “t 281 h r the he importance of the the of importance he and but the deadline for for deadline the but I - 00365 egulation obliging obliging egulation thus . the domestic the - - CEU eTD Collection 288 287 (eds), Heenan James and Bustelo R Rights Human and EU The Mara Alston, Philipp in EU’ the in Rights Social and Freedom Economic 286 Democracy Without Law Private Law, Private (eds), Ralli Tommi and Joerges Christian in Law?’ European of Integrity 285 also: the see 284 contract. of freedom of violation of grounds the on law similar down strike to refused which Court Constitutional market internal tra prohibiting law domestic 1937. before Court neo pursue to law competition EU principle used ECJ the 1990’s before that argued instance, For courts. two the of reasoning the in similarities significant are there that concluded and debate” “Lochner the of light the in principles movement free regarding market basic freedoms even toaccusations which led of concerning judgments ECJ’s the and constitution economic EU int of features taking especially realistic is possibility Such prevail. would liberty contractual the often that exclude cannot one context EU the in especially contrary, the On exaggeration. an be would latter the by former the outweighing to lead always will values serious CFREU Flessner (n 44) 92 (n44) Flessner CaseC BvR2661/06 2 2010, July 6 BVerfG ap ( 26 (n Kaupa Ultra laoh n 16 (n Eliasoph t s ypoai ta svrl ea shlr aaye jurisp analyzed scholars legal several that symptomatic is It social and liberty contractual balancing practice in that conclusion the However, controversies Vires - and 145/88 145/88 Decision reo o cnrc a all. at contract of freedom 4 ). atis alan ‘The Mahlmann, Matthias Torfaen Borough Cou Borough Torfaen ; 7 287 478 ) Michelle Everson, ‘From Effet Utile to Effet Neoliberal. Why Is the ECJ Hazarding the the Hazarding ECJ the Is Why Neoliberal. Effet to Utile Effet ‘From Everson, Michelle – 93. 286 ht a psto mc mr pro more much position was what of 288 and and It is worth to mention, for instance, that in some cases the ECJ held that held ECJ the cases some in that instance, for mention, to worth is It – the (Oxford University Press 1999) 451 1999) Press University (Oxford 493. Danie even German . See also: also: See . l ding Sunday trading may constitute excessive restriction of of restriction excessive constitute may trading Sunday ding led to the litigation before Court. led tothelitigation Federal Constitutional the Caruso Federal , < ncil v B & B v plc. ncil Q http://www.bverfg.de/en/ - liberal agenda in the manner similar to the to similar manner the in agenda liberal iul Po Miguel , on the other hand, found traces of Lochnerism in the in Lochnerism of traces found hand, other the on , (2011) 37 (2011) Constitutional t s oeoty ht i that noteworthy is It the ECJ ofbeing the ECJ Politics 47 iares Maduro, ‘Striking the Elusive Balance Between Between Balance Elusive the ‘Striking Maduro, iares – 53. [1989] ECR [1989] of the free movement of goods (art. 28) and and 28) (art. goods of movement free the of of Court’ (2010) 11 German Law Journal 1407. Law Journal German11 (2010) Court’ – Constitutional 455. decisions/rs20100706_2bvr266106en.ht 03851 “neo - akt hn ht f German of that than market European Constitutionalism Without Constitutionalism European . - Germany n Identity liberal acut characteristic account o ly and uec o te ECJ the of rudence ” bias ” Its Mangold Legal ed US Ian . 285 Frame Frame Supreme Eliasoph raised raised ml 284 >; >; - CEU eTD Collection 297 296 295 294 293 292 291 872 867, Law Review University Boston 85 (2005) Court”’ 290 289 explicitlycollective actio ruled that to freedoms economic and rights social balancing of objective. that achieve to necessary is what beyond go not the that legiti the of attainment established the ensuring for suitable is restriction is it that provided workers, of protection the as such interest, public principle. movement free rest a as qualified be should establishment” of freedom exercising from [company] sam the at but action agreement Sweden in sites building on work to employees a negotiations Viking. with enter to not to affiliates its all called officially which Federation Workers’ Transport c was attempt an Such crew. the to salaries lower pay legally action collective and the when 2008 and of alcoholthe distribution Franzen Laval para Ibid, Viking Viking CaseC Laval Viking CaseC ail Crs, Lcnr n uoe A omn o Kih htigo’ “oges Be “Congress Whittington’s Keith on Comment A Europe: in ‘Lochner Caruso, Daniela Ruffert , n oh ae the cases both In of ECJ the ofAccusations (n , the of similarly: judgment; part ofpointthe operative , 1 para 120. para - - (n case para 346 189/95 21 . 20 80. 293 As aSwedish trade protest,building the unionblocked sites 0 /0 9 90. ) 289 . Cases of Cases . . ) 6 . Dirk Rüffert v Land Niedersachsen Land v Rüffert Dirk Franzén Harry against proceedings Criminal in which the ECJ struck down Swedish Swedish down struck ECJ the which in . In the the In . ECJ e time underlined that collective action which is “liable to deter it it deter to “liable is which action collective that underlined time e Viking issued Viking Laval 294 and restricting importing from alcohol abroad ECJ s uh t may it such As series of series , on the other hand, hand, , ontheother and Fnih opn wne t rfa is esl o soi to Estonia to vessel its reflag to wanted company Finnish , eonzd udmna caatr f h rgt o collective to right the of character fundamental recognized the Lochnerthe n Laval of the Swedish trade EUlaw.the Swedish unionviolated the controversial judgments in cases of of cases in judgments controversial concerned limitation of the economic freedo economic the of limitation concerned [200 - 48 e utfe ol “ only justified be like tendencies were even strengthened in 2007 in strengthenedeven were tendencies like 8 – ] ECR ] 873. concerned but [1997] ECR[1997] the Lava I eue t sg a wds collective Swedish a sign to refused statute - 01989 domestic court, domestic ” l, 295 para 99. para mate objective pursued and does does and pursued objective mate . Latvian its which company sent ondemned creating In the In I - 05909 by an overriding reason of of reason overriding an by Viking . . a state monopoly over over monopoly state a 290 296 . by the International the by but Viking the ECJ left task left ECJ the fore the Lochner Lochner the fore in the in 291 riction of of riction 297 , Laval Laval ms ny by 292 it CEU eTD Collection 303 302 301 142 126, Law Journal Industrial 300 248. 236, Law Journal European Labour 1 Review’(2010) 299 298 restricti before, indicated was As employees. its of conditions working set to or subcontractor choose to freedom contractor’s the of limitation 16 art. of application with achieved be could services could be not by justified which any legitimate aim The agreement. collective the in set this than lower wage a at workers employed which company Niedersa agreement collective employees their pay to undertake which undertakings reviewed the is interesting especially paper present the of perspective the From applied bycourts. both the in Court Supreme and ECJ the justify mo rights union using of requirement c scholars legal Moreover, from exclusively freedoms market the reading is Court Ibid, Ruffert e.g.: See, (n26 Kaupa Anne CL Davies, ‘One Step Forward, Two Forward, Step ‘One Davies, CL Anne ioet o, Te rnil o Pootoaiy n iig n Lvl A Aporae tnad f Jud of Standard Appropriate An Laval: and Viking in Proportionality of Principle ‘The Hos, Nikolett re effective re ECJ ”. para 40. 40. para Although the ECJ reviewed the case the reviewed ECJ the Although Desp Viking 300 (n chsen terminated the contract with the company which used as a subcontractor Polish subcontractorPolish a as companyused the which contract with the terminated chsen argued that such arguedthat the domestic law domestic the DannyN Unsurprisingly, several Unsurprisingly, 29 ”. ite this criticism, the ECJ continued this approach this continued ECJ the criticism, this ite 4 3 ) 67. ) 299 ). and it [collective action] [collective it Anne Anne icol, ‘Europe’s Lochner Moment’ [2011] Public Law 308, 313 Law 308, Public [2011] Moment’ Lochner ‘Europe’s icol, Laval the applicable at the place of works of place the at applicable 301 Davies pointed out pointed Davies least restrictive means “ means restrictive least were legislative measure constituted measure legislative – riticized the strict proportionality review presented by the ECJ ECJ the by presented review proportionality strict the riticized according to which to according 143. strongly scholars found “striking similarities” between reasoning of of reasoning between similarities” “striking found scholars is from the from is Lochner Steps Back? The Viking and Laval Cases in the ECJ’ (2008) 37 (2008) ECJ’ the in Cases Laval and Viking The Back? Steps criticized criticized that reasoning of the Court leads Court the of reasoning that under epcal rgrig str regarding especially , 49 public contracts shall be awarded only to these these to only awarded be shall contracts public union’s perspective union’s CFREU can undermine the effective exercise of trade trade of exercise effective the undermine can n o te otata lbry have liberty contractual the of ons in the legal the in freedom to provide services provide to freedom . On the basis of this provision, Land provision, this of basis the On . Te measure The . t es rmnrto pecie by prescribed remuneration least at restriction of the freedo the of restriction and violated the thus EUlaw h a ecascl perspective neoclassical a the doctrine. It was argued that “the that argued was It doctrine. in the — – Ruffert Ruffert 316. subsequent judgments. subsequent test proportionality ict the harder it will be to be will it harder the ol b vee a a as viewed be could to paradox: “ paradox: to case. , similar results similar m to provide to m 302 The ECJ The to pass pass to . 303 ”. icial icial the the 298 – CEU eTD Collection 306 businesses or undertakings safeguarding the to relating 305 304 show also it but business a conduct to freedom the over jurisprudence that argued, was It doctrine. essence thisfreedom: of contrac of freedom new wa owner se were conditions new after month one but undertaking, the of privatization the before month expired party third the by set conditions working applicable contracts employment the from both arising obligations to according which company, private by acquired was question in undertaking public The employer. the of participation without party, ac Herron ofjudgment recent the confirmedin are contract of freedominvolving cases casesand services, ishighly be that it wouldnot probable sufficientthe contractual it limit to liberty. the th to similar test proportionality cording to which their employment conditions were to were conditions employment their which to cording Alemo Alemo Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States States Member the of laws the of approximation the on 2001 March 12 of 2001/23/EC Directive Council aim pursued by the law was law the by pursued aim . iial a Vkn o Lvl also Laval, or Viking as Similarly clauses” “dynamic that ruled ECJ The p possible These - - 304 Herron Herron Herron The case concerned clauses contained in the contractscontained clausesTheemployees sector inpublic case in concerned of employees a with view to its future economic activity. its for conditions working in contrac changes determining a aspects the in negotiate effectively interests its assert neither can transfereethecircumstances, those In issue. at bodybargaining collective [ t s bound by such s boundby h tasee i te an rceig i ual t priiae n the in participate to unable is proceedings main the in transferee ]he (n (n 15), 15). o te mlyr ht hi efreet would enforcement their that employer the of t para 34. para [2001] OJL82/16. [2001] of employees' rights in the event of transfers of undertakings, businesses or parts of parts or businesses undertakings, of transfers of event the in rights employees' of arallels between reasoning of the ECJ presented in the free movement free the in presented ECJ the of reasoning between arallels the judgment was not only incompatible with previous cautious previous with incompatible only not was judgment the conditions at insufficient used on t on used Council Directive 2001/23/EC Directive Council set without its participation.set its without he grounds of free movement principles. Th principles. movement free of grounds he Alemo 50 constituted constituted to justify limitation of the freedom to provide provide to freedom the of limitation justify to - Herron be such a far reaching limitation of the the of limitation reaching far a such set from time to time by the third the by time to time from set and a ciiie i te ao law labor the in criticized was t. The question was question The t. 306 ul rcs nor process tual collective agreements. The The agreements. collective l e a , t violat to d ed 305 w ht r. 6 a a has 16 art. that as bound by the the by bound as whether the the whether o o the of ion Alemo us , if , - CEU eTD Collection 312 311 310 309 2014. February P 46/11 P 8/99 P 22. Ibid SK 40/04 Jeremias Prassl, ‘Freedom of Contract as a General Principle of EU Law? Transfers of Undertakings and the the and Undertakings of Transfers Law? EU of Principle General a as Contract of ‘Freedom Prassl, Jeremias yi J Hys ‘naora: e Hls n h For f aor ihs Alemo Rights? Labour of Floor the in Holes New ‘Onlabourlaw: Hayes, JB Lydia tion of Employer Rights in EU Labour Law Case C Case Law Labour in EU Rights tionofEmployer I te ae K 40/04 SK case the In . h Cntttoa Tiua ue fedm f otat drvd rm h rgt to right the from derived contract, of freedom used Tribunal Constitutional The app the aspect, this In (n (n also 22 (n s 22 ng that the Court completely ignored fundamental right of employees to engage in engage to employees of right fundamental ignored completely Court the that ng , 3 that principle of social market implies that legislator has to take into account account into take to has legislator that implies market social of principle that 2 Tribunal itutional b represen 2 11/98 ); P 39 ut ),30 o naiae dispr invalidate to ). complete exclusion of the broadcasters from the process of setting the prices the setting of process the from broadcasters the of exclusion complete . The Constitutional Tribunal underlined that the legislator was was legislator the that underlined Tribunal Constitutional The . - 32. scheme ig authors. ting (n 22 3 ); K 48/01 48/01 K ); of minimum prices for rebroadcasting of television materials television of rebroadcasting for prices minimum of 309 roach of the ECJ ECJ the of roach whic , t tuk down struck it print rn cnrl legislation. control rent oportionate B (n Constitutional h odatr wr nt uhrzd o atcpt i the in participate to authorized not were roadcasters 22 used contractual liberty to invalidate law only only law invalidate to liberty contractual used 3 ). CFREU 51 - h statute the - holes o find to 426/11 Alemo 426/11 ol b psil more possibly be could Tribunal . - 308 in 307 - floor a compromise between interests of of interests between compromise a 310 Other commentators underlined that underlined commentators Other hc gv te xlsv rgt to right exclusive the gave which - of - Herron and Others v Parkwood Leisure Leisure v Parkwood Others and Herron 312 seemed to present more liberal liberal more present to seemed - labour This may suggests that in t in that suggests may This in the earlier case law case earlier the in - ihshm> cesd 13 accessed rights.html> 311 I liberal than that of of that than liberal t is is t - Herron v Parkwood Parkwood v Herron also ot to worth few few , . It . he he to CEU eTD Collection approachconstitutional protection contract of freedom onmore to of active. sign a is employment of nature contractual underlining by relations labor to approach liberal more much present to seems Tribunal the which in judgment recent whether im protection. Such possibility isconfirmed controversial caseof by the market 16 art. that mind on Having former. the to priority gave often very Court the rights social and freedoms previous Moreover, which EU the of constitution economic of role underlined I regard this In approach. liberal more consumer rights treatment. equal orright to protect to order in contract of freedom into intrusions reaching far even accept courts both that showed I rights. fundamental other with freedom this of balancing of result which those to to achieve and cannotcontractual legitimateessence aim freedom of violate the contract of freedom of restriction constitutionally justify can which aims the liberty. negative a com EU the and Poland 3.5. Conclusions otn rl i te ae a o te osiuinl rbnl o a. h ftr wl show will future The far. so Tribunal Constitutional the of law case the in role portant pared is determined is These factors differ the EU from Poland Poland from EU differthe factors These s that however, argued I However, conclude, To freed courts accept fundamental character of contractualfreedom ofcharacter fundamental acceptcourts CFREU o m , t em pasbe ht h EJ a peet iia apoc as t its to also approach similar present may ECJ the that plausible seems it s, important. Furthermore, all restrictions have to be necessary and appropriate and necessary be to have restrictions all Furthermore, important. in practice actual level of protection of freedom of contract depe contract of freedom of protection of level actual practice in Moreover, Moreover, case law of the ECJ shows that in case of clashes between economic economic between clashes of case in that shows ECJ the of law case and freedom of of freedom and in theory in by the lack of lack the by n ay aspects many in the same the doctrine doctrine ome serious serious contract provided therein are therein provided contract atr idct that indicate factors as of resembles the constitutional protection of freedom of contract in contract of freedom of protection constitutional EU EU 52 US where competences Supreme Court Supreme American freedom of contract had not played any not contracthad of freedom the in the sphere of social policy. policy. social of sphere the in eooi de process”. due “economic ECJ , two European courts limit courts European two , deeply Alemo Herron Alemo may eventually endorse endorse eventually may understood primarily as as primarilyunderstood once o four to connected of change of its its of change of . . nds on the the on nds All are CEU eTD Collection 313 of provisions of “application were: categories These rights. fundamental EU by bound be parties frequentlyof disputes. by domestic legal invoked th cause may liberty contractual with interferences legislative state’s of range wide with together law” Union of “implementation term the of interpretation broad “ States Member to States 4 EU law and on s law. secondary EU the on second the in and States Member of systems legal on contract t of possibility on especially focusing law, secondary EU and States Member of laws on freedom contractual may have requirements Such rights. conflicting balanced properly and contract of freedom of essence Therefore, liberty. p to contractual have legislators restricting regulations all in proportionality of principle contract wo econd part is further divided on two two on divided further is part econd 1 Te osiuinlzto o fedm f otat n dmsi lw f h Member the of law domestic and contract of freedom of constitutionalization The .1. C Article 51(1) Article51(1) HAPTER sections Traditionally, legal doctrine mentioned three situations in which Member States were States Member which in situations three mentioned doctrine legal Traditionally, andAs all freedoms other provided rightsin prese the In which consequence Primary in the EU the in DOMESTIC LAW OFTHE LAW DOMESTIC influence IV In . CFREU Lochner . the I MPACT OF THE CONSTIT THE OF MPACT the future harmonization of harmonization future theEuropeanLaw. Contract is requirement for both Member States and the EU legislator to respect respect to legislator EU the and States Member both for requirement is domestic laws of domestic t hpe I il nlz psil ipc o cntttoaiain of constitutionalization of impact possible analyze will I chapter nt . ny hn hy r ipeetn Uin law Union implementing are they when only oe that rove first I discuss possible impact of constitutionalization of freedom of of freedom of constitutionalization of impact possible discuss I first - like deterioration of level of social protection. Chapter is divided on on divided is Chapter protection. social of level of deterioration like l limitations all M EMBER EMBER the sub olw from follows Member States and Member sections analyzing possible influe possible analyzing sections UTIONALIZATION OFFR UTIONALIZATION S TATES AND THE TATES 53 are appropriate and necessary, do not violate violate not do necessary, and appropriate CFREU the constitutionalization of freedom of of freedom of constitutionalization , freedom of contract is contract, freedom of the EU EU secondary law. EEDOM OF CONTRACT ON CONTRACT OF EEDOM SECONDARY LAW ”. at art. 16 art. at 313 oee, t However, nce on on nce CFREU the applicable he existing w ECJ’s ECJ’s ould The EU EU CEU eTD Collection o equal of principle the of implementation 322 internal market the in information Market 321 para 2014), March 6 (ECJ, 320 319 318 L347 317 316 315 388. 314 law European the in roots the deterrent measures of interests financial the affecting activities illegal counter to VA although that held an legislation other words, “ “a include rather should It circumstances. three these in used law” EU of “implementation of notion the ECJ, the rights”. EU restricting or rules EU from “derogation EU and measures of enforcement of implementation rights”, human for protection on based legislation CaseC on Treaty the of Version Consolidated Ibid CaseC Búrca, de Gráinne Craig and P Paul Case C Case Council Directive 2006/112/EC of 2006/112/EC Directive Council S Grundmann, W Kerber and S Weatherhill, ‘Party Autonomy and the Role of Information in the Internal Internal the in Information of Role the and Autonomy ‘Party Weatherhill, S and Kerber W Grundmann, S e eg: ietv 20/4E o te uoen Parliam European the of 2006/54/EC Directive e.g.: See T was regulated on the EU level EU the on regulated was T /1. . - aig n mind on Having Inrec the of case The an Overview’ in S Grundmann, W Kerber Kerber W Grundmann, S in Overview’ an - - - 617/10 617/ 206/13 206/13 it was it the 10 n as wehr hr ae pcfc ue o E lw n h mte or matter the on law EU of capable of affecting rules it specific are there and whether also legislation and that of cov those nature than other the objectives pursues it law; whether EU of provision a implement inte is legislation that whether are determined be to points the of 51 Article of purposes the for law EU of implementation [i] d EU law may justify applicability justify may law EU d fall Swedish odr o eemn wehr ainl eilto ivle the involves legislation national whether determine to order n Åklagaren v Hans Åkerberg Fransson Fransson Åkerberg v Hans Åklagaren Fransson Åkerberg v Hans Åklagaren Cruciano Siragusa v Regione Sicilia Sicilia Regione v Siragusa Cruciano not enacted directly on the basis of any of basis the on directly enacted not ent ing ”sufficient was justify to applicability Siragusa kreg Fransson Akerberg within thescopewithin of 25. law ht ay domestic many that 321 (De Gruyter 2001) 6. 2001) Gruyter (De penalizing VAT frauds fell within the scope of the EU law, law, EU the of scope the within fell frauds VAT penalizing especially in such areas as anti as areas such in especially judgment, 28 November 2006 on the common system of value added tax added value of system common the on 2006 November 28 EU Law: Text, Cases and Materials Cases and Text, Law: EU . 320 Functioning of the of Functioning 317 pruiis n eul ramn o mn n wmn n matte in women and men of treatment equal and pportunities and that art. 325 TFEU 325 art. that and the ECJ furtherclarifiedthe ECJ that: EU rvs ht vn eoe eain ewe domestic between relation remote even that proves law and S Weatherhill (eds), (eds), Weatherhill S and 54 - iiain of limitations [2013] [2013] [2013] Soprintendenza Beni Culturali e Ambientali di Palermo di Ambientali e Culturali Beni Soprintendenza ”. CFREU 315 European Union European n ad f h Cucl f Jul 5 of Council the of and ent ll situations governed by governed situations ll OJ C114/7 OJ C 114/08 OJ provision of of provision CFREU to Member State’s actions State’s Member to CFREU ered by EU law (…) law EU by ered - discrimination law, discrimination otata fedm ae their have freedom contractual , , §§19 (Oxford University Press 2008) 382 2008) Press University (Oxford 318 , [20 para . “ 319 Party autonomy and the role of role the and autonomy Party obliges the Member States States Member the obliges CFREU - 12 314 23 cannot be lim be cannot 21. ] OJ ]OJ EU , However, according to to according However, paras EU C326/01. nded to nded law , some , hog effective through 24 . 316 - 31. EU ; The fact that fact The y 322 ited only to only ited law 06 n the on 2006 . consumer T [2006] ” or, in in or, ” he ECJ he rs of of rs OJ – CEU eTD Collection 325 operators aircraft and carriers air for insurancerequirements 324 to right the of purchase proper useimmovable the to relating contracts of aspects certain of respect in purchasers of protection the on contracts rights consumer 323 et or racial Jun 29 of 2000/43/EC a goods of supply Dec [2006] occupation and employment by of possibility exclusion “social”of implementation. more be would directives of transposition in States Member of discretion Consequently, liberty contractual restricts excessively it because incorrect is directive EU of transposition art.situations 16 i that the rights constitution and reduces potential impact 16 ofthe art. by justified accepting and contract of freedom the of nature social courts. emphasizing constitutional domestic by accepted is it than way liberal la domestic chooses. it contract of freedom of interpretation of way grhas a law, protection n domestic legal systems of the Member States Member the of systems legal domestic n See, e.g.: See, See e.g.: e.g.: See e eg: ietv 2011/83/EU Directive e.g.: See e mber as well as adoption by the ECJ formal understanding of contractual freedom contractual of understanding formal ECJ the by adoption as well as hs a hpe i svrl situations. several in happen may This chapter, previous the in indicated was As law domestic on jurisprudence ECJ’s the of impact of scale The eat potential to be potentialeat to frequently indomestic legal invoked disputes. [1993] [1993] ECJ hnic origin [2000] OJ L180/22 ( L180/22 OJ hnic[2000] origin 2004 implementing the principle of equal treatment between men and women in the acces the in women and men between treatment equal of principle the implementing 2004 Regulation (EC) No. 785/2004 of the European Parliame European the of 785/2004 No. (EC) Regulation Alemo wl b srntee i te C’ nepes otata lbry n mr neo more a in liberty contractual interprets ECJ’ the if strengthened be will w , protecti mayendorse previou [2011] OJ OJ [2011] OJ L95/29 OJ 323 - Her nd services [2004] OJ L373/37 (“Goods and Services Directive”); Directive”); Services and (“Goods L373/37 OJ [2004] services nd CFREU or insurances or ties on a timeshare basis, timeshare tiesa on e on of on ron s case law of the ECJ over balancing over ECJ the of law case s 2000 implementing the principle of equal treatment between persons irrespective of of irrespective persons between treatment equal of principle the implementing 2000 ; L304/64 (n Directive 94/47/EC of the European Parli European the of 94/47/EC Directive 15). may level toerosionrights. lead ofthe ofprotection social fundamental more ; 324 o Counc J 242 ( L204/23 OJ liberal f , and thus “fall within the scope of EU law” EU of scope the within “fall thus and , t he European Parliament Parliament European he “Race il Directive 93/13/EEC of 5 Apr 5 of 93/13/EEC Directive il interpretation of contractualthan freedom interpretation social [1994] Discrimination Discrimination CFREU “Recast Directive”); Directive”); “Recast rights, gives more leeway to the Member States States Member the to leeway more gives rights, OJ L280/83 55 . It cannot be be cannot It [2004] . characteristic features of the EU economic EU the of features characteristic o instance, For Directive”); Directive”); ; a Significance of art. 16 art. of Significance OJ L138/1 nd nt and of the Council of 21 Apr 21 of Council the of and nt ament and the Council of 26 Oct 26 of Council the and ament o of f Council Directive 2004/113/EC of 13 13 of 2004/113/EC Directive Council therefore t economic freedoms and social and freedoms economic e oni o 2 Otbr 01 on 2011 October 25 of Council he il Directive 2000/78/EC 2000/78/EC Directive . 1993 on unf on 1993 h EJ a rl tha rule may ECJ the Interpretation strongly strongly Interpretation excluded that excluded its its will depend will air term air ie limitati wider , Council art. 16 art. CFREU that accepted s in consumer consumer in s (n narrow il 281 ober CFREU in some in indicate Directive Directive s to and and to s 2004 on 2004 on the on on the on ) 1994 ons . ed 325 - t CEU eTD Collection No. of jurisprudence the with consistent be to has Constitution the in guaranteed contract of freedom 328 ECR 327 CFREU.16 art. to also but marketfreedoms only to not refer could theECJ because fr distort not do stake at freedom contractual Baskiciogullari v. GmbH Motorradcenter 326 consumers of protection at example for aimed 4 scope law. ofthe EU which spheres those in even adjudication and process lawmaking influence law. primary EU with accordance in law of interpretation because market internal of protection ofone fundamentallimitation right j wouldbe on only focuses and rights fundamental ignores them. between contract of freedom fundamental equally also but right social and freedom market between conflict only not involves case that argue could in instance for accepted was what right, social fundamental of necessity by justified was freedoms market of restriction certain that held situation, latter the In right. social fundamental with clashes freedom rel mere which in cases in especially possible is This market. internal of protection concerning 16 art. freedoms, .2. iance on free movement principles would not be convincing enough convincing be not would principles movement free on iance Case C Case For instance, the Polish Constitutional Tribunal in the case P 16/06 underlined that the interpretation of the the of interpretation the that underlined 16/06 P case the in Tribunal Constitutional Polish the instance, For e eg cs C case e.g. See 7 Impact oftheconstitutionalization off Impact I /20 - 05659 07 At 4 freedom contractual of interpretation liberal Furthermore, Mo .2.1. Existing law - , , pos. 112/00 112/00 the same time, one have to remember that many limitations of contractual freedom contractual of limitations many that remember to have one time, same the evr hvn o mn cnetos ewe fedm f otat n market and contract of freedom between connections mind on having reover, , para 74. para , the ECJ (judgment of the Constitutional Tribunal Constitutional the of (judgment ECJ the 79 By using this argumentation the ECJ would be able to avoid criticism that it that criticism avoid to able be would ECJ the argumentation this using By Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich Republik v Planzüge und Transporte Internationale Schmidberger, Eugen , para , - national private law by domestic courts which have a duty to interpret the interpret to duty a have which courts domestic by law private national 339/89, 339/89, CFREU 7). lto Alniu S v Sulzer v. SA Atlantique Alsthom ol b ue t srnte agmnain f h EJ n cases in ECJ the of argumentation strengthen to used be could [93 ER I ECR [1993] , ee movement of goods. Today cases could be resolved differently differently resolved be could cases Today goods. of movement ee reedom ofcontractreedom 328 56 ustified byother. of protection the , and h E The are set in the EU secondary law. secondary EU the in set are - t 09 n hc te C hl ta lmttos of limitations that held ECJ the which in 5009 hus the st the hus [91 ER I ECR [1991] , Js uipuec cn lo indirectly also can jurisprudence CJ’s of of July 17, 2007, ref. no. P 16/06, P no. ref. 2007, 17, July ate was obliged to find a balance balance a find to obliged was ate Schmidberger Schmidberger on the EU EU the law - acquis communaitaure communaitaure acquis 0 ad ae C case and 107 would influence also also influence would even if Member State State Member if even 326 or in which in or fall outside of outside fall case, protection of of protection Therefore, - 327 93/92, 93/92, OTK h ECJ the market market and the the and - [20 A ZU, ZU, A CMC CMC the 0 to 3] 3] , CEU eTD Collection 336 335 Law. Principles Unidroit suchas documents 334 185. 2013) Twigg Christian 161; Uni on 147 (n2) 333 332 331 330 The 329 what EU level definitely is protection consumer law. sector mostly law enacted contract yet of not regulation has uniformed comprehensive, EU The law. EU the by determined extent large a to is law contract basis for legislativeTFEU. enactmentbefound measures ofsuch inart. could 352 market” internal of functioning the for necessary areas which law contract the of harmonization comprehensive implications. market internal explicit that arguing choice such correct questioned scholars legal some although legislation, such for basis a as EC) “European contract law”. devel art. 16 that is it realistic how analyze to have will we EU in protection of impact potential assess Miller, Miller, Beale and others (n 1) 4 (n1) others and Beale 147. Ibid Miller, Agents Economic Autonomy and Party ‘Information, Grundmann, T Miller, ‘European C ‘European Miller, See e.g.: e.g.: See EU his type of uniformed of type his pd wd rne f eodr at o lw hc tgte cnttt so constitute together which law of acts secondary of range wide a oped limits on Competence in Light of the Proposed Options’ (2011) 7 European Review of Contract Law 151, 159 151, Law Contract of Review European 7 (2011) Options’ Proposed the of Light in Competence on after the Treaty of Lisbon of Treaty the after CFREU Characteristic disputes, these of Regardless the Although – The Emergence of EU Contract Law EU Contract of Emergence The 148; Kathleen Gutman, ‘The Commission’s 2010 Green Paper on European Contract Law: Reflections Reflections Law: Contract European on Paper Green 2010 Commission’s ‘The Gutman, Kathleen148; The Emergence of EU Contract Law EUContract of Emergence The L Miller, ‘European Contract Law after Lisbon’ in D Ashiagbor, N Countouris and I Lianos (eds), (eds), Lianos I and Countouris N Ashiagbor, D in Lisbon’ after Law Contract ‘European Miller, L various aspects of contractual liberty, for instance: free instance: for liberty, contractual of aspects various - specific. may lead to may lead - Flesner, Flesner, ontract Law after Lisbon’ (n 32 (n Lisbon’ after Law ontract EU , comprehensive , feature of feature . 335 330 some The area of contract of area The The Europeanisation of Contract Law: Current Controversies in Law in Controversies Current Law: Contract of Europeanisation The law contract regulate to competence explicit an had never has Usually legislators indicated theEU (former art. art. 114TFEU 95 lib osiuinlzto o fedm f contract of freedom of constitutionalization (Cambridge University Press 2012) 236. 2012) (CambridgePress University eralization of EU directives regulate contract law matters which do not have have not do which matters law contract regulate directives EU of International Commercial Con Commercial International of EU contract law contract EU rules of European contract law contract European of rules 331 t ant e ignored be cannot it (n 2) 50 (n2) (n 2) 48. (n2) Art. 114 also does not provide proper basis for a more more a for basis proper provide not does also 114 Art. EU contract law. – 57 9 law which is to a largest extent designed at the the at designed extent largest a to is which law 52. 336 ) 244 ) is extensive usage of mandatory provisions, provisions, mandatory of usage extensive is – 245; Miller, Miller, 245; 334 332 teeoe h lw n hs atr is matter this in law the therefore , . It is therefore suggested, that legal legal that suggested, therefore is It . in European Contract Law’(n22 Contract European in t “would ht urnl sae f domestic of shape currently that r acts or acts are currently contained in non in contained currently are The Emergence of EU Contract Law Contract EU of Emergence The jurisprudence of the of jurisprudence dom to enter into contract, into enter to dom Principles of European Contract Contract ofEuropean Principles extend far beyond those those beyond far extend n level on 333 ECJ ECJ (Routledge (Routledge of 5 ) 271. ) es of ness - - binding binding called social over 329 it – CEU eTD Collection Stephen and Kerber Wolfgang Grundmann, Stefan in Law’ Contract (eds), Weatherill European in Rules “Ge Discrimination 771 German Journal Law the German 4 and (2003) Law’ (DCFR) Private Reference of of Frame Journal Common Law German 10 (2009) Draft Law”’ Equality the of Comparison A Provisions? 343 342 341 340 339 338 337 t order Germany. in especially criticized offered”. discriminate to right no has “ that implies which services and goods of partner. particularlyThis is controversial in contractual choose to freedom i.e. liberty, contractual the of aspect crucial limits significantly of development is contract coherence various law secondary measures. of commonpla the of restrictions because Basedow liberty. contractual of protection of expense the at regulation social to priority gives legislation, far EU a in in resulting significance increasing ever an assumed have provisions “mandatory contract. of content a shaping of freedom or form of freedom reatment, the latter should be applied only when it is required by “the needs of society and and society of needs “the by required is it when only applied be should latter the reatment, Collins, ‘The Vanishing Freedom to Cho to Freedom Vanishing ‘The Collins, Supra 918. Ibid 915 12) Basedow(n 110. (n11) Herresthal 916 12) Basedow(n See: o tie fi blne ewe cnrcul reo ad h picpe f equal of principle the and freedom contractual between balance fair a strike to U an EU factor important another yet provisions, mandatory Besides rn C br ad ois ikl ‘etitn Fedm f otat hog Non through Contract of Freedom ‘Restricting Pinkel, Tobias and Ebert C Franz (n319). 342 , on the other hand, contends that EU law cannot be criticized for overregulation overregulation for criticized be cannot law EU that contends hand, other the on , e n ainl a fr decades for law national in ce ti Party autonomy and the role of information in the internal market internal the in role information of the and autonomy Party - discrimination - ecig nrso it freedo into intrusion reaching – – 916, 916, 918. 918. contractual liberty on the EU level “barely exceed “barely level EU the on liberty contractual the EU the (…) ietvs n ter mlmnain no oetc as were laws domestic into implementation their and directives 343 either in the decision to enter the c the enter to decision the in either non Dagmar Coester Dagmar ose a Contractual Partner’ (n82 Partner’ Contractual a ose - discrimination law. discrimination 1417, anyone who offers goods or services to the public public the to services or goods offers who anyone ” case of non case of ; . 339 uo Pno lvia n Bndt Mcrie ‘Anti MacCroire, Benedita and Oliveira Pinto M Nuno 58 340 1424 What may raise serious concerns is lack of of lack is concerns serious raise may What o cnrc” n udrie ta E law EU that underlines and contract” of m ; Eduard Picker, ‘Anti Picker, Eduard - Waltjen underlined, for example, that example, for underlined, Waltjen - discrimination in access to and supply accessdiscrimination in to 341 337 The EU anti EU The ) 81. ) Carsten Herresthal argues that that argues Herresthal Carsten - (De Gru (De Discrimina ontract or in the terms terms the in or ontract limiting freedom of of freedom limiting - discrimination law discrimination yter 2001) 112 yter2001) tion as a Program Program a as tion what has been has what - Discrimination Discrimination 338 Jürgen – neral neral 117. in in - CEU eTD Collection 353 352 ECR [2011] 351 ECR [2010] 350 349 348 347 346 345 126 (ed), Ziegler KS in Contract’ 344 Advocate infringed thatit art. General argued 16 of case the in instance cases: in twice, only the 2009 Since situation. this changed not Kadi deferential. extremely been always has rights fundamental with law secondary EU of compatibility the of review judicial a in law secondary EU the in liberty contractual howe expect, not should right. fundamental a as contract of freedom of recognition with reconcile to difficult the punish competition to unequal trea “ which in economy market the of principles with incompatible is non of principle general acceptance the by strengthened further is liberty contractual the on law EU secondary the of impact negative that observed rightly He law. discrimination but consumers. between transactions” transactions mass of basis the on professionally and commercially peace”.social I CaseC Joined (n31 CraigBúrca and 921. Ibid 919 12) Basedow(n 128. Ibid Case C Case Dagm ond ae C Cases Joined – bid 127. , 349 , Opinion of AG Kokott, paras 105 paras Opinionof AG , Kokott, This criticism undoubtedly shows that current shape of EU contract law would be very very be would law contract EU of shape current that undoubtedlyshows criticism This r Coester ar which concerned EU anti EU concerned which - CasesC - 59/11 59/11 236/09 I I - - 00773 11063. 344 Association Kokopelli v Graines Baumaux SAS Baumaux Graines v Kokopelli Association - Association Belge des Consommateurs Test Consommateurs des Belge Association 402/05 a 402/05 - This could happen when “goods and services are made available to the public public the to available aremade services and “goods whenhappen could This - 20 ad C and 92/09 . Waltjen, ‘Discrimination in Private Law Law Private in ‘Discrimination Waltjen, – 921. 4 Volker und Markus Schecke Markus und Volker ) 372 ) Association Kokopelli Association nd C nd - ver, discrimination in the private law. private the in discrimination ua Rgt ad rvt Lw: rvc a Autonomy as Privacy Law : Private and Rights Human – - 373. - 415/05 348 93/09 93/09 that Before Lisbon Treaty, the only exception in this regard was was regard this in exception only the Treaty, Lisbon Before 345 the ECJ will suddenly start to strike down all restrictions of of restrictions all down strike to start suddenly will ECJ the okr n Mru Shce b ad atu Efr v ad Hessen Land v Eifert Hartmut and GbR Schecke Markus und Volker Kadi v. Council v. Kadi - - terrorist measures. measures. terrorist 111. Also tment and todisc tment J. J. ECJ Basedow criticized developments in the EU anti EU the in developments criticized Basedow 352 59 [2008] ECR I [2008] the ECJ refused to invalidate EU even though though even EU invalidate to refused ECJ the used Charter to invalidate EU se EU invalidate to Charter used Lochner CFREU 350 and - - Achats ASBL and O and ASBL Achats [2012] OJC287/9. [2012] New European Principles and the Freedom of of Freedom the and Principles European New Granting ipline theipline discriminating party (…)” Test - . 353 like manner. manner. like 346 - 6351. - Achats This, according to the Basedow, Basedow, the to according This, by the the by binding force to force binding it is primarily the role of of role the primarily is it 351 ECJ thers v Conseil des ministres des Conseil v thers . T On the other hand, for for hand, other the On he ECJ’s approach to approach ECJ’s he (Hart Publishing 2007) 2007) Publishing (Hart horizontal effect of of effect horizontal not in case of of case in not condary law law condary CFREU One One has has . 347 - CEU eTD Collection Assessments 359 358 rights ‘ (Commission, project 357 356 355 354 i note to worth is It process. lawmaking reconcile to meaning liberal more directives and regulations EU give may ECJ the of jurisprudence law EU down law law. contract EU of liberalization sudden Member m States and almost freedom contractual of protection in standards double of creation to lead it. with compliance proportionality demanding v drafts very legislation pass EU fact to in requirement, have contract of freedom with interferences EU will “amount law tomere inthe booksand toahypot law”.EU in restrictionundue its against a strong mechanism ofcontractfreedom nor yetconcept of coherent a “there is neither cau contract of freedom with interferences legislative EU of review judicial of lack actively. more contract of freedom with interferences legislative EU se b te omsin require Commission the by ssued Commission, ‘ Commission, 112. Ibid 102. Ibid 111 (n11) Herresthal For instance, neither the text of Directive on consumer rights consumer on Directive of text the neither instance, For Commission, Commission, o ol truh naiain f cs f sec of acts of invalidation through only not ’ COM Moreover, substantiation of the freedom of contract of freedom the of Moreover,substantiation liberty contractual of constitutionalization that follows, It Car This argumentation is certainly justified: justified: certainly is argumentation This them with therequirements with them ’ sten Herresthal criticize Herresthal sten (2008) 614 final 614 (2008) SEC te C may ECJ the , Strategy for the effective impleme the for Strategy ‘ Operational Guidance on taking account of Fundamental Rights in Commission Impact Impact Commission in Rights Fundamental of account taking on Guidance Operational (2011) 567 final (2011) 357 Proposal for a Directive Directive a for Proposal – 113. Moreover, ) contain any reference to art. 16 CFREU and freedom of contract. ofcontract. freedom CFREU and 16 art. to containreference any ) uch lower for the . nepe i i te ih o fnaetl rights fundamental of light the in it interpret 355 lack of effective judicial review of EU secondary law secondary EU of review judicial effective of lack d If this situation does not change, freedom of contract in the in contract of freedom change,not does situation If this xmnto o te compli the of examination this of liberty. contractual o approach and argue and approach that On the other hand, the ECJ may influence may ECJ the hand, other the On f ntation ntation t he European Parliament Parliament European he 60 ery often are not even analyzed in terms of of terms in analyzed even not are often ery EU law. EU taey Paper Strategy CFREU nay law ondary i t is paradox that although theoretically all theoretically although that paradox is t (n by the the by hetical limit onlegislativehetical limit acts”. 321 by d T . 358 ) nor explanatory memorandum memorandum explanatory nor ) EU’ the ECJ may influence also EU EU alsomay influence ECJ the that the ECJ should scrutinize should ECJ the that ne with ance aod eest o striking of necessity avoid o n Oeainl Guidance Operational and a COM probably probably nd o 354 f (2010) 573 final 573 (2010) t he Council on consumer consumer on Council he – e emphasize He CFREU stricter for law for stricter would not lead to to lead not would . Therefore, the the Therefore, f l EU all of . contract ses that ses d 356 to its its to may s of of s that 359 CEU eTD Collection 363 362 361 European 397. Law Review 37 (2012) Commission’ European 360 “ would “ containing Plan Action The Frameharmonizing Common instruments: Instrument. of Reference and Optional law. contract of harmonization regarding “ entitled Law Contract document European policy another yet 2003 in issued Commission what so, if and market measures internal affect negatively States Member between law contract purpose Communicatio ofthe Law” Contract European on “Communication Commission’s European of publication impact on and social and fairness justice. of requirements the with it reconcile to how and contract of freedom EU the in legislativeCommission’s proposals withart. 16 doctrine legal the law. secondary of drafts COM(2003) 68 final 68 COM(2003) final, 6 398 COM(2001) final 398 COM(2001) sal e eú Bte, Esrn Cmlac with Compliance ‘Ensuring Butler, Jesús de Israel the Cmo Fae f eeec (F) a spoe t b a om of form a be to supposed was (CFR) Reference of Frame Common A f responses and contributions receiving After a with 2001 in started Europe in law contract of harmonization over works The over works ongoing Currently 4 It is therefore worth to consider to worth therefore is It help the Community institutions in ensuring greater coherence of existing and future and existing of coherence greater ensuring in institutions Community the help ECJ’s case law law case ECJ’s .2.2. Harmonization of the EU the EU the have triggered a debate as to what extent what to as debate a triggered have common principles and terminology in the area of European contract law contract European of area the in terminology and principles common future can contract undertake toharmonize law. 360 (n harmonization projects. harmonization n ide, s il e icse ltr aayi o cmlac o the of compliance of analysis later, discussed be will as indeed, and (n 3) - 7. 3). may contribute to resolution of these debates a debates these of resolution to contribute may However, . n cin Plan Action An n was to stimulate a debateas existingin divergences a towhether n was tostimulate the EU contract law current effectiveness of such examination is questioned in questioned is examination such of effectiveness current more comprehensive harmonization of the contract law law contract the of harmonization comprehensive more whether c whether ” 363 61 CFREU CFREU which onstitutionalization of contractual freedom contractual of onstitutionalization the n Le in it is usually rom various interested parties, the the parties, interested various rom EU contract law should be based on based be should law contract EU 362 rsne mr cnrtzd plans concretized more presented gislative Drafting: The Practice of the the of Practice The Drafting: gislative very superficial.very d escribe nd nd A More Coherent Coherent More A consequently have have consequently to important two d ” ” 361 a which which . The The . code code CEU eTD Collection Ibid. 16. Ibid Ibid. 68 COM(2003) 8 Ibid final 651 COM(2004) 16. Ibid atj W esln, Te Europ ‘The Hesselink, W Martijn This expression of strong commitment to the contractual freedom raised serious serious raised freedom contractual the to commitment strong of expression This Commiss the CFR and Instrument Optional the of shape potential Discussing whichInstrument”, was “Optional was Second Plan instrument described inthe Action - 13. 371 would be ontheCFR based 365 The most notable example of example notable most The iie nme o rls ihn hs oy f ue, o eape rules example for rules, of body this aiming protect to the consumer, be should mandatory within rules of reasons. number good limited for justified be could this be where only envisaged should freedom this on Restrictions instrument. law contract a (…) ” . all contracts, which concern which contracts, all The 2004 Communication Communication 2004 The 367 final contractual freedom should be one of the guiding principles of such of principles guiding the of one be should freedom contractual The Action Plan did not determine whether Optional Instrument would be be would Instrument Optional whether determine not did Plan Action The constitute a basis for the Commission aconstitute basis for theCommission , 23. , (n 3), 14 3), first, - 16. academic researchers would provide so provide would researchers academic ean Commission’s Action Plan: Towards a More Coherent European European Coherent More a Towards Plan: Action Commission’s ean non - sector . 369 provided such a such - specific cross – 62 definitions of key concepts and the third one third the and concepts key of definitions - cue Cmiso o uig “neo using of Commission accused ”. border transactions or only to those which which those to only or transactions border criticism was the Manifesto by the the by Manifesto the was criticism also 364 - measu n h cmuiain f 04 the 2004 of communication the In that to elaborate final, re preparation of the CFR would be be would CFR the of preparation ”. (…) (…) (…) 368 T 370 in the form of a regulation regulation a of form the in he - (…) cal content of the of content – led led is wud c would first Onl “political” CFR. “ academic” Draft Draft academic” a y Optional - liberal liberal ontain Study Study ion 366 CEU eTD Collection 377 La 376 375 374 373 653. Law Journal 372 Colombi Aurelia not requirecontractabsolute startingfor freedom asan point legislative offuture measures”. does case constitution economic and European therefore law“the freedoms, theECJ’s from or m four particular in law, EU primary from either inferred be cannot right fundamental dumping”. “social to lead could justice social co the on justicedistributive The contractualfreedomguiding asa principle contract ofEU law: solidarity social for demands autonomyprivate “hav will law, an such of “ be would law contract Common market. internal in law contract the of harmonization Law Private European in Justice Social on Group w199. Rutgers, ‘The European Economic Constitution, Freedom of Contract ofContract Freedom Constitution, Economic European ‘The Rutgers, 664 Ibid 663 Ibid 656. Ibid European 10 (2004) AManifesto’ Law: Contract European in Justice ‘Social others, and Hesselink W Martijn Jacobien W Rutgers, ‘An Optional Instrument and Social Dumping’ (2006) 2 European Review of Contract Contract of Review European 2 (2006) Dumping’ Social and Instrument Optional ‘An Rutgers, W Jacobien au Similarly, Jacobien W. Rutgers argued that Optional Instrument which would be based based be Instrumentwould which Optional arguedthat Rutgers W. Similarly, Jacobien thors of the Manifesto the of thors – – ntractual freedom instead of looking for a balance between private autonomy and and autonomy private between balance a for looking of instead freedom ntractual 665. 664. [shared European] identity” and thus similarly as domestic codifications of private of codifications domestic as similarly thus and identity” European] [shared have the burden of explaining the potential advantages to be gained by gained partiesthe to these transactions from absence the mandatory of rules? be to advantages potential the explaining of burden the have should transactions market deregulate to wish who those that so burden, g with justified be can they that proof privileged a such have of burden heavy the satisfy mustconstraint for contract proposals that so position, of freedom principle the should Why e to e - (…) ich, n h ohr ad age ta freed that argued hand, other the on Ciacchi, strike a balance between, on the one hand, the weight attached to individual individual to attached weight the hand, one the on between, balancea strike in order to and on the other hand, principles which respect other equally important respectother which principles hand,other the on and ”. prevent and exploitation social exclusion. proposed that EU contract law should be should law contract EU that proposed 373 hy lo rtczdteCmiso’ rpsl o proposal Commission’s the criticized also They the EU cannot be perceived only as a tool of fostering fostering of tool a as only perceived be cannot EU the 63 376 ood reasons? Why not reverse the reverse not Why reasons? ood A . 372 a significant step towards the construction the towards step significant a ccording to him, contractual freedom as a as freedom contractual him, to ccording Authors of the Manifesto underlined that that underlined Manifesto the of Authors and the DCFR’ (n 5) 108. (n5) the and DCFR’ m f contract of om 375 based on fairness and and fairness on based 374 could be be could f setting f arket 377 CEU eTD Collection Edition 385 Outline 384 Reference 383 of 116 Frame Common 382 Draft 381 Law: M 17 accessed Storme (n 7) 192 (n7) Storme 670 Ibid 678. 7) (n others and Eidenmuller 62. Ibid 303 48) (n Ciacchi Colombi See: Christian von Bar, Eric M Eric Bar, von Christian Schulte Hans and Clive M Eric Bar, von Christian – 117. Eidenmüller, ‘Party Autonom ‘Party Eidenmüller, 384 While the Commission’s Action Plan was criticized by the supporters of more socia more of supporters the by criticized was Plan Action Commission’s the While which by many – . tre o te othe the on Storme, M. 672. ral smlr o h DF, lbrain rbby ol nt e too be not would probably pleased libertarian a DCFR, the to similar broadly [i] scope of the freedom enjoyed by parties under private law. DCFR, contrast, in puts in place global and incalculable limitations on the (b law. private of respect in Directives Community by accomplished far thus bureaucracy [t] cannot provide any provide cannot c tascin, n te apy ny n pcfc situations specific in only apply they and transactions, 2c) f the content of content the f DCFR he – 195. as excessivelyas restricti (…) more more would - provisions furthermore dwarf the amount of regulation and regulation of amount the dwarf furthermore provisions The reason is, of course, that from his perspective the text the perspective his from that course, of is, reason The Clive and Hans Schulte Hans and Clive – 305, 318. 305, recent developments in harmonization of contract law in EU faced EU in law contract of harmonization in developments recent (…) 385 lead to lead an instrument on European contract law is going to be to going is law contract European on instrument an E y, Distributive Justice and the Conclusion of Contracts in the DCFR’ (n 7) 7) (n DCFR’ the in Contracts of Conclusion the and Justice Distributive y, these Directives are limited to business to limited are Directives these ven ofthe oneauthors “Manifesto”that: noticed ofthe real hand, r undue assistance for interpretation of specific provisions of of provisions specific of interpretation for assistance ve . Group . Group criticized if its definition is not limited to merely a formal a merely to limited not is definition its if limitation of contractual freedom and in practice in and freedom contractual of limitation - - 64 Nolke (eds), (eds), Nolke (eds), Nolke general principles contained in the first part of part first the in generalcontained principles . 378 of German pointedoutthat: scholars legal erosion of private autonomy” private of erosion CRs anti DCFR’s Principles, Definitions and Model Rules of Rules Model and Definitions Principles, of Rules Model and Definitions Principles, 383 - discrimination provisions provisions discrimination - to (Sellier 2008). (Sellier DCFR. - consumer (…) The . arch 2014. arch 380 Although the the Although Slir 2009) (Sellier is further is 382 381 were were lly lly its 379 CEU eTD Collection 393 Law’ Sales European 392 391 390 389 388 businesses and 387 Law29 Contract 386 and EU whole the in protectionof transactions ofreduction their and Commission Law”. Sales European Common a on Council the of and Parliament fo the in relations andbe itshould whether applicable particular in Ci we Law. Contract European on Directive and Instrument Optional second EU binding threeoptions Acco “ the regarding options vil Code. vil Ibid 4. Ibid 11 Ibid 11. Ibid 9 Ibid 7 Ibid Commission, ‘Green Paper Paper ‘Green Commission, re omsin ‘rpsl o a euain f h Europea the of Regulation a for ‘Proposal Commission, M business artijn artijn rding to the Green Paper there we there Paper Green the to rding Regulation establishing a European Contract Law and Regulation establishing European establishing Regulation and Law Contract European a establishing Regulation In - - Eventually, the Commission has chosen the fourth option, that is Optional Instrument Optional is that option, fourth the chosen has Commission the Eventually, 10. 9. - rm of regulation of rm 12. 2010 the Commission issued yet another Green Paper in which it presented possible possible presented it which in Paper Green yet another issued Commission the 2010 W 390 . ’ , - whether the the whether f otat Tee r js to ay adtr rls Teeoe the Therefore, rules. mandatory many too instrument would probably berejected being as socialist. just are There contract. of t and autonomy party formal to prominence insufficient gives COM(2010) instrument this to Hesselink, ‘Five Political Ideas of European Contract Law’ (2011) 7 European Review of of Review European 7 (2011) Law’ Contract European of Ideas Political ‘Five Hesselink, 5, 306. 5, The Commission presented also presented Commission The issuing proposed - uies contracts business COM(2011) final 635 COM(2011) ary law ary 348 final 348 . i ea nat legal on policy options for progress towards a European Contract Law for consumers consumers for Law Contract European a towards progress for options policy on t should cover both business both cover should t In 2011 it published a “Proposal for a Regulation of the European European the of Regulation a for “Proposal a published it 2011 In . Options four and five we five and four Options . will be beneficial both to business, by simplify by business, to both beneficial be will . 393 . a merely The regulation The costs, as well as as costs, as well oee n h atrcs t es one least at case latter the in however , r o te ntuet f uoen otat Law Contract European of instrument the of ure . re seven possible alternatives in this regard. The first The regard. this in alternatives possible seven re soft - also to law 65 questions would instruments to n Parliament and of the the of and Parliament n purelydomestic contr consumers by providing same high level consumers level high by providingsame re respectively: regulation setting up an up setting regulation respectively: re - b to regarding the scope of the document the of scope the regarding e applicable to applicable e - business and business and business . 388 389 Four further include Fourfurther 386 The most ambitious projects ambitious most The o freedom o business 392 С acts. o Acco uncil on a Common Common a on uncil contractor would would contractor ing cross ing 391 - - dn t the to rding to to - - consumer consumer d - issuing issuing border border ”. 387 , CEU eTD Collection (2013) Law’ Contract Consumer European 402 (2013) Tool’ Regulatory 401 2014. March accessed23 Ibid 25 Ibid a. lit. art. 28, 13 Ibid art. 25, 4. Ibid art. 8. Ibid, Horst Eidenmüller, ‘What Can Be Wrong with an Option? An Optional Common European Sales Law as a a as Law Sales European Common Optional An Option? an with Wrong Be Can ‘What Eidenmüller, Horst Sale European Common the Why Regulation: and Heterogeneity ‘Harmonization, Epstein, A Richard Ibid 26, art. 7(1). Member States would be able to extend applicability of the CESL also on the contracts contracts the on also CESL the of applicability extend to able be would States Member 7(1). art. 26, Ibid rn Bar Oren ihr A pti, Hroiain Htrgnt ad euain CS, h Ls Opportunity Lost the CESL, Regulation: and Heterogenity ‘Harmonization, Epstein, A Richard to be a small or medium or small a be to All these debates show that the Commission Commission the that show debates these All The - 26, art. 5 and art. art. 6. and art. 5 26, it - Shahar - substantive il n Or Ben Omri and Gill contai al content contractsalrelated content contracts. and service t s hrfr wrh o osdr hte cntttoaiain f contractual of constitutionalization whether consider to worth therefore is It - ns border contracts border niae that indicated 397 ü 50 Common Market Law Review 69, 80. 69, Law Review CommonMarket 50 o vreuain f ae law sales of overregulation to ller criticized CESL for its restriction of freedom of contract through through contract of freedom of restriction its for CESL criticized ller eighty The material scope material The content of CESL content - one provisions which “cannot not be excluded excluded be not “cannot which provisions one ” - . Shahar, ‘Regulatory Techniques in Consumer Protection: A Critique of of Critique A Protection: Consumer in Techniques ‘Regulatory Shahar, 402 agr enterprise lhuh EL elrs eea picpe of principle general declares CESL although ee on its application onits ee 396 50 Common Market Law Review 109, 112. 109, Law Review Common 50 Market but the Member States may choose to choose may States Member the but o fedm f otat n is rpr balance proper its and contract of freedom of e raised similar discussions similar raised . 394 of CESL would be would CESL of The optional character of the CESL implies that implies CESL the of character optional The r medium enterprise medium r enterprise 66 For instance, Richard Epstein criticized the criticized Epstein Richard instance, For 399 has . 395 n udrie ta i “ if that underlined and to solve fundamental problems of a of problems fundamental solve to The Regulation imelight as quickly as possible as quickly as imelight 401 – limited to contracts for the sale sale the for contracts to limited 398 ibid 28, art.b. lit. 13 28, ibid Similarly, over the role of freedom of freedom of of role the would be would Oren Bar Oren extend it also on also it extend and the European European the can only be be only can contractual contractual applicable - Grill and Grill s Law Law s with ” . for 400 CEU eTD Collection 409 408 407 406 405 404 339. Law326, ofContract Review European 403 P of requirement proposals Commission’s longer justified inthe lig law primary EU the in basis no has it because instruments harmonizing of principle guiding a as considered be to have not does freedom contractual that Rutgers W. J. by made wi incompatible as rejected be to have law contractEU the in contract of freedom of role regardingthe opinions radical most the of some 16 art. of interpretation assistance CFREU o freedom of context Europe in law private of matters of harmonisation substantive the guide further remedies’ ‘effective and business’ a conduct “ whether considered be to has it law, contract of harmonization of process the guide to able whether already it had, in freedom h ECR ufcety define sufficiently EUCFR the roportionality test used by the by used test roportionality Ibid Sky H Supra Rutgers Ibid. hna Mk ‘Europe Mak, Chantal esselink and others and esselink . Österreich iial, lo oiin f h atos f h “aiet” wo questioned who “Manifesto”, the of authors the of position also Similarly, The that underlined Mak Chantal 38, 42 38, , (n s nepee b te ECJ the by interpreted as in the harmonization processin the harmonization 5) 95. 5) jurisprudence of the ECJ ECJ the of jurisprudence CFREU - 43, 50 43, (n ev bre o pof to proof of burden heavy 14). - 51 (n f contract, we could reformulate this question and ask and question this reformulate could we contract, f . n is usatain n h jrsrdne f h EJ a hv, or have, may ECJ the of jurisprudence the in substantiation its and 37 - a practical process.a onthe harmonization impact Building through Private Law. Lessons from Constitutional Theory’ (2012) 8 8 (2012) Theory’ Constitutional from Lessons Law. Private through Building CFREU ht oftherecent judgmentsoftheEC 2 ), 663 ), regarding - 664. . ECJ [s] However, even on the basis of basis the on even However, to establish whether Charter Fundamental Rights may be may Rights Fundamental Charter whether establish to h cnetos f cnue poeto’ ‘reo to ‘freedom protection’, ‘consumer of conceptions the in privileged position position privileged , a o yet not has . Sky sets sufficiently precise standards standards precise sufficiently sets Österreich h h at 16 art. the th justif 67 (…) y ”. resolved 403 t limi its 408 If not, If or f the of CFREU definite tations J. Alemo 406 CFREU currently existing currently , - freedom of contract and and contract of freedom . For instance, statements statements instance, For . ly ly 407 Herron all questions regarding questions all s ifcl t defend to difficult is “ would not be able to to able be not would 409 o rvd any provide to implies that the that implies whether art. 16 16 art. whether ”. case law case 404 405 are no no are In the the In , . CEU eTD Collection Comm a on Law Sales European Common 411 a on 1165final SEC(2011) Council the of and Parliament 410 by particular in recognised principles the observes and that underline to worth is it context, this In interpretation. its of process the but Regulation the of content of contractual freedom no were “ it c conduct to difficulties experience “ currently which companies CESL that stated just Commission The superficial. on CESL of impact the of assessment instance, For far. so process legislative the in role 16 art. same time CESL h will contract of freedom of restrictions all because narrowed be would certainly legislator EU the more contradictory contract of freedom important legitimate be proportion aim, a and departure of point a is contract of freedom Ibid. Commission, ‘Impact Assessment Assessment ‘Impact Commission, contains no restrictions on the freedom of the parties to conclude contracts conclude to parties the of freedom the on restrictions no contains active approach to the protection the to approach active , criticized by legal doctrine as doctrine legal by criticized , v t b poel jsiid Teeoe s Therefore, justified. properly be to ave CFREU hrfr, n ae f EL te uipuec o te C my nlec nt the not influence may ECJ the of jurisprudence the CESL, of case in Therefore, hand other the On important most The references to t to references inefficientconsumerrights inprotecting but according to the to according and its interpretation its and I , 128. , suggested suggested with he jurisprudence of the ECJ, the of jurisprudence he n o , r any analysis of the of analysis oil ihs r osmr rights. consumer or rights social problem that it cannot be excluded that ECJ would eventually endorse eventually would ECJ that excluded be cannot it that explanation of explanation a recital to CE to recital ccompanying the document Proposal for a Regulation of the European European the of Regulation a for Proposal document the ccompanying which in the in xesvl etitn reo o otat n t the at and contract of freedom restricting excessively ate andate of contractual freedom. If that was true, was that If freedom. contractual of documents issued by the Commission indicates that that indicates Commission the by issued documents art. 16 16 art. ECJ has SL “ SL 68 it must respectmust s m o pooas otie i te DCFR the in contained proposals of ome ’s judgments ’s to be to balancing Regulation respects the fundamental rights fundamental the respects Regulation , would have tobe ll CFREU anal lhuh h Commi the although its its solved CFR ysis of proportionality of restrictions of proportionality of ysis etitos have restrictions ol rmv osals for obstacles remove would with essence of contractualessence liberty. of , 410 EU Currently by ha ross hs xmnto ws rather was examination this ve consumer rights. and specifically Articles 16, 16, Articles specifically and the ECJ the - not played any significant significant any played not border b border reconside n uoen ae Law Sales European on the so cnutd an conducted ssion concern o e utfe by justified be to case law is a bit bit a is law case usiness” and usiness” re (…) the leeway of of leeway the d. s ”. balancing balancing 411 There (…) that or ’ CEU eTD Collection on Council the 60 amendments of and Parliament European 413 412 greater have will 16 art. ECJ, the of jurisprudence the in freedom contractual of importance growing European Civ to return and insufficient be to out turn may document limited a Such limited Parliament law contract European of harmonization of process of thereof 47 and 38 COM(2011) 635 final 635 COM(2011) freedom ofcontract uoen alaet ‘L Parliament, European l Code. il Moreover idea of idea c ontract - Therefore, the debate over the role of freedom of contract in the common common the in contract of freedom of role the over debate the Therefore, 62. , it can be expected that eventual adoption of CESL would not end the the end not would CESL of adoption eventual that expected be can it , enactment of a more comprehensive more a of enactment ”. l its its 412 aw will probably not cease and it cannot be excluded that together with together that excluded be cannot it and cease not probably will aw 21, para 37 ofthe recital. 37 para 21, Thus, b cope to cover only “distance contracts, including online contracts”. online including contracts, “distance only cover to cope egislative resolution of 26 February 2014 on the proposal for a regulation of the the of regulation a for proposal the on 2014 February 26 of resolution egislative y whileadjudicating theECJ governed contractual disputes by CESL. impact on the legislative works works legislative the on impact the d the omestic courts will have to take into account interpretation account into take to have will courts omestic Cmo Erpa Sls Law Sales European Common a 69 , especially having on mind th mind on having especially , instruments, in future in including even European European even including ’ P7_TA the Commission Commission the hn o far. so than - PROV(2014)0159 at European at CFREU may 413 , CEU eTD Collection social of sphere the in competences EU limited rather of consequence a is what values, social role greater plays still market free constitution economic EU the in First, rights. social over prevail may often but right illusory an remain not will it that suggest which factors two o to lead not will if the courtseffectiveness accepthorizontal theirprivate in law. s of guarantees whichconstitutional bases it from the on depend may contract of freedom of protection of level Second, state. of constitution Fir contract. of freedom of protection (Poland, EU). consumerrights rights and by social butcounterbalanced understanding focusing formal onits freed substantive of concept the of adoption either imply may reconciliation This values. conflicting between reconciliation on based is and moderate more isdefinitely approach NewDeal. European restrained after tovery inconsistencies, also of full the of position The contract. of freedom reformsanyright or significance. without practical mark freeprotecting in tool powerful either become may liberty contractualcourt, givenconstitutional freedomby adopted this of interpretation Dependingon other. the on justice social of protection of necessity and hand one the on liberty individual respect between tensions by caused controversies practical and theoretical serious raised Although recognition of fundamental status of freedom of contract in contract of freedom of status fundamental of recognition Although constitutional of level determine which factors several indicated comparison The of protection constitutional to approaches different presented I paper present the In always has right fundamental a as freedom contractual of protection Constitutional C ONCLUSIONS ocial and consumer rights mitigates protection of contractual liberty, especially liberty, contractual of protection mitigates consumerrights and ocial utcomes known from the American “ American the from known utcomes i s derived. 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Member of laws domestic influence may ECJ the by freedom applicability of condition a is what law”, EU mayexpect that the ECJ use similar reasoning onthegrounds ofart. also 16 can one liberty, contractual and freedoms market between connection mind on Having rights. ma internalof protection still departureofis point ECJ the for that shows freedom market four of protection over ECJ the of jurisprudence Second, policy. 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CEU eTD Collection doctrine impact its onharmonizationof protection, its process wouldraise. the of development further and ECJ the of law case the in right this of importance growing any played not 16 art. far so Although proportionality. of principle of light the in reconsidered be to have would consumers, of protection effective for necessary restric too as many proposals, by Commission’s criticized the of some that follows, It works. legislative all for departure of point a as treated be should it that means right fundamental of status liberty contractual motn rl i a rfig rcs, t a b epce ta tgte with together that expected be can it process, drafting a in role important tive for freedom of contract and at the same time not not time same the at and contract of freedom for tive 72 CFREU and jurisprudence of the ECJ had ECJ the of jurisprudence and CEU eTD Collection 303/02 C Fun of Charter the to relating Explanations OJ L347/1tax [2006] 2006/112/E Directive Council L204/23in matters ofOJ andoccupation employment [2006] wo andof equal men and treatment opportunities equal of principle implementation ofthe Jul 5 of Council the of and Parliament European the of 2006/54/EC Directive L373/37OJ [2004] services and goods of supply and to access the in women and men between treatment Dec 13 of 2004/113/EC Directive Council Apr 21 of Council the of 2004 oninsurancerequirements forcarrie air and Parliament European the of 785/2004 No. (EC) Regulation of transfers of OJ undertakings,oror businesses parts [2001] L82/16 businessesof undertakings event the in rights employees' of safeguarding the to relating States Member of 2001/23/EC Directive Council equalL303/16 treatment OJ [2000] employment in andoccupation Nov 27 of 2000/78/EC Directive Council L180/22between ofracial irrespective OJ persons orethnic origin [2000] Dir Council L280/83the right properties OJ use ona to immovable timesharebasis, [1994] asp certain of respect in purchasers of protection Parli European the of 94/47/EC Directive L95/29OJ Counc 1.2. EU secondary law CharterFundamental of OJ RightsC326/02 [2012] oftheEuropean Union OJ Consolidated VersiontheTreaty[2012] C326/01Functioning ofEuropean Union ofthe on Consolidated Version o The of theRepublicThe Constitution ofPoland of theUnitedThe States Constitution and EU1.1. Constitutions primary law 1. Legal acts Convention for the Protection of Human Rights andFundamentalFreedoms forConvention of the Human Protection Rights il Directive 93/13/EEC of 5 Apr 5 of 93/13/EEC Directive il ective 2000/43/EC of 29 Jun 29 of 2000/43/EC ective f the Treaty on the European Union [2012] OJ C326/01the Treatyf Union[2012] ontheEuropean C of 28 November 2006 on the common system of value added added value of system common the on 2006 November 28 of C 12 March 2001 on the approximation of the laws of the the of laws the of approximation the on 2001 March 12 [1787] B il e IBLIOGR 1993 on unfair terms in consumer contracts [1993] [1993] contracts consumer in terms unfair on 1993 2000 implementing the principle of equal treatment equal of principle the implementing 2000 ament and the Council of 26 Oct 26 of Council the and ament ember damental Rights of the European Union [2007] OJ [2007] Union European the of Rights damental [1997] ember rs and aircraft operators [2004] OJ L138/1 OJ aircraftand operators [2004] rs 73 APHY ects of contracts relating to the purchase of purchase the to relating contracts of ects 2000 establishing a general framework for for framework general a establishing 2000 2004 implementing the principle of equal equal of principle the implementing 2004 ober y [1950] 2006 on the the on 2006 the on 1994 men il CEU eTD Collection à laViticulture C Cases Joined Case C Case C Case C Case C First of Court Justice), of Court (European Union European Instance the of Justice of Court 2.1. 2. proposa P7_TA the on 2014 February Law’ EuropeanSales Common a on Council the 26 of and Parliament European the ofregulation of resolution a ‘Legislative on Parliament, Law European Sales European Common a on Council the Law’ EuropeanCommon Sales 128 SEC(2011) 1165final, of and Parliament European the accompanyi Assessment ‘Impact Commission, Law’ EuropeanCommon Sales final COM(2011) 635 Fun the of and Parliament European the of Regulation of a for ‘Proposal Commission, account taking on Guidance ImpactCommission (2011) Assessments’SEC 567final ‘Operational Commission, final 573 (2010) COM EU’ bythe CFREU effective‘Strategyimplementation the for Commission, LawEuropean consumersCOM(2010)for 348final and Contract businesses’, policy on Commission the from Paper ‘Green Commission, on Council the of and Parliament European consumer rights’ 614final (2008) COM the of Directive a for ‘Proposal European Commission, Council. the and Parliament European Law ofContract theacquis:Way The Revision and 651final Forward’ the COM(2004) the to ‘Communication the Commission, and Parliament European to Commission the AmoreCouncil, CoherentEuropean Contract from ‘Communication Commission, ParliamentLaw’ onEuropeanContract 398final COM(2001) C 1.3. EU legislativeand drafts other documents consumer rig on 2011 October 25 of Council the of and Parliament European the of 2011/83/EU Directive ommission, ‘Communication from the Commission to the Council and the European European the and Council the to Commission the from ‘Communication ommission, Cases - - - - - 339/89, 145/88 44/79 4/73 PROV(2014)0159 Nold KG v. KG Nold Commission hts [2011] L304/64OJ hts [2011] Liselotte HauerLiselotte v - Torfaen Borough Council v B & BoroughCouncilvBTorfaen Qplc. [1991] ECR I ECR[1991] Alsthom Atlantique SAv.Alsthom Sulzer 90/90 and C and 90/90 - - 91/90 03617 Land Rheinland Land Jean Neu and others v. Secrétaire d'Etat à l'Agricult à d'Etat Secrétaire v. others and Neu Jean [1974] ECR[1974] 491 74 Law. An Action 68final Plan’ COM(2003) ng the document Proposal for a Regulation of Regulation a for Proposal document the ng , [1991] ECR I ECR , [1991] - Pfalz [1979] ECR 372 ECR [1979] [1989] ECR 03851 ECR [1989] options for progress towards a a towards progress for options - 107 aetl ihs in Rights damental С ouncil on a on ouncil fr a for l ure et ure CEU eTD Collection 260/06. C Case Case C Case C Case C Case C Case C Case C desministresConseil Ca HessenLand C Cases Joined Case C Case C Case C Case C Cases C Joined ABPVikingLine Viking Line andOÜ C Case Case C Case C Case C Österreich C Case 6571 C Case Case C Case C 02223 T Case e C se - - - - ‑ ------‑ ------ - - - 101/12 283/11 617/10 12/11 59/11 555/07 271/08 441/07 P 346/06 341/05 144/04 189/95 93/92, 240/97 438/05 24/90 544/10 437/04 112/00 426/11 236/09 [20 [2010] ECR I ECR [2010] Association Kokopelli vGraines SAS Baumaux Denise McDonagh vDenise Ryanair Ltd. McDonagh 03 CMC MotorradcenterCMC v. GmbH Baskiciogullari uoe Sl . omsin f h Erpa Communities European the of Commission v. Srl Automec - Seda Kücükdeveci v Swedex GmbH &Seda Kücükdeveci vSwedex GmbH KG Co. Eur Dirk Rüffert vLandNiedersachsen Laval unPartneri vSvenska Byggnadsarbetareförbundet Criminal proceedings HarryF against Herbert Schaible Skyv GmbH Österreichischer Österreich Rundfunk vÅklagaren HansÅkerberg Fransson WernerMango Kingdom of Spain v Commission of the European Communities European the of Commission v Spain of Kingdom - v Union Seamen’s Finnish and Federation Workers’ Transport International Deutsches WeintorDeutsches eG v. Rheinland Land vBelgiumCommission 402/05 andC ue Shibre, nentoae rnpre n Pazg v Republik v Planzüge und Transporte Internationale Schmidberger, Eugen 92/09 and C and 92/09 ak Alemo Mark soito Ble e Cnomtus Test Consommateurs des Belge Association ] ECR I ECR ] European vAlrosaCompany Commission Ltd. opean Commission vFederal Commission ofGermanyopean Republic [2011] ECR I ECR [2011] - 05659 - 11063 - - - 415/05 93/09 ld vRüdiger Helm ern n Ohr v akod esr Ldt. Leisure Parkwood v Others and Herron v. Baden Land - 00773 Volker und Markus Schecke GbR and Hartmut Eifert v v Eifert Hartmut and GbR Schecke Markus und Volker Kadi v.CouncilKadi Eesti [2007] ECR I ECR [2007] [2007] ECR I [2007] ECR 75 - Württemberg [2013] OJ86/02 C [2013] [2005] ECR I [2005] [2008] ECR I [2008] ‑ [2013] OJ 114/08 [2013] C ranzén [2008] ECR I [2008] 2513 - - 10779. Pfalz [1997] ECR I ECR [1997] [2012] OJ C287/9 [2012] [2010] ECR I ECR [2010] [2013] OJ C 367/07 [2013] , [1993] ECR I ECR, [1993] - - [201 09981 Achats ASBL and Others v v Others and ASBL Achats - [2010] ECR I ECR[2010] 01989 [2013] 71/05 C OJ [2013] - 2] OJ 2] OJ 331/03 C 6351 [2010] ECR I ECR [2010] [2007] ECR I ECR [2007] - - 05909 00365 - 19] C II ECR [1992] 5009 - 05949 [1999] ECR I ECR [1999] 21] J C OJ [2013] - 07091 - 11767 - - CEU eTD Collection Ferguson v.Skrupa Williamson Co. v.Optical Lee United Statesv. Carolene Products Company West exMorehead rel.Tipaldo York v. New v.Tokushige Farrington Nebbia v.New York Pierce v. ofSisters Society (1923) C v. Co. Packing Wolff Charles Adkins v.Children’s Hospital v.Bunting Oregon Coppage v. Kansas Muller v.Oregon Adair v.United States Lochner v. Holden v. Hardy Allgeyer v.Louisiana Munn v. Illinois Slaughter & Murray v. ImprovementCo. Hoboken Land Dred Ogden v. Saunders, v.Calder Bull 2.2. 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EuropeanHuman Rights of Court 2.4. Other jurisdictions 4/2013, pos.42 46/ P no. ref. 2013, May 22 of Tribunal Constitutional the of Judgment 3/2011, pos.18 OTK 26/09, P no. ref. 2011, 5, April of Tribunal Constitutional the of Judgment No. 8/2010,pos.74, Constitutional the of Judgment OTK 32/09, 5/2010, pos.55 SK no. ref. 2010, July 9 of Tribunal Constitutional the of Decision OTK 46/07, K 6/2008, pos.104 no. ref. 2008, July 8 of Tribunal Constitutional the of Judgment 7/2007, pos.79 OTK 16/06, P no. ref. 2007, 17, July of Tribunal Constitutional the of Judgment No. 10/2006,pos.153 OTK 47/04, K no. ref. 2006, November 27 of Tribunal Constitutional the of Judgment No. 1/2006,pos.5 January 24 of Tribunal Constitutional the of Judgment 5/2004, pos.42 OTK 34/02, SK no. ref. 2004, May 12 of Tribunal Constitutional the of Judgment 4/2003, pos.33. o Judgment 5/2002, pos.62; OTK 48/01, K no. ref. 2002, October 2 of Tribunal Constitutional the of Judgment no. ref. 2001, May 4/2001, pos.82 7 of Tribunal Constitutional the of Judgment 6/2000, pos.198; 8 P no. ref. 2000, October 10 of Tribunal Constitutional the of Judgment 1/2000, pos.3; No. ZU, OTK 11/98, P no. ref. 2000, January 12 of Tribunal Constitutional the of Judgment Tribunal2.3. Constitutional ofthe Republic ofPoland v.GilesCraigmilles RoeWade v. - Czapska v. Poland v.Czapska Poland f the Constitutional Tribunal of 29 April 2003, ref. no. SK 24/02, OTK 24/02, SK no. ref. 2003, April 29 of Tribunal Constitutional the f , 410 US , 312F.3 113 (1973) ECHR 2006 ECHR d 220 (6th Cir. 2002) d 220(6th Cir. Tribunal of 13 October 2010, ref. no. Kp 1/09, OTK 1/09, Kp no. ref. 2010, October 13 of Tribunal - VIII 77 2006, ref. no. SK 40/04, OTK 40/04, SK no. ref. 2006, K 19/00, OTK ZU, No. No. ZU, OTK 19/00, K 11, OTK 11, /99, OTK ZU, No. ZU, OTK /99, ------A ZU, No. No. ZU, A A ZU, No. ZU, A A ZU, No. No. ZU, A No. ZU, A A ZU, No. No. ZU, A A ZU, No. No. ZU, A A ZU, No. No. ZU, A A ZU, No. ZU, A - - - A ZU, A A ZU, A A ZU, A CEU eTD Collection edn, Wo E, Canterbery 2001) Barak Daphne and Friedmann Brownswo Macmillan Company 1921) CA, Beard Beale (eds), Hand others DaphneBarak and Friedmann Daniel in Law’ Private and Rights Human ‘Constitutional A, Barak Atiyah SA, and Smith PS Laissez of Age the Atiyah PS, in Contract of Freedom (Duke University Press 1 (ed), of Buckley H Limits Francis in Constitutionalism’ ‘The GS, Alexander 3 2011 2 2.4.3. Constitutional Council ofFrance BVerfG 2661 BvR 6July 2010,2 BVerfGBvR Neue 80/95, Wochenschrift 26July2005,2376 2005, 1 Juristische Wochenschrift Juristische Neue 957/96, BvR 1 and 2005, 2363 782/94 BvR 1 2005, July 26 BVerfG BVerfG 19October 1993, BVerfG 15January 1958, 2.4.2. Federal of Constitutional Court Germany Pla andPuncernau v. Andorra Ghigo v. Malta andothersv.Bitto v. Edwards Malta Scollo v. Italy . Books 000 - October7th 2011 177 QPC - Erez (eds),Erez - 47 DC, December 19, 47 DC,December 2000 rld Scientific 2011) rd R, ‘Freedom of Contract, Human Rights and Human Dignity’ in Daniel Daniel in Dignity’ Human and Rights Human Contract, of ‘Freedom R, rd The Rise and Fall of FreedomFall of ofContract The Riseand n cnmc nepeain f h Cnttto o te ntd States United the of Constitution the of Interpretation Economic An (1995) Series A no315 (1995) Series A Brief History of Economics: Artful Approaches to the Dismal Science Dismal the to Approaches Artful Economics: of History Brief A App no 31122/05 (ECtHR, 26September (ECtHR, 2006) App no31122/05 Human Rights inPrivate Rights Law Human app 24October no17647/04(ECtHR, 2006) Slovakia 999) Contract Law Atiyah’s Introdution to theAtiyah’s to Introdution Contract of Law BVerfGE BVerfGE 89 App no 30255/09 (ECtHR, 28 App no30255/09(ECtHR, January 2014) - ECHR 2004 ECHR Erez (eds), (eds), Erez 7 - C (2nd edn, Hart Publishing 2010) - ua Rgt i Piae Law Private in Rights Human VIII 78 (Hart Publishing 2001) h Fl ad ie f reo o Contract of Freedom of Rise and Fall The (Clarendon Press 1979) (Clarendon Press 2005) Hr Publishing (Hart - Faire (The (The (2nd (2nd CEU eTD Collection LT,Hobhouse PerspectivesGermany andthe UK from Zie S Katja Law’in Union European in Contract of Freedom of ‘Constitutionalisation C, Herresthal autonomy inthe internal andtheroleofinformation market Internthe in Information of Role the and Autonomy ‘PartyS, Weatherhill and W Kerber S, Grundmann FriedmanLM, Frank and Petar Sarcevic (eds), Rabello M Alfredo in Germany’ in Law Constitutional and Contract of ‘Freedom A, Flessner (ed), Ziegler S Katja in Private PrivacyAutonomy Law : Law’ as Private and Rights ‘Human L, Fastrich Farnsworth EA, (eds), Ralli Without Tommi and Joerges Christian in Law?’ European of Integrity the Hazarding ECJ the Is Why Neoliberal. Effet to Utile Effet ‘From M, Everson (Oxford University 2006) Press M, Emberland Eand P, Ellis Watson 2008) de, G Búrca and PP Craig International 2013) and Freedoms (eds), Market Schulyok between Autonomy Felix and Groussot Xavier ‘Regulated Bernitz, Ulf in CJEU’ the of Law Case the HW, in Rights Fundamental Micklitz and G Comparato (Edward Publ Elgar (ed), Micklitz W Hans H Collins (ed), Ziegler Autonomy KS in Contract’ of Freedom Coester on Risky FinancialTransactions Contr of Constitutionalisation the of Analysis Comparative A Party: O, Cherednychenko Chemerinsky E, gler and Peter M Huber (eds), (eds), Huber M Peter and gler furterF, - ate D ‘iciiain n rvt Law Private in ‘Discrimination D, Waltjen Private Law, Private Law WithoutPrivate Private Law Law, Democracy al Market , ‘The Constitutionalization of European Private Law as a Patch to Social Justice’ in Justice’ Social to Patch a asLaw Private European of Constitutionalization ‘The , (Hart Publishing 2007) Mr. Justice HolmesJustice andtheMr. SupremeCourt Liberalism American Law in the20th Century in Law American ua Rgt o Cmais Expl Companies: of Rights Human Contracts Constitutional Law: Principlesand Law: Policies. Constitutional eea Picpe o E Lw n Erpa Piae La Private European and Law EU of Principles General ishing Limitedishing 2011) - an Overview’ in S Grundmann, W KerberOverview’ W Grundmann, and Weatherhill inS an S (eds), udmna Rgt, otat a ad h Poeto o te Weaker the of Protection the and Law Contract Rights, Fundamental EU Anti Freedom of contract and constitutional law Freedomconstitutional ofcontract and h Mn Cnet o Sca Jsie n uoen rvt Law Private European in Justice Social of Concepts Many The (Oxford University Press 1964) (3rd 1999) edn, Aspen Publishers U a: et Css n Materials and Cases Text, Law: EU - Discrimination LawDiscrimination (Sellier 2007) (Hart Publishing 2007) urn Polm i te rtcin f ua Rights. Human of Protection the in Problems Current (Hart Publishing 2013) 79 Human Rights Rights Human (Yale University 2002) Press (2nd ed, University Oxford Press 2012) rn te tutr o EH Protection ECHR of Structure the oring (2011) - New European Principles and the the and Principles European New (Harvard University Press 1938) (DeGruyter 2001) (Aspen Publishers 2006) and Private Law : Privacy as as Privacy Law : Private and European Constitutionalism Constitutionalism European (Oxford University Press Press University (Oxford (SacherInst 1998) act Law, with Emphasis with Law, act Human Rights and and Rights Human w Kue Law (Kluwer Party Party CEU eTD Collection Xavier Bernitz, Ulf in Serve’ Charter (KluwerInternationalLaw 2013) the of 16 Article Schulyok Felix (eds), and Groussot Does Purpose ‘What P, Oliver Abroad (eds), Henkin Louis and Rosenthal Albert in Activity’ Economic of Freedom and Rights ‘Property A, Ogus Moller K, (eds), Lianos I and Countouris N Ashiagbor, D in Lisbon’ after Law Contract ‘European L, Miller University 2011) Press L, Miller Contract and RiseofFreedom of GP Miller (ed), Scheiber N Harryin State’ Administrative the Labor,and Contract, of ‘Freedom AF, McEvoy The State andFreedom Contract of (ed), Scheiber N Harry in Law’ American in Regime Contract” of “Liberty ‘The C, McCurdy 2011) DN Mayer and Italy Netherlands, the England Germany, in Relationships Contractual on Rights Fundamental C, Mak (Carolina Academic 2010) Press Union European the of Rights Fundamental of Charter the on commentary Europe: in Rights 16 ‘Article A, Lucarelli (eds), Schulyok Felix and andEuropean Law PrivateGeneral Law ofEU Principles Groussot Xavier Bernitz, Ulf or in Justice Law?’ EU Social in of Autonomy Search Private In Rights: Fundamental of Effect ‘Horizontal D, Leczykiewicz Norton 1948) W, Harbison and AH Kelly JusticeEuropean of Court (eds), Dawson Mark and Muir Elise Witte, de Bruno in Cases’ Labor inthe Bias Rece Neoliberal Alleged Onthe Enough? Court’s Activist ‘MaybeKaupa Not C, beyondConstitutionalism Lisbon (eds), Kiiver Philipp and Verhey Luc Wouters, Jan in Policies’ Ultraliberal versus Union: European the of Head Janus Social ‘The ATJM, Jacobs The State and Freedom ofContract The State andFreedom The European Union after theTreaty ofLisbonThe European (C udmna Rgt i Erpa Cont European in Rights Fundamental (KluwerInternationalLaw 2008) , ‘Choice of Law as a Precommitment Device’ in Francis H Buckley (ed), (ed), Buckley H Francis in Device’ Precommitment a as Law of ‘Choice , The Glo olumbia Universityolumbia Press 1990) , h Eegne f U Contract EU of Emergence The iet O Cnrc. eicvrn a ot osiuinl Right Constitutional Lost a Rediscovering Contract. Of Liberty Constitutionalism and Rights: The Influence of the United States Constitution States United the of Influence The Rights: and Constitutionalism bal Model of ConstitutionalRights of bal Model - Freedom to Conduct a Business’ in William BT Mock (ed), Mock BT William in Business’ a Conduct to Freedom (Edward ElgarLimited Publishing 2013) The American Constitution: Its Origins and Development and Origins Its Constitution: American The (Duke University Press 1999) (Intersentia 2009) General Principles of EU Law andEuropeanLaw Private EU Law of Principles General (Stanford University 1998) Press (Stanford University 1998) Press 80 a: xlrn Europeanization Exploring Law: ract Law: A Comparison of the Impact of of Impact the of Comparison A Law: ract (Oxford UniversityPress 2012) (Cambridge University Press 2012) (KluwerInternationalLaw The Social Market Economy Market Social The Judicial activism at the at activism Judicial Ct Institute (Cato European European The Fall The 2013) (Oxford Human Human (WW (WW nt CEU eTD Collection EuropeanLaw’Law Market (2013) Consumer Contract 109 50Common Review Bar and theC Ideal an of Emergence The Economy: Market Social the and Justice of Court L, ‘The Azoulai JurisprudenceInternational oftheLaw (1995)18Fordham European of Court Justice’ Journal ‘Doe MR, Antinori Review 141 Allen A,for New ‘RethinkinganChicago Scott: Context OldCase’ 82 (2007) Dred 4 2008) Edition Outline Interim Reference of Frame Common Draft Law: Private European the Schulte and EM Clive C, Bar Von in Legislation Protective and Court Supreme The Reality: Progressive [1983] Era’ Yearbook theHistorical Court Supreme Society of and ‘Myth MI, Urofsky (Routledge 2013) Twigg G Stone 2003) JM, II Scheb and OH Jr. Stephens A, Smith SieganBH, Property B, Schwartz F, Schultz (eds), 2011) Schneider Hildegard and Liebert Ulrike Lisbon Treatyof the after constitutionalism social economicand Schiek, Dagmar in EU’ the for ‘Re D, Schiek Reich N, (eds), Heenan Human Rights James and Bustelo R Mara Alston, Philipp in EU’ the in Rights Elus the ‘Striking M, Maduro Poiares inthe roleofinformation theinternalmarket (eds), Weatherill Stephen and Kerber Wolfgang Grundmann, Stefan in a NM Oliveira Pinto . Journal articlesJournal - Gill O and Ben and O Gill - Flesner C, C, Flesner , Constitutional Law (Macmillan 1965) (Macmillan Law ofEUCivil General Principles onditions for Its foronditions (2008) Realization’ Law Market 45 Common 1335 Review Wealth ofNations Principles of Roman Law Economic Liberties andtheEconomic Liberties Constitution A Commentary on the Constitution of the United States. Part II: The Rights of Rights The II: Part States. United the of Constitution the on Commentary A - (Oxford University Press 1999) Embedding Economic and Social Constitutionalism: Normative Perspectives Normative Constitutionalism: Social and Economic Embedding h Erpaiain f otat a: urn Con Current Law: Contract of Europeanisation The - s Lochner Live in Luxembourg? 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