Fundamental Freedoms, Fundamental Rights, and the Many Faces of Freedom of Contract in the EU

Abstract

As a result of the growing involvement of the EU in regulating private conduct and private law relationships, EU law increasingly affects the scope of freedom of contract. In this way, it shapes the European model of freedom of contract based first and foremost on the internal market rationale, sparkling tensions with the concepts of freedom of contract that have evolved in the national contract laws of the Member States. Whilst EU secondary legislation plays a major role in this context, the understanding of freedom of contract can also be profoundly affected by EU primary law. This contribution seeks to determine the reach of EU free movement law in the contractual sphere, with a particular focus on (financial) services. It explores the conceptualisation of freedom of contract in free movement law in light of the concept of ‘formal’ freedom of contract and that of ‘substantive’ freedom of contract in national contract laws, as well as the notion of the freedom of contract regulated in the name of the internal market in EU secondary legislation. Particular attention in this context is given to the interplay between fundamental economic freedoms and fundamental rights.