The Charter: Reshaping the trade/culture balance?
Of particular significance for EU cultural diversity policy is the issue of whether and how the inclusion of culture-related interests in the CFR may affect how the Court and the EU legislator establish the respective value of economic and cultural considerations when they need to be balanced. The interlinkage between economic and cultural aspects has many different aspects, as is evident from various chapters in this volume. The issue becomes even more complex when it is considered that for the EU 'the culture industry is not only part of the social and cultural landscape of the member states but also a key economic activity carried out for remuneration' (Ward, 2008: 2). Clearly, then, a change in the relative weight of these two components - the cultural and the economic - as a result of the Charter's legal upgrade could have a significant impact on the area of cultural diversity as whole.
Debates about the balance to be struck between economic and trade imperatives, and non-economic interests, including cultural considerations, have long been highly emotive. To some extent one's (often preconceived) views may also cloud the views as to how the Charter could affect the prior position. As has been correctly observed, 'one's assessment of the significance of any... potential adjustment [to free movement law] depends heavily on whether one reckons the Court in the past to have been sincerely anxious to respect social and cultural concerns expressed through (trade-restrictive) national measures' (Weatherill, 2013: 36). Yet it may still be worthwhile to dissect the debate in somewhat more detail, if only to be as clear and transparent as possible about the starting points and benchmarks for assessing the effects of the Charter on the Court's case-law.
The potential impact of the Charter has so far been assessed in roughly two different ways. One strand of literature has been critical of the Court's approach to balancing fundamental rights interests with economic interests (De Vries, 2013: 59-94; Morijn, 2006). In essence, its methodology and often its solutions have been perceived as inherently favouring market freedoms over non-trade concerns that market freedoms impact. This sentiment famously led to the inclusion in the Lisbon Treaty of a provision which states that the Union shall work for a highly competitive social market economy (Article 3, para. 3 TEU) (Weatherill, 2013: 33). Seen from this perspective, the Charter has been frequently assessed as a clear and unambiguous elevation of fundamental rights to the same level as market freedoms in the Union legal order (Curzon, 2011: 147).23 This, in turn, has led Curzon to predict that
Union judges will need to modify their current benchmark, interpreting the fundamental economic freedoms in an evolutionary way and keeping in mind that these no longer represent the only element in the formation of a European polity ...the upshot should be the consideration of fundamental rights as being as worthy of respect as other values already inscribed into primary EU law.
(Curzon, 2011: 157, emphasis added)
Another strand in the literature has started from the premise that, in Union law, there has never been a hierarchy between market freedoms and fundamental rights. They have always been on a par (Skouris, 2006: 239).24 Even if fundamental rights did not have an explicit listing at the level of primary Union law, the Court's general principles case law provided protection. Moreover, if anything, the Court's case law has over the years become more and more accommodating of non-trade interests (Weatherill, 2004). From that perspective, the codification of fundamental rights at the level of written primary Union law does not have a substantial legal effect other than a sort of 'lock-in', binding the Court to its own previous case law as a minimum level (Weatherill, 2013: 30, 2004: 187). In such an analysis, the Charter's impact in situations of balancing trade and non-economic interests is predicted to be 'more rhetorical than real' (Weatherill, 2013: 13).
Interestingly, no contribution has so far based any predictions on the future balancing of trade interests and non-trade concerns on an analysis of the Charter's text itself, particularly the potential significance of Articles 15(2) (freedom to provide services, freedom of establishment and freedom of movement) and 16 (freedom to conduct a business). This is remarkable for various reasons. First, the Charter is new primary Union law. New clauses merit close reading. Second, it is evident that the Charter is the world's only human rights document mentioning these economic rights. It is therefore instrumental to take a look at their intended substantive scope.
Article 15(2) CFR holds that every EU citizen has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any member state. According to the Explanations, 'this paragraph deals with the three freedoms guaranteed by Articles 26, 45, 49 and 56 TFEU, namely freedom of movement for workers, freedom of establishment and freedom to provide services'. Article 16 CFR lays down the freedom to conduct a business. Here the Explanations elaborate, on the basis of earlier Luxembourg case law, that this is to be understood as containing various rights, such as the freedom to exercise an economic or commercial activity,25 and the freedom of contract.26 The Explanations also instruct us to acknowledge Article 119 TFEU, which recognises free competition. In later case law the Court has itself added that the freedom to conduct a business also includes the freedom to choose with whom to do business and the freedom to determine the price of a service.27
One way of seeing this 'CFR codification' of the Court's case law is that it is the culmination of decades of terminological ambiguity that characterised fundamental economic/market freedoms in terms of fundamental rights or equated them in legal terms. This development has parallels to the international trade/human rights debate (Morijn, 2010: 209-219). At the EU level, it has resulted in these interests having a double anchoring at the level of primary Union law, both within the Treaties as market freedoms and within the Charter as fundamental economic rights. As was explained above, this double anchoring is also the case for many non-economic considerations. Yet, given the traditional far-reaching competences of the EU in the field of market integration and the Court's case law on the internal market, this raises the spectre that, in theory at least, the protection of economic interests has been significantly strengthened by the inclusion of Articles 15(2) and 16 in the Charter.
The significance of this analysis is that it provides for a third possible reading on the potential effect of the Charter: rather than fundamental rights having been moved up to the level of market freedoms, or essentially maintaining the pre-existing balance between economic and non-economic interests where there is no hierarchy between fundamental rights and market freedoms, what the Charter may have done is to elevate market freedoms to the level of fundamental rights. This in turn may have created the possibility for granting additional weight to economic considerations in the EU setting. Whether such an (intended or unintended) effect is materialising is a matter that can only be assessed by looking at the case law.