Dr Niall O’Connor, Lecturer in Law at the University of Essex, has authored an article exploring the significance, in the employment context, of freedom of contract as a fundamental right in article 16 of the EU Charter of Fundamental Rights (the Charter).
For the first half of its existence, few could have foreseen that article 16 would soon be at the centre of debates surrounding the precise place of business freedoms within EU employment law. This has changed following a number of controversial decisions in which the Court of Justice of the EU (CJEU) relied on article 16 to undermine the effectiveness of employee-protective legislation.
This article examines the nature of freedom of contract as both a fundamental right and a general principle of EU law and its effects in the employment context. Critical Legal Studies (CLS) is relied on to show that existing arguments as to the use of Article 16 as a radical tool in the employment context have been both exaggerated and underplayed.
Finally, the article explores potential counterweights to freedom of contract as a fundamental right, notably the right to work found in article 15 of the Charter.
The article was published as an Advance Article on 6 November 2019 in the Industrial Law Journal and is currently free to access here.