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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
considerations of the theory of legislation – or that the drafters of the TCE kept it in order to demonstrate
the importance of the protection of fundamental rights, to establish the basis of the Union’s protection of
fundamental rights and to define the frame of its interpretation. 76
b) The Charter contains – sometimes in a fairly wide range – the fundamental rights which determine the
individual’s economic activities and freedom, in other words all economic freedoms are contained which
can be realised to the fullest possible extent in a social market economy. The basis of these fundamental
rights is the right to human dignity which is recognised in Article I-1 in the Charter and shall be respected
and protected.
Economic freedoms are set out in Articles II-75 – II-77. The freedom to choose an occupation and the
right to engage in work are defined as civil rights of the Union and they have four elements: the freedom
to seek employment, to engage in work, to exercise the right of settlement and to provide services. 77
Defining the right to provide services as a content element entails on the one hand that the right which
originally was defined as a freedom now has acquired the nature of fundamental right, it entails on the
other hand that this freedom pertains to both dependent (under a labour contract) and non-dependent work
(for example under a business contract). Concerning the latter, it should be noted that it is expressed more
markedly in Article 76 providing for the freedom to conduct a business (enterprise). Article II-75 also
contains the equality element of the freedom defined, as Section (3) declares that nationals of third
countries who are authorised to work in the territories of the Member States are entitled to working
conditions equivalent to those of citizens of the Union. Article II-77 provides for the right to property. On
the one hand, this provision refers to a system of (individual) property, on the other hand it may be
inferred that the Charter regards this essential economic right only as a civil right, as it highlights only the
content elements with bearing on civil law, 78 though the basic law practices of the Member States take it
in a much broader sense. 79 This definition of a narrow sense is substantially widened by the
aforementioned rules pertaining to the interpretation of the constitution. In accordance with other
European constitutions, this Article also provides for the rules pertaining to expropriation. As compared to
other constitutions, it is a merit of the Charter that it ensures constitutional protection to intellectual
property. Though the Charter includes the right of collective bargaining and action in the Title on
solidarity, 80 the principle of social market economy concerning the ability and willingness to negotiate is
inherent in it. The content elements of this right set out by the Charter are the right to negotiate collective
agreements at the appropriate levels and to conclude collective agreements. The freedom of concluding
agreements is laid down expressly only here, but obviously it is inherent in the freedoms to choose an
occupation and to conduct a business and also in the right to property with regard to the fact that it is a
requisite for market economy. A further function of the right to action is the collective defence of interests
including strike action in cases of conflicts of interests.
c) The Charter also contains fundamental rights which may be defined as ‘ancillary fundamental rights’.
These include the right to education and to have access to vocational and continuing training pursuant to
Article II-74 and the prohibition of ‘general’ discrimination and discrimination on the ground of
76 This is why the claim according to which the several sources of law named by the Charter itself contravene the constitutional
normativity is not appropriate. Joerges-Rödl: „Social Market Economy” as Europe’s Social Model? p 22.
77 Article II-15 (1)-(2)
78 Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.
79 Cf. for instance Decision 64/1993. (XII. 22.) AB of the Hungarian Constitutional Court, ABH 373. Sólyom: ibid pp 645-646,
Gutmann-Klein-Paraskewopoulos-Winter: ibid p 25, Katz: ibid pp 378 et seq.
80 Article II-88
DR. TÍMEA DRINÓCZI - SOME ELEMENTS OF THE ECONOMIC CONSTITUTION OF THE EU: SOCIAL MARKET ECONOMY AND RELEVANT FUNDAMENTAL RIGHTS 77