The European Economic Constitution, Freedom of Contract and the DCFR

Abstract

In the literature on European Contract Law and German contract law, a number of authors claim that the free movement of goods (Article 28 EC), services (Article 49 EC), capital (Article 56 EC) and persons (Article 39 EC) guarantee party autonomy and freedom of contract. In this paper, the opposite will be argued. It is submitted that 'freedom of contract is taken for granted' within the European Union. However, it is also generally accepted that there are restraints to freedom of contract in order to protect societal interests, as for instance protection of weaker parties, the environment and the capital market. Thus, the real question concerns the balance between on the one hand, freedom of contract and, on the other, restrictions to freedom of contract. The issue whether freedom of contract is a constitutionally protected right within the European Union is relevant, since if freedom of contract is taken as point of departure '.. collective interests [are put] to the background'.

In order to show that the free movements do not guarantee freedom of contract, first, the origin of the claim that the free movements guarantee party autonomy will be explored and will be placed against a historical background. Then, it will be discussed to what extent the Treaty provisions reflect the idea that the free movements guarantee freedom of contract and whether it can be inferred from the ECJ case law.

Keywords: European Economic Constitution, Freedom of Contract