What Fundamental Rights, if Any, Should Companies Enjoy? A Comparative Perspective

Abstract

Every year, the Court of Justice of the EU, the European Court of Human Rights and the US Supreme Court deliver a significant number of judgments relating to the fundamental rights of companies in a broad range of fields (freedom of expression, right to property, right to a fair trial etc). Yet there has been very little attempt by any of them to develop a coherent approach to this crucially important issue. The German Constitutional Court has fared somewhat better.

Since the US Supreme Court has become notably more conservative over the last 15 years or so, it has delivered several controversial rulings with serious consequences for the human rights of individuals, small businesses and even democracy. Fortunately, there is no sign whatsoever that CJEU and the ECtHR are tempted to follow that radical course, but in a few cases they (especially the CJEU) has taken the fundamental rights of companies too far because it has failed to weigh up and set out in their judgments the consequences of extending the human rights of individuals to companies.

Particular attention is paid here to recent judgments such as AGET Iraklis (CJEU) and the UK "gay cake" case (UK Supreme Court).

Keywords: Fundamental rights; companies, international law, EU law, U.S. law