FREEDOMS FRAMED BY LAW

Primary European Union law originally did not expressly guarantee the autonomy of economic actors (the active market citizen), but it presupposed it in its legal rules. Article 3(3) TFEU requires as the basis for the internal market “a highly competitive social market economy”. European Union law is not a comprehensive legal order, but builds on the legal systems of the Member States. Every liberal legal order has the autonomy of private parties as its basic philosophy, and it had therefore not been necessary for the ECJ to define autonomy explicitly as a fundamental principle. An open market economy can only exist if actors can freely decide whether to enter markets or not, and, if so, when and how. On the other hand, on the demand side, potential customers (whether businesses or consumers) should be free to choose the products, services and suppliers at the prices and conditions they prefer. Freedom of decision for active market citizens and freedom of choice for consumers and customers are two of the governing principles of a liberal market system.

These freedoms are supplemented by the freedom of contract, now recognised as a fundamental right (1.13). Freedom of contract as framed by EU law has positive and negative aspects.

It is positive insofar as freedom of contract implies the freedom to choose with whom one wants to enter into contractual negotiations (and ultimately contracts) and freedom as to the terms of the contract (such matters as price and the quality of products and services offered and purchased, and the freedom to decide what will constitute valid performance of the contract).

However, it is negative insofar as (in contrast to formerly socialist economies) one cannot normally be forced to enter into any contract; parties may opt out of Member State contract law by means of choice of law and jurisdiction clauses (at least to the extent that the rules of the relevant Member State legal system of contract law are not mandatory), and usually the content of their contracts will not be prescribed by the state or other third party.