When the Charter of Fundamental Rights was published in 2000, it was the first time that an international human rights instrument had recognised the freedom to conduct a business. To understand how conducting a business came to occupy the status of a fundamental right, I undertake an examination of the drafting process of Article 16 in Section 2. Early drafts protected the freedom to pursue an occupation, before the freedom to conduct a business eventually became a freestanding entitlement. This was thanks to the influence of Convention members associated with the European People’s Party who were instrumental in ensuring Article 16 was added to the draft Charter. In Section 3, I critically assess the claim contained in the Explanations to the Charter that Article 16 was simply a codification of pre-existing entitlements deriving from the case law of the Court of Justice. In Section 4, I examine the impact of Article 16 Many of the limitations that constrain the scope of Article 16 have been weakened, or have not proved to be the limitations that were originally envisaged. The Court of Justice’s defence of select areas, such as consumer protection, has shielded the deregulatory potential of Article 16 from view. Yet Article 16 has had a real and damaging impact on workers’ rights across the Union. Protecting the freedom to conduct a business in Article 16 means that a remarkably broad range of actions taken in the course of running a business are now accepted as the exercise of a fundamental right.
