Freedom to conduct a business as a concept of EU law - How the objectives and rationales of the EU inform the consideration of freedom to conduct a business and individuals in the market
Abstract: This essay seeks to address how power asymmetries or structural biases may affect how European Union (EU) law considers market actors and the freedom to conduct a business, combining EU legal methodology with feminist and queer legal and political theory. The research finds that the EU is a purposive order, whose primary objectives inform the EU legal order and the development of EU law. EU functionalism and procedural rules have led to judicial action and liberalisation being leading in EU law where the economic internal market project is the central objective guiding EU development. Freedom to conduct a business is symptomatic of this system and was defined in Alemo-Herron as a liberalising tool to engineer the internal market as a free market with limited regulatory intervention. How EU consumer law and labour law construct the average individual in the market is also influenced by the EU functionalistic drive towards liberalisation and realization of the internal market. My argument is that the functionality of EU law can be understood as an overarching norm and structural lens that informs the Court of Justice of the EU (CJEU) to define the market with limited interference and the capable market actor as the norm in the internal market. This norm does not take adequate account of inequalities on the market which disadvantages vulnerable individuals who are not self-standing but in need of regulatory protection. The functional lens furthermore allows for the Court to consider parties as formally equal and to disregard societal structural imbalances, such as the patriarchy that evidently affect the CJEU as a Straight Court in a Straight society. Freedom to conduct a business can however instead be constructed in conformity with doctrine on regulated autonomy, freedom as non-domination and access justice so as to allow consideration for varied parties operating on the market and enable the pursuit of an accessible social market economy at European level.
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