Diritti dell’uomo e libertà economiche fondamentali nell’ordinamento dell’Unione europea: nuovi equilibri?

In this paper the author examines the relationship between fundamental rights and economic freedoms in the light of Article 6 TEU, in particular after the Charter of Fundamental Rights of the European Union was given binding legal effect equal to the one of the Treaties. The author underlines the fact that striking a balance between economic freedoms and fundamental rights is not a recent development in European Union law; on the contrary, such a delicate question is often raised before the European Court of Justice since its earliest decisions. Never the less, the entry into force of the Lisbon Treaty, by recognizing the importance of non-economic values in the European Union, may suggest new solutions to old problems. The author distinguishes between two categories of ECJ decisions: in the first one, the protection of fundamental rights prevails over measures which are adopted by Member States and are in breach of the economic freedoms granted by the Treaties (ERT, Carpenter); on the other hand, the protection of fundamental rights is used ’as a shield’ by Member States, in order to justify restrictions to the economic freedoms guaranteed by the Treaty (Omega). Furthermore, this paper also points out that the search for a balance between economic freedoms and fundamental rights is crucial not only in the provisions of the Treaties themselves and in the decisions of the Court, but also in the process of adoption of secondary European law. Some examples are given by reference to directives adopted in different sectors falling under the competence of the EU