Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law

Just how significant is the freedom of contract found in article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that article 16 would soon be at the centre of debates surrounding the place of business freedoms within EU employment law. This has changed in the wake of a number of controversial decisions in which the Court of Justice of the EU relied on article 16 to undermine the effectiveness of employee-protective legislation. The article begins by setting out the nature of freedom of contract in EU law and its effects in the employment context. This is followed by a consideration of the relationship between the general principles and the Charter. Critical Legal Studies is relied on to show that existing arguments as to the use of article 16 as a radical tool in the employment context have been both exaggerated and underplayed. Finally, potential counterweights to freedom of contract are examined, notably the right to work as both a general principle and Charter right.