Die allgemeine Handlungsfreiheit als europäisches Unionsgrundrecht

Does EU law guarantee a fundamental right to the general freedom of action? Based on a principles-oriented understanding of fundamental rights, EU law does indeed guarantee a right corresponding to the German general freedom of action under Article 2(1) of the Basic Law. This fundamental right to protection against arbitrary or disproportionate interference by public authorities in the sphere of private activity exists in the form of a general principle within the meaning of Article 6(3) TEU. Through its case law, from Hoechst to Gavanozov II, the Court of Justice of the European Union has recognized and developed this principle as an additional layer of protection for individual freedom rights. Bárbara Biasetton extracts this legal concept from its case-specific manifestations and examines the doctrinal foundations for its classification as a fundamental right of EU law in the form of a general principle under Article 6(3) TEU. The analysis begins by establishing a methodological framework for identifying general principles of EU law. On this basis, the study branches out to the relevant sources of legal knowledge, namely a representative selection of the constitutional traditions of the Member States and the pertinent international human rights instruments. Drawing on methodological considerations, the author compares the two principal models of protecting freedom rights found within the constitutional traditions of the Member States. Applying the method of evaluative comparative law, she then seeks to determine the objectively most coherent and normatively convincing solution from the perspective of an EU law practitioner. To this end, she examines whether a residual freedom right can be integrated into the distinctive structures, characteristics, and objectives of the EU legal order.