Professor Harm Schepel publishes ‘Freedom of Contract in Free Movement Law: Balancing Rights and Principles in European Public and Private Law’ in the European Review of Private Law.
Abstract: The right to free movement embodies both the power to interfere with
contractual freedom and contractual freedom itself. Neither is absolute, and the
realization of either needs justification in situations of conflict in light of the impact it
has on the realization of the other. Where free movement rights embody fundamental
rights capable of interfering with economic freedom – most notably, the prohibition of
nationality discrimination – this constitutionalized private law will find its
countervailing force in the ability of private parties to call upon the constitutional
protection of their private autonomy – in privatized constitutional law. Where free
movement rights embody economic freedoms, this privatized constitutional law will
find its countervailing force in the ability of private interfering parties to call upon
collective values laid down in fundamental rights and general principles of law – in
constitutionalized private law. This settlement sacrifices both the doctrine of the
supremacy of European Union law and the hierarchy of norms in its traditional
constitutional understanding to an exercise in balancing rights and principles.