Free Speech Meets Free Movement - How Fundamental really is ‘Fundamental’? The Impact of Fundamental Rights on Internal Market Law

Abstract

The fundamental freedoms, on which the common European market is based, have been present in the Community legal order since its very beginning. The fundamental rights, on the other hand, entered into this system later through general principles of law, mostly due to the judicial activism of the European Court of Justice. They have come a long way from not being considered at all to their full and explicit recognition in the Charter of Fundamental Rights, incorporated into the Constitutional Treaty. This paper aims at exploring the impact of fundamental rights on the internal market law. It will be devoted to situations where there are clashes between the fundamental rights and fundamental freedoms. The thesis put forward is that the process of balancing conflicting interests has to be anchored in the concept of allowable restrictions which can be imposed on the fundamental right at issue. The analysis focuses on the scope of the right to free speech in the Community legal order, most notably on the level of protection accorded to commercial speech.