CJEU - C-134/15 / Opinion
Key facts of the case:

Commission Regulation (EC) No 543/2008 — Marketing standards for poultry meat — Validity of Article 5(4)(b) — Fresh pre-packaged poultrymeat — Obligation to indicate the total price and the price per weight unit on the pre-packaging or on a label attached thereto at the retail stage — Articles 15(1) and 16 of the Charter of Fundamental Rights — Freedom to pursue a freely chosen occupation — Freedom to conduct a business — Proportionality — Article 40(2) TFEU — Non-discrimination

Results (sanctions) and key consequences of the case:

In the light of the foregoing considerations, I propose to the Court that it answers the questions referred to it by the Sächsisches Oberverwaltungsgericht (Higher Administrative Court of Saxony) as follows:
(1) Consideration of the first question referred has disclosed no factor such as to affect the validity of Article 5(4)(b) of Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultry meat, in the light of Article 16 of the Charter of Fundamental Rights of the European Union.

(2) Article 5(4)(b) of Regulation No 543/2008 is invalid, inasmuch as it introduces discrimination amongst different types of poultrymeat in violation of Article 40(2) TFEU.
Paragraphs referring to EU Charter
As is clear from the case-law of the Court, the rights and freedoms enshrined in Article 15(1) and Article 16 of the Charter are closely connected. This is readily evident from the case-law pre-dating the entry into force of the Treaty of Lisbon. At that time, the Court used different formulations to refer, in their quality as general principles of law, to the freedom to freely choose and practice one’s trade or profession; the freedom to pursue an occupation; the right to carry on one’s trade or business; or the freedom to pursue an economic activity. (7) The Court acknowledged that those concepts overlap, stating that the freedom to conduct a business ‘coincides with freedom to pursue an occupation’. (8)

That overlap remains evident in the case-law after the entry into force of the Treaty of Lisbon. Article 15(1) and Article 16 of the Charter have often been invoked and interpreted together, along with Article 17 of the Charter (right to property). (9) All of these provisions can be said to protect individuals’ economic interests.

On a structural level, the differentiation between the two provisions is not without consequence. As the Commission and the Free State of Saxony have submitted, Article 16 of the Charter allows for a broader margin of appreciation when it comes to regulation that might interfere with the freedom to conduct a business. This can be seen from the wording of that provision, which unlike other freedoms under Title II of the Charter, refers to Union law and national laws and practices. Furthermore, the Court has stated that ‘the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest’. (10)

This relatively broad margin of appreciation given to States when regulating economic activities is also reflected in the case-law of the European Court of Human Rights. When interpreting Article 1 of Protocol 1 to the European Convention on Human Rights, the ECtHR has recognised that States have a broad margin of appreciation ‘to control the use of property in accordance with the general interest …’. (11)

There is thus no doubt that in terms of permissible limitations, Article 16 of the Charter allows for a greater degree of State interference than Article 15(1). Despite the fact that there is a clear differentiation regarding potential limitations that may be imposed on each respective freedom, this does not shed that much light on the initial definition of the scope of the right itself. Both articles protect the realm of individual autonomy in the closely related professional and business fields. Both are intrinsically linked to the performance of an economic activity. There are thus no clear-cut criteria that can be composed, in the abstract, to distinguish between the scope of the two articles, for example, based on the legal or natural character of the persons concerned or on the independent or dependent nature of the economic activities at issue. (12)

Even in the absence of any precise criteria delineating the scope of Article 15(1) and Article 16 of the Charter, at least some approximate guidelines may be discerned. On the one hand, Article 15(1) focuses on the element of choice and personal autonomy, which are closely linked to personality rights and their development. The reference to ‘work’ emphasises a more relevant, although not exclusive, impact on natural persons and employment relationships. (13) On the other hand, the freedom to conduct a business under Article 16 bears a closer connection to entrepreneurial activity, with stronger links to the right to property. (14) Thus, the material scope of Article 16 of the Charter, as progressively defined by the case-law of the Court, is more centred on the economic aspect of entrepreneurial activity. It covers the performance of economic or commercial activities, including the freedom of contract, free competition, the freedom to choose whom to do business with and the freedom to determine the price of a service. (15) In addition, the freedom to conduct a business also includes the right to freely use available resources of an economic, financial and technical nature. (16)

In a nutshell, Article 15(1) of the Charter is more likely to be applicable if the situation at hand concerns natural persons and issues such as access to work and choice of occupation. Conversely, Article 16 of the Charter is more relevant for legal persons and the way an already established business, or an already chosen occupation, is being carried out and regulated. (17)

However, approximate guidelines delineating the respective parameters of Article 15(1) and Article 16 do not exclude ongoing overlaps or potential joint consideration of Articles 15 and 16 of the Charter in an appropriate case. Examples of when joint consideration might be appropriate are rules restricting access to an occupation through licensing or authorisation requirements, or when highly burdensome requirements are imposed on businesses.

In addition, there are two broader constitutional arguments that support the need for a more searching review of measures of EU institutions, implying a full, three stage proportionality review. First, the Treaty of Lisbon elevated the Charter of Fundamental Rights to the level of binding primary law. By doing so it brought fundamental rights review of EU acts to the fore.

Second, in the absence of external review, (29) the mandate of reviewing the compatibility of the acts of EU institutions with fundamental rights falls exclusively to the Court of Justice. In discharging that mandate, the high level of protection aimed at by the Charter entails the necessity of carrying out a full and efficient internal review of EU law and of the acts of EU institutions.

The protection of consumers is, indeed, an objective of general interest recognised by the Union, particularly in Article 114(3) TFEU, Article 169 TFEU and Article 38 of the Charter. However, it is not, as is the case with a number of other objectives and values, an absolute one. The need to strike a proper balance between the protection of consumers and other values, including the freedom to conduct a business, has often been acknowledged by the Court. (30)

It ought to be stressed at the outset that the answer to the first preliminary question does not prejudge the analysis of the compatibility of the labelling obligation with the principle of non-discrimination. Assessing the compatibility of the labelling obligation with the freedom to conduct a business, enshrined in Article 16 of the Charter, is a ‘vertical’ type of review: the stated aim of consumer protection is examined against the means of the labelling obligation, but only with regard to the product in question, that is, fresh poultrymeat. Such review is carried out, to a great extent, in isolation from other products and sectors. By contrast, the non-discrimination principle under Article 40(2) TFEU commands a different type of review, which is ‘horizontal’ by its nature: does the labelling obligation, applicable only and exclusively to fresh poultrymeat, amount to a different treatment of comparable situations? If yes, can such treatment be objectively justified?