A few years later, as other contributions in this volume show, it still seems worth discussing Alemo-Herron. The case was a particularly nasty surprise for those who had been more favourably impressed by previous decisions such as Aziz and Morcillo, in which the Court of Justice (CJEU) had seemed willing to use the Charter of Fundamental Rights (CFREU) to grant relief to people being crudely hit by the economic crisis. Alemo-Herron seems to indicate a different path, providing the application of EU fundamental rights to private law questions with a somewhat bitter aft ertaste.

So many contributions have appeared by now that it is perhaps not necessary to go through the facts of the case in detail. We will only recall some essential information. First, the context: the case concerned the former leisure department of a London borough, which had been transferred to private owners. The individual employment contracts contained a clause providing for the ‘dynamic’ incorporation of those successive collective agreements applicable for the time being, including the related pay increases. EU law was involved because transfers of undertakings, such as the one which had taken place in this case, are regulated by the so-called Acquired Rights Directive, which seeks to secure the rights of employees in the event of transfers of businesses. In proceedings before UK courts, a conflict had arisen as to whether the dynamic clause would be applicable to the new employer. The conflict was induced by the CJEU's own precedent in Werhof. In that case, the Court had only affirmed that EU law did not require the application of dynamic clauses. However, one argument used suggested that dynamic clauses might actually be problematic in themselves: the decision indicated that the possibility of the Directive's imposition of dynamic clauses, referring to collectively bargained agreements, might infringe the employer's (negative) freedom of association. On that view, the Directive did not require more than the'static ‘incorporation approach already adopted in Germany.

BRIDGING THE CANYON BETWEEN RIGHTS AND CONTRACT LAW

The title of this volume unites two disparate and possibly incompatible legal concepts. In the sphere of the legal system, the concepts of contract law and fundamental rights are usually regarded as lying poles apart. The law of contract is normally classified as a part of private law, which primarily concerns the legal relations between private individuals, whereas fundamental rights are traditionally believed to apply primarily or even solely to relations between citizen and the state in public law. Although a constitution that contains fundamental rights may provide a structure for the whole legal system including private law, it may not be generally expected that a bill of fundamental rights will have any direct bearing on the details of disputes between parties to a contract. No doubt we can anticipate that the values that inform fundamental rights, such as respect for liberty and property rights, will also inform the rules of private law. For instance, those values are likely to underpin support for the principle of freedom of contract and the protection of interests in property. Yet this expected congruence or homology in values between private law and fundamental rights is not the same as the construction of a bridge or mechanism by which the fundamental rights protected in public law determine or influence the content of the law governing contracts. The chapters collected in this work all address the character and implications of this recently constructed bridge that enables legal arguments in favour of fundamental rights to be used to steer courts in the resolution of contractual disputes.

This issue of the connection between fundamental rights and private law has been extensively analysed with respect to national legal systems. In the context of the modern nation state, a typical analysis suggests that a legal system's architectural design is that the national constitution, including any bill of rights, establishes a framework or basic structure for both the political system and the economic system. This constitution or framework of public law can set boundaries to the market and require the owners of private property and people entering transactions to comply with basic standards of justice outlined in the constitutional framework, including the basic rights.

INTRODUCTION

Does a private limited company have a fundamental right freely to conduct a business? Article 16 of the Charter of Fundamental Rights of the European Union (CFREU) proclaims that ‘[t]he freedom to conduct a business in accordance with Union law and national laws and practices is recognised ’. The Charter speaks of a ‘freedom ’that is ‘recognised ’(by the EU, presumably). However, in the recent Alemo-Herron case, the Court of Justice of the European Union (CJEU) referred to this freedom as a ‘fundamental right ’. The turn of phrase may have been due to a slip of the pen, but the Court's use of language may also have been deliberate. This raises the question of what exactly it would mean to have a fundamental right to conduct a business. Would it be a human right? Human rights are rights that we all have as human beings, i.e. by virtue of our humanity. However, in Alemo-Herron, the presumed right-holder was not a natural person but Parkwood Leisure Ltd, a private limited company. Perhaps the shareholders in the company may be the ones who hold the fundamental right to conduct a business, but that does not seem to be what the Court had in mind and, in any case, the shareholders were not a party to the dispute.

If Article 16 were indeed to confer a right, then the next question would be: a right to what and against whom? For, when someone has a fundamental right – or indeed any right – that person is entitled to something against someone. So, against whom do we have a right to conduct a business and what is the content of that right? In other words, who is under a duty to do or abstain from doing what towards the right holder? Alemo-Herron was a case about the interpretation of a directive on the safeguarding of employees ‘rights in the event of a transfer of a business. According to the Court, the ‘fundamental right’ to conduct a business ‘covers, inter alia, freedom of contract’.