Duality of economic freedom protection in the interplay of article 16 CFR and article 102 TFEU

This contribution explores the role of art.16 CFR in the enforcement of art.102 TFEU by building on the close link existing between them in terms of the guarantee of individual economic freedom. It is submitted that their distinctive normative purposes shape the divergent forms of manifestation of individual economic freedom vested in them that, in turn, generate a two-sided interaction. On the one hand, the subjective right to business equality and free competition embodied in art.16 CFR can be construed to reinforce the notion of economic freedom protection as the rationale of art.102 TFEU in containing the exercise of market power in the EU internal market. On the other hand, consolidating the freedom to exercise an economic or commercial activity and contractual freedom, the protective safeguards of art.16 CFR taken in conjunction with the benchmarks under art.52(1) CFR also offer dominant market actors a new analytical path to assert their interests in the enforcement of art.102 TFEU. This, however, requires the adoption of a more systematic approach over the benchmarks under art.52(1) CFR, particularly the “essence” test, given the uncertainty surrounding its actual contours.