ABSTRACT
This chapter explores the constitutional tension under the EU Charter of Fundamental Rights between Article 17(2)’s protection of IP and Article 16’s guarantee of the freedom to conduct a business. It shows how the Court of Justice of the European Union (CJEU) employs proportionality and the ‘fair balance’ test to reconcile these rights, with the degree of judicial deference often varying according to the IP right’s perceived ‘essence’.
Examination of copyright, patent, and trademark jurisprudence reveals an emergent hierarchy of rights and a growing role for legislative pre‑balancing. The CJEU’s reasoning often reveals an implicit hierarchy of rights, while legislative interventions such as the the Copyright in the Digital Single Market Directive, the Digital Services Act and the Digital Markets Act increasingly perform the balancing ex ante. These regulatory instruments shift responsibility for conflict resolution away from courts toward legislators and, crucially, to private market actors – especially digital platforms – who must perform quasi‑judicial functions in real time.
The chapter situates these shifts within broader debates over ‘regulated self‑regulation’ and examines their impact on market access, innovation, and competition. Finally, it considers forthcoming challenges, particularly in AI‑driven creative and commercial ecosystems, where the interplay of Articles 16 and 17(2) CFR will continue to shape the EU’s legal and policy frontier.
Bonadio, Enrico and Solanki, Arjun, Intellectual Property and the Freedom to Conduct a Business under the EU Charter of Fundamental Rights in Paul Torremans (ed), Intellectual Property and Human Rights (Wolters Kluwer forthcoming 2026) (August 12, 2025).
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