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Entrepreneurs have the right and freedom to do business - this is stated in article 16 of the EU Charter

European Charter Article 16 describes the freedom to be an entrepreneur

The freedom to conduct a business is a fundamental right that is included in the European Charter of Fundamental Rights. This right is based on the case law of the Court of Justice of the European Union, which has recognized the freedom to pursue an economic or commercial activity. The law includes economic or commercial activities and is subject to restrictions that are required by law. This article is crucial for economic growth and prosperity within the European Union.

Article 16 - Freedom to do business | European Union Agency for Fundamental Rights

Freedom of entrepreneurship

Space for commercial activities, contracts and competition

As a person and as an entrepreneur, you have a fundamental right: the freedom to do business, included in Article 16 of the Charter of Fundamental Rights of the European Union (EU Charter). That freedom is important to keep the economy running. But the Netherlands still has a way to go in dealing with entrepreneurship and in respecting, developing and implementing that fundamental right. And on that road, the AI systems pass through the inner bend.


Entrepreneurship
A company is a structure for participating in economic traffic. Entrepreneurship is about the person (or people) behind that structure. In science, it is described as”The entrepreneur is the person who turns his or her ideas and ambitions into a well-functioning enterprise, that creates value for himself or herself, his or her employees and the society, and focuses on innovation and extension of activities, where he or she carries full responsibility (at own risk and for his or her own account) and where he or she directly feels the consequences of his or her decisions”. Entrepreneurs come up with creative solutions, respond to new developments or needs with their products and services and adjust their business operations accordingly. The biggest innovations also started with one person, with the small self-employed of yesteryear, such as Herman Hollerith (IBM, 1889), Henry Ford (Ford, 1903), William E. Boeing (Boeing, 1916). And they have not gone unnoticed for the economy and prosperity..

Applicability
The applicability of the EU Charter is defined in Article 51 (1) (1):”The provisions of this Charter are addressed to the institutions and bodies of the Union in accordance with the principle of subsidiarity and to Member States only when they implement Union law. Therefore, they respect the rights, comply with the principles and promote their application, in accordance with their respective powers.” This concerns actions taken by national governments, which co-implement Union law. Union law is incorporated into the legal order of the Member States₂. It includes primary law (treaties, EU Charter), secondary law (including regulations, directives and orders) and non-binding legal acts (Article 288 TFEU). The fundamental rights guaranteed by the Charter must then be respected. In any case, it is not the intention to infringe fundamental rights within the scope of Union law, even when the Union acts. The topics in the application range are diverse, from cartels to slot machine operations to supporting rural development, and much more.


Elements of freedom to conduct business
Art. 16 EU Charter is based on the case law of the Court of Justice (CJEU), which has recognized the freedom to engage in an economic or commercial activity and on Article 119 (1) and (3) of the Treaty on the Functioning of the Union (TFEU), which recognizes free competition. The elements (1) to engage in economic activity or commercial activity, (2) freedom of contract and (3) free competition are equally implicit in various places in other (fundamental) laws, treaties and principles within the EU back too. For example, there is the general right to education (art. 2 EP ECHR, art. 13 paragraphs 1 and 3 IVESC, arts. 28 and 29 VRK), the right to vocational training (arts. 10 and 15 paragraph 1 ESH) and we find in the Dutch Constitution the free choice of work, even as a self-employed person, in art. 49 TFEU, freedom of establishment, which also includes access to work other than as an employed person and its exercise includes ₂. Freedom of contract is found as a principle in contract law, which is equated to a fundamental right with a treaty status by art. 16 of the EU Charter no. 6 paragraph 1 TFEU.
The EU Charter is the only one that explicitly mentions the freedom to conduct a business. More specifically, it includes the right for every company to freely dispose of the economic, technical and financial resources available to it, within the limits of liability for its own actions.


Restrictions

‍The freedom to conduct a business must (of course) be exercised in accordance with European Union law and national legislations. In addition, the characteristic feature of fundamental rights is that the right of one person implies a duty for the other: at least the duty to respect fundamental rights. The freedom to conduct a business is a legally enforceable right, but not an absolute right; it must be considered in relation to its social function and may be subject to the restrictions of Article 52 (1) of the EU Charter. That reads”Restrictions on the exercise of the rights and freedoms recognized in this Charter should be established by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, restrictions can only be imposed if they are necessary and actually meet objectives of general interest recognised by the Union or the requirements of protecting the rights and freedoms of others..”. For reasons of proportionality, infringements should not go beyond what is appropriate and necessary to achieve the legitimate objectives pursued by the scheme in question. In the case of several options, the least burdensome measure must be chosen. The disadvantages caused should not be disproportionate to the objective pursued. It is conceivable that the further interpretation of this is in line with that of the restrictive conditions of other fundamental rights.

Problems with infringements of the freedom of entrepreneurship may (partly) lie in arbitrariness, overreach of authority, or abuse of power. In principle, the judge must test completely₂. Today, as a small company, you can be disadvantaged by competition problems (the third element) that arise via algorithmic collusion or data dominance of AI systems.


Opportunities
In addition to the fact that freedom of entrepreneurship is a fundamental right and must therefore be respected by others, the realization of fundamental law can contribute to aspects of general (economic) interest, such as the earning capacity, prosperity, future tax income and the competitive position of the Netherlands. As a small entrepreneur, your flexibility is an economic added value₂ and you are the strength of your company: one face, one person who knows the customer relationship, no intermediaries with top-down decision frameworks to get things done, existing customers who become good relations and you focus directly on sales goals for your company. When the limit of your business model comes into view, you have the freedom to focus on developing high-end, low-end and middle-end products (the first and second elements).
Implementing the fundamental right can also contribute to opportunities for specific target groups₂.


Improved safeguards against government action
Articles 4 (3) TEU and 19 TEU contain obligations for compliance and legal protection with regard to EU law. Actions taken by national authorities, which co-implement Union law, must therefore respect the fundamental rights guaranteed by the Charter. The person behind the action also plays a role in government action (and their responsible or unresponsible use of automation). Officials must function according to good officialship₂ and good official decency. The importance of the Constitution and other laws is expressed in one form or another in the texts of the oath/vow, which also includes the punishability of perjury (art. 207 Sr) ₂. In addition to the oath of office, there are also codes of conduct. For judges, these explicitly serve as an additional source for safeguarding (among other things) judicial independence and impartialness₂. Ethics and integrity are intrinsic aspects of legal practice and are important in dealing (responsibly or unresponsibly) with unlawful decisions. In the protection of (fundamental) rights, the right to a fair trial has a switching function₂. In order to better ensure legal protection against government actions, the right to a fair trial with the right to access to justice was explicitly included in the Constitution in 2022₂. For the effectiveness of freedom of entrepreneurship in practice, this right cannot be separated from the right to an effective remedy (art. 13 ECHR, 47 Charter), emphasises the European Union Agency for Fundamental Rights. The actual requirement by Article 13 of the ECHR — even in practice — a legal remedy that actually complies with certain procedural obligations — is nevertheless less obvious in the Netherlands than it should be. The absence of effective procedures involves major risks for entrepreneurs, i.e. for the economy and the business environment. Without the enforcement of (fundamental) rights, the legal order misses its meaning. That should be food for thought, speech and change within judicial organizations.

J. Dijkhuizen, Entrepreneurship, easier said than done: A study on success and well-being among entrepreneurs in the Netherlands (Rede Tilburg). Knight print 2015, p. 12.
₂ ECJ EU June 15, 1964, ECLI:EU:C: 1964:66 (Flaminio Costa/E.N.E.L.)
• ECJ EU February 26, 2013, ECLI:EU:C: 2013:105, paragraph 21 (Åklagaren).
• ECJ EU March 6, 2014, ECLI:EU:C: 2014:126, paragraph 31 (Siragusa).
CJEU February 14, 2012, ECLI:EU:C: 2012:72 (Toshiba) [GK].
CJEU EU April 30, 2014, ECLI:EU:C: 2014:281 (Pfleger and others)
ECJ EU April 11, 2013, ECLI:EU:C: 2013:223 (Blanka Soukupová)
CJEU EU May 14, 1974, ECLI:EU:C 1974:51, paragraph 14 (Nold); ECJ EU September 27, 1979, ECLI:EU:C: 1979:216, paragraphs 20 and 31 (SpA Eridania and others).
CJEU 16 January 1979, ECLI:EU:C: 1979:4 paragraph 19 (Sukkerfabriken Nykøbing); ECJ EU October 5, 1999, ECLI:EU:C: 1999:479 paragraph 99 (Spain v Commission)
CJEU March 10, 2020, ECLI:EU:T: 2020:89, paragraph 149; ECJ EU January 22, 2013, ECLI:EU:C: 2013:28, paragraph 42 (Sky Österreich GmbH/Österreichischer Rundfunk). Regarding the interpretation of Article 6 (1), third paragraph, TEU, Art. 52 (7) EU Charter, CJEU December 22, 2010, ECLI:EU:C: 2010:811, paragraph 32 (DEB).
Art. 19 paragraph 3 of the Dutch Constitution speaks of the free choice of work. The concept of work must be understood in a broad sense. It also includes self-employment in the profession and business (Parliamentary Documents II 1985/86, 19376, 1-2, p. 4 and 6).
₂ ECJ EC 30 November 1995, ECLI:EU:C: 1995:411, paragraph 25 (Gebhard).
This principle essentially means that parties are free in what they agree with whom and when (explained in detail in Asser/Hartkamp & Sieburgh 6-III 2014/45).
XXX
ECJ EU March 27, 2024, ECLI:EU:C: 2014:192, paragraph 49.
OJ EU C 303/1 dated 14 December 2007 (explanation).
A.J. Nieuwenhuis & A.W. Hins, Fundamental Rights Chapters, Nijmegen: Ars Aequi Libri 2011, p. 169.
This also applies to the ECJ EU September 6, 2012, ECLI:EU:C: 2012:526, paragraph 6.9.2-12, ECJ EU September 24, 2020, ECLI:EU:C: 2020:753, paragraph 88. On proportionality of the ECJ EU January 22, 2013, ECLI:EU:C: 2013:28, paragraphs 46 to 48 (Sky Österreich GmbH/Österreich GmbH) h/Österreich Rundfunk).

CJEU July 8, 2010, ECLI:EU:C: 2010:419 paragraph 45 (Afton Chemica), ECJ EU October 23, 2012, ECLI:EU:C: 2012:657, paragraph 71 (Nelson and others), ECJ EU January 22, 2013, ECLI:EU:C: 2013:28, paragraph 50 (Sky Österreich GmbH/Österreich GmbH/Österreich GmbH/Österreich) (Sterreich) Ichische Rundfunk).
₂ECJ EC September 3, 2008, ECLI:EU:C: 2008:461, paragraph 326 (Kadi).
₂Parliamentary Documents II 2008/09, 32128, 3, p. 88.

₂₂ It can contribute constructively to social goals such as employment, innovation and social inclusion, European Union Agency for Fundamental Rights FRA (2015), Freedom to conduct a business: exploring the dimensions of a fundamental right. < https://fra.europa.eu/en/publication/2015/freedom-conduct-business-exploring-dimensions-fundamental-right#publication-tab-16 >
₂₂ Art. 6 paragraph 1 Civil Service Act states: “The official is obliged to fulfill his obligations under or under the law and resulting from his duties and also to behave as befits a good official.”
₂e.g. Official Gazette 1998, 92 for the period 20 May 1998 to 31 December 2019; Annex to article 5g paragraph 1 of the Legal Status of Judicial Officials Act and Official Gazette 2009, 8 p. 16-17.
₂Expanded about the HR oath/promise September 13, 2022, ECLI:NL:PHR: 2022:820.
₂The codes of conduct involve (authoritative) soft law, which is an important additional source for safeguarding (among other things) judicial independence and impartiality. (HR) September 13, 2022, ECLI:NL:PHR: 2022:820 referring to M.L. van Emmerik, J.P. Loof & Y.E. Schuurmans, System Safeguards for the Core Values of Jurisdiction 2014, The Hague: SDU Publishers, Nos. 2.2.2.5 and 2.4. In the same sense: C.P.M. Cleiren, The Neutral Criminal Judge. Instruments and guarantees for independence and impartiality, The Hague: Boom Legal 2012, p. 37 et seq.).

₂Parliamentary Papers II 2015/16, 34 517, 3.
₂Entry into force August 30, 2022, Stb. 2022, 332. Art. 6 ECHR, art. 14 ICCPR and art. 47-50 EU Charter are more limited.

₂ECHR October 26, 2000, ECLI:CE:ECHR: 2000:1026 JUD003021096; ECHR March 29, 2006, ECLI:CE:ECHR: 2006:0329 JUD003681397
ECHR September 6, 1978, ECLI:CE:ECHR: 1978:0906 JUD000502971; ECHR March 25, 1983, ECLI:CE:ECHR: 1983:0325 JUD000594772; ECLI:CE:ECHR: 2000:1026 JUD003021096; ECLI:CE:ECHR: 2020:096 710 JUD000031015
For example, there was the judge who had little space/attention for the entrepreneur and his views at the hearing, after which the ruling read:”10. At the hearing, the plaintiff stated that there was also a violation of Article 13 of the ECHR. Apart from the fact that the plaintiff only raised this at the hearing and this is contrary to the good procedural order, the court does not follow the plaintiff. Now that the plaintiff has been able to appeal against the defender's decision-making in both an objection and appeal, the court does not see that the plaintiff has (had) no right to an actual remedy. The appeal is unsuccessful.” (Rb. Amsterdam November 9, 2022, AMS 22/2653, CRvB December 10, 2024, ECLI:NL:CRVB: 2024:2458. The Supreme Court fails to consider the notification about this dated 12 May 2025).
₂ European Union Agency for Fundamental Rights FRA (2015), Freedom to conduct a business: exploring the dimensions of a fundamental right, p. 47-50.

• Such as in force majeure situations resulting from unlawful acts on the part of the government with regard to payment of (accumulating) court fees, refusal of access to justice (violation of art. 6 ECHR, 2 paragraphs 3 and 14 ICCPR and arts. 8 and 10 UDHR, 17 Gw) (Rb. Amsterdam November 16, 2021, 20/5028, CRvB December 10, 2024, ECLI:NL:CRVB: 2024:2458 and Rb. Amsterdam May 28, 2021, 20/1268 and ECLI:NL:RBAMS: 2021:2127, CRvB November 23, 2021, ECLI:NL:CRVB: 2021:2922, CRvB November 23, 2021, ECLI:NL:CRVB: 2021:2923, CRvB March 24, 2022, ECLI:NL:CRVB: 2022:732, CRvB June 18, 2024, ECLI:NL:CRVB: 2022:732, CRvB June 18, 2024, ECLI:NL:CRVB CRVB: 2024:1250, CRvB June 18, 2024, ECLI:NL:CRVB: 2024:1233 CRvB May 28, 2025, ECLI:NL:CRVB: 2025:831, Rb Amsterdam AMS 20/3566 (also 23/3872, Vovo AMS 20/3626), February 25, 2021, November 8, 2021, October 21, 2024 and Rb Amsterdam September 8, 2022, 21/2956, RvS February 5, 2025, ECLI:NL:RVS: 2025:443), lack of legal protection in the event of unlawful decision/legal application Decree on assistance for the self-employed (CRvB 7 June 2022, ECLI:NL:CRVB: 2022:1253), lack of legal protection by the tax authorities to qualify for the self-employed deduction (which is precisely intended to promote entrepreneurship), to align taxation with profit income functions (Parliamentary Documents II 2011/12, 33003, 3, p. 20) Also Parliamentary Documents II 1982/20 83, 17 943, 1-3, p. 5, V-N 2011/542, p. 46) and stimulating growth (Parliamentary Documents II 2011/12, 330033, 3 p. 19, V-N 2011/542, p. 46) (Rb. North Holland February 28, 2023, 21/5190, Court of Amsterdam December 14, 2023, ECLI:NL:GHAMS: 2023:3572, HR December 20, 2024, ECLI:NL:HR: 2024:1903 Rb. North Holland September 14, 2023, HAA 22/3558, Court of Amsterdam May 28, 2024, ECLI:NL:GHAMS: 2024:2041, HR December 20, 2024, ECLI:NL:HR: 2024:1905) and inadmissibility under recognized lack of guarantees (CRvB July 8, 2025, ECLI:NL:CRVB: 2025:1010) | No access to justice and effective remedy in The Netherlands in case of force major caused by paying court fees by governmental actions not in line with rule of law 13166/22 25653/22, unlawful descision making/use of law in financial aid for self-employed people 47457/22, no legal protection agains tricks of tax authority concerning self-employment and inadmissibility under recognized lack of guarantees.

July 2024, updated 2025.

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From the legalance.nl site.

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📚 List of sources from the Legalance article (with links)

🟦 1. European legislation and explanations

  • Charter of Fundamental Rights of the European Union — Article 16 (Freedom to do business)
    https://eur-lex.europa.eu/legal-content/NL/TXT/?uri=CELEX:12012P/TXT (eur-lex.europa.eu in Bing)
  • Explanations to the Charter of Fundamental Rights
    https://eur-lex.europa.eu/legal-content/NL/TXT/?uri=CELEX:32007X1214(01) (eur-lex.europa.eu in Bing)

⚖️ 2. Classic judgments of the Court of Justice of the EU

⚖️ 3. Recent judgments focusing on article 16

🇳🇱 4. Dutch legislation and principles

  • Article 1 Constitution - Principle of equality
    https://wetten.overheid.nl/BWBR0001840/2023-07-01/#Hoofdstuk1_Artikel1 (wetten.overheid.nl in Bing)
  • Article 3:4 Awb — Principle of proportionality
    https://wetten.overheid.nl/BWBR0005537/2024-01-01/#Hoofdstuk3_Afdeling3.2_Artikel3.4 (wetten.overheid.nl in Bing)
  • Article 6:162 of the Dutch Civil Code — Tort
    https://wetten.overheid.nl/BWBR0005289/2024-01-01/#Boek6_Titeldeel3_Afdeling1_Artikel162 (wetten.overheid.nl in Bing)
  • Article 8:88 Awb — Compensation for administrative law
    https://wetten.overheid.nl/BWBR0005537/2024-01-01/#Hoofdstuk8_Afdeling8.4_Artikel8.88 (wetten.overheid.nl in Bing)

📘 5. Other literature and analyses

  • ECER — Freedom to do business (Article 16 Charter)
    https://www.europeanrights.eu/nl/handvest/artikel-16-vrijheid-van-ondernemerschap/ (europeanrights.eu in Bing)
  • FRA — Explanation and explanation of article 16
    https://fra.europa.eu/en/eu-charter/article/16-freedom-conduct-business (fra.europa.eu in Bing)
  • Verburg, Tijdschrift voor Arbeid & Onderneming — “The fundamental right to freedom of entrepreneurship: a new sound?”
    (No open-access link; but found via legal databases such as Kluwer Navigator or rechtspraak.nl)

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Date
04 May 2026
Author (s)
Paula Bouwer
research
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