Freedom to Conduct Business During the Covid-19 Pandemic

Abstract

Unprecedented restrictions on various human rights were applied during the COVID-19 pandemic, and considered crucial in most cases to halt the spread of infection. Yet, a number of critical issues were raised concerning the scope and proportionality of said restrictions. Among these, the freedom to conduct business was one of the most affected by measures implemented in the first lockdown which was applied in many Member States of the European Union. This article analyzes the protection of this freedom in situations of emergency, its conflict with the right to health, and explores whether jurisprudential and doctrinal bases applicable before the pandemic could be applied or if new principles need to be developed to address unprecedented situations like COVID-19. The criteria to determine the proportionality of these restrictions from the perspective of International and EU human rights law are also discussed. The authors argue that the freedom to conduct business, although not envisaged directly in the European Convention on Human Rights, is part of the right to property, and thus should be protected in the same manner. Based on that, the approach to the deprivation of the right to use property and denial of the essence of the freedom to conduct business should be applied similarly, though not identically, to the approach of de facto expropriation, where a question of full or partial compensation may be relevant in case of substantial business losses. For other restrictions the availability of compensatory measures should be one of the key aspects while considering the proportionality of COVID-19 measures in restricting the rights of individuals or businesses.