Economic Freedom in the Perspective of Constitutional Jurisprudence

Abstract

In the jurisprudence of the Constitutional Court, it is constantly underlined that the freedom of economic activity is a negative freedom as long as it is related to the will of the individual to choose the field of exercise of this activity by freely entering into economic relations with other subjects. But in addition to this, the freedom of economic activity has its positive aspect, which implies the obligation of the state to, through the legislator, intervene in the regulation of this freedom with the aim of guaranteeing, in addition to the freedom of economic activity, the principle of the social state and thanks for sharing. This obligation of the legislator is expressed through the issuance of concrete legal norms, which aim to discipline the exercise of free economic activity in certain sectors or fields. In this case, the state should play the role of catalyst for the effective realization of economic freedom on the one hand and the protection of this freedom on the other hand. Based on the active role of the state, the drafters of the Constitution have provided the criteria on the basis of which it can be intervened to regulate the exercise of this right. The peculiarity of this provision, according to the structure of the Constitution, is that it is not provided in the group of other rights and freedoms, but in the part where the basic principles are provided on which the organization and state functioning of the country is based. So, the drafter of the Constitution preferred to consider the freedom of economic activity first, as a basic principle of the economic system of the Republic of Albania and second, as part of the catalog of freedoms and rights of citizens. It is precisely this distinctive element of this freedom, i.e. being as one of the pillars of the democratic state that gives this freedom a special nature. Precisely these issues with all the problems that appear in practice and in constitutional jurisprudence will be the object of treatment in this statement. The methodology used will be analytical and comparative, identifying problems and ambiguities that are often evident during discussions, not only in doctrinal but also in practice. The paper will aim, albeit in a non-exhaustive way, to make a theoretical presentation of the principle of economic freedom, as well as an analysis of constitutional decisions.

Received: 2 October 2023 / Accepted: 10 December 2023 / Published: 23 December 2023