Abstract
This article deals with the horizontal effect of fundamental rights in private law from the perspective of a justice system understood in a broad sense, depending on the type of jurisdiction which decides to apply them when examining private law relationships. The first part focuses on the perspective of the constitutional court, the second of the ordinary courts dealing with civil cases, and the third of the Court of Justice of the European Union.
Firstly, the impact of the constitutional courts on private law is twofold: on the one hand, the process eliminates unconstitutional norms from the legal system, and on the other, an interpretation of legal norms applied in private relationships in compliance with fundamental rights is adopted. This has been illustrated via a few examples of judicial decisions rendered by the Polish Constitutional Tribunal.
Secondly, from the jurisprudence of the ordinary courts an indirect and a direct horizontal effect of fundamental rights might be observed. The former leads to a limitation of rights or an elimination of certain obligations that are inherent in the horizontal relationship, rights and obligation which are deprived of their validity or effectiveness consequent to the application in casu of general clauses. In this way, new legal structures are not created and the rules of law governing private law relationships remain fully binding and effective, as the indirect horizontal effect will be effectuated only in the horizontal case at hand. The latter, inevitably leads to the courts encroaching on the lawmaker’s area of competence, as it is equal to creating a new legal norm because a refusal to apply a binding norm leads de facto to a creation of a new provision thereby introducing a different equilibrium of rights and obligations of parties as opposed to the statutory model. As a result predictability and legal certainty can be seriously jeopardized.
Thirdly, in the ECJ jurisprudence the horizontal application might be done though an evaluation of national regulations which directly transpose EU law or through an assessment of national legal acts, which do not directly transpose EU law, but nonetheless find connection to European Law application, as defined in Art. 51 (1) of the Charter of Fundamental Rights. Different forms of this application relate at times to direct effect and, on other occasions, to indirect horizontal effect.
Finally, more general remarks on the mechanisms which ensure radiation of the values of social justice into European law—what might lead to imposing a certain vision of “social justice” through the application of fundamental rights—are presented.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Cf eg A Sajo and R Utiz (eds), The Constitution in Private Relations: Expanding Constitutionalism (The Hague, Eleven International Publishing, 2005); KS Ziegler, Human Rights and Private Law. Privacy as Autonomy (Oxford, Hart Publishing, 2007); O Cherednychenko, Fundamental Rights, Contract Law and the Protection of the Weaker Party. A Comparative Analysis of the Constitutionalisation of Contract Law, with Emphasis on Risky Financial Transactions (Munich, Sellier, 2007); D Oliver and J Fedtke (eds), Human Rights and the Private Sphere. A Comparative Study (London, Routledge, 2007); C Mak, Fundamental Rights in European Contract Law. A Comparison of the Impact of Fundamental Rights on Contractual Relationships in Germany, the Netherlands, Italy and England (The Hague, Wolters Kluwer, 2008); A Seifert, ‘L’effet horizontal des droits fundamentaux. Quelques réflexions de droit européen et de droit comparé’ (2012) Revue Trimestrielle de Droit Européen 801; M Kumm, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principle and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 342.
- 2.
See W Sadurski, Rights before Courts. A Study of Constitutional Courts in Post-communist States of Central and Eastern Europe (Berlin, Springer, 2005); CW Canaris, Grundrechte und Privatrecht (Berlin, de Gruyter, 1999); S Weatherill, ‘The Constitutional Competence of the EU to Deliver Social Justice’ (2006) 2 European Review of Contract Law 135; M Davies, ‘Government of Judges. An Historical Review’ (1987) 35 American Journal of Comparative Law 559; J Limbach, ‘Promieniowanie konstytucji na prawo prywatne’ (The Radiation of Constitutions on Private Law) (1999) 3 Kwartalnik Prawa Prywatnego 405.
- 3.
Cf Constitutional Tribunal, 14/12/2005, SK 61/03.
- 4.
Cf Constitutional Tribunal, 17/10/2000, SK 5/99.
- 5.
Cf Constitutional Tribunal, 7/2/2005, SK 49/03, 13/2/A/2005. The Constitutional Tribunal did not accede to the request but, in its interpretation, it considerably narrowed the margins of discretion of the judicial decision considering the purpose of compensation.
- 6.
Cf Constitutional Tribunal, 31/1/2001, P4/99.
- 7.
Cf Constitutional Tribunal, 28/4/2003, K18/02.
- 8.
Cf Constitutional Tribunal, 21/4/2004, K33/03, OTK ZU-A 2004, no 4, item 31. For the first time, the Constitutional Tribunal found that an obligation to inform the consumer is rooted in the Constitution.
- 9.
Cf Constitutional Tribunal, 4/11/2010, K19/06, OTK ZU 2010/9A/96 in an eviction case. The Constitutional Tribunal has also had to consider other aspects of tenancy, for example the protection of tenants not only against excessive rent but also by ensuring the stabilization of tenancy agreement, cf e.g. Constitutional Tribunal, 2/10/2002 K48/01, OTK ZU-A 2002, no 5, item 62; Constitutional Tribunal, 17/5/2006, K33/05, OTK ZU-A 2006, no 5, item 57.
- 10.
Cf in relation to the Polish doctrine M Safjan, ‘Efekt horyzontalny praw podstawowych w prawie prywatnym: autonomia woli a zasada równego traktowania’ (2009) 2 Kwartalnik Prawa Prywatnego 297; E Łętowska, ‘Wpływ konstytucji na prawo cywilne’ in M Wyrzykowski (ed), Konstytucyjne podstawy systemu prawa (Warsaw, Instytut Spraw Publicznych, 2001) 125.
- 11.
Cf Constitutional Tribunal, 28/3/2000, K27/99.
- 12.
Cf, regarding the application of the double proportionality test in the case of horizontal application of fundamental rights, eg H Collins, ‘On the (in)compatibility of Human Rights Discourse and Private Law’ (2012) 7 LSE Law, Society and Economy Working Papers 41.
- 13.
Cf German Federal Constitutional Court, 19/10/1993, (1994) Neue Juristische Wochenschrift 36.
- 14.
Cf eg Canaris, Grundrechte und Privatrecht. This kind of indirect effect which is achieved through general clauses of private law is precisely identified as mittlelbare Drittwirkung.
- 15.
This category of general clauses was introduced into the Polish civil law system during the Communist period. Presently, the sense and the content of the notion is the same as the traditional equity clause.
- 16.
Cf I Josserand, De l’esprit des droits et de leurs relative: théorie dite de l’abus de droits, 2nd ed (Paris, Dalloz 1939).
- 17.
Cf § 16 ABGB, which provides that every human being has ‘natural rights’ and is therefore considered as a person.
- 18.
Throughout this text, the term ‘general clause’ is intended to reflect those elements lying outside the positive system of law encompassing, for instance, the general clause of good faith, fair dealing, justice, customs and so on.
- 19.
Cf Art 353(1) of the Polish Civil Code:‘The contracting parties may shape their legal relationship at their own discretion, so long as the subject matter or the purpose thereof does not conflict with the character (nature) of the relationship, statute or the principles of social co-existence.’
- 20.
See J Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford, University Press, 2009) namely chapter 12 on interpretation; on positivism (also in the shape given to it by J Raz) see, for instance: J Gardner, ‘Positivism—5 ½ Myths’ (2001) 46 American Journal of Jurisprudence 199; also in id., Law as Leap to Faith—Essays on Law in General (Oxford, University Press, 2012) 19–53; Stanford Encyclopedia of Jurisprudence, ‘Legal Positivism’ (L Green); on the confrontation with J Esser and also on positivism more generally, see as well: S Grundmann, ‘Chapter 1’.
- 21.
Cf eg Supreme Court, 18/3/2008, IVCSK 478/07, LEX no 371531, which stipulates that: ‘A contract which is objectively unfavourable for one party deserves a negative moral evaluation, and, in consequence, leads to a consideration of the contract as conflicting with the rules of social co-existence in a situation in which it was possible to shape an evidently harmful contractual relationship by taking advantage of a stronger position of the other party, whether deliberately or by negligence. A contract signed by a party acting under pressure of the actual advantage of the partner may not be considered as an expression of a fully free and reasonable decision taken by this party.’
- 22.
The principle of equivalence of parties to civil law relationships cannot be automatically translated into a positive version of the non-discrimination principle. Such a thesis may be found in Supreme Court, 7/10/2004 IIPK 29/04, OSNP 2005, no 7, item 97, which provides that a different legal situation of an employee and a party to a civil law contract is not a breach of the constitutional principle of equal treatment.
- 23.
Judicial decisions consistently stress that it is the abuse of economic position which disturbs the balance between the equal starting position of the parties to consumer contracts, and not an imbalance as such. Cf eg Supreme Court, 13/7/2006 I CK 832/04.
- 24.
It should be emphasised that in at least some constitutional systems freedom of contract is treated as one of the guarantees of personal freedom and is directly based on constitutional norms. In a judgment of 29/4/2003, SK 24/02, OTK ZU-A 2003, no 4, item 33 the Polish Constitutional Tribunal concludes: ‘The connection between the freedom of contract with the constitutional guarantee of personal freedom lies in the fact that the obligation to respect freedom is imposed by the Constitution on all parties in legal relationships, also on the parties in civil law’. In Germany, Federal Constitutional Court, 7/2/1990, 81 Entscheidungen des Bundesverfassungsgerichts 242, 254, stipulates that autonomy in some contractual relationships means that only the parties define the balance between their different interests and that is why they enjoy constitutional protection, while the state must in principle respect the rules adopted under private autonomy; cf also K Hesse, Verfassungsrecht und Privatrecht (Heidelberg, CF Müller, 1988) 86. In Spain, the Constitutional Court, 30/4/1985 (STC 58/1985), qualified private autonomy as a guarantee of personal freedom. In its later decisions the Court stressed that ‘Equality needs to be harmonized with freedom of contract’ (Constitutional Court, 10/10/1988, STC 177/1988). In general, the Court has tried to strike a balance between the interests at stake in each case, in light of the principle of proportionality, cf VF Comella, The Constitution of Spain. A Contextual Analaysis (Oxford, Hart Publishing, 2013) 255. In France, the Conseil Constitutionnel, not without hesitation, considered contractual freedom as a value of constitutional rank ( cf Conseil Constitutionnel, 19/12/2000, 2000-437 DC) seeking its foundation in Art. 4 and Art. 16 of the Universal Declaration of Human Rights. See also on the approach in Union law see J Basedow, ‘Freedom of Contract in the European Union’ (2008) 6 European Review of Private Law 901.
- 25.
The question of which private law regulations may be considered as part of this category of norms, which have to be strictly interpreted and must not be undermined by the application of general clauses is also a matter of controversy. In Polish private law, regulations determining the so-called numerus clausus of rights in property, limitation periods (deadlines), and regulations governing filiation or obligation to pay child maintenance belong to this category. Cf here A Stelmachowski, Wstęp do teorii prawa cywilnego (Warszawa, Państwowe Wydawnictwo Naukowe, 1984) 150 and M Safjan, System Prawa Cywilnego, 2nd ed, vol I (Warsaw, CH Beck, 2012).
- 26.
K Pietrzykowski, Komentarz do Kodeksu cywilnego, vol I, ed 5 (Warsaw, CH Beck, 2008) 65; such a position stands in clear contradiction with the position expressed by the Polish Constitutional Tribunal, which expressly concluded that general clauses are not superior in respect of the other provisions of civil law, and therefore, pursuant to Art. 5 of the Civil Code, also referring directly to the fundamental rights, imperative provisions of civil law must not be excluded because it could put in jeopardy the principles of the state of law ( cf Constitutional Tribunal, 17/10/2000, SK 5/59, point III.3 of Principal Reasons for the Ruling).
- 27.
Court of Appeal of Poznań, 13/11/1996, LEX database no 31315.
- 28.
Cf Supreme Court, 18/11/1992 III CZP 133/92.
- 29.
Cf Supreme Court, 27/10/1983 III CZP 35/83 exemplifying a case where a resolution was attributed the status of a so-called legal rule.
- 30.
Cf eg H Nieuwenhuis, ‘Fundamental Rights Talk. An Enrichment of Legal Discourse in Private Law?’ in T Barkhuysen and SD Lindenbergh (eds), Constitutionalisation of Private Law (Leiden, Martinus Nijhoff Publishers, 2006) 6; J Smits, ‘Private law and Fundamental Rights. A Skeptical View’, ibid, 11.
- 31.
Cf Supreme Court, 21/11/2003, V CK 16/03, which provides that ‘freedom—broadly understood and which has its foundation in the Constitution is a personality right and each person therefore has the right to decide about his/her personal life’.
- 32.
Cf Supreme Court, 13/10/2005, IV CK 161/05, in which it is expressly stated that ‘no right of the child is violated by the above mentioned culpable acts of the doctors as there is no such right as the child’s right not to be born (…) and the very fact of being born may not be considered a damage.’
- 33.
Cf Supreme Court, 22/2/2006, III CZP 8/06, which provides that ‘The Supreme Court was aware of the controversy caused by the problem of claims related to childbirth as a consequence of rape, when abortion was unlawfully denied. For that reason, it is desirable to initiate legislative work which would make it possible for the state to bear the expense of child maintenance if a woman did not exercise her right to legal abortion or if she was denied this right by an unlawful decision’.
- 34.
The above can be located in the well-known conflict between the right to protect honour and the right to the freedom of speech, in a horizontal dispute between parties in private law. It is a well-known issue in all democratic systems of law and, not without a reason, this conflict which arose before the German Constitutional Court in the Lüth case (BVerfG, 15/1/1958, 7 Entscheidungen des Bundesverfassungsgerichts 198) marks the beginning of the discussion about constitutional radiation into private law. Apparently, in this case there is no other way but to resolve the conflict of fundamental rights making reference to constitutional values on the level of each specific dispute, cf also Supreme Court SN, 18/2/2005, (7) III CZP 53/04, in which it is correctly concluded that: ‘Collision between the right to freedom of speech as well as the society’s right to information and an individual’s right to protect honour will always be resolved in the context of a specific case (….).’
- 35.
Cf Collins, ‘On the(In) compatibility of Human Rights discourse and Private Law’, 41: ‘(…) what is necessary in most cases is the application of the ‘ultimate balancing test’, which is in effect a double application of the test of proportionality to both of the rights at stake’.
- 36.
However, we must not forget the exceptions mentioned above in the context of the conflict of the right to protect privacy, honour and freedom of speech. We have to accept that in such cases the double proportionality test is virtually indispensable and it is a fully legitimate method of resolving conflicts on the horizontal level.
- 37.
- 38.
Cf eg DN MacCormik and RS Summers (eds), Interpreting Precedents-A Comparative Study (Dartmouth, Ashgate, 1997).
- 39.
Cf eg J Rawls, Theory of Justice (Cambridge, Mass., Harvard University Press, 1971); J Raz, The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979); G Palombella, ‘The Rule of Law and its Sense’ in Relocating the “Rule of Law” (Florence, European University Institute, 2007).
- 40.
Cf Art. 51(1) of the Charter of Fundamental Rights which envisages application of the Charter by the Member States only ‘when they are implementing Union law’. Cf regarding the extensive literature eg T von Danwitz and K Paraschas, ‘A Fresh Start for the Charter: Fundamental Questions on the Application of the European Charter of Fundamental Rights’ (2012) Fordham International Law Journal 1396; A Rosas and H Kaila, ‘L’application de la Charte des droits fondamentaux de l’Union Europeenne par la Cour de Justice: un premier bilan’ (2011) Il Diritto dell’Unione Europea 1; J Kokott and C Sobotta, ‘The Charter of Fundamental Rights of the European Union after Lisbon’ (2010) EUI Working Paper No 6; M Safjan, ‘Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of Conflicts?’ (2012) EUI Working Paper No 22.
- 41.
Cf AS Hartkamp, European and National Private Law (Deventer, Kluwer, 2012).
- 42.
- 43.
Cf eg ECHR, 13/7/2004 Pla and Puncernau v Andorra, Apl. No 69498/01 ECHR 2004-VIII which found that both non-discrimination principle and the right to family life were breached as the national courts established that the testator effectively excluded an adopted child from among the heirs; ECHR, 24/6/2003 Garaudy v France, Apl. No 6583/01 ECHR 2003-IX concerning (in the system of) effective protection against an insulting racist publication; ECHR, 26/3/1985 X, Y v The Netherlands (series A, no 91) regarding the breach of rights of a mentally ill person in a private nursing home. Cf L Garlicki, ‘Relations between Private Courts and the European Convention on Human Rights’ in Sajo and Utiz (eds), The Constitution in Private Relations 129.
- 44.
Cf Joined cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 paras 114–118.
- 45.
Cf case C-149/10 Chatzi [2010] ECR I‑8489 (an EU act should be interpreted in a way which ensures full compliance with the provisions of primary law). Also cf eg C-281/98 Angonese [2000] ECR I-4139; Case C-447/09 Prigge [2011] ECR I-8003, case C-400/10 McB [2010] ECR I-8965. In certain situations the assessment of the conformity of a legal regulation with fundamental rights might lead to the declaration of nullity of an EU act, see case C-236/09 Association belge des Consommateurs Test-Achats and others v Conseil des ministres [2011] ECR I-773.
- 46.
Cf eg the statement of AG Kokott C-167/12 CD (application of child’s right to family life to situations not covered by relevant provisions of EU law) as well as judgment of 12 June 2012, joined cases C-611/10 and C-612/10 Hudziński and Wawrzyniak, not yet reported (application of the non-discrimination principle with regard to employees of other member States on a territory not covered by an obligatory transposition).
- 47.
Here cf mainly case C-144/04 Mangold [2005] ECR I-9981; case C-555/07 Kücükdeveci [2010] ECR I-365.
- 48.
With regard to these decisions cf eg M de Mol, ‘Kücükdeveci: Mangold Revisited – Horizontal Direct Effect of a General Principle of EU Law’ (2010) 6 European Constitutional Law Review 293.
- 49.
Cf eg D Simon, ‘L’invocabilité des directives dans les litiges horizontaux: confirmation ou infléchissement?’, (2010) 3 Europe.
- 50.
Cf here eg AG Cruz-Villalón, opinion of 18 July 2013, case C-176/12 Association de médiation sociale contre Union locale des syndicats CGT, not yet reported.
- 51.
It has to be stressed that this idea is only a theoretical hypothesis, since the ECJ jurisprudence states in principle (the judgments in Kücükdeveci and Mangold should be left aside here, as they intervened in very specific situations) that the use of a directive (even if there is no doubt about its content and meaning) cannot lead to direct effect which would result in rights or obligations for private parties ( Cf eg case C-91/92 Faccini Dori [1994] ECR I-3325, para 20; case C-201/02 Wells [2004] ECR I-723, para 56; joined cases C-397/10 to C-403/01 Pfeiffer para 108). In consequence, in cases between private parties it is admitted that the refusal of application of national law contrary to a directive, in order to achieve a result in conformity with the European act is not possible.
- 52.
Cf eg case C-14/83 Van Colson and Kamann [1984] ECR 1891 para 26; case C-106/89 Marleasing [1990] ECR I 4135; case C-456/98 Centrosteel [2000] ECR 1-6007 paras 16–17.
- 53.
We should remain aware that there may arise a situation in which none of these methods will allow us to achieve a desirable effect and intervention of the national lawmaker will be necessary ( interpretation contra legem is the border line of the given interpretation, cf judgment of 24 January 2012, case C-282/10 Dominguez, not yet reported, para 25). A party to a given horizontal relationship will be able to file a compensation claim against a public authority on the grounds of lack of adequate implementation of the provisions of national law.
- 54.
Cf on this issue a classification of diverse forms of indirect effect of fundamental rights by Mak, ‘Unchart(er)ed Territory’, 9 ff.
- 55.
Cf here M Dougan, ‘When Worlds Collide! Competing Visions of the Relationships between Direct Effect and Supremacy’ (2007) 44 Common Market Law Review 931.
- 56.
In this sense, see H-W Micklitz, ‘The Visible Hand of European Regulatory Private Law: The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation’ (2008) European University Institute Working Paper 2008/14, in which he clarifies from the outset that the invisible hand refers to the hand of the market.
- 57.
Judgment of 26 February 2013, case C-617/10 Åkerberg Fransson, not yet reported.
- 58.
Reference is made to Swedish regulations regarding administrative, fiscal and penal procedures applied in the case of tax evasion, which were introduced in the national system with no connection with the implementation of an EU legal act and had a more general application, also to situations to which EU law did not apply. In Åkerberg Fransson case, the preliminary reference concerned the acceptability two procedures being used with regard to a taxpayer, ie penal and administrative, in connection with ne bis in idem ban resulting from Art 50 of the Charter of Fundamental Rights.
- 59.
Cf with regard to this judgment V Skouris, ‘Developpements recents de la protection des droits fondamentaux dans l`Union europeenne: les arrêts Melloni et Åkerberg Fransson’ (2013) 2 II Diritto dell`Unione Europea 229; J Vervaele, ‘The Application of the EU Charter of Fundamental Rights (CFR) and its Ne bis in idem Principle in the Member States of the EU’ (2013) 6 Review of European Administrative Law 113; D Ritleng, ‘De l’articulation des systèmes de protection des droits fondamentaux dans l’Union’ (2013) Revue Trimestrielle de Droit européen 267.
- 60.
Cf para 29 of the Åkerberg Fransson judgment; the same position was adopted by the ECJ on the same day in case C-399/11 Melloni, not yet reported, para 60.
- 61.
Cf also in relation to possible complications in the relationships between EU law and national systems over private law regulations H Collins, ‘The Constitutionalisation of European Private Law as a Path to Social Justice’ in H-W Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Cheltenham, Edward Elgar, 2011) 163.
- 62.
With regard to the proportionality test cf D Kennedy, ‘A transnational Genealogy of Proportionality in Private Law’ in R Brownsword, H-W Micklitz, L Niglia and S Weartherill (eds), The Foundations of European Private Law (Oxford, Hart, 2011).
- 63.
See para 30 (national courts interpreting the Charter provisions, may, and in some cases—have to submit a prejudicial question to the Court, pursuant to Art. 267 TFUE).
- 64.
Cf M Meli, ‘Social Justice, Constitutional Principles and Protection of the Weaker Party’ (2006) 2 European Review of Contract Law 164; R Sefton-Green, ‘Social Justice and European Identity in European Contract Law’ (2006) 2 European Review of Contract Law 274; H Schepel, ‘The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to “Constitutionalize” Private Law’ (2004) 5 European Review of Private Law, 661; Micklitz (ed), The Many Concepts of Social Justice in European Private Law.
- 65.
Cf Sefton–Green, ‘Social Justice and European Identity in European Contract Law’, 275 ff, who says that social justice is not only a simple manifestation of distributive concepts but something much more important as it symbolically expresses European cultural identity, which should pervade private contract law. Cf also Study Group on Social European Private Law, ‘Social Justice in European Contract Law: A Manifesto’ (2004) 10 European Law Journal 653.
- 66.
Cf H-W Micklitz, ‘Introduction’ in Micklitz (ed), The Many concepts of social Justice in European Private Law, 42 f.
- 67.
Cf H-W Micklitz, N Reich and P Rott, Understanding EU Consumer Law (Antwerp, Intersentia, 2009); F Cafaggi and H-W Micklitz (eds), New Frontiers of Consumers Protection: The Interplay between Private and Public Enforcement (Antwerp, Intersentia, 2009); H Schulte-Nölke, ‘The EC Consumer Law Compendium: A Pan-European Knowledge Base for Politicians, Business and Consumer Organizations (2009) 20 European Business Law Review 383.
- 68.
A protective trend from consumers’ point of view can be discerned, however, oriented mainly towards ensuring a balance in relation to the starting position of the parties, in particular by means of sound information made available to the consumer by a professional in order to give a consumer an opportunity to make an informed choice in relation to the economic sense of contract and its provisions, from the CJEU decisions, cf eg judgment of 21 March 2013, case C- 92/11 RWE Vertrieb, not yet reported, and judgment of 26 April 2012. case C-472/10 Invitel, not yet reported.
- 69.
Cf also D Schiek, ‘Fundamental Rights Jurisprudence Between Member States Prerogatives and Citizens Autonomy’ in H-W Micklitz and B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Antwerp, Intersentia, 2010) 219.
References
Basedow, J, ‘Freedom of Contract in the European Union’ (2008) 6 European Review of Private Law 901.
Cafaggi, F and Micklitz, H-W (eds), New Frontiers of Consumers Protection: The Interplay between Private and Public Enforcement (Antwerp, Intersentia, 2009).
Canaris, CW, Grundrechte und Privatrecht (Berlin, de Gruyter, 1999).
Cherednychenko, O, Fundamental Rights, Contract Law and the Protection of the Weaker Party. A Comparative Analysis of the Constitutionalisation of Contract Law, with Emphasis on Risky Financial Transactions (Munich, Sellier, 2007).
Collins, H, ‘The Constitutionalisation of European Private Law as a Path to Social Justice’ in H-W Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Cheltenham, Edward Elgar, 2011) 163.
Collins, H, ‘On the (in) compatibility of Human Rights Discourse and Private Law’ (2012) 7 LSE Law, Society and Economy Working Papers 41.
Comella, VF, The Constitution of Spain. A Contextual Analaysis (Oxford, Hart Publishing, 2013).
Davies, M, ‘Government of Judges. An Historical Review’ (1987) 35 American Journal of Comparative Law 559.
de Mol, M, ‘Kücükdeveci: Mangold Revisited—Horizontal Direct Effect of a General Principle of EU Law’ (2010) 6 European Constitutional Law Review 293.
Dougan, M, ‘When Worlds Collide! Competing Visions of the Relationships between Direct Effect and Supremacy’ (2007) 44 Common Market Law Review 931.
Garlicki, L, ‘Relations between Private Courts and the European Convention on Human Rights’ in Sajo and Utiz (eds), The Constitution in Private Relations: Expanding Constitutionalism (The Hague, Eleven International Publishing, 2005) 129.
Hartkamp, AS, European and National Private Law (Deventer, Kluwer, 2012).
Hesse, K, Verfassungsrecht und Privatrecht (Heidelberg, CF Müller, 1988).
Hutchinson, AC, ‘The Rule of Law Revisited: Democracy and Courts’ in D Dyzenhaus (ed), Recrafting the Rule of Law: The Limits of Legal Order (Oxford, Hart Publishing, 1999) 212.
Josserand, I, De l’esprit des droits et de leurs relative: théorie dite de l’abus de droits 2nd ed (Paris, Dalloz 1939).
Kennedy, D, ‘A transnational Genealogy of Proportionality in Private Law’ in R Brownsword, H-W Micklitz, L Niglia and S Weartherill (eds), The Foundations of European Private Law (Oxford, Hart, 2011).
Kokott, J and Sobotta, C, ‘The Charter of Fundamental Rights of the European Union after Lisbon’ (2010) EUI Working Paper No 6.
Kumm, M, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principle and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 342.
Leczykiewicz, D, ‘Horizontal Application of the Charter of Fundamental Rights’ (2013) 38 European Law Review 479.
Limbach, J, ‘Promieniowanie konstytucji na prawo prywatne’ (The Radiation of Constitutions on Private Law) (1999) 3 Kwartalnik Prawa Prywatnego 405.
Łętowska, E, ‘Wpływ konstytucji na prawo cywilne’ in M Wyrzykowski (ed), Konstytucyjne podstawy systemu prawa (Warsaw, Instytut Spraw Publicznych, 2001) 125.
MacCormik, DN and Summers, RS (eds), Interpreting Precedents—A Comparative Study (Dartmouth, Ashgate, 1997).
Mak, C, Fundamental Rights in European Contract Law. A Comparison of the Impact of Fundamental Rights on Contractual Relationships in Germany, the Netherlands, Italy and England (The Hague, Wolters Kluwer, 2008).
Mak, C, ‘Unchart(er)ed Territory. EU Fundamental Rights and National Private Law’ (2013) Amsterdam Law School Research Paper No 2013–25.
Meli, M, ‘Social Justice, Constitutional Principles and Protection of the Weaker Party’ (2006) 2 European Review of Contract Law 164.
Micklitz, H-W, ‘The Visible Hand of European Regulatory Private Law: The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation’ (2008) European University Institute Working Paper 2008/14.
Micklitz, H-W (ed), The Many Concepts of Social Justice in European Private Law (Cheltenham, Edward Elgar, 2011).
Micklitz, H-W, Reich, N and Rott, P, Understanding EU Consumer Law (Antwerp, Intersentia, 2009).
Nieuwenhuis, H, ‘Fundamental Rights Talk. An Enrichment of Legal Discourse in Private Law?’ in T Barkhuysen and SD Lindenbergh (eds), Constitutionalisation of Private Law (Leiden, Martinus Nijhoff Publishers, 2006) 6.
Oliver, D and Fedtke, J (eds), Human Rights and the Private Sphere. A Comparative Study (London, Routledge, 2007).
Palombella, G, ‘The Rule of Law and its Sense’ in Relocating the “Rule of Law” (Florence, European University Institute, 2007).
Pietrzykowski, K, Komentarz do Kodeksu cywilnego, vol I, ed 5 (Warsaw, CH Beck, 2008).
Rawls, J, Theory of Justice (Cambridge, Mass., Harvard University Press, 1971).
Raz, J, The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979).
Raz, J, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford, University Press, 2009).
Ritleng, D, ‘De l’articulation des systèmes de protection des droits fondamentaux dans l’Union’ (2013) Revue Trimestrielle de Droit européen 267.
Rosas, A and Kaila, H, ‘L’application de la Charte des droits fondamentaux de l’Union Europeenne par la Cour de Justice: un premier bilan’ (2011) Il Diritto dell’Unione Europea 1.
Sadurski, W, Rights before Courts. A Study of Constitutional Courts in Post-communist States of Central and Eastern Europe (Berlin, Springer, 2005).
Safjan, M, ‘Efekt horyzontalny praw podstawowych w prawie prywatnym: autonomia woli a zasada równego traktowania’ (2009) 2 Kwartalnik Prawa Prywatnego 297.
Safjan, M, ‘Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of Conflicts?’ (2012) EUI Working Paper 22.
Safjan, M, System Prawa Cywilnego, 2nd ed, vol I (Warsaw, CH Beck, 2012).
A Sajo and R Utiz (eds) The Constitution in Private Relations: Expanding Constitutionalism (The Hague, Eleven International Publishing, 2005).
Schepel, H, ‘The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to “Constitutionalize” Private Law’ (2004) 5 European Review of Private Law 661.
Schiek, D, ‘Fundamental Rights Jurisprudence Between Member States Prerogatives and Citizens Autonomy’ in H-W Micklitz and B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Antwerp, Intersentia, 2010) 219.
Schulte-Nölke, H, ‘The EC Consumer Law Compendium: A Pan-European Knowledge Base for Politicians, Business and Consumer Organizations (2009) 20 European Business Law Review 383.
Sefton-Green, R, ‘Social Justice and European Identity in European Contract Law’ (2006) 2 European Review of Contract Law 274.
Seifert, A, ‘L’effet horizontal des droits fundamentaux. Quelques réflexions de droit européen et de droit comparé’ (2012) Revue Trimestrielle de Droit Européen 801.
Simon, D, ‘L’invocabilité des directives dans les litiges horizontaux: confirmation ou infléchissement?’ (2010) 3 Europe.
Skouris, V, ‘Developpements recents de la protection des droits fondamentaux dans l`Union europeenne: les arrêts Melloni et Åkerberg Fransson’ (2013) 2 Il Diritto dell`Unione Europea 229.
Smits, J, ‘Private law and Fundamental Rights. A Skeptical View’ in T Barkhuysen and SD Lindenbergh (eds) Constitutionalisation of Private Law (Leiden, Martinus Nijhoff Publishers, 2006) 11.
Stelmachowski, A, Wstęp do teorii prawa cywilnego (Warszawa, Państwowe Wydawnictwo Naukowe, 1984).
Study Group on Social European Private Law, ‘Social Justice in European Contract Law: A Manifesto’ (2004) 10 European Law Journal 653.
Sweet, AS, Governing with judges. Constitutional politics in Europe (New York, Oxford University Press 2000).
Vervaele, J, ‘The Application of the EU Charter of Fundamental Rights (CFR) and its Ne bis in idem Principle in the Member States of the EU’ (2013) 6 Review of European Administrative Law 113.
von Danwitz, T and Paraschas, K, ‘A Fresh Start for the Charter: Fundamental Questions on the Application of the European Charter of Fundamental Rights’ (2012) Fordham International Law Journal 1396.
Weatherill, S, ‘The Constitutional Competence of the EU to Deliver Social Justice’ (2006) 2 European Review of Contract Law 135.
Ziegler, KS, Human Rights and Private Law. Privacy as Autonomy (Oxford, Hart Publishing, 2007).
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Safjan, M. (2014). The Horizontal Effect of Fundamental Rights in Private Law—On Actors, Vectors, and Factors of Influence. In: Purnhagen, K., Rott, P. (eds) Varieties of European Economic Law and Regulation. Studies in European Economic Law and Regulation, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-04903-8_7
Download citation
DOI: https://doi.org/10.1007/978-3-319-04903-8_7
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-04902-1
Online ISBN: 978-3-319-04903-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)