European Fundamental Rights, Private Law, and Judicial Governance

Ciacchi, Aurelia Colombi

doi:10.1093/acprof:oso/9780198712107.003.0004

Constitutionalization of European Private Law: XXII/2

Hans Micklitz (ed.)

https://doi.org/10.1093/acprof:oso/9780198712107.001.0001

Published online:

22 May 2014

Published in print:

10 April 2014

Online ISBN:

9780191780257

Print ISBN:

9780198712107

- Copyright Page
  - Notes
  - Notes
- Table of Cases
  - Notes
  - Notes
- Table of Legislation
  - Notes
  - Notes
- List of Abbreviations
  - Notes
  - Notes
- Notes on Contributors
  - Notes
  - Notes
1 Introduction
- Notes
- Notes
2 On the (In)compatibility of Human Rights Discourse and Private Law
- Notes
- Notes
3 The Fifth European Union Freedom
- Notes
- Notes
- 1. Introduction 1. Introduction
- 2. ‘European Fundamental Rights’ and ‘Private Law’ 2. ‘European Fundamental Rights’ and ‘Private Law’
- 3. Vertical Effect of Fundamental Rights 3. Vertical Effect of Fundamental Rights
- 4. Horizontal Effect of Fundamental Rights 4. Horizontal Effect of Fundamental Rights
  - A. Direct Horizontal Effect A. Direct Horizontal Effect
  - B. Indirect Horizontal Effect B. Indirect Horizontal Effect
- 5. A Normative Individualistic Understanding of Fundamental Rights 5. A Normative Individualistic Understanding of Fundamental Rights
- 6. Models of Fundamental Rights Horizontality in the EU Member States 6. Models of Fundamental Rights Horizontality in the EU Member States
  - A. The Constitutional Court Model A. The Constitutional Court Model
  - B. The French and Dutch Model B. The French and Dutch Model
  - C. The Swedish Model C. The Swedish Model
  - D. The British Model D. The British Model
  - E. The Irish Model E. The Irish Model
- 7. Common Fact Patterns of Horizontal Effect in the EU Member States 7. Common Fact Patterns of Horizontal Effect in the EU Member States
- 8. Direct Horizontal Effect in the Jurisprudence of National and European Courts 8. Direct Horizontal Effect in the Jurisprudence of National and European Courts
  - A. National Level A. National Level
  - B. EU Level B. EU Level
    - 1. Fundamental Rights 1. Fundamental Rights
    - 2. Fundamental Freedoms 2. Fundamental Freedoms
    - 3. Freedom of Competition 3. Freedom of Competition
- 9. Indirect Horizontal Effect in the Jurisprudence of National and European Courts 9. Indirect Horizontal Effect in the Jurisprudence of National and European Courts
  - A. National Level A. National Level
  - B. EU Level B. EU Level
    - 1. Liberty Rights 1. Liberty Rights
    - 2. Socio-economic Rights 2. Socio-economic Rights
    - 3. Fundamental Freedoms 3. Fundamental Freedoms
    - 4. Freedom of Competition 4. Freedom of Competition
- 10. The Horizontal Application of the Charter of Fundamental Rights of the European Union 10. The Horizontal Application of the Charter of Fundamental Rights of the European Union
  - A. Impact of the Charter on National Case Law A. Impact of the Charter on National Case Law
  - B. Direct Horizontal Effect of the Charter in the Jurisprudence of the Court of Justice B. Direct Horizontal Effect of the Charter in the Jurisprudence of the Court of Justice
  - C. Indirect Horizontal Effect of the Charter in the Jurisprudence of the Court of Justice C. Indirect Horizontal Effect of the Charter in the Jurisprudence of the Court of Justice
    - 1. J. McB. v L. E. 1. J. McB. v L. E.
    - 2. Promusicae 2. Promusicae
    - 3. Scarlet Extended and SABAM v Netlog 3. Scarlet Extended and SABAM v Netlog
    - 4. ‘Double Horizontal Effect’ of EU Fundamental Rights 4. ‘Double Horizontal Effect’ of EU Fundamental Rights
- 11. The Horizontal Application of Fundamental Rights and Judicial Governance 11. The Horizontal Application of Fundamental Rights and Judicial Governance
- 12. Policies of Horizontal Application of Fundamental Rights: National Level 12. Policies of Horizontal Application of Fundamental Rights: National Level
  - A. Protection of the Weaker Party in Contract Law A. Protection of the Weaker Party in Contract Law
  - B. Reduction of Discrimination B. Reduction of Discrimination
  - C. Economic Upgrade of the Interests of the Individual and Social Equality in Tort Law C. Economic Upgrade of the Interests of the Individual and Social Equality in Tort Law
  - D. Control of the Power of the Media D. Control of the Power of the Media
  - E. Exercise of Political Rights in Privately Managed Spaces E. Exercise of Political Rights in Privately Managed Spaces
  - F. Environmental Protection F. Environmental Protection
- 13. Policies of Horizontal Application of Fundamental Rights: EU Level 13. Policies of Horizontal Application of Fundamental Rights: EU Level
  - A. Reduction of Discrimination on Ground of Gender or Age A. Reduction of Discrimination on Ground of Gender or Age
  - B. Reduction of Discrimination on Ground of Nationality; Protection of Freedom of Movement of Workers B. Reduction of Discrimination on Ground of Nationality; Protection of Freedom of Movement of Workers
  - C. Protection of Freedom of Establishment and Freedom to Provide Services C. Protection of Freedom of Establishment and Freedom to Provide Services
  - D. Protection of Privacy, Freedom of Information and Freedom to Conduct Business D. Protection of Privacy, Freedom of Information and Freedom to Conduct Business
- 14. Legitimate Legal Policy or Fundamental Rights Instrumentalization? 14. Legitimate Legal Policy or Fundamental Rights Instrumentalization?
  - A. National Level A. National Level
    - 1. Protection of the Weaker Party in Contract Law 1. Protection of the Weaker Party in Contract Law
    - 2. Reduction of Discrimination 2. Reduction of Discrimination
    - 3. Economic Upgrade of the Interests of the Individual and Social Equality in Tort Law; Control of the Power of the Media 3. Economic Upgrade of the Interests of the Individual and Social Equality in Tort Law; Control of the Power of the Media
    - 4. Protection of Political Rights in Privately Owned Spaces 4. Protection of Political Rights in Privately Owned Spaces
    - 5. Protection against Environmental Pollution 5. Protection against Environmental Pollution
    - 6. Preliminary Conclusion 6. Preliminary Conclusion
  - B. EU Level B. EU Level
    - 1. Reduction of Discrimination; Protection of Freedom of Movement of Workers 1. Reduction of Discrimination; Protection of Freedom of Movement of Workers
    - 2. Protection of Freedom of Establishment and Freedom to Provide Services 2. Protection of Freedom of Establishment and Freedom to Provide Services
    - 3. Protection of Privacy, Freedom of Information, and Freedom to Conduct Business 3. Protection of Privacy, Freedom of Information, and Freedom to Conduct Business
- 15. Conclusion 15. Conclusion
- Notes
- Notes
5 Constitutionalization and EU Employment Law
- Notes
- Notes
6 Fundamental Rights, European Private Law, and Financial Services
- Notes
- Notes
7 Intellectual Property and European Fundamental Rights
- Notes
- Notes
8 Rights and Remedies
- Notes
- Notes
- Index
  - Notes
  - Notes

Chapter

4 European Fundamental Rights, Private Law, and Judicial Governance

Get access

https://doi.org/10.1093/acprof:oso/9780198712107.003.0004

Pages

102–136

Published:

April 2014

Abstract

This chapter explores how and for which societal governance purposes fundamental rights are applied by national and European courts in cases concerning litigations between private parties. After having analysed how the horizontal effect of national and EU fundamental rights works and which policy goals it serves, this chapter attempts to answer the question whether this use of fundamental rights is legitimate and desirable. This question is looked at from the background of a normative-individualistic understanding of fundamental rights. The analytical part of this chapter includes the proposition of a new doctrine: the double indirect horizontal effect of fundamental rights. This could help the Court of Justice develop its jurisprudence towards a better consideration of the non-economic human interests protected by EU fundamental rights. This chapter comes to the conclusion that, in applying fundamental rights horizontally, both the Court of Justice and the national courts seem to regularly give preference to certain societal policies over others. However, this does not mean that fundamental rights are instrumentalized. On the contrary, in the analysed cases, the pursuit of societal policies goes hand in hand with the strengthening of the basic interests of all individuals directly concerned. This confirms the normative-individualistic paradigm.

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4 European Fundamental Rights, Private Law, and Judicial Governance

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