Fundamental Rights and Private Acts - Horizontal Direct or Indirect Effect? — A Comment

Abstract

The contribution examines the distinction between horizontal direct and indirect effect of fundamental rights. The German concept of mittelbare and unmittelbare Drittwirkung with respect to Grundrechte (basic constitutional rights) and the ECJ's approach to private threats to the free movement provisions are analysed briefly. This analysis then allows for consideration of the validity and value of the distinction. Private autonomy and the question of competencies emerge as the main issues to be considered when applying fundamental rights to private acts. It is maintained that the respect for both private autonomy and for the distribution of competencies argue against the horizontal direct effect and in favour of an indirect approach.