Fundamental rights and private law:&lt;br&gt; A relationship of subordination or complementarity?

Olha O Cherednychenko

doi:10.18352/ulr.45

Abstract

Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defences against the vigilant eye of the state. This traditional view, however, has recently been put under pressure as a result of fundamental rights increasingly becoming relevant for private law. The relationships between private parties under private law have started losing their immunity from the effect of fundamental rights. The major question at present is no longer whether fundamental rights may have an impact on private law, but to what extent this will occur, and the answer to this question will determine the future of private law. The primary aim of this article is to establish how fundamental rights and private law (may) relate to each other at present in different legal systems. In light of this, the article considers how fundamental rights (may) affect the relationships between private parties under private law and what consequences this effect has for the relationship between fundamental rights and private law.

Highlights

Fundamental rights, i.e. human rights embodied in international human rights treaties and constitutional rights enshrined in national constitutions, and private law were considered to be wide apart due to the sharp distinction between public and private law
The growing influence of fundamental rights on the relationships between private parties under private law, i.e. the horizontal effect of fundamental rights in private law, which can be traced in many European legal systems, makes it possible to speak of the tendency towards the constitutionalisation of private law[1] and clearly shows that fundamental rights and private law no longer exist in isolation of each other.[2]
In those cases where the private law courts were held to be obliged to protect the constitutional rights of certain actors and for this purpose to intervene in contractual relationships by means of the general clauses, the role to be played by contract law, in particular general clauses, in determining when, under what conditions, and to which extent to incorporate constitutional values into its own fabric seems to have been rather limited.[22]

Summary

Introduction

Fundamental rights, i.e. human rights embodied in international human rights treaties and constitutional rights enshrined in national constitutions, and private law were considered to be wide apart due to the sharp distinction between public and private law. The focus of the analysis will be on German, Dutch and English law The choice of these legal systems is explained by the fact that whereas in Germany the relationship between fundamental rights and private law is largely determined by the constitutional court, in the Netherlands and the UK in the absence of such a court this issue falls exclusively within the competence of the ordinary courts. Private parties are not bound by fundamental rights, and their relationships are formally and substantially governed by the norms of private law In this model, fundamental rights only influence private law, and it is private law which determines how the values embodied therein are to be accommodated within it. What the subordination and complemetarity models imply in practice will become clear where the case law of the German, Dutch and English courts will be discussed through the prism of these models

Towards the subordination of private law to fundamental rights

Towards complementarity between fundamental rights and private law

Final remarks