Horizontal Effect Of Fundamental Rights Research Articles

The Lazy Legislature: Incorporating and Horizontalising the Charter of Fundamental Rights through Secondary Union Law

Constitutionalising private law – Horizontal effect of fundamental rights –New legislative techniques in the EU in platform governance – References to the Charter of Fundamental Rights in secondary union law – Article 14(4) of the Digital Services Act – Article 5(1) subparagraph 2 of the Terrorist Content Online Regulation – Compatibility of secondary union law references to the Charter with primary union law – Interpretative methodology of secondary union law references

Using Terms and Conditions to apply Fundamental Rights to Content Moderation

AbstractLarge online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.

Privacy at work

Today, there is a widespread recognition of the horizontal effect of fundamental rights. The labourcontract represented everywhere, in democratic systems, the natural framework for the development of such an effectiveness of constitutional precepts and values, with the need of answering to the question of whether-and to what extent–the interests that are in the basis of the employer's power require and justify in casuthe limitation of the employee ́s freedom.The Portuguese Labour Code, in articles 14 and following, expressly recognizes certain fundamental rights of the human being in the workplace,including the privacy. The employee has, in fact, the right to expect a certain degree of respect for his privacy in the workplace, which is where he develops an important part of his relations with others. This right shall, however, be balanced with other rights and legitimate interests of the employer, in particular the rights to effectively manage his enterprise and specially to protect himself from liability or damage caused by employee ́s actions.The case law –namely that of the Supreme Court of Justice -has influenced the evolution of the Labour Law, contributing to the interpretation of the lawand the resolution of some controversial employment issues, e.g. in matters related to fundamental rights. In the final part of this article we will seek toprovide a brief overview of some innovative case law issued by the Social Chamber of the Portuguese Supreme Court, particularly after entering into force the Portuguese Labour Code in 2003.

Fundamental Rights, Contract Law and Transactional Justice

Abstract This article critically engages with Peter Benson’s theory of contract law. It explores whether his juridical conception of contract as a transfer of rights, which is governed by the contract law’s internal principles of transactional justice, can be reconciled with fundamental rights. The article argues that the conventional distinction between the direct and indirect horizontal effect of fundamental rights is problematic because it does not make it unequivocal which body of law – fundamental rights or contract law – substantially governs the relations between contracting parties and determines the outcome of disputes between them. The answer to this fundamental question, however, is crucial for the stability of Benson’s theory of contract law. Drawing on the European experience, the article shows that the relationship between fundamental rights and contract law can take the form of the subordination of contract law to fundamental rights or the complementarity between the two. While the latter is compatible with Benson’s theory, the former is in tension with it. For the sake of conceptual clarity, therefore, it is useful to distinguish between three forms of the horizontal effect of fundamental rights in contract law – direct horizontal effect, strong indirect horizontal effect, and weak indirect horizontal effect.

The Judgment in Bauer and the Effect of the EU Charter of Fundamental Rights in Horizontal Situations

The note discusses the judgment of the Court of Justice of the European Union (CJEU) in Bauer, a preliminary reference concerning the question of the effect of the EU Charter of Fundamental Rights in horizontal situations. The note examines whether the Bauer judgment unequivocally transformed the EU Charter into an independent source of private parties’ duties, and how it can be determined which Charter provisions could impose specific duties on private parties. The note evaluates the reasoning of the CJEU and locates the Bauer judgment within the growing strand of EU case law concerning the question of horizontal effect of fundamental rights and the role of the Charter of Fundamental Rights in regulating private law situations.

THE RIGHT TO BE FORGOTTEN IN THE PRACTICE OF THE CONSTITUTIONAL JUSTICE BODIES OF THE RUSSIAN FEDERATION AND THE FEDERAL REPUBLIC OF GERMANY

The development of digital technologies affects the legal status of an individual. The task of constitutional justice is the constitutional interpretation of new legal phenomena such as the right to be forgotten. This article aims to analyze the right to be forgotten in the decisions of the Russian Constitutional Court and German Constitutional Court in a comparative aspect. The research methodology is primarily a dialectical method. This method helps the author to identify the content of the right to be forgotten, as well as to determine its role in relation to other constitutionally significant values. The comparative legal method is of particular importance for achieving the objectives of the research and helps to highlight the general and specific in the approaches of the courts to the concept of this right. This approach distinguishes the novelty of this research in comparison with other papers. The use of the dialectical and comparative legal research methods allows drawing the following conclusions. The distinctive feature of the right to be forgotten is its dualistic nature. On the one hand, this is a civil right associated with the right to privacy; on the other, it acts as a way to protect other constitutional rights (for example, the dignity of the individual). This right is not absolute. Some information may be of public interest. To resolve the issue of the prevailing constitutionally significant value in a particular case, the Russian Constitutional Court suggests using the method of finding a balance. The Federal Constitutional Court of Germany emphasized that the right to free personal development and dignity sometimes prevails over freedom of information, especially considering the time factor in the case, as well as the degree of harm caused to a person by links to information posted on the Internet. The German Federal Constitutional Court, characterizing the legal relationship regarding the exercise of the right to be forgotten, highlights that this is a relationship between private subjects with fundamental rights, and refers to the concept of the horizontal effect of fundamental rights (“mittelbare Drittwirkung”) developed in German constitutional law. This article concludes that the decisions of the Russian Constitutional Court and the Federal Constitutional Court of Germany on the right to be forgotten are the guidelines for other courts, as well as the legislator for further improving legal regulation. Taking into account the development of information technologies, the author believes that the constitutional courts will more than once turn to the digital aspects of the legal status of an individual and, in particular, the concept of the right to be forgotten.

A Study on the Horizontal Effect of Fundamental Rights in the Constitution of the Netherlands

기본권의 대사인효 또는 수평효의 핵심은 전통적으로 국가 공권력을 구속하는 헌법상 기본권을 사적 자치가 지배하는 민사법 영역의 사적 당사자들에게도 직접 적용할 수 있는가에 있다고 할 수 있다. 우리 헌법학계에는 독일이나 미국의 이론을 중심으로 소개되어 왔지만 이 문제는 최근 ‘사법의 헌법화’라는 주제로 유럽 여러 국가들에서 학문적 논의의 대상이 되어왔다. 네덜란드도 기본권의 수평효라는 용어로 사인에 대한 기본권 효력논의가 전게되었고, 특히 1983년 개헌 과정에서 헌법상 기본권의 사인에 대한 확장 여부 및 기본권의 강도나 내용에 따른 차등적 수평효 적용 방안 등이 제시되기도 하였다. 비록 헌법 명문 규정으로 반영된 것은 아니나 기본권의 수평효 문제에 대한 좀 더 적극적이고 유연한 적용이 필요하다는 합의 속에 그 해결은 결국 입법부와 사법부의 역할로 남겨졌다. 이후 의회는 일반평등대우법 제정, 근로계약 보호 및 임차인 보호 관련 민법규정 신설 등을 통해 기본권의 수평효 보장을 위한 노력을 기울이고 있다. 사법부의 경우, 사인에 대한 기본권 적용에 특별한 이론이나 방식을 도입하고 있지는 않았지만 일반적으로 간접적 효력의 방식을 채택하고 있다고 할 수 있다. 그렇지만 대법원은 이 과정에서 기본권의 절대 우위를 인정하거나 국가에 대해 작용하는 기본권의 강도를 동일하게 사인들 간에 적용하기보다는, 기본권을 민사 분쟁을 해결할 때 고려하는 이익 중 하나로 판단하거나 또는 당사자의 권리나 이익을 구체화하는 형태로 적용하는 모습을 보이고 있다. 이런 네덜란드 대법원의 기본권 수평효 적용 방식은 민법의 헌법화 또는 기본권 종속화라기보다는 민법 보완적 기본권 해석이라는 평가를 받는다. 오늘날 민사소송에서 당사자들은 헌법상 기본권을 그대로 원용하여 자신들의 권리침해를 주장하는 경우가 늘고 있고 법원도 이를 그대로 판단의 도구로 삼아 심리하는 경향을 쉽게 찾아 볼 수 있다. 그렇지만 국가에 대해 적용되는 헌법상 기본권이 사인들 간에도 동일한 내용과 형식으로 작용한다는 것은 타당하지 않으며 간접 효력 역시 그 적용의 예측이 쉽지 않지 않다. 그렇다면 특별한 국가 관련성이 인정되거나 힘의 불균형이 심각하여 민사법원칙의 적용이 부적절한 예외적 경우가 아닌 일반적 민사사건의 경우, 개인의 민사상 권리를 보완하거나 구체화하는 요소로서 기본권을 고려하여 당사자의 이익을 형량하는 네덜란드 사례는 오늘날 법치국가, 법률유보원칙 및 권력분립의 원칙 등에 비추어 볼 때 시사하는 바가 있다고 할 것이다.

A Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law

Horizontal effect of fundamental rights – Legal principles – Dichotomy between private and public law – Systemic or anti-systemic elements in legal orders – Conflict between contractual autonomy and fundamental rights – Coherence in law – Balancing – Cases of permissibility of bank charges in the Czech and German legal systems – General clauses on good morals and good faith in private law

A Eficácia Horizontal dos Direitos Fundamentais na Jurisprudência do Tribunal Regional do Trabalho da 4ª Região (Rio Grande do Sul)

O  artigo  analisa  a  utilização  da  eficácia  horizontal  dos  direitos  fundamentais  na jurisprudência do Tribunal Regional do Trabalho da 4ª Região, Rio Grande do Sul, Brasil. Também busca definir eficácia dos direitos fundamentais, em suas dimensões vertical e horizontal e as teorias doutrinárias a respeito da eficácia horizontal de tais direitos. Posterior apresenta a jurisprudência recente do tribunal regional laboral, na busca de decisões que, expressamente, afirmem a eficácia horizontal dos direitos fundamentais nas relações entre particulares  de  forma  direta  e  imediata,  como  fundamentos  e  razões  de  decidir.  O procedimento  metodológico  é  o  analítico-interpretativo  de  investigação  bibliográfica  e análise jurisprudencial.

The Constitutionalization of European Private Law: Gateways, Constraints, and Challenges

Abstract: It seems to be undisputed today that the harmonization of private law in Europe cannot take place without taking fundamental rights into account. Yet many questions still exist as to how and to what extent EU and national private law can and should be influenced by fundamental rights enshrined in the EU Charter of Fundamental Rights. This contribution aims to explore gateways to the EU constitutionalization of private law, constraints thereon, and challenges posed thereby, with a particular focus on contract law in the consumer, employment, and financial services context. After a methodological introduction explaining the special nature of the fundamental rights protection in the EU legal order (s. 1), the authors develop a general framework within which the EU constitutionalization of private law takes place (s. 2). Subsequently, they proceed to examine the fundamental rights scrutiny of EU law and national laws within the scope of EU law (s. 3), the interpretation and application of EU law and national law within its scope in conformity with fundamental rights (s. 4), as well as the controversial concepts of the positive obligations to protect fundamental rights in private relationships (s. 5) and the direct horizontal effect of fundamental rights (s. 6). The contribution concludes with some final observations (s. 7).  

A EFICÁCIA HORIZONTAL DOS DIREITOS FUNDAMENTAIS NO BRASIL: UMA ANÁLISE SOBRE O JULGAMENTO DO RECURSO EXTRAORDINÁRIO 201.819-8 À LUZ DO CONSTITUCIONALISMO CONTEMPORÂNEO

The new constitutional right – contemporary constitutionalism or neoconstitutionalism – arising after the end of World War II is an undeniable reality of the doctrine. The strengthening and the quest for effectiveness of fundamental rights is one of its main goals. From this ideal, there are various phenomena and institutes, such as the horizontal effect of fundamental rights, which is the production of effects of these rights not only in relations involving the government, but also in relations of individuals. This study aims to verify that the ideals of the neoconstitutionalism, especially the appreciation of fundamental rights in the main figure of the horizontal effectiveness of these rights, have been inserted in the decisions of the Brazilian courts, specifically the Brazilian Supreme Court, and how this new constitutional motion in judicial decisions can be observed. The answer is sought by analyzing the judgment of the Extraordinary Appeal 201.819-8. As for the approach, the method is deductive, as a part of general concepts about the new constitutional law and the horizontal effect of fundamental rights, to subsequently verify the presence of these effects in this case. In the background, the method used is mainly the monographic, since it works with a concrete case. Finally, the decision in the case had its majority voted in favor of recognition of the horizontal effect and can be seen clearly in the arguments used by the Ministers, the acceptance and application of neoconstitutionalism phenomena.

Two-Way Influencing of the Categories of Fundamental (Constitutional)Rights and Private Law Principles as the Result of Constitutionalization of Private Law in Light of the New Czech Civil Code

This paper focuses on the consequences of a situation having evolved from a process ongoing at both the level of the European Union and the individual national level of EU Member States, generally known as constitutionalization of private law, or as the horizontal effect of fundamental rights arising from international, European and national constitutional provisions on human rights, in the specific conditions of the Czech Republic. Czech lawmakers introduced references and even partially adopted into the text of the Civil Code fundamental/human rights, by which it bared the yet rather latent question of mutual definition and mutual relationship of fundamental constitutional rights and private law principles. Assessing this relationship and its impacts forms the core of this paper. In conclusion, the author offers a proposal for resolving systemic discrepancy of the effect of human rights in the conditions of private law.

Hacia un constitucionalismo moderado o deferente

The assumption of the so-called Constitutional State of Law has meant the constant loss of relevance of the law within the system of sources. This can be observed with increasing recurrence in the context of application, from thesis that seek to grant radical effects to the principle of binding force of the Constitution, to the horizontal effect of fundamental rights and to the irradiation effect of the Constitution, suggesting that the generality of the judges can disapply the legal norms by virtue of apparent constitutional reasons. Faced with these radical theses and recognizing the operation of constitutional norms, this paper claims the role that falls to the legislator, given its link with the democratic principle and the existing link between form and freedom. Then a model of moderate or deferential constitutionalism is defended.

Fundamental Rights, Capabilities, and Private Legal Relationships

The previously controversial claim of the horizontal effects of fundamental rights on private legal relationships is now widely acknowledged in Europe. This paper submits that this legal development can be understood as the judicial interpretation of fundamental rights as capabilities. What people are really able to do and be depends in important ways on the rights and obligations that originate in relationships with other private parties. This paper aims to show that the horizontal effect of fundamental rights in private law is a paradigm of what the protection of capabilities would require.

Arbitration clauses in sport governing bodies’ statutes: consent or constraint? Analysis from the perspective of Article 6(1) of the European Convention on Human Rights

General trend of the growing popularity of alternative dispute resolution is especially visible in the world of sport. There is a perception that arbitration tribunals, particularly the Court of Arbitration for Sport, have exclusive jurisdiction over sport-related disputes. This is enhanced by mandatory arbitration clauses inserted in statutes and bylaws of various sport governing bodies. These are safeguarded by a threat of imposing disciplinary sanctions on those who refrain from fulfilling the said obligations. Due to professionalization of sport and the monopolistic position of international federations, athletes, as well as clubs, have no other choice than to submit their disputes to arbitration. Although, the validity of these provisions can be questioned, they are upheld by the Swiss Federal Supreme Court. Jurisprudence of the European Court of Human Rights shows that private arbitration agreements tainted with constraints contravene the Article 6(1) of the European Convention on Human Rights, specifically the right to access to court. Although the horizontal effect of fundamental rights is limited, the concept of positive obligations allows for concluding that states and their organs, in this case particularly Swiss courts, are obliged to interfere in private relationships to secure the effective enjoyment of rights.

Fundamental Rights, Private Law, and Societal Constitution: On the Logic of the So-Called Horizontal Effect

The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they are located in a logical or normative room beyond the logical room of private law. In contrast to this prevailing opinion, the paper argues that, first, private law is logically prior to fundamental rights, and that, second, fundamental rights are part of private law’s intrinsic normative logic. This is developed for the class of democratic rights that includes all rights besides anti-discrimination rights and classical civil rights. If the argument is cogent, then it can also explain why fundamental rights also apply, including horizontal effect, in the sphere of transnational legal regimes, subject to the transnational jurisdiction of state courts and international tribunals.

Horizontal Effect of Fundamental Rights and Freedoms - Much Ado About Nothing? German, Polish and EU Theories Compared after Viking Line

The paper examines the theory of horizontal effect of fundamental rights and freedoms, known also as Drittwirkung. It introduces relevant doctrines in Germany and Poland in order to then focus on the EU theory shaped in the case law of the European Court of Justice, most notably in the landmark Viking Line judgment. The highly formalized German approach is confronted with more flexible attitudes developed by the ECJ and in Poland. The paper demonstrates the exceptionality of horizontal effect and its links with the principle of effectiveness which lies at the core of the modern systems of human rights protection. It also argues that the distinction between direct and indirect effect can be blurred, may depend on the available causes of action and consequently should not be overrated.

The Constitutionalization of European Contract Law: Judicial Convergence and Social Justice

A form of contract law constitutionalization known by most European legal systems is the horizontal effect of fundamental rights and constitutional principles. This paper presents a comparative overview of fundamental rights adjudication in the private law of ten EU Member States. It draws attention to the spontaneous judicial convergences in contract law, which enable us to speak of the common ‘fact patterns’ of horizontal effect. This paper aims to demonstrate two theses: first, this horizontal effect is a pan-European phenomenon, not necessarily linked to a particular national legal culture. Second, horizontal effect in contract law is not politically neutral but inspired, at least in its application by national courts, by policies of social justice.

Www.CompanyNameSucks.com: The Horizontal Effect of Fundamental Rights on ‘Private Parties’ within Autonomous Internet Law

www.CompanyNameSucks.com: The Horizontal Effect of Fundamental Rights on ‘Private Parties’ within Autonomous Internet Law