EU Fundamental Rights and Private Law in the Context of Different Legal Families

1. 1 EU FundamentalRightsand Private Lawin the Context of Different Legal Families Prof. Dr. Dr. Aurelia Colombi Ciacchi University of Groningen (NL)

2. OVERVIEW OF THIS PRESENTATION 2 I. EU fundamental rights: history, definition II. Fund. rights: vertical + horizontal effect III. Own research results (in short) IV. Legal families in comparative law V. New legal families of horizontal effect of fundamental rights VI. First family: Reaction to totalitarianism VII. Second family: UK + Nordic countries VIII. Third family: France + Benelux

3. 3 • EU FUNDAMENTAL RIGHTS (1): A BRIEF HISTORY • 1960s-1970s: ECJ human rights in international treaties binding on the EU member states + fundamental rights enshrined in the common constitutional traditions of the member states = to be observed as general principles of Community law •  established ECJ case law in 1970s-1990s •  codified in Maastricht Treaty (1992-1993) •  repeated in all successive Treaties

4. 4 I. EU FUNDAMENTAL RIGHTS (2): A BRIEF DEFINITION • Human rights acknowledged in international conventions binding the EU member states, AND • Rights enshrined in the Charter of Fundamental Rights of the European Union (CFREU), AND • Rights enshrined in the common constitutional traditions of the EU member states.

5. 5 II. EFFECTOF FUNDAMENTAL RIGHTS: (1) VERTICAL • Effect on relationship between public authority and person subject to authority • Effect on enactment, abolition, formal amendment of legislation Examples: • Legislative reforms realized for the purpose of complying with fundamental rights • Const. Courts declaring laws unconstitutional • Condemnation of States by human rights courts

6. 6 II. EFFECTOF FUNDAMENTAL RIGHTS: (2) HORIZONTAL • Fundamental rights used (mostly by courts) to determine the entitlements and obligations of private parties against each other Direct horizontal effect: • Remedy (e.g. damages, injunction) directly descends from fundamental rights • Private party directly bound by fundam. right Indirect horizontal effect: • Fund. right  interpretation of private law • Private party not directly bound by fund. right

7. 7 III. OWN RESEARCH RESULTS • Brüggemeier, Colombi Ciacchi & Comandé (eds), Fundamental Rights and Private Law in the European Union (CUP 2010, two volumes) • Several articles and book chapters of mine 2005-2017  Different models of horizontal effect of fundamental rights exist in Europe  Different groups of countries, which do NOT match with the traditional legal families described by comparative lawyers

8. 8 IV. LEGAL FAMILIES IN COMPARATIVE LAW • Civil law, common law, mixed jurisdictions • Civil law families: Romanistic, Germanic, Nordic (Zweigert & Kötz) • Z&K’s division descends from a legislation-oriented, law-in-the-books perspective, mainly looking at Civil Codes • Case-law oriented, law-in-action perspective (e.g. “The Common Core of European Private Law”)  new, topic-specific groups of countries that do not match with legal families

9. 9 V. NEW LEGAL FAMILIES OF HORIZONTAL EFFECT OF FUNDAMENTAL RIGHTS • Horizontal effect of fundamental rights: law-in-action topic, based on case law and scholarly writings • Three new legal families of horizontal effect of fundamental rights can be traced back to two factors: - Comparative constitutional law and history - Historical-cultural relation between legislators and courts in the field of private law

10. 10 VI. FIRST FAMILY: REACTION TO TOTALITARIANISM (1) • Continental European democracies instituted in the 20th century after the fall of totalitarian regimes • Examples: Germany, Italy, Poland, Portugal, Slovenia, Spain • Constitutional norms entrenched • Great power allocated to courts (judicial activism) - Key role of Constitutional Courts, whose judgments  evolution of private law

11. 11 VI. FIRST FAMILY: REACTION TO TOTALITARIANISM (2) • Horizontal effect of national constitutional provisions • Horizontal effect of ECHR hardly plays any role • Constitutional Courts do not only strike down unconstitutional laws but also determine the correct interpretation and application of Constitution in private law cases  Major changes in private law adjudication are often initiated or consecrated by constitutional courts

12. 12 VII. SECOND FAMILY: UK AND NORDIC COUNTRIES • Old democracies not replaced by totalitarian regimes in the 20th century • No continental-like Constitution • No Constitutional Court • International/national law: dualist model • ECHR incorporation only after 1990 • Horizontal effect ECHR • E.g. Sweden: no horizontal effect of the four constitutional statutes

13. 13 VIII. THIRD FAMILY: FRANCE AND BENELUX (1) • France, Belgium, the Netherlands, Luxemburg • Old democracies not replaced by totalitarian regimes in the 20th century • Written entrenched Constitutions (French style) • NL: no institution comparable to a constitutional court + no constitutional review by judiciary • International/national law: monist model

14. 14 VIII. THIRD FAMILY: FRANCE AND BENELUX (2) • Horizontal effect ECHR • Horizontal effect of national constitutions hardly plays any role! Why? - International law instruments such as ECHR have supremacy over national law + are directly effective insofar as self-executing • Legal culture considers constitutional norms a purely public law matter: 19th century strict separation between public law and private law

15. 15 … AND WHAT ABOUT MALTA?