The Harmonisation of Contract Law in Europe by Means of the Horizontal Effect of Fundamental Rights?
22 Pages Posted: 15 Jan 2010
In recent literature a plea has been made for the non-legislative harmonisation of contract law in Europe through the horizontal effect of European fundamental rights. The idea behind such harmonisation is that the European Court of Human Rights and the European Court of Justice need to strike a balance between competing fundamental rights, in order to assess the appropriate level of the protection of the weaker party. This idea has in particular been advocated with a view to achieving harmonisation in the protection of sureties in the EU. The general aim of this paper is to critically assess the possibilities for the non-legislative harmonisation of contract law in Europe. Based in particular on the analysis of German constitutional law and the Nice Charter of Fundamental Rights of the EU 2000, it is argued that constitutional principles can hardly be understood in such a way as to prescribe a particular way of protecting the surety or other weaker party, and EU member states cannot be held to be thereby precluded from experimenting with different levels of protection within contract law. The European Court of Justice accordingly clearly lacks democratic legitimacy to promote a top-down non-legislative harmonisation of contract law through EU fundamental rights. It is submitted therefore that if the harmonisation of the protection of sureties and other weaker parties in Europe is to be attained, this can only be done by the European legislator and not through the interpretation of EU fundamental rights.
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