Unchart(er)ed Territory: EU Fundamental Rights and National Private Law

Amsterdam Law School Research Paper No. 2013-25

26 Pages Posted: 22 Apr 2013 Last revised: 28 Apr 2013

See all articles by Chantal Mak

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

Date Written: April 18, 2013

Abstract

How do fundamental rights recognised at EU level affect legal relationships under the national private laws of EU Member States? How and to what extent should such EU fundamental rights be integrated in legal reasoning under European private law? Taking its cue from four recent CJEU judgments, this paper focuses on the application of the Charter to cases concerning the application of Directives and Regulations and analyses the specific problems arising in this context. The analysis makes clear that the Charter provides judges with a means to strengthen fundamental rights protection in the EU legal order. At the same time, however, the risks related to a further-reaching constitutionalisation of European private law should not be underestimated, in particular insofar as social rights might be subordinated to economic interests falling within the scope of the Charter’s provisions regarding freedom of contract.

Keywords: EU Charter of fundamental rights, European private law, judicial method, proportionality, balancing, freedom of contract

JEL Classification: K12

Suggested Citation

Mak, Chantal, Unchart(er)ed Territory: EU Fundamental Rights and National Private Law (April 18, 2013). Amsterdam Law School Research Paper No. 2013-25, Available at SSRN: https://ssrn.com/abstract=2254799

Chantal Mak (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

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