Horizontal Effect of Fundamental Rights: In Search of Social Justice or Private Autonomy in EU Law?
U Bernitz, X Groussot & F Schulyok (eds), General Principles of EU Law and European Private Law (Kluwer Law International 2013)
17 Pages Posted: 30 Apr 2013 Last revised: 23 Feb 2014
Date Written: April 15, 2013
What is the role of EU fundamental rights in cases involving two private parties? Does the category of ‘fundamental rights’ as concepts of EU law infuse that legal system primarily or exclusively with social values or is perhaps a vehicle of another transformation, towards greater liberalisation and deregulation? This article will argue that until recently, ‘fundamental rights’ were used horizontally primarily in order to achieve greater social justice rather than to enhance private autonomy. I will substantiate this thesis by looking at the application of Treaty provisions, directives and general principles protecting fundamental rights. I will pay a special attention to the Charter of Fundamental Rights, which has already featured prominently in horizontal cases referred to the Court of Justice of the EU. The article will look at how individual freedom has so far been protected by EU law and examine whether the recently decided cases where Article 16 of the Charter, protecting freedom to conduct a business, was relied on show a shift in the use of the concept of 'fundamental rights'.
Keywords: EU law, fundamental rights, horizontal effect, social justice, private autonomy
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