Horizontal Application of the Charter of Fundamental Rights

(2013) 38 European Law Review 479

Oxford Legal Studies Research Paper No. 90/2013

20 Pages Posted: 20 Sep 2013  

Dorota Leczykiewicz

University of Oxford

Date Written: September 19, 2013

Abstract

The article examines the use of the Charter of Fundamental Rights in the so-called “horizontal” cases. For this purpose it investigates three questions: first, the formal status of the Charter in horizontal situations; secondly, the problems which arise when open-textured provisions guaranteeing fundamental rights are applied horizontally; and thirdly, the different ways in which restrictions could be imposed on the horizontal use of the Charter. It argues that the question of the appropriate scope of horizontal application of the Charter goes beyond the technical subtleties of distinguishing between the Charter and the “general principles” of fundamental rights, or between their “direct” and “indirect” effect. Starting from the assumption that constitutionalisation of contract law should have limits, the article argues for a substantive doctrine to regulate the reach of the Charter in horizontal cases. The article considers the possibility of reconciling a traditional private law perspective, focused on protection of contractual freedom and efficiency, with the concern for ensuring efficacy of fundamental rights in situations where substantive freedom and equality are in need of protection.

Keywords: EU Charter of Fundamental Rights, horizontal effect, direct effect, indirect effect, contractual freedom

Suggested Citation

Leczykiewicz, Dorota, Horizontal Application of the Charter of Fundamental Rights (September 19, 2013). (2013) 38 European Law Review 479; Oxford Legal Studies Research Paper No. 90/2013. Available at SSRN: https://ssrn.com/abstract=2328175

Dorota Leczykiewicz (Contact Author)

University of Oxford ( email )

St Peter's College
New Inn Hall Street
Oxford, OX1 2DL
United Kingdom

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