Fundamental Rights and Private Law in Europe

The Case of Tort Law and Children

Nuno Ferreira

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136716317
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The book explores, from a comparative and inter-disciplinary perspective, the relationship between fundamental rights and private law in Europe, a debate usually referred to as Drittwirkung or 'horizontal effect of fundamental rights'. It discusses the different models of 'horizontal effect' and the impact that fundamental rights may have in shaping tort law, especially the position of child tortfeasors. The book concentrates on several European jurisdictions, namely France, Italy, Germany, Portugal, Sweden, Finland, and England and Wales. At a crossroad between human rights and European private law, this study draws insights from several legal fields (international, European, tort, constitutional and child law), sociology, psychology, and feminist studies. It also considers policy implications and advances proposals which would ensure the optimisation of the effect, and maximisation of the effectiveness, of fundamental rights in tort law, and more generally in private law. This book departs from traditional legal doctrines and offers a more pragmatic, comprehensive and just legal analysis of the role of fundamental rights in private law. It will be of interest to undergraduate and postgraduate students, academics, practitioners, policy-makers and activists with an interest in human rights, tort law, comparative law, children's rights and European private law.

Part I

1 The Horizontal Effect of Fundamental Rights

Theories and Models

Fundamental rights with their various functions have cast their spell over all remaining constitutional law – and, indeed, over almost all of the remainder of the law. They illuminate, saturate and mould the law.

(Starck 2000: 2)

1.1 Introduction

The HEFR debate concerns any right of fundamental character, thus including both written and non-written rights, and rights both formally and non-formally recognised constitutional ranking. Furthermore, it only makes sense talking about HEFR with regard to those fundamental rights that private parties may invoke in their relationships with other private parties, independently of also being able to invoke them in their relationships with the state. This, regardless of whether the right in question originally or subsequently became evocable between private parties. Among these rights, and depending on each constitutional framework, one can mention the right to privacy, the right to protection of data, the right to freedom of expression, the right to freedom of association, etc. This excludes those rights that individuals can only enforce with regard to the state (such as, generally, criminal proceedings guarantees, political rights, and some social rights), and, up to a certain extent, those rights already regulated by private law, even if derived from, or indirectly connected to, a constitutionally protected fundamental right (Miranda and Medeiros 2005: 156–7). Finally, those fundamental rights whose binding effect in private relationships is already determined by a constitutional text fall equally outside the debate of whether they enjoy horizontal effect or not (for example, CRP Articles 36(3), on the right to equality between spouses, 37(4) on the right to answer and rectification in the press, and 38 on internal freedom of press). The horizontal effect of these fundamental rights cannot be doubted in the light of constitutional norms – what can still be argued in these cases is the exact nature of that effect (Gomes Canotilho 2004e: 90–1).

The debate around the HEFR is not limited to national legal systems. In fact, the HEFR has also been widely discussed with regard to international public law (Ratner 2001; Lachmayer and Thallinger 2004; Clapham 2006; Ssenyonjo 2008), international private and procedural law (Dubinsky 2005), and the EU legal order (Jaensch 1997; Ganten 2000; Schindler 2001; Canaris 2002; Avbelj 2004; Preedy 2005; Ferreira and Krzeminska-Vamvaka et al 2010). In addition, it has also been an issue with regard to the case law of the ECtHR, in relation to which a clear indirect effect has been derived from cases such as Swedish Engine Drivers’ Union v Sweden (6 February 1976), Marckx v Belgium (13 June 1979), Young, James and Webster v UK (18 October 1982), X and Y v The Netherlands (26 March 1985), and Costello-Roberts v UK (25 March 1993) (Glatzel 1969; Bilbao Ubillos 1997: 338–40; Palmer 2000: 175, 179; Ellger 2001: 165–7).

In this chapter, a sketch of the general debate around the HEFR in European national legal systems will be drawn, in reference to some particular jurisdictions. This debate focuses very often either on the increasing pervasiveness of the fundamental rights discourse in the private law realm or on the need to protect at all costs the essential values of private autonomy and property. Both extremes seem very problematic and opportunistic (Gerstenberg 2004: 780), and the different models that have been suggested throughout time have tried to defend the best point of balance between these two extremes. However, the aim of this chapter is not to propose any (yet) new model to solve the methodological and systematic problems discussed by so many authors, nor to present a thorough critique of the models already proposed throughout the last few decades. The amount of literature already produced on this theme and the differences between the European legal systems seriously question the possibility of such an endeavour. On the contrary, the aim is merely to draw the main lines of this debate as to enable us to explore new avenues in the applicability of the HEFR debate in particular fields, namely in tort law and with regard to the legal position of the tortfeasor.

An analysis underlining contributions from several jurisdictions is adequate on several accounts. On the one hand, this debate is highly relevant in several jurisdictions; on the other, the scope of discussion is wide enough to accommodate a strong comparative input. Furthermore, the issues at stake, the dogmatic categories, and most arguments, are, indeed, frequently the same. To set the tone for this analysis, a brief reference will be made to the elements that contribute to the interpretation of fundamental rights, as well as to their limits. Afterwards, the main HEFR models that have been advanced so far will be explicated, as well as the critique that has been made in their regard.

1.2 Fundamental Rights: Interpretation and Limits

The interpretation of fundamental rights, as of any other rights, is dependent on several elements. The wording of the norms (when written), the criteria adopted in the interpretation, the powers and legitimacy of the interpreter, the arguments used and allowed, and the concept of law in force, all these constrain the possible scope and application of rights in general. The interpretation of fundamental rights, in particular, is subject to certain specific constraints: some with external character, including the social and individual relevance these rights possess, which requires their protection to the biggest extent possible; and some with internal character, referring to the essential position these rights occupy within the legal system (Gomes Canotilho and Vital Moreira 1993: 148 ff; Peces-Barba Martínez 1999: 571–80). Having as a starting point the criteria highlighted by Savigny, nowadays fundamental rights can be interpreted in the light of grammatical, logical, systematic, contextual/historical, sociological, and intentional/teleological criteria. Further to these general criteria, there are criteria specific to fundamental rights, such as the interpretation of these rights in the light of the UDHR and other human rights treaties. Finally, some elements are particularly apt to stimulate an evolutionary interpretation of fundamental rights norms, constituting a socio-legal basis for new interpretations of these norms. Among these elements one can mention the social conscience, infra-constitutional norms, and international and EU law, as they all highlight the rich and elastic content of constitutional norms, always in respect of human dignity, pluralism of values, and the democratic principle (Navarretta 1996: 63–4; Peces-Barba Martínez 1999: 580–6).

Further to the interpretation of fundamental rights, it is essential to attend to their limits and conceptual delimitations: only after rights are duly delimited conceptually, are we able to determine what falls within and outside their scope. Fundamental rights can be said to be limited in two ways: factually and juridically (Peces-Barba Martínez 1999: 588 ff). Factual limits refer to the limitations that exist in reality to the exercise of fundamental rights (for example, illiteracy, poor economic conditions, etc). More relevant for the present work are the juridical limits. These can be divided into material and formal limits:

(a) The material limits refer to the fundamental rights’ contents that limit the normative production, interpretation, application and exercise of rights. These can refer to the entire legal system, to the sub-system of fundamental rights, to each individual right in general, or even to the (exercise of) a right in each actual case. The material limit pertaining to the entire legal system is the ‘ideal of justice’, that is, the superior values of a legal system. The material limit pertaining to the fundamental rights sub-system is found in the constitutional values of equal or superior rank, in an exercise of balance and integrated application of rights. In case there is a conflict or collision between fundamental rights, the fundamental rights and freedoms of others also work as a general material limit within the fundamental rights sub-system (Bomhoff 2008). The material limit pertaining to each specific fundamental right is the same right entitled by everyone else. Also, good faith, public policy, and prohibition of abuse of right constitute limits to the exercise of rights in each specific case (these principles will be further explored below). The exercise of a right can be further limited by the context or circumstances of a case, as the exact way the right is exercised, the objective consequences that it brings, and all other legally relevant objective and subjective circumstances play a role in assessing the lawfulness of the exercise of a right. These limitations can be named as ‘topical limits’.

(b) The formal limits establish the competence that some legal actors have in defining the requirements for the exercise of a right and, in certain cases, also in suspending them temporarily. These refer mostly to the legislative and to the judicial power. These limits may translate into the legislative limitation to the scope of a right or creation of incompatibilities, as well as into the (constitutional) judicial determination of additional limits or rendering implicit limits explicit (Bomhoff 2008). However, in the case of fundamental rights, the exercise of these limits is, itself, limited by the criterion of reasonability, restrictions imposed by constitutions themselves, and, most important, by the essential content of the rights.

In particular with regard to potential ‘conflicts’ or ‘collisions’ between fundamental rights, a few more considerations should be added. In this respect, the doctrine of the ‘preferred right’, the German model of ‘practische Konkordanz’, a common technique of balance of rights, a hierarchy of rights, the principle of proportionality, the distinction between core and peripheral elements of fundamental rights, or the criterion of reasonableness, may be used to reach a solution. These, however, are not without complex obstacles and pitfalls, as widely explored in legal scholarship (Navarretta 1996: 70; Feldman 1999; van Gerven 2004: 282; Çali 2007; Oliver and Fedtke 2007a: 507–11; Brems 2008a; Tsakyrakis 2009). Also, as Christensen and Fischer-Lescano point out, the process of social pluralisation and fragmentation has increased the probability of conflict (Christensen and Fischer-Lescano 2007: 346 ff). The tools to solve such conflicts are, however, decreasing, as less social differentiation also means that the common and self-evident frameworks to define and work out these conflicts are missing. Most important, these authors highlight that, in some circumstances, the logic of whole social systems collide against each other, as in the case of the collision between freedom of press and freedom of economic initiative, art and religion, research and science, etc. In such situations, and in the light of the different ‘codes’ at stake, not only a common programme is missing, but often also a common language to articulate the issues. This antagonism between different social logics leads these authors to question whether and how the law may be able to deal with incompatibility and incommensurability. Traditionally, these conflicts have been dealt with by treating conflicts in an isolated way, without the hindrances of actual, individual circumstances or parties, thus allowing us to assess conflicting legal positions in the light of the principles behind them. Such hegemonic approach dispatches incommensurability to the unity of law, renders it commensurable, and then leads to a solution, sanctioned by a judge. Christensen and Fischer-Lescano consider this to be a divisional concept, in which each part of the whole is assigned a precise, pre-determined position. The best way to solve situations of conflict or collision of fundamental rights is, therefore, still open to debate now as always. And some of these, those seen as ‘constitutional dilemmas’, may well remain forever unsolved (Zucca 2008).

Bearing in mind these considerations on the interpretation and limits of fundamental rights, we will now proceed with the analysis of the main characteristics of the HEFR models that have been suggested so far.

1.3 The Origins of the HEFR Theories

When referring to the origins of the HEFR theories, authors usually only go back to the liberal states of the 18th century. However, it is necessary to go back yet another step further in history. In fact, before the liberal thought became prevalent in Europe, fundamental rights already played a role in private relationships: originally, fundamental rights were guaranteed against other private parties through the state. Indeed, natural rights were rights applicable to private relationships, as in the ‘natural state’ there was no power. The fact that pacts were made to ‘create’ society did not change this, as, following Locke’s and Pufendorf’s writings, the state is only aimed at better ensuring those natural rights (Peces-Barba Martínez 1999: 620; Christensen and Fischer-Lescano 2007: 619). This can be further illustrated by the second paragraph of the Declaration of Independence of the USA of 4 July 1776, as well as by Article 2 of the French Declaration of 1789. Fundamental rights, such as the natural rights to freedom, to safety, to property and to search for happiness, exist originally in relation to other private parties and only later on in relation to the state. The state then recognised the limits that these rights imposed on its action, as well as the duty to protect them. This remarkable phase in the history of the fundamental rights in private relationships previous to the liberal state is often ignored.

The contractualist philosophies, arguing that the state is created to protect the fundamental rights of individuals, were, therefore, not necessarily contrary to their effect in private relationships. What made this position invert was, most of all, the German Public Law School: it conceived law as divided between private law, which regulated relationships between private parties, and public law, which regulated power relationships (Ballarín Iribarren 1988: 285–8; Peces-Barba Martínez 1999: 618–21; Cruz Villalón 1999). Private law, similarly to Adam Smith’s ‘invisible hand’ in the economy, also had its own rationality and did not need to resort to the fundamental rights rationality. This vision of law fits perfectly in the 19thcentury liberal thesis. The theories on the liberal state construed society as made of equal men, where law made every man equal and disregarded factual inequalities. Fundamental rights were essential as a tool to protect individuals against the action of the state, and their scope was accordingly reduced to the relationships between private parties and the state. Simultaneously, civil codes concentrated greatly on the concept of property, which only recently in time has been gradually replaced by the concept of personhood as the central value of private law (Rescigno 1982: 236).

The evolution of thought and social conditions eventually brought the need to extend the protection of fundamental rights to the realm of private legal relationships as well. On the one hand, the evolution towards the social state diluted the separation between the state and society, and the present trend to ‘privatise’ the state (leading to a post-social state) requires mechanisms alternative to the state. On the other hand, the disparity in power among private parties in modern societies has deserved particular attention. As Friedmann and Barak-Erez remind us, ‘equality is, of course, formal in nature. (…) It does not eliminate the possibility of an imbalance between the parties in other respects, such as their relative wealth, economic power or mental ability’ (Friedmann and Barak-Erez 2001: 1). The fact that one private party in a private relationship has considerably more economic or social power than the other party (take, for example, the relationship between employers and employees, between companies and consumers, and between parents and children) leads to a striking (factual and/or legal) power dissymmetry and to the dominant party being able to limit more or less intensively the action of the other party. It has even been argued that the ‘most grievous and most frequent abuses of civil liberties occur in the exercise of private power’, such as the case of ‘an employer’s power to dismiss, a landlord’s power to exclude the needy, or an entrepreneur’s refusal to provide services’ (MacDonald 1982: 347). Also, the growing protagonism of civil society and importance of professional bodies, associative movements, and corporations is of crucial importance. This phenomenon has moved the ‘centre of gravity’ of power from the state to these other actors, consequently, also moving the origins of threats to fundamental rights (Peces-Barba Martínez 1999: 701–2). More generally, it is individuals’ dignity and ability to participate effectively in the political process (broadly understood) that is at stake here, as more and more realms of people’s lives depend on private relationships (Oliver and Fedtke 2007b: 20–1).

It is therefore inadequate to see nowadays’ world as state-centred, as it is in fact much more polycentric. In this context, the notion of ‘private governance’ may be of use. It describes the possibility of a range of private parties having a power equivalent to that of public parties in terms of influencing processes, thus justifying a reduction of their private autonomy and an increase in the extent to which they must be bound to fundamental rights and freedoms (Wernicke 2007: 404 ff). These elements of modern societies are most evident in employment relationships, which probably accounts for the fact that theories on the HEFR were most welcome in this field.⁸ Still, such inequality and abuses are equally observable in all other social formations, such as families, associations, etc. Hence, for example, the particular protection offered by Article 2 CI to individuals within these (Di Majo 1982: 13). Particularly relevant to what will be discussed in subsequent chapters, children usually find themselves in socio-economic fragile positions: most commonly without any economic income and still outside the labour market, children might find themselves with considerably less resources, both financial and social, to deal with a legal conflict than an adult would have. Therefore, and without prejudice to specific privileged situations, children commonly find themselves in situations of disparity in power with other private parties.

In present day societies, individuals can no longer be seen as single units safeguarding their positions, but rather as inserted in society and responsible for their common destiny. In this context, it has been recalled that fundamental rights are pluri-dimensional and pluri-functional, and some fundamental rights seem structurally and by definition applicable to relationships between private parties (Gomes Canotilho 2003: 1402 ff). Indeed, rights such as the right to strike, the right to association in some of its dimensions, or the right to honour, hold constitutional ranking in some legal orders and are undoubtedly meant to have effects in relationships between private parties (Bilbao Ubillos 1997: 356–7; Vieira de Andrade 2001: 252; Starck 2001: 101). Most important, there are authors who also argue that the existence of some socio-economic fundamental rights, such as the right to education, necessarily entail their application in private relationships (Alonso Garcia 1988: 207). The distinction between rights...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication
• Contents
• Table of cases
• Table of statutes and other documents
• List of abbreviations
• Acknowledgements
• Foreword
• Preface
• Introduction
• Part I
• 1 The Horizontal Effect of Fundamental Rights Theories and Models
• 2 Tort law Aims, Functions and Evolution
• 3 The Horizontal Effect of Fundamental Rights and Tort Law What about the Tortfeasor?32
• Part II
• 4 The Fundamental Rights of Children International, European and National Perspectives
• 5 Children's Torts European National Legal Solutions
• 6 Children's Tortious Liability in Europe Comparison, Critique and Proposals
• Conclusion
• Bibliography
• Index