1. EU Fundamental Rights and Private Law in the Context of 1
EU Fundamental Rights and
Private Law in the Context of
Different Legal Families
Prof. Dr. Dr. Aurelia Colombi Ciacchi
University of Groningen (NL)

2. OVERVIEW OF THIS PRESENTATION2
OVERVIEW OF THIS PRESENTATION
I. EU fundamental rights: history, definition
II. Fund. rights: vertical + horizontal effect
III. Own research results (in short)
IV. Legal families in comparative law
V. New legal families of horizontal effect of fundamental rights
VI. First family: Reaction to totalitarianism
VII. Second family: UK + Nordic countries
VIII. Third family: France + Benelux

3. EU FUNDAMENTAL RIGHTS (1): A BRIEF HISTORY3
EU FUNDAMENTAL RIGHTS (1): A BRIEF HISTORY
1960s-1970s: ECJ  human rights in international treaties binding on the EU member states + fundamental rights enshrined in the common constitutional traditions of the member states = to be observed as general principles of Community law
 established ECJ case law in 1970s-1990s
 codified in Maastricht Treaty ( )
 repeated in all successive Treaties

4. I. EU FUNDAMENTAL RIGHTS (2): A BRIEF DEFINITION4
I. EU FUNDAMENTAL RIGHTS (2): A BRIEF DEFINITION
Human rights acknowledged in international conventions binding the EU member states, AND
Rights enshrined in the Charter of Fundamental Rights of the European Union (CFREU), AND
Rights enshrined in the common constitutional traditions of the EU member states.

5. II. EFFECT OF FUNDAMENTAL RIGHTS:5
II. EFFECT OF FUNDAMENTAL RIGHTS:
(1) VERTICAL
Effect on relationship between public authority and person subject to authority
Effect on enactment, abolition, formal amendment of legislation
Examples:
Legislative reforms realized for the purpose of complying with fundamental rights
Const. Courts declaring laws unconstitutional
Condemnation of States by human rights courts

6. II. EFFECT OF FUNDAMENTAL RIGHTS:6
II. EFFECT OF FUNDAMENTAL RIGHTS:
(2) HORIZONTAL
Fundamental rights used (mostly by courts) to determine the entitlements and obligations of private parties against each other
Direct horizontal effect:
Remedy (e.g. damages, injunction) directly descends from fundamental rights
Private party directly bound by fundam. right
Indirect horizontal effect:
Fund. right  interpretation of private law
Private party not directly bound by fund. right

7. III. OWN RESEARCH RESULTS7
III. OWN RESEARCH RESULTS
Brüggemeier, Colombi Ciacchi & Comandé (eds), Fundamental Rights and Private Law in the European Union (CUP 2010, two volumes)
Several articles and book chapters of mine
 Different models of horizontal effect of fundamental rights exist in Europe
 Different groups of countries, which do NOT match with the traditional legal families described by comparative lawyers

8. IV. LEGAL FAMILIES IN COMPARATIVE LAW8
IV. LEGAL FAMILIES IN COMPARATIVE LAW
Civil law, common law, mixed jurisdictions
Civil law families: Romanistic, Germanic, Nordic (Zweigert & Kötz)
Z&K’s division descends from a legislation-oriented, law-in-the-books perspective, mainly looking at Civil Codes
Case-law oriented, law-in-action perspective (e.g. “The Common Core of European Private Law”)  new, topic-specific groups of countries that do not match with legal families

9. V. NEW LEGAL FAMILIES OF HORIZONTAL EFFECT OF FUNDAMENTAL RIGHTS9
V. NEW LEGAL FAMILIES OF HORIZONTAL EFFECT OF FUNDAMENTAL RIGHTS
Horizontal effect of fundamental rights: law-in-action topic, based on case law and scholarly writings
Three new legal families of horizontal effect of fundamental rights can be traced back to two factors:
- Comparative constitutional law and history
- Historical-cultural relation between legislators and courts in the field of private law

10. REACTION TO TOTALITARIANISM (1)10
VI. FIRST FAMILY:
REACTION TO TOTALITARIANISM (1)
Continental European democracies instituted in the 20th century after the fall of totalitarian regimes
Examples: Germany, Italy, Poland, Portugal, Slovenia, Spain
Constitutional norms entrenched
Great power allocated to courts (judicial activism)
- Key role of Constitutional Courts, whose judgments  evolution of private law

11. REACTION TO TOTALITARIANISM (2)11
VI. FIRST FAMILY:
REACTION TO TOTALITARIANISM (2)
Horizontal effect of national constitutional provisions
Horizontal effect of ECHR hardly plays any role
Constitutional Courts do not only strike down unconstitutional laws but also determine the correct interpretation and application of Constitution in private law cases
 Major changes in private law adjudication are often initiated or consecrated by constitutional courts

12. UK AND NORDIC COUNTRIES12
VII. SECOND FAMILY:
UK AND NORDIC COUNTRIES
Old democracies not replaced by totalitarian regimes in the 20th century
No continental-like Constitution
No Constitutional Court
International/national law: dualist model
ECHR incorporation only after 1990
Horizontal effect ECHR
E.g. Sweden: no horizontal effect of the four constitutional statutes

13. VIII. THIRD FAMILY: FRANCE AND BENELUX (1)13
VIII. THIRD FAMILY:
FRANCE AND BENELUX (1)
France, Belgium, the Netherlands, Luxemburg
Old democracies not replaced by totalitarian regimes in the 20th century
Written entrenched Constitutions (French style)
NL: no institution comparable to a constitutional court + no constitutional review by judiciary
International/national law: monist model

14. VIII. THIRD FAMILY: FRANCE AND BENELUX (2)14
VIII. THIRD FAMILY:
FRANCE AND BENELUX (2)
Horizontal effect ECHR
Horizontal effect of national constitutions hardly plays any role! Why?
- International law instruments such as ECHR have supremacy over national law + are directly effective insofar as self-executing
Legal culture considers constitutional norms a purely public law matter: 19th century strict separation between public law and private law

15. 15
… AND WHAT ABOUT MALTA?