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)

OVERVIEW OF THIS PRESENTATION 2 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

EU FUNDAMENTAL RIGHTS (1): A BRIEF HISTORY 3 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 (1992-1993)  repeated in all successive Treaties

I. EU FUNDAMENTAL RIGHTS (2): A BRIEF DEFINITION 4 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.

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

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

III. OWN RESEARCH RESULTS 7 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 2005-2017  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

IV. LEGAL FAMILIES IN COMPARATIVE LAW 8 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

V. NEW LEGAL FAMILIES OF HORIZONTAL EFFECT OF FUNDAMENTAL RIGHTS 9 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

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

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

UK AND NORDIC COUNTRIES 12 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

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

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 … AND WHAT ABOUT MALTA?