INTRODUCTION

Over the years, the Court has increasingly offered substantive protection of Convention rights in relations between private actors. Such horizontal positive obligations are a specific type of positive obligations: they govern the relations between private actors, whereas positive obligations are normally imposed in relations between the State and the individual. To better understand horizontal positive obligations, this chapter starts with a general introduction to the concept of positive obligations (Section 2). This is followed by a discussion of various relations between private actors in which the Court has imposed horizontal positive obligations (Section 3)417, thus illustrating the broad variety of such relations in which the Court has offered substantive protection of Convention rights. This detailed discussion of the concept of horizontal positive obligations is provided for two reasons. First, because such obligations are often imposed in verticalised cases: the different types of relations between private actors in which the Court has offered substantive protection of Convention rights through horizontal positive obligations thus provide a range of examples of verticalised cases before the Court. Second, gaining insight into the increased substantive protection of Convention rights in relations between private actors is important for understanding the consequences of verticalisation, since this substantive protection may influence the scope of possible procedural issues arising from such cases.

CONCEPT OF POSITIVE OBLIGATIONS

INTRODUCTION TO THE CONCEPT OF POSITIVE OBLIGATIONS

The Belgian Linguistic case and the cases of Marckx, Airey, and X and Y are generally considered to be the four landmark cases in relation to the concept of positive obligations. Although in the Belgian Linguistic case, the Court did not specify the contents of any particular positive obligation that would have to be complied with under the Convention, this case was the first occasion on which that it introduced the concept of positive obligations in its reasoning. In the subsequent cases of Marckx, Airey, and X and Y the Court did, however, impose specific positive obligations on Convention States. The case of X and Y is particularly relevant for this research since, in this case, the Court extended the concept of positive obligations to horizontal relations.