A. IntroductionFootnote 1
The issue of Drittwirkung, in other words the functioning of fundamental rights in relations between private parties is one of the most important topics of German legal science, which has occupied successive generations of jurists since the middle of the last century. The German jurist Claus-Wilhelm Canaris, in his book Grundrechte und Privatrecht, published at the end of the twentieth century, deservedly described it as the “issue of the century.”Footnote 2 Its genesis is linked to the famous 1958 decision of the Federal Constitutional Court (hereinafter: FCC) in the Lüth case,Footnote 3 in which the Court formulated its approach to the question of the validity of fundamental rights in private law and from which it has not departed to this day. There is hardly any issue discussed with such passion in German legal science, and few have generated such an extensive body of literature as the one devoted to this subject.
Within the framework of the discussion in question, a view took shape—following the position of the FCC—according to which the impact of constitutional rights and freedoms is not limited to the relationship between the state and individuals, but in principle also indirectly shapes private law relations. However, no consensus has emerged on how to justify this interaction and the elements that construct it. As Robert Alexy notes, “today it is widely acknowledged that fundamental rights norms influence the citizen-citizen relationship and have a horizontal effect, but it is disputed how and to what extent they do so.”Footnote 4 The inspiration for the new expansions of the discussion on this topic is provided above all by the jurisprudential activity of the FCC, which, in a series of high-profile judgments, draws attention to the problem of the horizontal effect of fundamental rights, on the one hand confirming and, on the other hand, expanding the existing constitutional acquis in this regard. Thus, the concept of indirect Drittwirkung, proposed and with varying degrees of intensity, but nevertheless consistently applied by the Federal Constitutional Court since the late 1950s, has been the subject of interest for new generations of scholars, continuing to elicit opinions ranging from cautious approval to strong criticism. According to this concept, private actors are not directly bound by the norms of fundamental rights, yet these norms affect private relations through private law.Footnote 5 This exists in the fact that both the legislator, when creating private law, and the civil courts, when resolving disputes between individuals, are obliged to take into account the content of fundamental rights norms in their decisions.Footnote 6 A private entity can only become obliged under the fundamental rights of another private entity by a decision of a state authority.Footnote 7 At the core of the concept of indirect Drittwirkung is the idea of an objective order of values, embodied by fundamental rights and “radiating” across the entire legal system.
The problem of the impact of constitutional norms on relations between private actors is—of course—not a purely German phenomenon. As noted, questions related to the scope of the impact of constitutional freedoms and rights on private law relations are one of the most important challenges for contemporary constitutionalism in the era of pluralistic societies.Footnote 8 The legal systems, doctrine and judicial jurisprudence of individual countries adopt different solutions in this regard, but their common denominator is the search for solutions to effectively protect constitutional rights against threats coming not only from state organs but also from private actors. However, due to the pioneering role of German jurisprudence in formulating the various constructions of the horizontal effect of fundamental rights and the special contribution of German jurisprudence to the attempt at a dogmatic categorisation of the basic concepts and elements constituting the phenomenon in question, the experience of the Federal Republic of Germany has taken centre stage in this research. They constitute an important point of reference within the framework of analyses conducted both in other countries,Footnote 9 as well as at the supranational level,Footnote 10 and the way the Lüth case was decided is still the best recognized example of the application of constitutional rights norms to a private law relationship. As one English author notes: “no other country, except perhaps the United States, has considered the problem of the horizontal application of human rights as thoroughly as Germany; and when it comes to balancing conflicting values, German jurists have constructed the most sophisticated and rational system ever invented.”Footnote 11
The issue of Drittwirkung has determined the shape of the German discussion on the impact of fundamental rights on private law relations, significantly influencing the dogma of fundamental rights and the paradigm of their application in the jurisprudence of other courts. At the same time, however—as will be discussed in detail in the following sections of this Article—the concept of Drittwirkung is extremely problematic in terms of the possibility of its legal justification. The underlying idea of an “objective order of values” finds no normative justification in the German constitution. The concept of the validity of fundamental rights in relations between private parties appears to be irreconcilable with Article 1(3) of the Basic Law (hereinafter: GG), which expresses the principle that only public authorities are bound by them. The judges of the FCC are, of course, also aware of the controversy surrounding the Drittwirkung concept, after all, being themselves representatives of the legal doctrine and directly shaping this jurisprudence. The criticisms formulated in the legal doctrine are necessarily reflected in constitutional jurisprudence.
The basic thesis of this Article is that the current state of development of the Drittwirkung can, to some extent, be seen as the result of a kind of dialogue that has been taking place in German academia between the Federal Constitutional Court and the doctrine of law over several decades. Critical arguments raised against the dogmatic shortcomings of the concept of the indirect effect of fundamental rights, as articulated in the Lüth judgment (and then applied in subsequent judgments), have been reflected in attempts by the FCC to provide a legally better justification for extending the effect of fundamental rights to horizontal relations. This Article seeks to show that the development of the case law regarding the Drittwirkung understood in this way proceeded along several tracks. Firstly, it consisted of a dogmatization of the concept in question, as this is how the conditions for the “radiating impact” of fundamental rights and the criteria for the review by the FCC of judgments of other courts to take this impact into account can be described in its subsequent rulings. Secondly, a departure from some of the original assumptions of Drittwirkung could be observed. Thirdly, the efforts of the constitutional court were directed towards the search for alternatives to the Drittwirkung that could justify the horizontal application of fundamental rights norms. I include amongst these the concept of protective duties (Schutzpflichten) and the technique of the interpretation in accordance with the constitution.
The aim of the Article is to show, on the one hand, the important role that Drittwirkung plays in the process of protecting fundamental rights, and, on the other hand, the significant doubt that its application raises. In the following sections of this Article, an attempt is made to reconstruct the evolution of the concept referred to in the title of the Article with reference to the key rulings in the development of the Drittwirkung. It has been framed in a dialogue-based analysis in which those fragments of case law are presented which seem to be related to the criticism raised against the arguments in the Lüth judgment, but also against subsequent decisions referring to the Drittwirkung. However, it should be stressed that the FCC does not, as a rule, explicitly refer to specific allegations. Its response to the criticisms takes the form of various jurisprudential trends in which it develops and modifies individual elements of the Drittwirkung or reaches for alternative constructions to this concept.
The starting point of the considerations undertaken in this Article is the analysis of the Lüth judgment, in which the FCC, along with the dominant opinion of German science at the time, rejected the possibility of a direct Drittwirkung of fundamental rights in favor of an indirect version of the concept. This section also presents the main points of criticism formulated against the mode of argumentation adopted by the FCC, providing the ground for further debate on the Drittwirkung (Section B). In the following sections, it is shown how the FCC has concretized the conditions of the “radiating effect” of fundamental rights, first mainly in relation to disputes in the area of tort law (Section C), then extending its effectiveness to contractual relations as well and thus triggering renewed criticism, this time mainly of the private law doctrine (Section D). Next, the formation of a line of jurisprudence is presented in which the FCC departs from one of the original assumptions of Drittwirkung, i.e. the strict division into an indirect and a direct version of the concept (Section E). The following sections attempt to answer the question of whether the concept of Schutzpflichten (Section F) and the technique of interpretation in accordance with the constitution (Section G)—identified by German doctrine as dogmatically correct alternatives to the Drittwirkung—are indeed appropriate tools for solving the problem of the horizontal application of fundamental rights norms. Finally, the most recent installment of the jurisprudence in question will be presented, which, although it only concerns Article 3(1) of the Basic Law of the Federal Republic of Germany, can be read as an announcement of greater restraint by the FCC in its reaching for the Drittwirkung (Section H).
B. The Judgment in the Lüth Case as the FCC’s Response to the Criticism of the Direct Drittwirkung
In the early years of the German Basic Law, before the indirect version of the Drittwirkung concept was singled out, this term—at the time adjectiveless—was used to cover the so-called absolute action of fundamental rights.Footnote 12 Carl Ludwig Nipperdey and Walter Leisner are identified as its main precursors. The jurisprudence of the Federal Labour Court in its early days—in other words, during Nipperdey’s presidency—was also important for the development of this concept.Footnote 13 This scholar’s views were also endorsed by several Federal Court of Justice decisions in the 1950s.Footnote 14
According to the concept of direct Drittwirkung, it is permissible to shape relations between private parties directly on the basis of the norms of fundamental rights.Footnote 15 It means that fundamental rights give rise to claims that can be asserted against private actors in the same way as they are asserted against the state, because private actors are bound by these rights just like public authorities. Footnote 16
The concept of direct Drittwirkung has been met with strong criticism in German academia. It has been argued that direct action of fundamental rights can only be spoken of if a constitutional provision expressly so provides.Footnote 17 The principal argument against the direct horizontal application of fundamental rights is that it cannot be reconciled with the private autonomy of individuals, which guarantees them the possibility to freely shape their relationships.Footnote 18 From a normative point of view, the concept in question contradicts Article 1(3) GG, which identifies only the legislature, the executive and the judiciary as the directly obliged addressees of fundamental rights norms.
I. Lüth Case, Indirect Horizontal Effect, and the Objective Dimension of Fundamental Rights
The doctrine of direct Drittwirkung was fairly quickly rejected in Germany. Crucial for the further direction of the development of the concept of the horizontal effect of fundamental rights was the position of the FCC presented in the Lüth judgment. This judgment was the constitutional court’s response to the criticism of the direct version of Drittwirkung. In it, the FCC clearly favored a softened, indirect version of this concept developed by Günter Dürig.Footnote 19 According to this author, fundamental rights operate in private relationships through an appropriate interpretation of the general clauses of civil law. He referred to them as the “breaking-in points” (Einbruchstellen) of these rights into the private law sphere, which the FCC explicitly quoted in its judgment.
The background to the case was a civil dispute between Erich Lüth, president of the Hamburg Press Club and head of the Press Department of the German Theatre Association, and the director of anti-Semitic films shot during the Third Reich, Veit Harlan. The former, in a speech to film distributors and producers on the occasion of German Film Week and later in an open letter published in the press, called for a boycott of the director’s latest film, Unsterbliche Geliebte. The company that produced and distributed the film obtained a court order against Lüth from the Regional CourtFootnote 20 in Hamburg to stop any further calls for a boycott. The Hamburg Higher Regional Court ruled in a similar vein, rejecting the applicant’s appeal. The courts, relying on § 826 of the German Civil Code (hereinafter BGB), held that the defendant’s actions were in a manner offending common decency and caused the plaintiff damage in the form of an acute loss of distribution profits. This argument did not gain the approval of the FCC, which—in its response to Lüth’s constitutional complaint—stated that the decision of the Hamburg Regional Court violated the right to freedom of expression guaranteed to the plaintiff in Article 5 GG.Footnote 21
According to the key thesis of the FCC’s judgment, private law is subordinate to the constitutional system of values. Fundamental rights are primarily intended to safeguard the sphere of individual freedom against state action. However, in addition to fulfilling their defensive function, they also embody a certain objective order of values which applies, as a fundamental constitutional decision, to all areas of law.Footnote 22 This is the so-called “radiating influence”, Ausstrahlungswirkung, in that the norms of fundamental rights can only shape the relations between private parties indirectly, hence indirect Drittwirkung. It is the task of the civil court judge to take these norms into account by an appropriate fundamental rights-oriented interpretation of the general clauses contained in private law provisions. The FCC emphasized that the obligation in question has its normative basis in Article 1(3) GG. In the specific circumstances of the Lüth judgment, the FCC held that the civil court had improperly assessed the “radiating effect” of the fundamental right to freedom of expression, a particularly important value in a liberal democratic legal order.Footnote 23 The call for a boycott of Harlan’s films was motivated by concern for the reputation and interests of Germany, and therefore the applicant’s speech did not offend common decency within the meaning of the Civil Code.
II. The Assessment of the Lüth Judgment in the Legal Scholarship
With regard to the reception of the 1958 ruling in German academia, the very way in which the dispute between Lüth and Harlan was resolved generally received a positive response, whereas, as will be discussed below, the method of reasoning based on the idea of an objective order of values was controversial. With the Lüth judgment, the FCC spoke up on the fundamental controversy, taken up in the scientific discourse of the time, concerning the question of how fundamental rights affect the relations between private actors. And it must be emphasized here, irrespective of the criticism levelled against the Lüth judgment, the FCC’s proposed extension of the validity of fundamental rights to horizontal relations proved to be of groundbreaking importance for fundamental rights dogmatics. Together with the FCC, it was accepted that, in addition to the subjective-legal dimension of fundamental rights and their defence function, they perform—within the objective-legal dimension—a protective function. This thesis has entered the canon of German constitutional law education and is standardly presented in German fundamental rights handbooks.Footnote 24
The criticisms raised against the use of the idea of an objective order of values in the case law of the FCC can, following Udo di Fabio, be grouped into several objections.Footnote 25 First of all, it is noted that the reference to an objective order of values while at the same time endowing judges with the competence to determine its content creates the risk of an interpretation of the law that is difficult to predict and influenced by personal beliefs. The openness and vagueness of the concept in question means that, in the end, we are dealing not with an objective but a subjective order of values.Footnote 26 This in turn can be used to illegitimately expand the scope of judicial power. Ernst-Wolfgang Böckenförde even describes the idea of an “objective order of values” as a “formula for concealing judicial decision-making.”Footnote 27
Another group of objections has to do with the problem of the limits of the FCC’s review of judicial decisions. The constitutional court’s review of whether civil courts have duly—that is, in accordance with its (the FCC’s) own assessment—taken into account the importance of fundamental rights in their rulings may result in an excessively deep and discretionary interference in the content of the reviewed rulings. This creates the risk of turning it into a “super-instance” replacing the decisions of the ordinary courts with its own.Footnote 28
The idea of subordinating civil law to constitutional law is at odds with the postulate of political neutrality of private law propounded by some authors. In their view, with the Lüth ruling, the FCC has committed a “conscious act of usurpation.”Footnote 29 The allegation of steering civil law by means of imprecise fundamental rights concepts resonated even more strongly in the 1990s, when the FCC extended the Drittwirkung to contract law.Footnote 30
Another type of objection relates to the problem of determining through which private law norms the fundamental rights affect horizontal relations. It is not clear whether, in addition to general clauses and phrases that need to be filled with content, other categories of rules can also play such a role.Footnote 31
Doubts in the legal doctrine were also raised by the Lüth case’s statement that, through a value-oriented interpretation of the constitution, the importance of fundamental rights as a certain system would be strengthened. According to Di Fabio a review of the case law of the FCC leads to the opposite conclusion. Indeed, we regularly see in its rulings a strengthening of only one fundamental right with a simultaneous weakening of the importance of another.Footnote 32
The Lüth case marked the beginning of a new line of jurisprudence from which—as noted in German scholarship—there was no going backFootnote 33 and indeed from which the FCC has never formally deviated. Rulings in subsequent decades confirm the validity of the key theses set out in the 1958 judgment regarding the effectiveness of fundamental rights in private relations. They were framed by the FCC in the formula of permanent jurisprudence (German: ständige Rechtsprechung) and, as such, have retained their validity to the present day.
At the same time, however, the FCC’s argument was subject to evolution, reflecting to some extent the critical arguments raised in academia against the idea of an objective order of values and indirect Drittwirkung. It can be said that the FCC attempted to build the idea of an objective order of values into the framework of a certain dogma, constructed in subsequent judgments. I refer to this process as the dogmatization of the Drittwirkung, because it resulted in the category of the Drittwirkung, originally justified by reference to the general idea of an objective order of values, being concretized by clarifying in successive decisions the conditions for the “radiating influence” of fundamental rights and the criteria for the FCC’s review of the judgments of other courts, whether they take this influence into account.
C. The First Stage in the Formation of the Drittwirkung Concept: The “Radiating Effect” of Fundamental Rights
The rulings that contributed most to the development of the doctrine of indirect Drittwirkung in the first years of its application in constitutional jurisprudence include the Blinkfüer case of 1969Footnote 34, the Mephisto case of 1971,Footnote 35 the Deutschland-Magazin case of 1976,Footnote 36 the Soraya case of 1973,Footnote 37 and the Sozialplan case of 1986.Footnote 38 The case law from this period is characterized by a relatively limited scope of application, primarily covering disputes in the area of tort law, where the action of one entity was judged by the FCC to be an unlawful and actual interference, along the lines of state violations, with the fundamental rights of another entity. A characteristic feature of this case law is the extensive reliance on the fundamental elements establishing the Drittwirkung as set out in the Lüth judgment, namely the category of the objective order of values, the “radiating effect” of fundamental rights and the priority role of general clauses of civil law in this respect. What is relevant for the thesis on the dialogue presented in the introduction of this Article is that in the very first years of the development of the Drittwirkung concept, the FCC addressed the controversy concerning the scope of its intervention in the content of civil court decisions. It made it clear that it could not undermine the civil court decisions simply because it would have decided the conflict of fundamental rights in a particular case differently. Intervention is only possible if the court’s decision was based on one of the following two errors: the need to respect fundamental rights was overlooked in the interpretation and application of constitutionally compliant legal provisions, or the scope of protection of fundamental rights relevant to the case was determined incorrectly or incompletely.Footnote 39 If the violation of fundamental rights by a civil court is particularly egregious, the FCC’s interference may consist of replacing the court’s assessment with its own.Footnote 40
D. Constitutionalisation of Contract Law: a Combination of the Elements of Drittwirkung and Schutzpflichten
From the outset, one of the key controversies related to the concept of Drittwirkung has been the question of determining the extent of the impact of fundamental rights on private law. This issue gained particular relevance in Germany with a series of rulings by the FCC during the 1990s, when the Drittwirkung concept was referred to a new type of relationship, namely contractual relationships. It can be said that this is when the phenomenon of the constitutionalisation of private law through the Drittwirkung became more noticeable.Footnote 41 The earlier FCC case law limited the area of application of the concept of indirect Drittwirkung to situations where the action of a private entity of a tortious nature constituted an interference sensu stricto with the fundamental rights of another entity. In particular, the rulings in Handelsvertreter, Footnote 42 Bürgschaftsverträge Footnote 43 or Unterhaltsverzichtsvertrag Footnote 44 were representative of a new stage in the development of the concept of the horizontal effect of fundamental rights. With regard to the way in which the FCC in its case law justified the extension of contractual relations to the effect of fundamental rights, it was generally based on the concept of fundamental rights as protective duties—otherwise known as Schutzpflichten Footnote 45—but in the first decisions representing this line of case law it did not explicitly refer to this function of fundamental rights. This applies in particular to the first two of the decisions cited above—Handelsvertreter and Bürgschaftsverträge—in which one can see a combination of elements characteristic of the “permanent jurisprudence” of Drittwirkung with indirect references to the concept of Schutzpflichten. Footnote 46 The process of constitutionalisation of contract law that was initiated in these rulings was then continued in the protective duties case law; however it was in these two rulings that the key principles for the protection of the weaker contractual party were formulated.
The scope and intensity of the influence of public law on private law, and thus the depth of the FCC’s intervention in the judgments of civil courts, was particularly great here, as the need to take into account constitutional values in private law was considered to be the basis for modifying the content of a contract previously agreed by its parties. The rationale was the factor of the lack of structural equality between the parties of the contract, which made it illusory for the weaker party to be able to freely shape its content. The FCC referred to the view, widespread in the civil law sciences, that freedom of contract can be considered an appropriate means of balancing interests, only in the case of a balance of power.Footnote 47 This concept is used in the civil law doctrine as justification for state interference in contractual relations to protect the weaker party.Footnote 48 It underpinned the formulation of another indirect component of Drittwirkung, according to which the intensity of the horizontal effect depends on the degree of inequality between the parties of the legal relationship—the greater the inequality, the greater the need to protect personal freedom against extreme market power, economic or personal dependence.Footnote 49 Thus, the FCC has, as it were, sanctioned the idea of contract justice in its case law. In this context, discussion within German legal academia concerns the creation of a new general clause by the FCC, which could be worded as follows: “A contract which is extremely disadvantageous for one of the parties, being the result of an imbalance of power between those parties, shall be invalid.”Footnote 50
As already mentioned, this piece of jurisprudence has been severely criticized, mainly by advocates of the independence of private law vis-à-vis public law. They pointed out the various dangers that the application of the Drittwirkung poses to the private law system and the autonomy of the will of the parties.Footnote 51 However, these criticisms seem to overlook the fact that the constitutionalisation of private law is a phenomenon that has inevitably been embracing legal systems around the world for several decades now.
E. Departure from the Strict Division into Indirect and Direct Drittwirkung
As is well known, indirect Drittwirkung has—through the jurisprudence of the FCC—the status of a dominant doctrine in Germany and, as part of the dogmatics of the horizontal validity of fundamental rights, is a typical starting point in scholarly discussions on the subject. The approach noting the division between direct and indirect Drittwirkung has been included in most of the monographs, articles, and handbooks cited in this Article.
At the same time, the distinction used by the FCC is the subject of numerous controversies. The doubts relate, firstly, to the lack of convincing justification for categorically contrasting the two varieties of Drittwirkung. Secondly, they are expressed in the question of whether the application of fundamental rights to private relations that takes place in the case law is in fact indirect.
Commentators on the case law of the FCC have noted that, regardless of which version of the concept in question is under consideration, in the process of the horizontal application of fundamental rights a third party enters into the relationship between its subjects. This is the state authority, which—on the basis of Article 1(3) GG—is directly bound by fundamental rights, which means that it cannot disregard them when passing a judgment. This circumstance gives rise to the claim that in the situation described, there is always a direct horizontal application of fundamental rights, which makes both the problem of Drittwirkung and, even more so, the question of distinguishing between its two versions apparent.Footnote 52
In the light of the FCC’s statements, the distinguishing factor between the two versions of Drittwirkung is the different scope and degree of interference in the legal situation of individuals, as an obligee under the fundamental rights of another private entity. Direct Drittwirkung presupposes a more far-reaching interference, whereas in the case of the opposite variant, its scope and intensity are mitigated by the mediating effect of private law provisions, above all general clauses. However, it is always the judge who performs the horizontal application of the fundamental legal norms and it is the judge who decides how fundamental rights apply between individuals. As is noted, if judges resort to the method of weighing up interests in order to determine the content of a fundamental right, it makes no practical difference whether constitutional values find direct or indirect application.Footnote 53 In the process of weighing up fundamental rights, they are treated as if they were applied directly. In this context, Walter Leisner’s claim that “Drittwirkung will always end up being direct”Footnote 54 is convincing.
The problem of distinguishing between the different ways in which constitutional norms interact horizontally was also pointed out by Alexy in his theory of fundamental rights. He argued that the essence of the problem of the horizontal application of fundamental rights lies not in the given construction of Drittwirkung, but in the valuation that fills it.Footnote 55 Using the example of an analysis of specific FCC rulings, he tried to prove the equivalence of the results of indirect and direct Drittwirkung. Footnote 56 Although Alexy’s theory has not been reflected in judicial decisions, it is regarded as one of the most significant theoretical attempts to rationalize the issue of the impact of fundamental rights on private law.Footnote 57
For many decades after the Lüth judgment, the German constitutional court seemed not to react to voices questioning the validity of the distinction between direct and indirect Drittwirkung. It invariably referred to the model of horizontal application of fundamental rights which it applied—no matter how high the resulting degree of interference with the legal situation of the individual obliged under fundamental rights—as indirect Drittwirkung. According to some authors, each time the rhetoric of indirect Drittwirkung is invoked, it is a strategy that serves to avoid accusations of overstepping its competences under Article 1(3) GG and at the same time enables the introduction of direct Drittwirkung “through the back door.”Footnote 58 Recently, however, a significant change can be observed in the FCC’s approach to this key point of the Drittwirkung dogma, which has been shaped over decades. Not only has the issue in question been addressed explicitly in several important judgments issued after 2010, but also for the first time, the FCC has de facto acknowledged in them that in certain circumstances the distinction between direct and indirect Drittwirkung may be illusory. These are situations in which private actors perform tasks traditionally belonging to the state or dispose of public space and thus their status approaches that of the state.
The issue was first extensively addressed in the 2011 Fraport judgment, in which the FCC had to decide whether a joint stock company with a state shareholding that manages Frankfurt Airport could prohibit demonstrations on its premises and thereby restrict other private parties from exercising the fundamental right to freedom of assembly under Article 8 GG. The FCC held that an economically mixed enterprise that performs typically public tasks such as air transport operation and, in addition, disposes of a space with the characteristics of a “public forum” is liable under fundamental rights. As it pointed out: “depending on the content of the constitutional guarantee and the nature of the case, the indirect obligation of private persons to respect fundamental rights may approach or even equal the state obligation to respect fundamental rights.”Footnote 59
The settlement model in the Fraport case was subsequently confirmed in the 2015 Bierdosen-Flashmob ruling.Footnote 60 The case concerned an application for an interim order by the FCC permitting a demonstration to take place on the Nibelungen Place in Passau, owned by a private company. The FCC determined that the square, as a place of public communication, was subject to the fundamental rights regime. This time, however, it was not an economically mixed enterprise, but a purely private space, which de facto meant that the direct horizontal operation of Article 8 GG was allowed. It has been noted in legal doctrine that, although the FCC explicitly uses terminology referring to the indirect version of Drittwirkung of the provision in question, it actually departs from it. Instead, following the thesis presented in the Fraport judgment, it develops a new variant of the validity of fundamental rights, which has been described by Christoph Smets as a “state-like binding of fundamental rights arising from the functions performed by a private actor” (staatsgleiche Grundrechtsbindung Privater aus Funktionsnachfolge).Footnote 61 The adjudication model used in Fraport and Bierdosen-Flashmob was met with a rather critical response in legal doctrine.Footnote 62 It has been argued that, instead of balancing the conflicting interests so as to take due account of the importance of the fundamental rights of both private parties involved in the dispute, the FCC restricted the right to property.Footnote 63
F. Schutzpflichten v. Drittwirkung: An Alternative or a Complementarity?
A turning point in the development of the issue of the horizontal effect of fundamental rights in German constitutional jurisprudence was the FCC’s recourse to the concept of protective duties, Schutzpflichten. According to this, the state is obliged to safeguard the rights of the individual also in its relations with other individuals.Footnote 64 The basis for the concept of Schutzpflichten was formulated in a judgment of the German constitutional court in 1975 concerning the conditions for the termination of pregnancy.Footnote 65 In it, the FCC held that from the norms regulating fundamental rights, one can derive the obligation of the state to act in order to secure the legal goods protected by these norms, also in the event of a threat to them from non-state actors. In the judgment in question, indirect horizontal effect was given to the first sentence of Article 2(2) GG (right to life and physical integrity) in conjunction with the second sentence of Article 1(1) GG (principle of respect for and protection of human dignity by state authorities) regarding the relationship between the mother and the unborn child. As a result, the FCC ruled for an unconstitutional amendment to the Penal Code that legalized abortion within the first 12 weeks of pregnancy if certain conditions are met, including that the pregnancy threatens the woman’s life or health and after appropriate consultation. The dogmatic basis and the most important assumptions of the Schutzpflichten concept presented in this judgment were further clarified in a subsequent abortion judgment of May 28, 1993,Footnote 66 concerning the re-enacted legislation, legalising abortion. This time, the FCC softened its position, stating that, although abortion is unlawful throughout pregnancy, it cannot be punished.
In the meantime, the FCC has issued a number of rulings in which it has continued and developed the line of jurisprudence initiated in the 1970s.Footnote 67 As the jurisprudence developed, the need for active state protection against threats from private actors was also considered by the FCC in the case of fundamental rights such as the right to the free development of personality (Article 2(1) GG), freedom of religion (Article 4 GG), freedom of art and science (Article 5(3) GG), protection of marriage and family (Article 6(1) GG), inviolability of the secrecy of postal and telecommunications correspondence (Article 10 GG), protection of the dwelling (Article 13 GG), and the right to property (Article 14 GG).Footnote 68 A view has developed in legal science that the duty to protect is immanent in the essence of all fundamental rights.Footnote 69
The concept of Schutzpflichten—like Drittwirkung—plays a role in the decisions of the Federal Constitutional Court as an instrument for the “third-party effect” of fundamental rights. There is no consensus in German legal scholarship on the mutual relationship between Drittwirkung and Schutzpflichten, resulting in a multiplicity of possible approaches to this issue.Footnote 70 This Article adopts the perspective of Schutzpflichten as a jurisprudential construction, which was a continuation of the mode of adjudication initiated in the Lüth case. Indeed, the reference to the protective function is founded in the judgments of the FCC on a mode of argumentation oriented towards the objective order of values embodied in the fundamental rights,Footnote 71 which is a fundamental component of the Drittwirkung. On the other hand—if one looks in principle at the positive reactions of legal doctrine to the line of jurisprudence initiated in the first abortion judgment—the concept of Schutzpflichten may be a solution to move beyond the dogmatic limitations of the indirect Drittwirkung, especially with regard to the unclassified category of “radiating influence.” The new line of jurisprudence showed that the FCC took into account the objections of legal science formulated against the arguments in the Lüth case, while at the same time not abandoning the value-oriented interpretation of fundamental rights.Footnote 72 In contrast to Drittwirkung, the concept of Schutzpflichten can be justified in light of the provisions of the Basic Law. Christian Starck in his commentary on abortion judgments, states that “the state’s duty to uphold human dignity is explicitly enshrined in Article 1(1) GG. Therefore, it does not need any special legal-dogmatic justification.”Footnote 73 In German literature, the right to life and bodily integrity in Article 2(2) GG and the principle of protection of human dignity in 1(3) GG are most often considered together as the normative basis for Schutzpflichten. Footnote 74 Canaris, starting from a critique of the assumptions of both the concepts of direct and indirect Drittwirkung, proposes to frame the problem of the impact of fundamental rights in private relations precisely in terms of the protective duties of the state. He mentions the protective function of fundamental rights as “normal,” next to the defensive function, and therefore not requiring special justification.
Canaris refers to the rulings in Bürgschaftsverträge and Parabolantenne.Footnote 75 In his view, the first decision in which the FCC actually recognized the protective function of the fundamental right and with it “solved the problem of Drittwirkung” was the Blinkfüer decision of 1976. However, as this function had not yet been “discovered” at that time, there is no explicit reference to it in the reasoning.Footnote 76
According to Singer, on the other hand, the protective function of fundamental rights could already be referred to in the Lüth judgment. Indeed, if Lüth was allowed to call for a boycott, the question arises as to whether the legislature was not under an obligation to protect Harlan and the cinema operators in their artistic and professional freedom. A form of protection here could be the right to defend against interference (the boycott was one) with their rights and the right to claim damages.Footnote 77
As noted, although the concept of protective duties was first invoked in the FCC’s jurisprudence in 1975, “their career is essentially based on the fact that they have been welcomed in the literature as old friends.”Footnote 78 Josef Isensee stated that “the FCC did not reveal any new page of the constitution in its protective duties, but only a forgotten page. The fundamental rights obligation of the state has been rediscovered in its twofold aspect: compliance (negative aspect) and protection (positive aspect).”Footnote 79
Despite the undoubtedly better reception in the German literature of the concept of Schutzpflichten than of Drittwirkung, the question of simply substituting one concept for the other is not so obvious. In light of the applications of both models in the case law of the FCC, it is not reasonable either to strictly separate the two concepts or to look for arguments prejudging the validity of only one of them. Rather, the need to ensure effective protection of fundamental rights in private relationships—which both the Drittwirkung and Schutzpflichten constructions are intended to serve—gives rise to a thesis recognising their complementarity. The most fundamental aspect of this complementarity is expressed in the correlation between the fact that the fulfilment of the protective duty by the judge in fact requires the application of constitutional norms to relations between private parties, and is thus based on an indirect Drittwirkung. Schutzpflichten describes the function of the fundamental rights, while Drittwirkung refers to the direction or dimension of the operation of the fundamental rights in which this function is realized.
The possibility of a complementary approach was already pointed out shortly after the FCC first referred to the category of protective duties. At that time, Christian Starck postulated that the third-party effect of certain fundamental rights—such as, inter alia, inviolability of dignity, freedom of development of personality, protection of marriage and family, right of property and inheritance, equality between men and women—should be ensured on the basis of the category of protective duties, while for the others, reference should be made to the indirect Drittwirkung. Footnote 80 Ralf Brinktrine views this complementarity in yet another way, noting that the concepts in question are to some extent the two sides of the same coin. The approach proposed by this author may be referred to as procedural complementarity,Footnote 81 as he points to a possible model for constitutional review in cases that require a decision on whether a given fundamental rights norm has horizontal effectiveness. Complementarity is apparent with this model primarily in terms of the interplay between the addressees of the obligation to take into account fundamental rights in horizontal relations. Following the FCC, it is assumed that the obligation to implement fundamental rights is in the first instance incumbent on the legislator, who should balance conflicting private interests on a statutory basis in order to ensure the protection of fundamental rights and thus fulfill its protective duty. It is only if the legislature fails to fulfill this obligation or does so inappropriately that this state of affairs should be corrected through the judicial application of the indirect Drittwirkung. The recourse to the construction of the Drittwirkung is conditional in light of this model and depends on the existence of legislation regulating private relations in the field of question. The legislature’s preference as to how the interaction between individuals is to be shaped takes precedence over how it is perceived by the judiciary. The more areas of private law that are subject to statutory regulation, the less need there is to resort to the Drittwirkung in the application of the law. However, it is the case law of the constitutional court, by demonstrating the deficiencies in the regulation of private relations in many areas of private law, that has led to the extension of the scope of the BGB’s regulation to many new types of private law relations over recent decades.
G. Drittwirkung as an Interpretation in Conformity with the Constitution
The core premise of indirect Drittwirkung, which consists of taking into account the objective value system embodied in the norms of fundamental rights in the process of applying private law, naturally links this issue to the question of the interpretation of the law in accordance with the Constitution. The effective “transmission” of constitutional norms into horizontal relations requires recourse to a technique of interpretation of the law that makes it possible to give a private law norm the wording that most fully realizes the content and essence of the fundamental right in question.
The concept of the interpretation in accordance with the Constitution (German: Verfassungskonforme Auslegung) in a broad sense in German legal science is referred to two contexts of law application: firstly, ensuring the substantive conformity of laws with the constitution and secondly, controlling this conformity and possibly eliminating unconstitutional norms. In the first sense, constitutional interpretation is understood as the appropriate shaping of the content of a norm, in the second sense as the control of this content. In this connection, there is a distinction in German scholarship between the so-called pro-constitutional interpretation (German: Verfassungsorientierte Auslegung) and its special variant, which can, for the sake of terminological clarity, be referred to as interpretation in conformity with the constitution sensu stricto. Both aspects of interpretation in accordance with the constitution constitute the implementation of the principle expressed in Article 1(3) GG that all authorities are directly bound by the fundamental rights and as such these rights are applicable in the jurisprudential activity of the Federal Constitutional Court. It must be emphasized, however, that the practical application of fundamental rights norms to private relations in the case law of the FCC eludes the theoretical divisions between pro-constitutional interpretation and interpretation in accordance with the constitution, all the more so as the authors using these terms do not always explain precisely which aspect of interpretation they are referring to.Footnote 82 In fact, in German academia the two aspects are not consistently distinguished, and among the many possible accounts of the relationship between interpretation in accordance with the constitution and pro-constitutional interpretation, there are also positions according to which they constitute one and the same type of interpretation.Footnote 83
For the sake of ordering terminology, in this consideration assume that the concept of pro-constitutional interpretation refers to the process of determining the meaning of legal provisions by courts and other law-applying bodies, with the norms of the constitution playing a role of interpretative guidance. It is therefore also referred to as pro-constitutional interpretation, understood as the determination of the content of subordinate norms (German: Verfassungskonforme Auslegung als Inhaltsbestimmung).Footnote 84 It obliges to take into account the impact of constitutional norms, in particular fundamental rights norms, on the application and interpretation of all laws. The idea is that, in determining their meaning, the objectives and values expressed in the constitution should be realized as far as possible. The influence of the constitution here is to “imbue” all legal provisions with constitutional axiology. In the case of interpretation in accordance with the constitution sensu stricto, the norms of the constitution are the controlling criterion. This technique of interpretation is aimed at “saving” a provision from being removed from the system, as it assumes that a law cannot be declared invalid if it can be interpreted in accordance with the constitution.Footnote 85
It is not difficult to conclude that the theory of the “radiating effect” of fundamental rights on private law relations, as expounded in the Lüth judgment, corresponds to the assumptions of pro-constitutional interpretation understood in this way. The “objective order of values” embodied in fundamental rights permeates all norms of the legal system by means of the interpretation technique described. In the doctrine of law, the view is explicitly expressed that the figure of both indirect Drittwirkung and Schutzpflichten built on this foundation is nothing more than a pro-constitutional interpretation understood as determining the content of norms.Footnote 86 The essence of pro-constitutional interpretation is aptly conveyed by a well-known passage of judgment in the Lüth case—previously cited on several occasions—according to which the value system embodied in fundamental rights must apply as a “fundamental constitutional decision” in all areas of law, including civil law, and every provision thereof “must be interpreted in the spirit of this system.”Footnote 87 The German literature argues that the reference to the figure of Drittwirkung and Schutzpflichten blurs the essentially simple picture of the relationship between the constitution and laws.Footnote 88 The application of the technique of the interpretation in accordance with the constitution in the cases decided by the FCC would supposedly allow for a more correct identification of the legal goods at stake and a better justification of the criteria according to which they are weighed.Footnote 89
Wank shows how the argumentation in the Lüth case might have looked if, instead of formulating a Drittwirkung construction, the FCC had relied on a model of interpretation in accordance with the Constitution.Footnote 90 In the circumstances of the case, it had first of all to be determined whether Lüth’s damage to Harlan as a consequence of the boycott call, which was undoubtedly intentional, was at the same time contrary to good morals, and thus whether the circumstances for the application of § 826 BGB, obliging the payment of compensation, were met. This provision—like any other—is subject to an interpretation that takes into account higher-order norms. If the call to boycott is understood as an exercise in freedom of speech in the sense of Article 5(1) GG, it is in principle constitutionally protected. However, Article 5(2) GG allows the right protected in paragraph 1 to be restricted by provisions of general laws, i.e. provisions that are not specifically directed against freedom of speech. Paragraph 826 BGB is such a provision. However, in the opinion of the FCC, it cannot be interpreted in such a way that every call to boycott is contrary to the law, because according to the interaction theory (German: Wechselwirkungstheorie) the provisions of the BGB should be interpreted taking into account the meaning of fundamental rights. According to Wank, the FCC’s method of weighing the legal goods involved in the Lüth case, based on the juxtaposition of § 826 BGB and Article 5(1) GG, is incorrect, as these provisions are not comparable.Footnote 91 The FCC should weigh the goods first on a constitutional level, i.e. between the freedom of expression under Article 5(1) GG and the freedom of occupation under Article 12(1) GG. Each of the aforementioned fundamental rights is subject to the limitations imposed by the other right and determined according to the principle of proportionality. It is only from this point that it is possible to proceed to an assessment of the way in which the applicant exercised his freedom of expression in the two aspects identified by the FCC: what was his motive and purpose and whether, in terms of form, he did not exceed the permissible measure. The result of the weighing at the constitutional level thus established should be transferred to the statutory level. Paragraph 826 of the BGB, interpreted in accordance with the constitution, should read as follows: a call for a boycott by a private entity is contrary to morality if the exercise of freedom of expression is, in terms of motive and purpose, directed against the other private entity’s freedom of exercise and if, in terms of form, it exceeds the permissible measure.
From the point of view of the core problematic of the present part of this Article, it is important to note that constitutional interpretation is not—contrary to the Drittwirkung model in the version initiated in the Lüth judgment—primarily limited to general clauses and undefined phrases. Under the former technique, the constitutionality of legal provisions is assessed directly in light of fundamental rights and this applies equally to all provisions of the system. An analysis of the rulings handed down by the FCC over the course of several decades leads to the conclusion that the influence of constitutional norms on private law relations has evolved in the direction of increasing the scope of their influence and has thus come to resemble an interpretation in accordance with the constitution.
As already mentionedFootnote 92, following the theory of Dürig, adapted to the Lüth case, the FCC emphasized the primary role of civil law general clauses, described as the places through which fundamental rights “break into” the private law order. It went on to recognize that the “transmission” of fundamental rights into private law also takes place through other concepts, which require an interpretation that takes into account the content of fundamental rights norms.Footnote 93 In the 1990s, constitutional jurisprudence saw a further extension of the impact of fundamental rights into private law.Footnote 94 According to the line of jurisprudence formulated at that time, if a provision of private law imposes a limitation on a fundamental right, the civil court, in applying that provision, should take into account the meaning of that right in its decision.Footnote 95 The obligation was to strike a balance between the interests protected by the fundamental right and those secured by the statute. This approach has been referred to in legal doctrine as “fundamental rights oriented interpretation” (German: Grundrechtsorientierte Auslegung), “Fundamental Rights Compatible Interpretation” (German: Grundrechtskonforme Auslegung) or “Fundamental Rights Oriented Balancing” (German: Grundrechtsorientierte Abwägung).Footnote 96 Every provision of private law should be interpreted taking into account the “radiating influence” of fundamental rights, although the rule continued to cover general clauses in particular.
The most recent iteration of the evolution in question would involve a gradual departure from the Drittwirkung construction and the resolution of the problem of the impact of fundamental rights on private law solely through interpretation in accordance with the constitution. Several decisions taken by the FCC after 2000 have been read in legal doctrine as the formation of a new trend, heralding this major change not only in the manner of adjudication but also in the scope of argumentation. Andreas Kulick draws attention in this context in particular to the Anwendungserweiterung decision of 2011Footnote 97 and the Samplings decision of 2016,Footnote 98 in which the FCC explicitly confirmed that fundamental rights exert an impact on horizontal relations through the application of an interpretation in accordance with the constitution covering not only general clauses but also all private law norms, while at the same time—in contrast to previous practice in cases of this type—refraining from citing a standing piece of case law on “radiating impact.”Footnote 99 According to Kulick, the FCC’s turn towards the described interpretation technique means that the court takes civil law norms “more seriously”: in contrast to the previous practice of referring to civil law provisions sporadically and to the extent limited to its specific phrases, it now lists the relevant civil law provisions and interprets them according to the recognized rules of interpretation. It thus calls by name what he has been practising for some time already. Not only does this author consider such an approach to be methodologically more correct than recourse to the legally unclassified category of Drittwirkung Footnote 100, but also more consistent with the principle of separation of powers. Kulick argues that the described model of interpretation strengthens the position of the legislator and stops the judicial unfolding of the law, characteristic of many earlier rulings.Footnote 101
H. The Specific Constellation and Selective Indirect Drittwirkung of the Fundamental Right to Equal Treatment
In its high-profile ruling in the Stadionverbot case in 2018Footnote 102, for the first time the FCC extensively commented on the scope of the horizontal validity of the fundamental right to equal treatment from Article 3(1) GG. The line of jurisprudence initiated in this ruling was further developed in two 2019 decisions.Footnote 103 As will be shown further on in these rulings, the FCC explicitly declared a significant narrowing of the scope of application of the Drittwirkung to so-called specific constellations. This approach can be read as a way out of the criticism levelled against the legitimacy of the use of the disputed construction, and thus another instalment of the dialogue that is taking place between the FCC and the legal doctrine.
In the Stadionverbot case, the FCC assessed, inter alia from the point of view of the principle of equal treatment, the constitutionality of a stadium ban imposed on a football fan by the stadium operator. It found that the stadium operator, as a private person, can, in connection with the right of ownership grounds in Article 14 GG, decide to whom it allows access to the stadium. However, the exclusion of certain persons from participating in socially important events that private operators open to the general public cannot be arbitrary. As noted by the FCC, the indirect effectiveness of Article 3(1) GG in private law relations should be taken into account in situations of “special constellations.”Footnote 104 These occur when one of the parties of such a relationship has the power to decide on access to a socially important event. The special constellation in the context of the case at hand arose from the fact that, in a formally private relationship between a football fan and a stadium operator, the latter wielded so much power that it rendered illusory the equality of the parties, which is characteristic of such relationships and derives from the private law model. Such a circumstance makes the private relationship in a substantial sense closer to a vertical relationship between the state and the individual.Footnote 105
In Order 1 BvQ 42/19, the FCC confirmed that the same circumstances characterize the relationship between an individual and a Facebook network administrator. The case concerned the blocking of the online account of the neo-Nazi party The Third Way due to its anti-immigrant posts in violation of the portal’s community standards. According to the FCC, there is also a specific constellation in such circumstances, as exclusion from presence in a virtual community significantly limits the possibility to participate in social life. The figure of the public forum can be applied to social networks, while the powers of their owners can be likened to those of a landlord.
The conditions of a specific constellation are not fulfilled, however, in the opinion of the FCC, by the relationship between the owner of a hotel offering wellness services and its customer, where the hotel is not the only provider of such services in the area. In ruling 1 BvR 879/12, the FCC held that a ban on entering a hotel does not significantly restrict participation in social life, especially when the hotel owner has made every effort to minimize the discomfort of the would-be guest. The hotel owner justified his refusal to provide the service on the grounds of incompatibility between the hotel’s aim of offering every guest the most perfect comfort and the political views of the would-be guest, who was the then chairman of the neo-Nazi National Democratic Party of Germany.
In the judgments presented, a significant change can be observed with regard to the scope of application of the Drittwirkung. Whereas in the case law so far one can speak of a certain automatism in covering the indirect horizontal effectiveness of fundamental rights in genere, and thus of creating a general principle in this respect, in the case of Article 3(1) GG, the FCC stipulated that not only could no “objective constitutional principle”Footnote 106 be derived from it, according to which relations between private parties should be shaped according to the requirement of equal treatment along the lines of vertical relations, but also that such a requirement in an indirect version does not derive unconditionally from the Drittwirkung of this provision. The FCC expressly stipulated that the possibility of establishing the indirect horizontal effectiveness of the right to equal treatment depends on the existence of certain circumstances within the framework of this relationship, which it described by reference to the figure of a “special constellation.” This figure is new in the jurisprudence of the German constitutional court, but it is based on assumptions familiar with earlier decisions, such as the structural inequality between the parties of the relationshipFootnote 107 or the concept of a communicative forum.Footnote 108 The narrowing of the scope of application of the indirect Drittwirkung to “particular constellations” is part of the dogmatization of this construction, which consists of the specification of the conditions for the “radiating effect” of fundamental rights.Footnote 109 It can be said that, with regard to Article 3(1) GG, the general principle of indirect horizontal effectiveness suffers from a significant limitation. The solution of framing the order of values, embedded in fundamental rights, within a certain dogmatic framework somewhat weakens—at least as far as the right to equal treatment is concerned—its objective character and thus the possibility of extending its “radiating effect” to the entire legal system. To this extent, therefore, it can be read—if only in the area of justification of decisions—as a manifestation of the FCC’s jurisprudential self-restraint for the future.
I. Conclusion
The rulings issued over the course of more than seventy years in which the FCC decided on the horizontal effectiveness of certain fundamental rights—not only on the basis of Drittwirkung, of course, but also with regard to the concept of Schutzpflichten or interpretation in accordance with the constitution—form an important part of the German constitutional acquis. In the earlier parts of the Article, it was shown that the concept of horizontal operation of fundamental rights was shaped in the Federal Republic of Germany as a result of a specific dialogue that took place over several decades between the FCC and the legal doctrine. The criticism of the original assumptions of indirect Drittwirkung, formulated in the Lüth judgment, was reflected in various forms of the evolution of this concept in case law. The wealth of comments submitted in legal science on subsequent judgments in which the FCC expresses its opinion on the problem of the Drittwirkung, best proves that the legal doctrine has unabated attention in observing the development of this concept in jurisprudence, actively participating in shaping the paradigm of resolving the “third-party effect” of fundamental rights by a constitutional court.
The evolution of the jurisprudence initiated in the Lüth case first of all consisted of concretizing the conditions for the radiating influence of fundamental rights norms on private law and gradually expanding the criteria that the decisions of the ordinary courts must meet in order to be considered to have taken this influence duly into account. As a result of this activity, the concept of the “third-party effect” of fundamental rights, originally justified by reference to the general idea of an objective order of values, has become progressively dogmatized. And even if there is no shortage of opinions in German academia that the described FCC’s endeavours consist in fact of the creation of figures intended only to give the impression that there is a dogmatic basis for a given decision,Footnote 110 this does not change the fact that the discussed piece of case law has fundamentally influenced the interpretation of the provisions of Chapter I of the German Basic Law. If it were not for the case law of the FCC, today’s standard of safeguarding fundamental rights would not be achievable.Footnote 111 As part of the case law that has developed the Drittwirkung over several decades, the FCC has taken part in a discussion on matters fundamental for German society, such as the limits of freedom of speech, protection of the weaker party of the contract, abortion or the privatization of state functions. The effectiveness of the indirect Drittwirkung has been confirmed by the FCC in relation to most of the fundamental rights expressed in the text of the German constitution, but has also been frequently considered in relation to the general right of personality not explicitly mentioned in the Constitution, but derived from its Article 2(1) in conjunction with Article 1(1). It is also important from the point of view of the ability of individuals to enforce their rights effectively that the process of specifying the conditions for the “radiating action” of fundamental rights increases the level of predictability of future judgments.
Based on the analysis of the case law carried out for the purposes of this Article, the most important elements constructing Drittwirkung in constitutional jurisprudence include the following assumptions:
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1) The impact of the values embodied in fundamental rights on private law is mainly through general clauses and other undefined phrases;
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2) The balancing of conflicting fundamental rights should be done with reference to them and taking into account the rules of practical concordance;
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3) The intensity of Drittwirkung is of a graded nature and depends on the level of inequality between the parties of the legal relationship and, in particular, on the occurrence of the following factors: the inevitability of the situation, the particularly important general social importance of the services offered by one of the parties or the social power of one of the parties;
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4) In the case of the performance by a private entity of functions traditionally belonging to the state, the indirect binding of such an entity to fundamental rights may approach or equate to a state obligation to respect fundamental rights;
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5) Where distortions in contractual parity are found that violate the private autonomy of one of the parties of the contract, the civil court is obliged to correct the content of the contract through an interpretation of civil law clauses directed towards the realisation of constitutional values;
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6) In the case of the “highest intensity” of a breach of fundamental rights in a civil court decision under review, the FCC’s intervention may take the form of replacing the court’s assessments with its own;
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7) In the absence of provisions in a given area through which the “transmission” of fundamental rights to a private law relationship could take place, the direct application of constitutional provisions is possible.
Due to the universal nature of the elements constructing the Drittwirkung, they can be successfully applied in the process of applying constitutional freedoms and rights in other countries. Modern constitutions contain extensive catalogues of human rights, the interpretation of which in each case requires reference to an axiology based on an order of values. In their day-to-day activities, constitutional courts monitor whether the ordinary courts have given due consideration to the values to which the fundamental rights norms refer. Many of the detailed theses developed by the German Constitutional Court constructing the Drittwirkung can provide helpful guidance in the process of balancing conflicting values, which is an integral part of resolving disputes between private parties concerning the scope of operation of their fundamental rights.Footnote 112
As far as the prognosis for further developments in case law of the FCC is concerned, it is not excluded that the next few years will bring a broader recourse to the trend outlined in the last period, which consists of resolving the question of the “third-party effect” of fundamental rights with reference to the technique of interpretation in accordance with the constitution, which legal doctrine identifies as a dogmatically correct alternative to the Drittwirkung. After all, the search for new formulas that better dogmatically justify the extension of the effectiveness of the constitution to private relations does not change one thing: the FCC continues to maintain its links with old theses, which are clearly reflected in current case law.Footnote 113 This circumstance at the same time contradicts the claim that the discussion on the Drittwirkung can be considered exhausted.
The research carried out for the purposes of this Article does not entitle one to conclude that recourse to the Drittwirkung, understood as a construction formed in the case law of the FCC, is necessary to ensure the protection of the rights of individuals in their relations with other individuals. As demonstrated, this protection can be ensured within the protective function of constitutional rights or through pro-constitutional interpretation. When juxtaposing the aforementioned constructs, however, it should be borne in mind that a particular type of interpretation or function of fundamental rights is a tool used in the course of the application of the law, whereas Drittwirkung is a dogmatic concept reflecting a particular philosophy of human rights and a vision on the role of the constitution. And this constitutes the undeniable added value of this prominent doctrine.
Acknowledgements
The Article was prepared within the framework of the research project entitled “Drittwirkung der Grundrechte jako konstrukcja prawna. Doswiadczenia niemieckie i rekomendacje dla Polski” [Drittwirkung der Grundrechte as a legal concept. The German experience and recommendations for Poland] financed by the National Science Centre (2014/15/B/HS5/03190).
Competing interests
The author declares none.
Funding Statement
No specific funding has been declared for this article.
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