The Lazy Legislature: Incorporating and Horizontalising the Charter of Fundamental Rights through Secondary Union Law

Constitutionalising private law – Horizontal effect of fundamental rights –New legislative techniques in the EU in platform governance – References to the Charter of Fundamental Rights in secondary union law – Article 14(4) of the Digital Services Act – Article 5(1) subparagraph 2 of the Terrorist Content Online Regulation – Compatibility of secondary union law references to the Charter with primary union law – Interpretative methodology of secondary union law references

The mention of terms or standards of primary law is not a technical novelty in EU law.EU legislation enacted in recent years, in various areas, illustrates a current tendency to take up primary law conceptsin different waysfor a variety of motives, and in vertical as well as horizontal situations. 4Yet, with Article 5(1) subparagraph 2 of the Terrorist Content Online Regulation and Article 14(4) of the Digital Services Act, the EU legislature now explicitly formulates for the first time that private actors are bound in some way by the fundamental rights of the Charter.Against this background, interpretations are conceivable that add new effects to the fundamental rights of the Charter and thus differ considerably from previous approaches.In the following, we are therefore not so much interested in interpreting the two provisions mentioned above, but in dealing with the legal questions that arise in general with such legislative technique.

T         C
Even before EU legislation tried to explicitly award horizontal effects to fundamental rights, there was a tradition of discussing the horizontal effect of Union law sources.The results of such discussions have, in part, led to settled case law at the European Court of Justice.It is now recognised that private individuals cannot take action against other private individuals on the basis of a directive. 5Likewise, it is part of the established repertoire of Luxembourg case law to grant direct horizontal effect to provisions of the TFEU under certain circumstances. 6By contrast, with regard to the effect of the Charter among private individuals, the European Court of Justice has so far provided only fragmentary insights into its understanding: The question of whether and to what extent private individuals can invoke the fundamental rights of the Charter against other private individuals is one of the more recent discussions in European legal scholarship; a doctrine of the horizontal effect of fundamental rights is in the making. 7e are yet to establish a consolidated body of case law from the European Court of Justice regarding the horizontal application of the Charter.However, one point is unequivocal: secondary legislation has always held a pivotal role in this context.While the Court ostensibly addresses the issue of whether EU fundamental rights apply horizontally, the legislative body formulates the essential frameworka conditio sine qua nonfor such jurisdiction.In fact, secondary legislation originally served two primary purposes in the horizontalisation of the Charter's fundamental rights: first, as elucidated in the subsequent section, it is predominantly secondary law that initiates the application of the Charter in various contexts, including private relationships; second, secondary legislation establishes the substantive criteria for the Charter's impact on interactions between private entities.Before we delve into the novel role of secondary legislation that piques our interest heresecondary law as a direct source of the Charter's horizontal effectit is essential to briefly outline this initial role of secondary legislation in the horizontalisation of the Charter.

Secondary law as a trigger of the application of fundamental rights
The decision of EU legislation to regulate a certain substantive area is decisive for whether the European Court of Justice comments on the horizontal effect of fundamental rights at all.This is because the Charter applies to the member states when they implement Union law (Article 51(1) sentence 1 Charter).Especially the enactment of secondary law triggers the applicability of the Charter; the mere competence of the EU is not sufficient for this exercise 8fundamental rights protection under the Charter is accessory to legislative action. 9Only insofar as a matter falls within the scope of Union law can private law in this area be subject to constitutionalisation by Union fundamental rights. 10The starting point that enables the horizontalisation of fundamental rights by the Court thus lies with the legislature.

Secondary law as a connecting factor for the horizontal effects of fundamental rights
The European Court of Justice takes up this legislative baton in two respects. 11nitially, the Court only referred to the Charter in order to interpret Union law 12 or national law 13 in conformity with fundamental rights.Fundamental rights have an indirect effect between private parties through the judicial interpretation of the 8 H.D. Jarass, 'Art.51 Charter', in H.D. Jarass, Charta der Grundrechte der Europäischen Union, 4th edn.(C.H. Beck 2021) para.24; C.D. Classen, 'Französisches Grundrechtsverständnis: kaum Dogmatik, objektiv-rechtliche Traditionen, subjektiv-rechtliche Perspektiven?',68 Jahrbuch des öffentlichen Rechts der Gegenwart (2020) p. 213 at p. 232. 9 See e.g.ECJ 10 July 2014, Case C-198/13, Juliàn Hernández et al., ECLI:EU:C:2014:2055,  para.35; ECJ 19 November 2019, Joined Cases C-609/17 & C-610/17, TSN, ECLI:EU: C:2019:981, para.45 ff; the German Federal Constitutional Court refers to this as an accessory system of fundamental rights of the Union ('fachrechtsakzessorische Anlage der Unionsgrundrechte'), BVerfG 6 November 2019, 1 BvR 16/13, Recht auf Vergessen I, para.54.In specific cases, this may also apply beyond secondary law to primary law norms that are applicable between private parties and trigger the application of the Charter, e.g.Art.157(1) TFEU or Art.16(1) TFEU.respective secondary law provision. 14Particularly since the Lisbon Treaty, the European Court of Justice has charged 'technical legal acts without pathos' 15 with fundamental rights in horizontal situations by way of indirect horizontal effect.In doing so, the European Court of Justice horizontalizes the Charter through its interpretation of secondary law in conformity with fundamental rights in, for example, data protection, 16 anti-discrimination, 17 consumer protection, 18 and copyright law. 19Secondary law functions, therefore, as a gateway for the constitutionalisation of private law by the judiciary. 20n the other hand, in its more recent case law, the European Court of Justice derives direct fundamental rights obligations of private individuals from the Charter in order to remedy the lack of horizontal effect of directives that have not been transposed or have been transposed inadequately. 21If a member state fails to transpose or insufficiently transposes a provision of a directive that is intended to regulate private law relationships, there is no corresponding legal basis for private action in national civil law.It is true that, despite the transposition deficits, there is an obligation to interpret the remaining national law in conformity with the directive after the transposition deadline has expired. 22Yet, if such an 14 Jarass, supra n. 8, para.38; A. Schwerdtfeger, 'Art.51', in J. Meyer and S. Hölscheidt (eds.)interpretation is only possible contra legem in view of the finality of the relevant national provision, the latter is inapplicable. 23his exclusionary effect under fundamental rights has the consequence that the civil law claim is governed by other existing legal provisions.The provision of a directive itself, however, cannot be enforced by private individuals against other private individualsas they can against public authorities.Rather, according to the European Court of Justice, in the absence of other civil law claims, private individuals can now directly invoke EU fundamental rights against other private individuals. 24The European Court of Justice requires that the non-implemented provision of the directive be the concretisation of a fundamental right that in any case gives rise to a claim. 25The European Court of Justice examines for each fundamental right individually whether or not it applies horizontally between private parties.In particular, the provision of the Charter must 'in itself ' confer a right on the individual; no further concretisation of the right must be necessary.Furthermore, the nature of the fundamental right must be based on private-law relationships, i.e. it would have to be possible for a corresponding duty of a private individual to arise directly from the Charter provision.Moreover, only fundamental rights apply horizontally and not principles within the meaning of Article 52(5) Charter.So far, the European Court of Justice has affirmed these conditions, inter alia, for the prohibition of discrimination (Article 21(1) Charter), 26 the right to an effective remedy (Article 47 Charter), 27 and the right to paid annual leave (Article 31(2) Charter) 28 .For workers' right to information and consultation within the undertaking (Article 27 Charter), the European Court of Justice rejected a direct horizontal effect. 29 derived a direct effect of fundamental rights in isolation: Rather, the connection of private parties to fundamental rights has always served to remedy the nonimplementation of directives. 31In the Court's jurisprudence to date, the direct horizontal effect of the Union's fundamental rights is, in practice, an adjunct to (inadequately implemented) secondary law. 32This again shows the important role of secondary law in the horizontalisation of the Charter's fundamental rights.

H    -  
While secondary law has so far served as a point of reference for the European Court of Justice in the two constellations mentioned above, two recent acts on the digital single market suggest that the legislature is no longer willing to leave the determination of the horizontal effects of fundamental rights to the judiciary alone.Irrespective of the question of whether and how this can permissibly be accommodated in the existing hierarchy of norms, de facto a new regulatory technique can be identified.As described, in Article 5(1) subparagraph 2 Terrorist Content Online Regulation and Article 14(4) Digital Services Act, the EU legislature explicitly imposes on private actors the duty to take EU fundamental rights into accountor at least 'copies' of these: Charter-corresponding specifications at the hierarchical level of secondary law, the effects of which remain to be clarified 33 .Such explicit references to fundamental rights in secondary law are certainly not foreign to legislative techniques in some member states.Examples of fundamental rights being mentioned in ordinary law can be found in legislation governing private relationships, 34 which is particularly true with regard to workers' rights, for example, in France, 35 Horizontal Effect: Kücükdeveci revisited The Lazy Legislature Italy, 36 Portugal 37 and Spain. 38With its more recent legislative technique, the EU legislature seems to be following this legal tradition of explicitly referring to fundamental rights in ordinary law.
Such technique differs from ordinary legislation in at least two ways.First, the reference to fundamental rights is particularly imprecise in terms of its legal consequences. 39Instead of laying down specific obligations, the legislator provides only very rough guidelines for the application of the norm.This is obviously useful for legislation, especially in matters where the outcome of actual situations is practically difficult to predict, for example, with regard to which processes violating legal rights take place on online platforms and how they can be adequately countered.In order to partly relieve itself of this responsibility, the legislator delegates powers to the private actors concerned within a given quasiconstitutional framework.This leads to the second and more significant difference between a reference to fundamental rights and other legislation: concepts of constitutional law are transferred to private actors.As a new form of hybrid regulation or co-regulation, the EU provides a quasi-constitutional framework for the regulation of user behaviour by platform operators.The legislation thus takes asymmetrical power relations between private partiesfor example, between platform operators and usersas an occasion to introduce ideas of public law into private law relations.Conceptually, it is based on the circumstance that the operators themselves enact a private order through terms of service on their platforms. 40However, since EU legislation in this picture is itself a higher level of norms to which platform operators must adhere, it also lends itself to being ascribed a certain constitutional quality with regard to the private order.
We will now focus on the pitfalls of this new legislative technique as it applies to references to the Charter.The questions raised can be divided into the areas of conformity with primary law and methodological questions of interpretation.

C   
Secondary legislation cannot modify the interpretation and effect of the Charter. 41y contrast, it is an open question whether or not and within what limits it can copy fundamental rights concepts at the level of secondary law.The Charter is at the level of primary law (Article 6(1) subparagraph 1 sentence 1 TEU), so that the lex superior principle applies in relation to secondary law (cf.Article 263 ff TFEU). 42Secondary legislation that is incompatible with this is declared invalid by the European Court of Justice. 43Two aspects in particular should be considered here: first, is secondary legislation allowed to enact fundamental rights provisions at all?Or is this the original task of primary law?Second, would specific provisions of the Charter not prevent a secondary law reference to fundamental rights?

Primary law reservation of fundamental rights provisions?
The transformation of fundamental rights from supra-positive and pre-state to positivised human and civil rights took place historically as constitutionalists 'reached into the stars' and integrated them into the constitutions. 44In modern constitutional documents the idea of human and civil rights as fundamental statements was united with the idea of the constitution. 45Even today, for example, German constitutional jurisprudence emphasises that fundamental rights and the constitution must necessarily be thought of together. 46If, however, 41 T. Wischmeyer, Grundrechtliche Bindung privater Plattformbetreiber unter dem EU Digital Services Act (Gesellschaft für Freiheitsrechte 2023) p. 9, 26.fundamental rights are not only defined materially, but are also historically characterised by a hierarchical supremacy, legal theory raises the question of the extent to which secondary legislation is entitled to use the concept of fundamental rights itself at a lower normative level as a means of regulation. 47The blanket reference to fundamental rights will appear to some as a legislative failure or even non-performance, 48 since the European legislature is actually supposed to 'promote' the application of fundamental rights according to Article 51(1) sentence 2 Charter.This is in line with the usual interpretation in national constitutional law, according to which it is the task of the legislature to transpose and concretise the principles of freedom expressed in the fundamental rights into the other areas of the legal order. 49In the words of the former German Federal Constitutional Justice Konrad Hesse: The Constitution entrusts the private law legislation with the task of implementing the content of fundamental rights in a differentiating and concretizing manner in a law that is directly binding on the parties to a private legal relationship.It is up to the legislation to make the various modifications that are required to realize the influence of fundamental rights on private law. 50cordingly, it could be the task of EU legislation to give effect to the fundamental rights and values of the Union by translating and concretising them in accordance with the specific features of each area of law.Hence, a legislature that simply uses the concept of fundamental rights without shaping and concretising their content and passing on that task to private actors could be described as lazy.Certainly, the legal technique of a reference to the Charter may not change the Charter's content: The EU legislature may not simply bypass the procedure for amending the Treaties with its new technique. 51The procedures for amending the Treaties and secondary legislation differ from each other to a much greater degree than the national procedures for enacting ordinary laws and laws amending the constitution.The latter usually have higher requirements only in terms of qualified majority voting, otherwise the same legislative bodies decide according to the same procedural rules. 52By contrast, at the EU level the procedure for amending the Treaties is very different from that for enacting secondary legislation.With the exception of certain areas of the TFEU, amendments to primary law must be submitted to an amendment procedure under Article 48(2-5) TEU.This procedure involves international treaties of amendment between EU member states and is considered complex and unpredictable. 53Moreover, it is disputed whether the Charter, which only became binding through the (static 54 ) reference in the Lisbon Treaty pursuant to Article 6(1) subparagraph 1 TEU, can be amended on its own. 55f legal scholars use this national conviction of a division of roles between constitutional law and ordinary law as an argument against the incorporation of fundamental rights into secondary law, they fail to recognise that the resulting norms do not aspire to a higher hierarchy but leave the content of the Treaties and the Charter untouched.Those who argue against this legal technique without analysing the concrete normative content of the legislature, but rather argue with its mere hierarchical position below primary law, 56 are using an old idea of national state theory 57 to explain a new phenomenon of another type of legal 51 Wendel, supra n. 39, p. 59 at p. 76.

52
For the German Basic Law J. Rozek, 'Verfassungsrevision', in Isensee and Kirchhof, supra n. 46, § 257 para.12.The Lazy Legislature order.Yet, such ideas are foreign at the level of Union law.In order to be convincing, this kind of argument would at least have to be updated and more related to legal specifics of the Union.To us, however, it seems to be more fruitful to shed light on the requirements and limits of this legislative technique resulting from positive law.

Violation of specific requirements of the Charter?
The question arises whether specific provisions of the Charter preclude a reference to fundamental rights in secondary law that binds private actors to the Charter.In particular, Article 51(1) sentence 1 Charter could have a blocking effect for secondary legislation.
According to the first sentence of Article 51(1) Charter, the provisions of the Charter are addressed to the institutions and bodies of the Union and to the Member States when they are implementing Union law.Private individuals are not explicitly mentioned.Conversely, it could follow that fundamental rights cannot apply between private individuals. 58If this were a requirement of primary law, it could not be overridden by a reference to secondary law.Indeed, it could be argued that the provision leaves open the question of whether or not the Charter binds private individuals. 59Rather, the purpose of Article 51(1) sentence 1 Charter is to delimit the scope of application of European fundamental rights protection from national fundamental rights protection.The provision therefore makes a decision on the scope of application of the Charter within the jurisdiction 58 of the EU or the Member States, not on the personal scope of application. 60If Article 51(1) sentence 1 Charter were to enumerate exhaustively the addressees of fundamental rights obligations ('institutions, bodies, offices and agencies of the Union' and 'Member States only when they are implementing Union law'), the additional naming of other addressees in other provisions of the Charter would also be superfluous.Indeed, some fundamental rights of the Union are explicitly tailored to private law relationships. 61Consequently, Article 51(1) sentence 1 Charter could not contain a blanket exclusion of a direct horizontal effect of fundamental rights. 62In particular, a horizontal effect had already been known in Union law before the incorporation of the Charter into European primary law. 63In the absence of a discussion of horizontal effect in the Fundamental Rights Convention, this question seems to have been left to the development of case law and literature. 64Recently, the European Court of Justice has followed this line of argument.It has confirmed that Article 51(1) sentence 1 Charter does not preclude the application of fundamental rights between private actors at the level of primary law. 65As Article 51(1) sentence 1 Charter does not exclude the horizontal application of fundamental rights of the Union, this provision does not have a blocking effect on a secondary law order to bind private actors to fundamental rights.
A reference to a fundamental right in secondary law would also have to be sufficiently justified, because it could not only constitute an extension of a fundamental right, but also an encroachment on a fundamental right within the meaning of Article 52(1) sentence 2 Charter.The legislative technique of referring to the Charter in secondary law across hierarchical levels to use the content of the Charter to regulate horizontal legal relationships between private actors should not obscure the fact that this is still a simple piece of legislation: Even if it aims to use fundamental rights to shape a horizontal relationship between private actors, the law itself is still an object that must be measured against higher-ranking law in the vertical relationship.Although the provisions of secondary law are intended to take account of fundamental rights in horizontal relations between private actors, they are themselves acts of Union institutions pursuant to Article 51( 1 The Lazy Legislature with its incorporation technique, to establish a level of protection that unjustifiably falls below the level of fundamental rights protection required by the Charter, the secondary law provision would be incompatible with primary law. In horizontal constellations, increasing the effects of fundamental rights in favour of one individual can constitute a restriction of fundamental rights vis-à-vis another individual; this must be measured against Article 52 of the Charter.The level of protection applicable is always to be determined relationally: the strengthening of one might be the weakening of the other, which requires justification.Article 5(1) subparagraph 2 Terrorist Content Online Regulation and Article 14( 4) Digital Services Act are not, therefore, entirely unproblematic.While the former refers to all fundamental rights, but then wants to take into account 'in particular, the fundamental importance of the freedom of expression and information in an open and democratic society', the latter, after a global reference to fundamental rights, emphasises 'including the fundamental rights of the recipients of the service, such as the freedom of expression, freedom and pluralism of the media' only to immediately cancel this emphasis by adding 'and other fundamental rights and freedoms as enshrined in the Charter'.
As a preliminary conclusion, it does not seem to be a priori contrary to primary law for secondary legislation to refer to the Charter in order to use it to regulate relationships between private parties.The legality of this approach depends on the specific design of the reference norm.

Hypothetical results of interpretation
Since the literature on European law has so far been silent on the legislative technique of explicitly referring to the Charter imposing obligations on private individuals in secondary law, clarification is to be provided on the basis of some general legal considerations as to which meanings can be ascribed to such references.The type of reference depends not only on the interpretation of secondary law, but crucially on whether the specific Charter fundamental right referred to itself is interpreted as having horizontal effect anyway.
Insofar as the secondary law reference to the Charter did not order anything that did not already apply without its reference, it was a declaratory reference.A declaratory reference merely refers, for reasons of usefulness, to provisions that are binding on the addressee of the reference provision anyway. 66

476
Tobias Mast and Christian Ollig  EuConst (2023)     interpreter to find the normative appeal written elsewhere and to relate it to the present legal act, but it does not in itself extend the present legal act's normative content.It is precisely the fundamental rights effect that already follows directly from the Charter that would apply.Understood as a declaratory reference, Article 5(1) subparagraph 2 Terrorist Content Online Regulation and Article 14( 4) Digital Services Act would therefore simply refer to the horizontal effects that follow directly from the Charter anyway.Its main purpose would be to remind practitioners to take the Charter into account when analysing the legal situation.
Cases of merely declaratory references are conceivable; they do not pose any particular problems, but for the sake of completeness should not be ignored here.
We will instead focus on constitutive references.Indeed, primary and secondary law interpretation could show the secondary law ordering new effects, not already given by the Charter itself, by using its fundamental rights terminology (constitutive effect vis-à-vis the Charter).In this case, the reference in the present legal act creates a normative appeal which, without the reference, would be contained neither in the target norm referred to nor in the present legal act.In the case of such a constitutive reference, the reference norm would be incomplete if the cited norm were omitted.
Before we enumerate the different possibilities of a constitutive reference, it should be repreated that a constitutive reference in secondary law can at most modify the content of the fundamental rights at the level of secondary law, but not the fundamental rights of the Charter itself.As with any other act of secondary law, the reference norm has the effect of extending the scope of application of the Charter to the reference norm pursuant to Article 51(1) sentence 1 of the Charter.However, any changes to the content of the Charter's fundamental rights or the personal scope of application of the Charter, which may be ordered by the reference norm, always relate only to the fundamental rights regime constitutively established at the level of secondary law.The content of the individual fundamental rights of the Charter itself, as set out in Articles 1 to 50 of the Charter, and the dimensions in which they operate, as set out in Articles 52 to 54 of the Charter, remain unaffected by the reference. 67Such a regulatory technique would generally reduce legal certainty and would circumvent the primary law 67 Cf for a similar debate in German law T. Clemens, 'Die Verweisung von einer Rechtsnorm auf andere Vorschriften', 111 Archiv des öffentlichen Rechts (1986) p. 63 at p. 66. Accordingly, it is now widely recognised in German constitutional law that the incorporation of fundamental rights of the Basic Law into the Länder constitutions does not duplicate the protection of the same fundamental right (in that sense see, German Federal Constitutional Court, Judgment of 19 July 1967, 2 BvR 639/66); rather, a second layer of (fundamental) rights emerges: see K. The Lazy Legislature amendment procedure in the case of the reference from secondary to primary law at issue here.If a reference to the Charter is constitutive, it createsat its own level of normative hierarchya new, previously non-existent normative regulation for an area of application that is not covered by the object of the reference. 68The incorporated object of reference acquires the validity and rank of the norm of reference in the form of the norm thus composed. 69This is done methodically by copying the text of the referenced Charter provision and reading it within the framework of the referring secondary law norm, as if the Charter text were repeated in secondary law. 70In principle, this technique is no different from the more cumbersome and resource-intensive legislative technique of simply repeating all the provisions referred to in the text at the place of reference.If, however, a reference is used instead, the wording of the reference can have a constitutive effect in various ways. 71It can affect both the applicability of certain fundamental rights and the intensity of the fundamental rights obligation-but always at the level of secondary law.
First of all, a secondary law reference could instal a fundamental rights regime at its own level, whose scope of application includes private law relationships not covered by the Charter and thus differs from the one the Charter has on its own level.In other words, secondary legislation could transport individual fundamental rights positions to the level of secondary law, which would otherwise not apply.For example, in Article 14(4) Digital Services Act, secondary legislation specifically emphasises that providers of intermediary services must take into account the right to freedom of expression, as well as the freedom and pluralism of the media when moderating content.Article 5(1) subparagraph 2, (3)(c) Terrorist Content Online Regulation also highlights, among other things, the need to take freedom of expression and information into account.The European Court of Justice has not yet ruled on the horizontal application of these fundamental rights at the level of primary law.If their application among private individuals does not already result from the Charter, 72 secondary law would constitutively order their horizontal application.By contrast to the familiar cases in which, for example, the Directives on Equal Treatment of the EU 73 impose specified obligations on private actors that come close to being bound by a respective fundamental right, here the fundamental rights system itself is used by the legislature to delegate rule-making to private actors in a limited way.
Furthermore, secondary law could instal a fundamental rights regime at its own level with a different intensity of protection compared to the original one on a primary law level.For the question of whether secondary law has a constitutive effect vis-à-vis the Charter, the scope of the binding effect resulting from the Charter is once again decisive.On this basis, secondary law could either weaken or strengthen the fundamental rights obligation of private actors in relation to the fundamental rights obligation under primary law.In this respect, different levels of the scope of the fundamental rights obligation under secondary law are legally conceivableirrespective of whether they themselves are in breach of the Charter or other primary law as a result of these deviations.
First, a weak form of fundamental rights obligation could be imposed by secondary law.If something is not to be 'observed', but merely taken into account 'with due regard'as formulated in Article 14(4) Digital Services Act or Article 5(1) subparagraph 2, (3)(c) Terrorist Content Online Regulationaccording to common reading in other contexts, there is a duty to seriously deal with the circumstance referred to or the position or interest, whereas mere awareness is not sufficient. 74The result of the required examination is not determined by this; 75 it is therefore a procedural requirement. 76Particularly in the case of mass transactions, an effect on fundamental rights understood in this way would run the risk of being reduced to a standard phrase, which would be completely uncontrollable by those concerned, such as '[T]he fundamental rights of the persons concerned have been taken into account in the decision and do not justify a different outcome'.
Second, while the obligation to take fundamental rights into account described above would reduce the effect of the fundamental rights to a procedural moment, an interpretation is also conceivable that reduces the protective content of the fundamental rights of the Charter, i.e. the material scope and/or the intensity of the interference activating the protection.For example, the effect of fundamental rights ordered by secondary law in the horizontal relationship could be limited to their essence (cf Article 52(1) sentence 1 Charter).According to European Court of Justice case law, a measure respects the essence of a right, provided it does not call it into question as such. 77Accordingly, such an understanding would merely require the addressees of secondary law to not completely undermine the fundamental rights positions of the other parties involved.At the level of primary law, the concept of essence already serves as an argument for the application of the Charter in private law relations. 78This line of argument could be continued at the level of secondary law. 79Although its exact content is still unclear, the concept of essence is currently receiving a great deal of attention, so it does not seem unlikely that the European Court of Justice could activate it in the present context.It would then be difficult to determine where the limits of the essence of a fundamental right lie.Should the essence of a fundamental right be the decisive criterion for the horizontal application of fundamental rights at the level of primary law, a secondary law reference to the essence would only be declaratory.80 What is to be protected in terms of the 'essence' is unclear and was not specified in the Fundamental Rights Convention.It could mean the core content of a fundamental right protected by human dignity as well as a prohibition of abuse of rights or the protection of the fundamental rights content protected by the European Convention on Human Rights as a minimum standard of Third, an interpretation that bound private actors to fundamental rights through secondary law references in a way that corresponded exactly to the obligations of public actors within the meaning of Article 51(1) sentence 1 Charter would be quite absurd, but for the sake of completeness will not be omitted here.In this scenario, the addressees of secondary legislation would be bound by the copied provisions of the Charter to the same extent as the public actors referred to in Article 51(1) sentence 1 Charter.Private parties addressed under secondary law could henceforth interfere with fundamental rights and to do so would require justification.In this context, within the framework of a proportionality test, assessment prerogatives and prognostic leeway of the private parties obligated by fundamental rights could be recognised, for example, with reference to their own fundamental rights or other legitimate interests.In concrete terms, it would be conceivable, for example, to understand Article 14(4) Digital Services Act in such a way that content moderation of platforms may not include content in which public authorities could not justifiably intervene in the same situation with the same intention. 81n all scenarios, the meaning of the principle of proportionality would be of particular interest.First, the question arises as to whether a secondary law reference to fundamental rights includes the binding of the principle of proportionality at all.On the one hand, secondary legislation may explicitly require proportionate action.Examples of this are Article 5(1) subparagraph 2 Terrorist Content Online Regulation and Article 14(4) Digital Services Act, which explicitly stipulate that content may only be moderated in a proportionate manner.On the other, it is conceivable that the secondary law reference does not explicitly state the binding nature of the principle of proportionality.In this case, however, compliance with the principle of proportionality could be a consequence of the obligation to respect fundamental rights.For the commitment to fundamental rights requiresat least according to the understanding of Article 52(1) sentence 2 Charterrestrictions on fundamental rights must be proportionate.If a commitment to the principle of proportionality can be The Lazy Legislature affirmed, the question arises as to what requirements arise from this for the party bound.On the one hand, proportionality could be based on a public actor-related understanding, as enshrined in Article 52(1) sentence 2 Charter.This would mean a multi-level, rationalised examination programme, i.e.only legitimate purposes could be pursued in a suitable, necessary, and proportionate manner. 82At first sight, the principle established in the vertical relationship between public authority and citizen does not seem to be transferable to horizontal relationships without some modification. 83While proportionality in the vertical relationship prescribes the pursuit of state or EU purposes in the most freedom-preserving way possible, in the horizontal relationship it is usually about the allocation of private legal spheres. 84However, if private actors, as in the case of Article 14(4) Digital Services Act and Article 5(1) paragraph 2 Terrorist Content Online Regulation, are to be disciplined by EU law, forming their own private order, they are addressed in their role as quasi-norm-setters 85 and the principle of proportionality applicable to the vertical relationship no longer appears inappropriate from the outset. 86In any case, proportionality in horizontal situations could be based on an autonomous understanding of the specific EU legislature.The regulatory context of secondary law can shape the concept of proportionality.In this sense, proportionality could be understood as a balancing requirement, 87 into which the teleological particularities of the respective secondary law flow.By linguistically emphasising certain fundamental rights positions (e.g.'in particular', 'with special regard to'), secondary legislation could also prescribe the weighting of the fundamental rights.The above-mentioned linguistic peculiarities in Article 14(4) Digital Services Act and Article 5(1) subparagraph 2 Terrorist Content Online Regulation could once again have an effect here. 88There is much to suggest that concrete requirements are determined by an interpretation of secondary law and that this interpretation is in turn to be measured against Article 52(1) Charter.
Secondary legislation could even establish directives for the effects of its fundamental rights obligations that go beyond the principle of proportionality.
Here the linguistic emphases become relevant again.By grading individual fundamental rights positions linguistically, the legislature could express different levels of intensity of the fundamental rights' effect.On the one hand, such a specification may refer to specific fundamental rights.For example, the abovementioned fact that individual fundamental rights positions in Article 14(4) Digital Services Act and Article 5(1) subparagraph 2, (3)(c) Terrorist Content Online Regulation are linguistically emphasised could suggest that these are to be taken into account to a greater extent than other fundamental rights positions.On the other hand, the different formulations of the fundamental rights obligations to take into account indicate that the substantive scope of the binding effect can vary depending on the situation.Indeed, while Article 14(4) Digital Services Act formulates that intermediary services must simply have 'due regard' to the fundamental rights of their users enshrined in the Charter when moderating content, Article 5(1) subparagraph 2 Terrorist Content Online Regulation goes, conceptually speaking, one step further.According to the text, hosting service providers may only moderate content having due regard to the fundamental rights of users 'in all circumstances'; Article 5(3) Terrorist Content Online Regulation adds that hosting service providers shall take 'full account' of users' fundamental rights.Even within the regulatory system of the Digital Services Act, the lawmaker applies different intensities of consideration with regard to fundamental rights.While Article 14(4) generally requires all intermediary services to take into account fundamental rights when moderating content, Recital 47 of the Digital Services Act specifies the obligation to account for very large online platforms and should 'in particular' pay due regard to freedom of expression and information.
As an interim result, the specific scope and meaning of a constitutive crosslevel reference to the Charter depends on how the secondary law reference norm is interpreted.Both procedural and substantive approaches are conceivable.The interpretation process itself is particularly complex in the case of a cross-level reference.It is outlined below.

88
Cf above on the specification of fundamental rights effects.
The Lazy Legislature constitutional traditions of the member states.In addition, the explanations to the Charter, 93 which are to be taken into account in the interpretation pursuant to Article 52(7) Charter, Article 6(1) subparagraph 3 TEU, are potentially significant in the horizontal relationship ordered by secondary law.The explanations there are of a commentary nature and can also be a useful aid to interpretation here.By contrast, the national provisions to be taken into account under Article 52(6) of the Charter will generally not play a role here.This is due to the fact that the provision is usually interpreted in such a way that it becomes relevant above all in the justification of infringements of fundamental rights. 94However, this is a step in the fundamental rights review that corresponds to the above-mentioned interpretation of the reference clause in a way that has effects equivalent to the obligations of public actors-an interpretation which has been interpreted as rather far-fetched.
The already complex process of interpreting fundamental rights does not end with the scope of protection found in this way.Subsequently, a translation is required which transports the conventionally obtained content of the Charter into the new context of secondary law and evaluates it according to the guiding principles there.It has been explained above that the functioning of the incorporated Charter provisions can be modelled by embedding them in a specific secondary law context.This may concern both the applicability of certain fundamental rights and the intensity of the fundamental rights' effect.In this context, the secondary laws signposts are again to be interpreted according to the usual methods of secondary law interpretation. 95If this leads to an interpretation of the reference clause that constitutes an unjustified restriction of the Charter under Article 52(1), (2) Charter, because, for example, it diminishes certain fundamental rights positions compared to others without any objective reason, the reference clause is to be rescued, as far as possible lege artis, by an interpretation in conformity with primary law.Irrespective of whether this principle of interpretation is based on the systematic idea of the unity of Union law, on the presumption of conformity of secondary legislation with primary law, or on considerations of the separation of powers, 96 in the cases at issue here it The Lazy Legislature

certain fundamental rights, the European Court of Justice is positioning itself against powerful voices. 30 So far, however, the Court has not 23 ECJ 17 April 2018, Case C-414/16, Egenberger, ECLI:EU:C:2018:257, para. 79. 24 For an
overview see Jarass, supra n. 8, para.41 with further references; Prechal, supra n. 10, p. 407 ff; D. Leczykiewicz, 'The Judgment in Bauer and the Effect of the EU Charter of Fundamental Rights in Horizontal Situations', 16 European Review of Contract Law (2020) p. 323.