ABSTRACT
The preceding chapter has shown that, while the impact of the rights guaranteed under the Convention on legal relations of private persons inter se is accepted at both the European level and within the domestic legal orders of the Contracting States, as exemplified by Germany and the United Kingdom, the structure of this impact is anything but clear. As the German courts have had more than half a century of experience with mittelbare Drittwirkung der Grundrechte, third-party effects of basic rights under the Grundgesetz, looking into their rich case-law promises insights into the details of how such effects come about.1 These insights might prove transferable to the understanding of the Convention rights. In other words, and more precisely, by an analysis of German constitutional law we might see structures of the effects of rights and freedoms which we can redetect at the European level. In this comparative approach one must, of course, always be aware that our aim cannot, and must not, be a transfer of structures from the constitutional sphere to that of the ECHR. This would force something upon the Convention law. A single Contracting State’s legal order must not have such an effect on a human rights treaty, the validity of which rests on the consent of all of the States Parties. Therefore, our aim must rather be to recognise structures. ‘Recognising’, as part of ‘understanding’, has a subjective touch,
1See, as to the scholarly debate on Drittwirkung, especially: Adomeit, Klaus/Spinti, Henning (1987), p. 873, 876; Bölke (2005), p. 67-86; Calliess (2006), p. 321-330; Canaris (1989), p. 161-172; Canaris (1999), p. 1-98; Canaris (1984), p. 201-246; Diederichsen (1998), p. 71-260; Dolderer (2000); Dreier (1994), p. 505-513; Erichsen (1996), p. 527-533; Eschenbach /Niebaum (1994), p. 1079-1082; (Di) Fabio (2005), p. 87-119; Hager (1994), p. 373-383; Hermes, Georg (1990), p. 1764-1768; Hillgruber (1991), p. 69-86; Klein (1989), p. 1633-1640; Kleine-Cosack, (2005), p. 51-66; Looschelders/Roth (1995), p. 1034-1046; Lücke, (1999), p. 377-384; Neuner (2007), p. 159-176; Oeter (1994), p. 529-563; Pfeifer (2005), p. 5-21; Roth (1996), p. 544-577; Roth (1998), p. 563-567; Ruffert (2001); Ruffert (2009), p. 389-398; Sachs (2006), p. 385-401; Schnapp (2000), p. 937-943; Spielmann (2004), p. 371-375; Starck (2005), p. 23-50; Schwabe (1971); Schwabe (1975), p. 442-470; Schulze-
as does any analysis of case-law aiming at finding common structures in various judgments delivered during a time span of more than fifty years, as hermeneutics teaches us.2 This is true even within one and the same legal system. Therefore I have decided to present my understanding of mittelbare Drittwirkung der Grundrechte under the German Grundgesetz in the form of working hypotheses, which, after their exposition in detail in the course of the following chapter, will hopefully appear convincing to the reader. These working hypotheses are the following:
1) My aim is to demonstrate that the Bundesverfassungsgericht’s Lüth judgment can be interpreted as showing that civil court judgments in private-law cases are acts by an institution exercising public power, which, when they decide a controversy using a provision of private law limiting private autonomy, interfere with the exercise of basic rights guaranteed by the constitution;
2) From this starting point, which I believe could have been reached by reading the Lüth judgment on the day it was handed down, the full relevance of mittelbare Drittwirkung of basic rights becomes visible through a re-constructive reading, as I would like to call it. By this, I mean an interpretative approach to understanding the judgment from a presentday point of view, informed of the development of constitutional interpretation by the Bundesverfassungsgericht. Such a re-constructive reading can make clear that
a) making decisions in private-law controversies requires state (civil) courts to balance the constitutional rights of the private parties involved if, and insofar as, both parties are bearers of constitutional rights;
b) what is required in such cases is a ‘balancing’ of conflicting constitutional rights, meaning that the freedoms of one of the parties is restricted in order to protect the other party’s freedom;
c) through the protection afforded to one party by restricting the other party’s freedom, positive obligations under the constitution in the form of duties to protect (‘Schutzpflichten’) are fulfilled, which stem from constitutionally guaranteed basic rights;
d) the restriction of the other party’s freedom simultaneously involved needs to comply with the requirements of proportionality;
e) the civil court’s position being that of an umpire of the private-law controversy puts it into a special position as it is called upon to decide the case according to private law but, at the same time, it is required to interpret private law provisions limiting private autonomy;
f) this ‘umpire role’ is characterised by the following traits:
2Cf. Hans-Georg Gadamer (1993), 57 et seq.; Gadamer, Hans-Georg (1990), 270 et seq. (see also as to the relevance of the application of a text in which the reader is interest, ibid., 312 et seq.,
i) the provisions limiting private autonomy are in need of interpretation involving judicial creativity, albeit within the limits of legal methodology;
ii) under the German Grundgesetz it is the civil courts’ task to interpret the limiting provisions ‘in the light of the constitution’, which means they must strike the necessary balance between the discernible constitutional right restricted by the limiting provision, on the one hand, and the discernible constitutional right protected by the limiting provision, on the other;
iii) in striking this balance, the competent civil court itself is authorised by the legal order to decide what ‘dose’ of protection is necessary in any given case;
iv) the ‘dose’ of protection for one right being pre-determinative of the intensity of the necessity of restricting the other right under the rules composing the principle of proportionality.
