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This chapter examines the Opinions of a number of Advocates General in the cases relating to direct effect. Its purpose is to analyse the concept of direct effect from the standpoint of the Advocate General. It addresses questions such as: How did the Advocate General approach the case? What kind of thinking influenced him? Is it clear from the Opinions that the Advocates General understood the constitutional significance of the questions before the Court? Topics discussed include origins of the constitutional principle, direct effect of directives, and horizontal effect of directives.

This chapter provides an assessment of EC merger policy from three perspectives. First, it places the evolution of merger policy alongside the evolution of economic ideas in relation to competition and industrial organization. Second, it highlights recent developments in the practical economic appraisal of competition in four areas: unilateral (non-coordinated) effects, particularly the appropriate use of simulation techniques and the efficiency defence; coordinated effects (collective dominance), particularly the role of the Community Courts; non-horizontal effects, particularly the need for the new guidelines; and remedies, particularly weaknesses in current practice. Third, it introduces a simple bargaining approach to merger policy evaluation to draw conclusions about the trend in overall effectiveness of EC merger policy since 1990.

This chapter reviews the personal scope of application. As Article 56 (1) EC is directly effective in intra-Community and third-country contexts, beneficiaries can rely on it, in particular, in the courts of the Member States. The group of addressees, however, also extends to the Community itself and, under certain conditions, to private persons.

This chapter explores how and for which societal governance purposes fundamental rights are applied by national and European courts in cases concerning litigations between private parties. After having analysed how the horizontal effect of national and EU fundamental rights works and which policy goals it serves, this chapter attempts to answer the question whether this use of fundamental rights is legitimate and desirable. This question is looked at from the background of a normative-individualistic understanding of fundamental rights. The analytical part of this chapter includes the proposition of a new doctrine: the double indirect horizontal effect of fundamental rights. This could help the Court of Justice develop its jurisprudence towards a better consideration of the non-economic human interests protected by EU fundamental rights. This chapter comes to the conclusion that, in applying fundamental rights horizontally, both the Court of Justice and the national courts seem to regularly give preference to certain societal policies over others. However, this does not mean that fundamental rights are instrumentalized. On the contrary, in the analysed cases, the pursuit of societal policies goes hand in hand with the strengthening of the basic interests of all individuals directly concerned. This confirms the normative-individualistic paradigm.

The chapter analyses in detail the principles underlying EU law, in particular those of its supremacy and direct effect. It concentrates on the characteristics of directives in particular, since these have special significance in the field of anti-discrimination law. It examines the strategies used, and still being developed by the CJEU, to mitigate the lack of horizontal direct effect of directives. It also analyses the notion of procedural autonomy.

Chapter 2 argues that the value protected by constitutional rights must be positive freedom, or personal autonomy: in particular the doctrines of positive obligations and horizontal effect and the increasing acceptance of socio-economic rights indicate that the point of rights is to enable the people to live their lives autonomously, as opposed to disabling or limiting the government in certain ways. The chapter briefly discusses the values of equality and human dignity and concludes that while they may be useful and important for a theory of constitutional rights, they do not recommend themselves as the starting point of the reconstructive theory proposed in this book.

This chapter introduces readers to the horizontal effect of rights and why it matters. It explains how horizontal effect doctrines define some of the key commitments of the legal systems that produce them. The chapter also introduces the three legal systems that are the subject of the book, Germany, the United States, and Canada, and lays out the basic structure of the case studies. For each, the focus is on three things in particular: a court’s initial moves to apply rights horizontally, the doctrinal structures the court devises to manage the horizontal effect of rights, and the broader consequences these choices have on governance, in interaction with the moves made by other actors and institutions. Applying rights horizontally has the potential to empower courts, but a mix of variables shape the consequences of any such move. The chapter previews the patterns that the case studies reveal.

This chapter applies a contextual analytical framework to matters regarding the scope of the market freedoms other than the concept of restriction on economic free movement—namely, those concerning the requirement for a cross-border element, the economic aim of free movement, the necessary connection between the cross-border element and the exercise of the economic free movement right, and whether private behaviour can infringe upon free movement rules. The case law on these topics is reviewed, together with its normative foundations. It will then be demonstrated that adding institutional considerations to traditional, de-contextualized analyses that focus solely on the internal dimension leads to better descriptive models of each of these areas of the law. The chapter will close with a section concerning the normative implications of adopting a contextual approach.

Chapter II looks at the application of EU free movement rules to private regulation by the CJEU. It critically assesses the prevailing debate on these issues which focuses on an ill-defined notion of private autonomy in order to either completely oppose or fully support the application of the free movement rules. It argues that all four freedoms are now, in principle, applicable to private regulation, converging around a legal test based on foreseeable effects on market access, rather than on formal criteria such as links to the State. As a corollary, the interpretation of the rules can adapt, and has in practice adapted to private actors through a more flexible justification analysis. This is described as a shift from ‘private autonomy’ arguments that seek to achieve exemptions from EU law to ‘regulatory autonomy’ arguments that engage with substantive policy choices while broadly recognizing the legitimacy of private regulators.

Having assessed the growing impact of human rights law on private law in many jurisdictions, the first question is how to best understand the constitutional relationship between public and private law in the context of the horizontal impact of human rights on parties to private or commercial transactions. It is argued that whatever the constitutional framework adopted, human rights should only be permitted an indirect effect on the evolution of private law and should not be permitted to create directly effective rights. Since both parties to private law disputes may invoke rights, there is a need to balance rights, which, it is argued, should proceed under a double proportionality test. It is doubted whether the impact of human rights is likely to strengthen the interests of weaker parties in contractual disputes, but in general the application of rights to private law is welcomed because it is likely to promote a positive conception of freedom or autonomy.

Apex courts face a fundamental problem: they cannot succeed in building systematic effectiveness in the face of regular opposition from the other branches of government, but they must sometimes invalidate the acts of those institutions to make rights effective. Chapter 5 considers how a court can build effectiveness while inducing inter-branch cooperation. A key is proportionality, which provides an infrastructure for the construction of dialogic jurisprudence. Constitutional courts delineate “zones of proportionality” within which policymakers enjoy meaningful policy discretion, albeit within guidelines set by the court. The chapter considers how rights-based, constitutional dialogues play out in three contexts, with respect: to legislating, making and enforcement of administrative law, and in the adjudication of private law disputes. These dialogues not only serve to secure other institutions’ acquiescence to the court’s jurisprudence, but drive proportionality reasoning into their decision-making routines, and hence into the legal domains over which they preside.

The provisional conclusions reached through application of this book's method to the English and French contexts invite supplementary and corrective research of other contexts. Central to those conclusions is a systemic relationship between a working distinction between public and private law and features of its legal and political context, expressed in the book's model or ideal type and elaborated upon in its chapters. This chapter explains implications of that relationship for English law — the hazards of the distinction's ill-considered transplantation and the need to retreat from the distinction and/or comprehensive reforms to accommodate it. It describes a partial retreat and considers comprehensive reforms, ranging from practical proposals by Lord Woolf and theoretical elaboration upon concepts of the state, monopoly, and power. It suggests that greater European legal and political integration or convergence through the use, inter alia, of proportionality or the ECJ's distinction between the vertical and horizontal effect of directives, facilitate the distinction's accommodation, but that its influence is uneven and thus insufficient to bring it about. A satisfactory separate system of English public law, it concludes, is still remote.

This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal force to be used in defence of property. It is also argued that any jurisdiction (such as England and Wales) that permits self-defence as a complete defence where the accused held an unreasonable belief that force was necessary breaches Article 2. This is clearly the case where the force was used in error by a state official. The duty imposed on the state by article 2 to adequately protect its citizens from threats to their life means that the law should not permit an unreasonable mistake to ground a complete defence more generally — even where the accused is a private citizen.

This chapter analyses the impact of European fundamental rights on intellectual property. First it outlines the European human rights systems. Secondly the author analyses to what extent constitutional rights restrict the freedom of national IP legislation. On the one hand, the legislature has considerable discretion in defining the content and limits of property, on the other hand the principle of proportionality is an important device for balancing competing interests. Constitutional law may also help to detect inconsistencies in legislation. Thirdly, the chapter looks into the effect of constitutional law on the application of intellectual property law. Drawing on case examples, the author shows that constitutional rights provide guidelines when applying broad concepts such as fairness, that they may inform the interpretation of exceptions and that they can even provide a basis for the development of new causes of action, as in the case of the protection of privacy.

Each prong of EU equality law identifies specific grounds for differential treatment as well as specific fields in which differences of treatment are suspect. The precise applicable legal tools may—and often do—differ from one ground to the other and from one field to the other. Upstream, different legal bases, institutions, and procedures define the contours of the corresponding branches of EU equality law. Chapter 3 identifies the main components of this complex legal framework before analysing the competing role of the drafters of the Treaty, the EU’s judiciary, and political institutions in shaping EU equality law. The parameters of the doctrinal debate examined in the previous chapter are then used to revisit cases such as Barber, Grant, or Alimanovic as well as questions of judicial review (e.g. Test-Achats) and horizontal direct effect (Kücükdeveci) of the rules on equal treatment. It is submitted that three elements determine the pre-conditions for a healthy balance between the constitutional value of the relevant right, and the political dimension of decision-making on fundamental rights: the constitutional norm ought to explicitly call for political guidance, political institutions are invited to assert the policy implications of decision-making in the field, and the EU judiciary may have to refrain from palliating limits or imperfections resulting from the policy-making process.

This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about the public/private divide in the law. These assumptions are that there is or should be no cross-fertilization between the meaning of the public in the various instances of the divide scattered across legal systems; that its expression in the law is necessarily political or ideological; and that the divide can be dispensed with when it hinders the achievement of particular goals such as the effective protection of human rights. Focusing on one expression of the public/private divide in the law — s. 6 of the UK's Human Rights Act 1998 — it is argued that the practice of adjudication of the divide in the law reveals a deeper-rooted sense of the public and the private, which permeates the legal system which is more stable than the commonplace of its radical relativity suggests. In the light of this more structural understanding of the public, there is necessarily a measure of cross-fertilization between particular instances of the divide in a legal system, that it is less political or ideological than is claimed, and that its elimination can be extremely problematic, particularly for the achievement of effective human rights protection. The chapter concludes by characterizing this deeper structure of the public/private divide in terms of a ‘legal archetype’, and identifies the role of positive law in relation to this archetype as a parergon.

This chapter discusses arguments for holding associations to the normative standards to which liberals hold states. Complex associations, such as universities, contain internal associational spheres; why should those associations not have the same freedom against the umbrella group that other associations have against the state? The chapter argues that complex associations ought to retain internal authority to shape their subordinate associations, and that the apparent resemblance between universities and the liberal constitutional state is a mistake. The similarity between universities’ internal norms such as academic freedom, and public constitutional rules such as freedom of speech, is misleading; universities are purposive institutions that hold to academic freedom for internal reasons. The chapter concludes with discussion of related concepts from constitutional law: the American state-action doctrine, and the doctrine of horizontal effect used in some other jurisdictions.