The Horizontal Effect of Fundamental Rights in the Jurisprudence of the Court of Justice of the European Union

The present paper deals with the ‘horizontal effect’ of European fundamental rights in the jurisprudence of the CJEU. It explores how the Court appies these rights in adjudicating litigations between private parties. It addresses three questions: (1) how the horizontal effect of fundamental rights operates, (2) which policy goals it serves, and (3) whether this use of fundamental rights is legitimate and desirable.
The first section of this paper explains how the terms ‘European fundamental rights’ and ‘private law’ are used throughout the text, and outlines the difference between vertical and horizontal effect. The second section outlines the difference between direct and indirect horizontal effect of fundamental rights. In its third section, this paper takes position in favour of a normative individualistic understanding of fundamental rights.
The fourth section makes some examples of direct horizontal application and the fifth section some examples of indirect horizontal application of fundamental rights in the CJEU jurisprudence. The sixth section analyses the horizontal effect of the Charter. Here, this paper proposes a new doctrine: the ‘double indirect horizontal effect’ of fundamental rights. This doctrine helps explain the impact of fundamental rights on private relationships in the European multi-level system of court adjudication. It also encourages the Court of Justice to develop its jurisprudence towards a better consideration of the non-economic human interests protected by European fundamental rights.
The subsequent sections identify the policies related to the horizontal effect of fundamental rights at the EU level (seventh section). The eighth section addresses the question whether the pursuit of these policies through court adjudication constitutes a legitimate use or an illegitimate instrumentalization of fundamental rights. It assesses the extent to which both the above-mentioned national and European patterns of horizontal effect correspond to the normative individualistic perspective outlined in the fourth section. The concluding remarks summarize the theses of this paper in seven points.