Private Law Theory

Abstract:
The right to free movement embodies both the power to interfere with contractual freedom and contractual freedom itself. Neither is absolute, and the realization of either needs justification in situations of conflict in light of the impact it has on the realization of the other. Where free movement rights embody fundamental rights capable of interfering with economic freedom – most notably, the prohibition of nationality discrimination – this constitutionalized private law will find its countervailing force in the ability of private parties to call upon the constitutional protection of their private autonomy – in privatized constitutional law. Where free movement rights embody economic freedoms, this privatized constitutional law will find its countervailing force in the ability of private interfering parties to call upon collective values laid down in fundamental rights and general principles of law – in constitutionalized private law. This settlement sacrifices both the doctrine of the supremacy of European Union law and the hierarchy of norms in its traditional constitutional understanding to an exercise in balancing rights and principles.

Harm Schepel, ‘Freedom of Contract in Free Movement Law: Balancing Rights and Principles in European Public and Private Law’. European Review of Private Law 5&6 – 2013.

First posted 2013-11-19 07:23:20