ABSTRACT
The phenomenon of horizontal effect or, more generally speaking, of the constitutionalisation of private law has been widely debated. Yet, most of the discussion has been set in the national context. Only more recently, the constitutionalisation of European private law has made it onto the scholarly agenda. This paper seeks to provide an overview of, and critically engage with, the ECtHR’s jurisprudence in this field. It explains to what extent private law falls under the scope of the ECHR and which doctrinal manoeuvres of the Strasbourg Court have made this possible. It also examines how far the Court’s involvement goes in practice, shedding light on its scope and intensity of scrutiny in private law cases. The paper argues that there is a tension in the case law. Despite having created far-reaching review powers in this area – akin to those of many powerful national constitutional courts – the ECtHR interferes in national private law only rarely. Where, however, the Court chooses to get involved, it acts as a powerful corrective force. Two opposing objections can be raised against this approach: do the European judges do too little, by granting national authorities a wide margin of appreciation in most of their judgments? Or do they, to the contrary, do too much, by limiting private autonomy and subverting domestic regulatory choices in some cases? The paper argues that the ECtHR’s stance constitutes an attempt to reconcile the constitutional principles underlying the Convention system and to do justice to the evolution of private law.
Zglinski, Jan, Doing Too Little or Too Much? Private Law Before the European Court of Human Rights (November 2, 2018). (2018) 37 Yearbook of European Law 98.
First posted 2021-01-07 08:45:15
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