Doing Too Little or Too Much? Private Law Before the European Court of Human Rights

Abstract

The question as to whether fundamental rights impose duties on private individuals is as much an old constitutional chestnut as it is a controversial current affair. Can a hotel owner deny hosting the member of a neo-Nazi party?1 Can a devout Christian baker refuse to make a cake for a same-sex wedding?2 Can a company dismiss a Muslim employee because she refuses to take her headscarf off at work?3 At the heart of these cases lies the issue whether private behaviour should be bound by fundamental rights, a problem legal doctrine calls horizontal effect. Courts across the globe have, in different ways and to different extents, recognised such an effect. They have thereby changed the rights and obligations private individuals hold towards each other. By the same token, they have changed private law as such. Private law no longer is an autonomous domain, insulated from external pressures. As its making and application are put under constitutional control, it has become, just like other legal fields, an area of ‘applied constitutional law’.4