The Justice Dimensions of the Relationship between Fundamental Rights and Private Law

This paper explores the justice dimensions of the relationship between the Charter of fundamental rights and private law. It reaches three main conclusions. First, a partisan interpretation of the Charter and its horizontal effects in terms of controversial values would be difficult to match with the reasonable pluralism of worldviews that characterises the EU. Instead, the interpretation of fundamental rights should be guided by the demands of a political conception of justice that is acceptable to people adhering to divergent understandings of individual and common good. Secondly, courts and other interpreters of the Charter must distinguish between fundamental rights, freedoms and principles in accordance with their respective moral content and cogency. The generic and hyper-positivistic reference to the ‘constitutional’ or ‘primary-EU-law’ status of the entire Charter is far too crude. In particular, human rights, that all persons equally have by virtue of their humanity, should have a much stronger force than merely instrumental freedoms and principles. Thirdly, the facts of the reasonable pluralism of worldviews and of the indeterminacy of the Charter and its horizontal effects together call for judicial restraint. Because the fundamental rights, as formulated in the Charter, strongly underdetermine private law rules and outcomes of civil disputes, courts should in principle be deferential in cases where the reasons and interest raised by a constitutional right claim have already been addressed adequately in a robust democratic process. From the perspective of justice in each of these dimensions, the CJEU probably has been too partisan and activist in some recent private law cases such as Alemo-Herron.