C. Deligianni-Dimitrakou/C. Akrivopoulou, Fundamental Rights and Private Relations in Greek and European Law, 2015
The book at hand is the result of this scientific collaboration. Its scope is to fill the gap within both the Greek and international academic theory regarding the horizontal effect of fundamental rights. Although at a European level the question at issue has been in the centre of several collective endeavours, it has never been thoroughly studied as far as Greek law is concerned. Thus, in this framework, the present book comprises an opportunity to present the issue of the horizontal effect of fundamental rights as it is developed in the Greek legal system as well as it has evolved in the interaction of the latter with European and international law.
Naturally, this book does not strive to comprehensively cover the subject at issue. Indeed, the issue of the horizontal effect of fundamental rights is a dynamic one that has developed mainly through the relevant judicial practice, and is thus extended to a wide range of legal fields, while it constantly develops accordingly. Nevertheless, this book certainly does intend to shed the light on its most recent evolvements, from a national, comparative and international perspective. In other words, the book aims to re-interpret the Greek version of the theory of the horizontal effect of fundamental rights, as it has developed in a globalised and internationalised legal framework.
Table of Contents
1. The concept of the horizontal effect of fundamental rights
2. Various functions of the horizontal effect of fundamental rights
3. The structure of the book.
FOUNDATIONS AND PREREQUISITES OF FUNDAMENTAL RIGHTS APPLICATION IN PRIVATE LAW
A. The legal framework of fundamental rights in Greek law.
1. Historical origins and philosophical underpinnings
2. Legal sources
2.1. Constitution and ordinary legislation.
2.2. International sources
2.3. Sources of fundamental rights in the EU legal system.
3. From the vertical to the horizontal application of fundamental rights
4. Numerous functions and limits of fundamental rights in Greek law.
5. The Greek system of judicial review.
6. The alignment of the interpretation of statutory law with the Constitution, international treaties and EU law
B. The constitutionalisation of private law and the theory of the horizontal effect of fundamental rights
I. The theory of the horizontal effect of fundamental rights from the viewpoint of national legal systems
1. The birth of the Drittwirkung doctrine in Germany.
1.1. Historical background.
1.2. The approaches of direct and indirect Drittwirkung.
1.3. The horizontal application of fundamental rights in the Bundesverfassungsgericht case law
2. The dispersion of the theory of the horizontal effect of fundamental rights in other European and the US legal systems
2.1. The horizontal effect of fundamental rights in European countries with a centralised system of judicial review
2.2. The horizontal effect of fundamental rights in countries with a mixed system of judicial review: the case of France.
2.3. The horizontal application of fundamental rights in legal systems lacking a written constitution: the case of the United Kingdom.
2.4. The vertical effect of fundamental rights in the USA and the theory of State action
3. The integration of the horizontal effect of fundamental rights theory in the Greek legal system
3.1. The permeation of the “Drittwirkung” theory in Greece and its contestation by certain legal scholars
3.2. The "interpersonal” effect of fundamental rights as a positive law norm comprised in the Constitution: Art. 25(1) subsection 3 of the Greek Constitution.
3.3. The judicial character of the Greek Drittwirkung and its various versions
3.3.1. The indirect effect of fundamental rights through general clauses of private law
3.3.2. The interpretation of private law provisions in the light of fundamental rights as a form of a mild indirect horizontal effect
3.3.3. The implementation of fundamental rights through private law provisions: the case of Art. 57-59 Greek Civil Code protecting the right to personality.
3.3.4. The exceptional character of the direct application of fundamental rights in private relations
4. Concluding remarks and comparative observations
II. The reception of the theory of the horizontal effect of fundamental rights by European law
1. The horizontal effect of the ECHR.
1.1. The foundations of the horizontal effect of the ECHR built on the theory of positive obligations of Member States
1.2. The case law of the ECtHR concerning the horizontal effect of the ECHR.
1.3. The lack of a theoretical elaboration of the horizontal application of the ECHR.
2. The horizontal application of fundamental rights in EU law.
2.1. The principle of non-discrimination as a general principle of EU law and the recognition of its horizontal effect in private relations
2.2. The horizontal effect of EU economic freedoms
2.2.1. The direct horizontal effect of Community freedoms
2.2.2. The indirect horizontal effect of Community freedoms
2.2.3. The balancing of fundamental rights and freedoms
2.3. The horizontal application of the EU Charter of Fundamental Rights
2.3.1. The position of the issue.
2.3.2. The CJEU C-176 Association de Médiation Sociale v. Union locale des Syndicats (AMS) CGT case
2.3.3. The Charter provisions with horizontal applicability.
2.3.4. The Charter provisions establishing general principles
2.3.5. Τhe suitability of the horizontal effect of Charter provisions protecting workers’ rights
2.3.6. The indirect horizontal effect of Charter provisions
2.4. Concluding remarks
C. The Strengthening of the influence of fundamental rights on private relations through judicial dialogue.
2. The concept and forms of judicial dialogue in the European legal order
2.1. The context of judicial dialogue.
2.2. Institutionalised and informal judicial dialogue.
3. Institutionalised dialogue between the courts of Member States and the ECJ/CJEU through preliminary ruling
3.1. Main characteristics of the institution of preliminary ruling.
3.2. The use of the proceeding of preliminary ruling by Greek courts
4. The institutionalised dialogue between national courts and the ECtHR.
4.1. The normative character of ECtHR case law.
4.2. The attitude of Greek courts regarding the case law of the ECtHR.
5. The recourse to foreign case law by national courts as a specific form of non-institutionalised judicial dialogue
5.1. The notion of jurisprudential dialogue and its contestation.
5.1.1. Arguments for and against the recourse of national courts to foreign case law
5.2. The non-binding character of case law invoked in the framework of jurisprudential dialogue
5.3. Additional factors affecting the recourse of national courts to foreign case law.
5.3.1. Personal choices and legal education of judges
5.3.2. Foreign influences on national legal systems
5.3.3. Judicial approach and reasoning.
5.3.4. The prominent role of legal theory.
5.3.5. The citation practice of the courts
THE INFLUENCE OF FUNDAMENTAL RIGHTS IN SPECIFIC FIELDS OF PRIVATE LAW
D. Fundamental Rights in Contract Law.
1. Origins, main principles and constitutional foundations of Greek contract law.
2. General clauses and the principle of protection of the weaker party as a means to restricting contractual freedom
3. Europeanisation of contract law and the involvement of fundamental rights in its implementation
3.1. Informal Europeanisation of contract law.
3.2. EU legislation in contract law.
3.2.1. ΕU legislation in consumer protection.
3.2.2. EU legislation in equality and non-discrimination law.
3.2.3. The provisions of the Charter of Fundamental Rights of the EU concerning contract law
3.3. Fundamental rights and contract law in CJEU case law.
3.3.1. Cases recognising the contractual freedom as a fundamental freedom.
3.3.2. Cases enhancing the protection of the weaker party.
3.3.3. Cases concerning restrictions to contractual freedom posed by equality and non-discrimination law
4. Contract law and fundamental rights in Greek case law.
4.1. Fundamental rights as restrictions to the freedom of an individual to agree to or to refuse a contract award
4.1.1. The position of the problem.
4.1.2. Refusal of a contract award due to discrimination against the other party.
4.1.3. Restrictions to the freedom to enter into contract through constitutional provisions protecting human value and childhood.
4.2. Fundamental rights as a limitation to the content of a contract
4.2.1. Consumer contracts
4.2.2. Assimilation of guarantors and consumers
4.2.3. Protection of employees against abusive terms of the employer
4.2.4. Expansive equality and equal pay.
4.3. The impact of fundamental rights on ancillary obligations deriving from contracts
4.4. The effect of fundamental rights on the dissolution or termination of a contract
4.4.1. Breach of contract as infringement of personality and restitution of non-pecuniary damage
4.4.2. Termination of indefinite-term labour contracts
5. Proposals and recommendations for enhanced interaction between fundamental rights and contract law
E. Fundamental Rights in the Law of Torts.
1. General characteristics and foreign origins of Greek tort law.
2. Europanisation of tort law and the role of fundamental rights
2.1. Informal and formal Europanisation of the law of torts
2.2. Tort law and fundamental rights in CJEU case law.
2.2.1. CJEU case law concerning State liability for breach of EU law as a factor enhancing the impact of fundamental rights on private relations
2.2.2. Other CJEU rulings exemplifying the influence of fundamental rights on tort law
3. Tort law and fundamental rights in Greek case law.
3.1. The right to personality and its strong interconnection with the law of torts
3.1.1. The right to personality and environmental torts
3.1.2. The right to ethnic origin versus the right to scientific freedom.
3.1.3. The right to privacy and its correlation with freedom of expression.
3.1.4. The issue of wrongful life.
3.1.5. The impact of personality rights on extending the beneficiaries of non-pecuniary damages
3.1.6. Νon-pecuniary damages and the constitutional principle of proportionality.
4. Proposals and recommendations to enhance interaction between fundamental rights and tort law
F. Fundamental Rights in Property Law.
1. Origins, general principles and constitutional background of Greek property law.
2. The broadened concept of "property" deriving from Art. 17 GC and Art. 1 of the 1st Protocol to the ECHR
3. Property rights limitations
4. The elementary character of EU property law and the limited involvement of fundamental rights in its formation
5. Intellectual property law and its strong correlation to fundamental rights
5.1. The internationalisation and Europanisation of intellectual property law and its influence on Greek case law
5.2. Interaction between fundamental rights and intellectual property in CJEU and Greek case law
6. Proposals and recommendations for enhanced interaction between fundamental rights and property law
G. Fundamental Rights in Family Law.
1. The socio-political background of Greek family law and the contribution of fundamental rights to its renovation
2. General principles of family law and clauses permitting the invocation of fundamental rights in the field of family relations
3. Law 3719/2008 recognising the civil union of opposite-sex couples and its opposition to the principle of non-discrimination: the Vallianatos v Greece case of the ECHR.
4. Europanisation of family law and the role of fundamental rights
4.1. General remarks
4.2. ECHR case law on the right of family life and the right to marry (Arts 8(1) and 12 ECHR)
4.2.1. The dynamic and evolutive interpretation of Arts 8(1) and 12 ECHR.
4.2.2. The pragmatist interpretation of the notion of family.
4.2.3. Recognition of family life of same-sex couples and rejection of their right to marry
4.2.4. Recognition of the ability of same-sex couples to adopt a child.
4.2.5. The violation of Arts 8 and 14 ECHR by the refusal of Greek courts to enforce a foreign decision affecting the adoption of a person by a bishop.
4.2.6. The recognition of transsexual individuals’ right to marry.
4.3. Τhe emergence of EU family law.
4.3.1. General remarks
4.3.2. EU legislation on family law.
188.8.131.52. CFREU provisions concerning family law.
184.108.40.206. Legislation on the free movement of persons, family reunification and the harmonisation of asylum and immigration law.
220.127.116.11. EU legislation concerning cross-border family relations.
4.3.3. Fundamental rights in CJEU case law on family matters
18.104.22.168 Cases recognising the rights of transexual persons and of persons living in same-sex or opposite-sex partnerships.
22.214.171.124. Cases concerning the interpretation of Directive 2003/86 on the right to family reunification
126.96.36.199. Cases concerning the interpretation of Brussels IIbis Regulation
5. Greek case law indicative of the influence of fundamental rights on family law.
6. Proposals and recommendations for enhanced interaction between fundamental rights and family law
List of European Courts Cases.
Ι. Cases of ECJ/CJEY and European Court of First Instance
II. Cases of ECtHR