This book analyses the horizontal effect of fundamental rights in the European Union, from a constitutional perspective. It advances two main arguments: First, it argues that the horizontal effect of fundamental rights (i.e. their application to disputes between private parties) cannot be usefully discussed based on the existing EU horizontality doctrine, which associates horizontality with the exercise of horizontal direct effect only. That doctrine is characterised by a series of overly technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. Secondly, the book argues that a substantive theory of horizontality is required in EU law and sketches its main parameters. In the fundamental rights context, horizontal effect has organisational implications for society, which go beyond specific intersubjective disputes. It is argued that its determination requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication: the determination of horizontal applicability of a fundamental right within a type of private authority relationship falls upon the Court of Justice, but the precise manifestation of horizontal effect (e.g. direct, indirect or state-mediated effect) rests with national courts.

This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.

This book analyses the horizontal effect of fundamental rights in the European Union, from a constitutional perspective. It advances two main arguments: First, it argues that the horizontal effect of fundamental rights (i.e. their application to disputes between private parties) cannot be usefully discussed based on the existing EU horizontality doctrine, which associates horizontality with the exercise of horizontal direct effect only. That doctrine is characterised by a series of overly technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. Secondly, the book argues that a substantive theory of horizontality is required in EU law and sketches its main parameters. In the fundamental rights context, horizontal effect has organisational implications for society, which go beyond specific intersubjective disputes. It is argued that its determination requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication: the determination of horizontal applicability of a fundamental right within a type of private authority relationship falls upon the Court of Justice, but the precise manifestation of horizontal effect (e.g. direct, indirect or state-mediated effect) rests with national courts.

The Court of Justice strives to interpret and apply the law in a way which contributes to a build-up of a coherent case law and conforms to fundamental rights as closely as possible. The immediate source of the jeopardising act or degree of the incurred effects should not prove decisive. Rather, the horizontal effect of fundamental rights contributes to the ‘primacy, unity and effectiveness of European Union law’. This study suggests it is feasible to consider the horizontal effect of fundamental rights in the context of EU law. However, because of the semantic and structural openness of fundamental right norms they often necessitate the deduction of a more concrete normative content. This concretization of abstract norms makes adjudicating on the basis of fundamental rights a delicate matter, since it gives great power to the courts. Where this power is extended to the area which typically falls in the sphere of private law, it grows even stronger.

Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. Rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court-not in isolation, but as a central feature of a broader account of that country's constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.

This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.

That the recent turn in European Constitutional Review has effectively brought about a revolution in European law has been observed before. At issue are two major developments in European judicial review. On the one hand, the European Court of Human Rights has been collapsing traditional boundaries between constitutional law and private law with a series of decisions that effectively recognized the "horizontal" effect of Convention rights in the private sphere. On the other hand, the European Court of Justice has also given horizontal effect to fundamental liberties embodied in the Treaty on the Function of the European Union in a number of recent cases in a way that puts "established" boundaries between Member State and Union competences in question. This book takes issue with these developments by bringing to the fore a key issue that the horizontality effect debate has hitherto largely overlooked, namely, the question of sovereignty. It shows with detailed references to especially the American debate on state action and the German debate on Drittwirkung that horizontal effect cannot be understood consistently without coming to grips with the conceptions of state sovereignty that inform different approaches to horizontal effect.

This book presents a comprehensive review of fundamental rights issues that are currently in the spotlight. The first part explores why the question of whether or not fundamental rights have horizontal effect is a topic of endless debate. The second part focuses on human rights and the rule of law. It begins by arguing that the hitherto valid model of the rule of law is now outdated, and then goes on to outline the importance of the judicial dimension in countering threats to the independence of the judiciary. Lastly, the third part addresses a classic issue in the field of human rights: states’ margin of appreciation, highlighting two aspects: (i) the elements used by the ECJ to determine the scope of the margin of appreciation, which varies depending on the subject matter, the nature of the right in question, as well as the severity and the purpose of the interference; and (ii) the margin of appreciation enjoyed by national courts when interpreting the law. Exploring current issues concerning a topic of eternal interest, the book will appeal to scholars and practitioners alike. Written by formidable intellectual talents, committed to the study of fundamental rights, it rigorously analyses the most recent judgments of both the ECJ and the ECHR.

Part Part I: Introduction -- chapter PART I: INTRODUCTION Human Rights and the Private Sphere - the Scope of the Project -- part Part II: National Jurisdictions European Convention on Human Rights -- chapter 1 Denmark Drittwirkung and Conflicting Rights - Viewed from National and International Perspectives -- chapter 2 England and Wales The Human Rights Act and the Private Sphere -- chapter 3 France Horizontal Application and the Triumph of the European Convention on Human Rights -- chapter 4 Germany Drittwirkung in Germany -- chapter 5 Greece Taking Private Law Seriously in the Application of Constitutional Rights -- chapter 6 India Protection of Human Rights against State and Non-State Action -- chapter 7 Ireland Irish Constitutional Law and Direct Horizontal Effect - A Successful Experiment? -- chapter 8 Israel Human Rights in Private Law - The Israeli Case -- chapter 9 Italy The Protection of Constitutional Rights in the Private Sphere -- chapter 10 New Zealand Taking Human Rights into the Private Sphere -- chapter 11 South Africa From Indirect to Direct Effect in South Africa: a System in Transition -- chapter 12 Spain A Jurisdiction Recognising the Direct Horizontal Application of Human Rights -- chapter 13 The United States and Canada: State Action, Constitutional Rights and Private Actors -- chapter 14 The European Convention on Human Rights The European Court of Human Rights.

At once intimate and wide-ranging, and as enthralling, surprising, and vivid as the place itself, this is a uniquely eye-opening tour of one of the great metropolises of the world, and its largest Spanish-speaking city. Horizontal Vertigo: The title refers to the fear of ever-impending earthquakes that led Mexicans to build their capital city outward rather than upward. With the perspicacity of a keenly observant flaneur, Juan Villoro wanders through Mexico City seemingly without a plan, describing people, places, and things while brilliantly drawing connections among them. In so doing he reveals, in all its multitudinous glory, the vicissitudes and triumphs of the city ’s cultural, political, and social history: from indigenous antiquity to the Aztec period, from the Spanish conquest to Mexico City today—one of the world’s leading cultural and financial centers. In this deeply iconoclastic book, Villoro organizes his text around a recurring series of topics: “Living in the City,” “City Characters,” “Shocks,” “Crossings,” and “Ceremonies.” What he achieves, miraculously, is a stunning, intriguingly coherent meditation on Mexico City’s genius loci, its spirit of place.