Do fundamental rights conflict with private law? Articles uri icon

publication date

  • November 2017

start page

  • 1031

end page

  • 1084


  • 6


  • 25

International Standard Serial Number (ISSN)

  • 0928-9801

Electronic International Standard Serial Number (EISSN)

  • 1875-8371


  • The relationship of fundamental rights and private law is often filled with mistrust, which results in a framework where (1) the issue of horizontal effect acquires an oversized importance; (2) the relationship is described in terms of the conflict between fundamental rights and private rights; and (3) fundamental rights are seen as a constraint on consent. This article proposes a different, symbiotic, approach, where (1) horizontal effect is given less attention, because, in general, courts refuse to be tied by a single, unifying theory, when they approach the issue; (2) the purported 'conflict between' is reframed as an issue of overlapping conflicts between private interests on one level, and fundamental rights on the other, which are resolved through different methods; and (3) party autonomy is a cornerstone of both fundamental rights and private law, and a tool to address the two levels of conflict. With this approach we can identify some 'false' conflicts and restrict the 'real conflicts' to identifiable scenarios. The analysis is based on the extensive case law of Spanish courts, and the case law by the European Court of Human Rights (ECtHR), using parallels with other jurisdictions for purposes of comparison.