Private law and Constitution: a brief German panorama

Abstract

The paper provides a brief overview of the so‑called “third‑party effect” (Drittwirkung) of fundamental rights in the private sphere in Germany. First and foremost, the fundamental rights embedded in the German Constitution are rights which apply in the relationship between citizens and the State; in other words, they have a “vertical” effect. However, German academics and courts have since long concluded that fundamental rights also influence the relationships between citizens, the “horizontal” effect. This “horizontal” effect is not a direct one, though: According to the general opinion of courts and academics, citizens cannot, in their relationships between each other, invoke a fundamental right as if it were a provision of the civil code. Yet fundamental rights must be considered in the interpretation of the rules of private law, and in particular with respect to the interpretation of general clauses and broad legal concepts. This is illustrated with landmark cases of the German Federal Constitutional Court.