The influence of fundamental rights in Private Law as a prohibition to interfere as well as a obligation to protect

the meaning of the proportionality principle as an evaluation cr iteria for violations of fundamental rights

Abstract

The present paper analyses unsolved issues that are related to the influence of fundamental rights in German Private Law. Considering that the theory of direct third-party effect (unmittelbare Drittwirkung) is not applicable due to the fact that private parties arenot bound by fundamental rights according to the German Constitution, it is said that the theory of indirect third-party effect (mittelbare Drittwirkung), which currently prevails in the German doctrine and court precedents, is criticized in the sense that it does not provide any criteria which would enable to measure the reach and the (indirect) third-party effect of fundamental rights. Moreover, the Constitutional Court of Germany has recognized that fundamental rights are not only intended to prohibit interferences, but also serve as a obligation to protect, in cases such as the need to reinforce the equality of a contract. In this sense, fundamental rights as a obligation to protect shall employ the proportionality principle as an evaluation criteria, whereas such interferences shall only be admitted when the interests of the protected party have to prevail over the interests of the party whom the duty of protection has been exercised upon.