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354

GERMAN LAW JOURNAL

[Vol. 07 No. 04

Imagine first, counterfactually, that constitutional rights were directly horizontally effective in Germany and could be enforced by ordinary courts. The newly amended Constitution now states: Constitutional rights are addressed to all public authorities and, where applicable, individuals. Everything else, let’s assume, would remain the same. In Germany both C and A would be able to plausibly invoke constitutional rights to support their claims. The German Constitution, as interpreted by the FCC, recognizes an all-encompassing right to liberty understood as the freedom of a person to do or to abstain from doing whatever he pleases.39 The violation of any liberty interest potentially raises constitutional questions and requires constitutional justification.40 C could file a constitutional tort action claiming that A, by refusing to recognize the validity of the contract, was challenging C’s freedom to enter into legally binding contracts, guaranteed under the German Constitution as an instantiation of a general right to liberty.41 But C’s constitutional rights would not be the only constitutional right in play. A could also invoke a general right to liberty as a defense against C. C effectively wants to force A to part with his money against his will, only because A, under dire financial circumstances, happened to have accepted an unfavorable contract. With two competing liberty interests at stake, both of them enjoying constitutional protection prima facie, the conflict would be resolved by balancing the respective reasons that can be marshaled in support of each of these liberty interests against one another. Proportionality analysis is at the center of the Court’s jurisprudence not just when the issue is a conflict between an individual right and some collective good, but also when rights collide. Such a balance would require the assessment of a rich set of considerations including, but not limited to, the degree of hardship A was under and the effect this had on his making a promise, the reliance interests of C in circumstances where he’s charging interest rates spectacularly above market rates, whether ex-post relief provided by the Court actually improves the position of the weak party as well as general efficiency considerations. Whatever the right way of thinking about these kinds of conflicts of interests in a contractual setting may be is also the right way to resolve the constitutional issue. Of course it is generally the

Art. 2 I Basic Law states: “Everyone has the right to freely develop their personality.” The FCC has interpreted this right expansively to mean that everyone is free to do or to abstain from doing whatever they like. See BVErfGE 6, 32 (Elfes). 39

This has propelled the FCC into the role of assessing, for example, the constitutionality of restrictions on feeding pigeons in public squares (see BVerfGE 54, 263) or riding horses through public woods (BVErfGE 80, 137). 40

In Ireland such constitutional tort actions are recognized. See Walsh, J. in the 1973 case of Meskell v. Coras Iompair Eireann: “If a person has suffered damage by virtue of a breach of a constitutional right … that person has the right to seek redress against the person or persons who infringed that rights.” I.R. 121, 133 (1973). Art. 40.3.1. of the Irish Constitution states that “the state guarantees in its laws to respect, and, so far as practicable, by its laws to defend and vindicate the personal rights of citizens.” 41

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