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356

GERMAN LAW JOURNAL

[Vol. 07 No. 04

civil courts. The court must therefore interpret private law, including the general clauses of the code, in a way that conforms to the basic value commitments expressed in the Constitution. This means that private law is to be interpreted so as to reflect an adequate balance between the respective constitutional interests at stake.44 In this case it means interpreting the “good customs” exception of the code narrowly because of the centrality of freedom of contract as an instantiation of the general right to liberty.

A could claim that, though C is right to insist that the courts are under a constitutional duty to interpret private law so as to reflect an adequate balance of the respective constitutional interests in play, he is wrong about what that entails. In light of A’s constitutional right to liberty, and the undue burden it would inflict on him, were A held to the unfair terms of this contract, the court would have no choice but to interpret the “good customs” clause as invalidating the contract. Failure to interpret the law in such a way would result in A appealing the decision and, if ultimately necessary, filing a complaint with the FCC claiming that his constitutional rights has been violated by the judgment of this court and any other civil court inclined to affirm it.

It turns out, then, that under the guise of interpreting the general clause the judge is required to make exactly the kind of determination that he would have been required to make were he to directly adjudicate competing constitutional rights claims. As the court interprets the general clauses of the code it has to strike a balance between the relevant competing considerations. And just as would be the case if a doctrine of horizontal direct effect were recognized, the door is opened to the involvement of the FCC as the final arbiter of private law claims: When a party feels that a civil court has failed to take constitutional rights adequately into account while interpreting civil law, a complaint can be filed with the FCC.

But what if the law is clear and there is nothing to interpret? Does the practical difference between direct and indirect horizontal effect not lie in civil courts having to worry about constitutional concerns only when making interpretative choices? Can civil courts ignore constitutional concerns when provisions of private law are clear? Imagine the civil judge discovers that he is not required to interpret a highly abstract clause in the code, in light of highly indeterminate constitutional principles, to dispose of the case. Instead, let’s assume that the legislator has made a clear decision to address cases of this kind. It turns out, let’s say, that national parliament has enacted special legislation establishing a safe harbor provision determining that no credit card contract charging 35% interest or less could be

44

See BVerfGE 30, 173 (Mephisto).

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