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[Vol. 07 No. 04

violated and requiring the FCC to review either the constitutionality of private law legislation or of the interpretation provided by civil courts. It is true that the FCC in fact accords a significant degree of deference to legislatures and civil courts.46 Only when civil courts have either failed completely to address relevant constitutional concerns or seriously misassessed their significance, will the FCC determine that a civil court has violated a party’s constitutional right.47 The private law legislator too enjoys considerable discretion in balancing the relevant policy considerations.48 But that does not mean that constitutional review of civil court’s decisions and legislatures enacting private law has no bite. In Germany, contracts in the area of creditor/debtor law,49 landlord/tenant law,50 and prenuptials51 have been reshaped by the jurisprudence of the FCC, and not just the law of defamation52 or labor law.53 But more importantly, the degree of discretion accorded to various constitutional actors has nothing to do with the distinction between direct and indirect horizontal effect. The Court accords discretion for reasons relating to the division of labor between various institutions and perhaps pragmatic considerations relating to docket management. There is nothing inherent in the doctrine of indirect horizontal effect that requires discretion to be granted and there is nothing inherent in the doctrine of direct horizontal effect that prohibits it.


For a general theory of deference see MARIUS RAABE, GRUNDRECHTE UND ERKENNTNIS (1998).

For an account of the relationship between the FCC and the branches of the judiciary see Christian Starck, Verfassungsgerichtsbarkeit und Fachgerichte, 51 JURISTENZEITUNG 1033 (1996). 47


See Johannes Hager, Grundrechte im Privatrecht, 49 JURISTENZEITUNG 374 (1994).

See BVerfGE 89, 214 (holding unconstitutional a civil court decision that failed to interpret the general clauses of the code as invalidating a contract between a bank and income- and asset-less relatives of bank debtors to assume high liability risks in case the debtor defaults on the grounds that it failed to take into account the parties’ constitutional liberty interests). 49

See BVerfGE 89, 1 (holding that both the interests of both the landlord and the tenant in a property are deemed property rights under the Constitution that need to be taken into account in the interpretation of landlord-tenant law). 50

BVerfGE 103, 89 (limiting the kind of prenuptials that can be enforced against the structurally weaker party). 51

BVerfGe 7, 198 (Lueth). It is certainly not an accurate description of the German case law at this point that the FCC’s forays into private law disputes is mainly focused on freedom of speech issues as they relate to defamation law. For such a claim see Basil M. Merkesinis, Privacy, Freedom of Expression and the Horizontal Effect of the Human Rights Bill: Lessons from Germany, 115 L.Q.R. 47, 64 (1999). 52

BAG 47 (1984), 363 (Employer fired employee who, as a press operator, refused on grounds of conscience to print books he believed glorified war. The BAG interprets labor law requirement that decisions laying off workers have to be “socially justified” as requiring that weight has to be given to freedom of conscience. Under the circumstances of the case the BAG held in favor of employee). 53

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