European Fundamental Rights and Private Law: The Dutch System in the Context of Different Legal Families

The present chapter embeds the Dutch system of horizontal application of European fundamental rights in private law in the broader context of different groups (“families”) of European countries. Section 2 provides some definitions of “European fundamental rights”, “private law”, “vertical effect”, “direct horizontal effect” and “indirect horizontal effect”. Section 3 demonstrates that the horizontal effect of fundamental rights is a topic which challenges the traditional legal families taxonomies in comparative private law. Section 4 proposes a new taxonomy, specific to the analysis of the application of fundamental rights in private law in Europe. This new taxonomy consists in three legal families: (1) continental European countries whose governments had become totalitarian at some point in the 20th century, (2) the UK and the Nordic countries, and (3) France and the Benelux countries. Section 5, 6, 7, 8 are specifically devoted to the Dutch system. Section 5 addresses the prohibition of constitutional review enshrined in Art. 120 of the Dutch Constitution, and explains that this norm has not prevented Dutch courts from applying constitutional rights horizontally. Section 6 discusses a milestone in the Dutch history of horizontal application of national and European fundamental rights: the Mensendieck case. This chapter thereby focuses on the profound divergence of approach between the Dutch Supreme Court in Mensendieck and the German Federal Constitutional Court in the Lüth judgment. Section 7 addresses the position taken by the Dutch legislator in 1983 on the horizontal effect of fundamental rights. Section 8 then concludes the chapter with some remarks on the Dutch approach to the horizontal effect of the rights enshrined in the Charter of Fundamental Rights of the European Union