Along came a spider...

This Casebook intends to explore the Horizontal Effects of Primary European Law.

The Treaty on the Functioning of the European Union (as its predecessor, the EC Treaty) nearly exclusively contains rules of a public law character. However, some of its central provisions (prohibitions of discrimination, fundamental freedoms) have acquired significance for private law too, because the Court of Justice has interpreted them in such a way that they – at least to some extent – have become directly applicable to relationships between individuals, in the sense that they create subjective rights and obligations between them. Put in another way: those provisions now produce a direct horizontal effect in private law relationships. See e.g. Defrenne II (43/75), Walrave (36/74), Angonese (C-281/98), Schmidberger (C-112/00) and Viking (C-438/05).

The same is of course true for the provisions of Articles 101 and 102 TFEU, whose direct horizontal effect is enshrined in the Treaty itself (art. 101 para. 2) and elaborated by the Court of Justice (Courage/Crehan, C-453/99).

Moreover, Treaty provisions may have other kinds of horizontal effects (‘indirect’ or ‘incidental’ horizontal effect), in particular through the review (in disputes between individuals) of the compatibility of national legislation (both of a public law and a private law nature) with EU law and through the interpretation of national ‘open norms’ such as good faith, boni mores, public order and illegality.

In recent years, it has become clear that also general principles of Union Law may produce different types of horizontal effects (e.g. Mangold, C-144/04, Čez, C-115/08, Kücükdeveci, C-555/07).

All these developmenst are highly relevant for national legal practice and doctrine in private law. However, until recently these developments were hardly noted by civil lawyers due to their inexperience in the field of European law; and the developments were not sufficiently studied by scholars of European law (and not sufficiently explained by them to civil lawyers) due to their inexperience with private law.

For those reasons the time has come to devote serious attention to the case law of the Court of Justice and to try to assess its relevance for private law. Guidance must be provided to national private lawyers who deal with these cases, and in particular to judges who increasingly have to deal with them. The Casebook intends both to explore the state of affairs in European law and to assess to what extent national practice in the civil courts has already been dealing with this type of cases.

Arthur Hartkamp, The Hague 12 July 2011

P.S. Those interested in this project are most welcome to contact Prof. A. Hartkamp of the Radboud University (Nijmegen).