Edited by Christian Twigg-Flesner
Chapter 5: The impact of fundamental rights
Traditionally, fundamental rights and private law were regarded as two separate fields of law hardly connected with each other. Today, however, this conventional view hardly reflects reality. Fundamental rights enshrined in national constitutions and international human rights instruments tend to create strong magnetic fields across the entire body of law, including private law. Fundamental rights and private law have become firmly aware of each other's presence and have realised that a relationship between the two should be established.Many authors speak in this context about the 'constitutionalisation of private law'. Until recently this development could mainly be traced in national legal systems and in the law of the European Convention on Human Rights (ECHR). Yet there are signs that fundamental rights play an increasingly important role in the EU harmonisation of private law. While the founding EC Treaties signed in the 1950s contained no express provisions on fundamental rights, Article 6 of the Treaty on European Union (TEU) as amended by the 2007 Lisbon Treaty gives explicit recognition to the three sources of EU fundamental rights: (1) the Nice Charter of Fundamental Rights of the EU (EUCFR); (2) the ECHR; and (3) the constitutional traditions common to the Member States. The acknowledgement of the legally binding character of the EUCFR, which contains a rich set of fundamental rights, constitutes a major step forward as regards fundamental rights protection across the EU.
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