Fundamental Rights and Private Relations in Greek and European Law by Ch. Deliyanni-Dimitrakou, C.M. Akrivopoulou - 2015

In english. Soft cover, 24 cm, XIII+275 pp. The book at hand is the result of this scientific collaboration. Its scope is to fill the gap within both the Greek and international academic theory regarding the horizontal effect of fundamental rights. Although at a European level the question at issue has been in the centre of several collective endeavours, it has never been thoroughly studied as far as Greek law is concerned. Thus, in this framework, the present book comprises an opportunity to present the issue of the horizontal effect of fundamental rights as it is developed in the Greek legal system as well as it has evolved in the interaction of the latter with European and international law.

CONTENTS:

Introduction

PART I

FOUNDATIONS AND PREREQUISITES OF FUNDAMENTAL RIGHTS APPLICATION

IN PRIVATE LAW

A. The legal framework  of fundamental rights in Greek law.. 11

1. Historical origins and philosophical underpinnings 11

2. Legal sources 12

2.1. Constitution and ordinary legislation. 12

2.2. International sources 14

2.3. Sources of fundamental rights in the EU legal system.. 17

3. From the vertical to the horizontal application of fundamental rights 18

4. Numerous functions and limits of fundamental rights in Greek law.. 20

5. The Greek system of judicial review.. 21

6. The alignment of the interpretation of statutory law with the Constitution, international treaties and EU law   23

B. The constitutionalisation of private law and the theory of the hori­zontal effect of fundamental rights  26

Preliminary remarks 26

I. The theory of the horizontal effect of fundamental rights from the view­point of national legal systems 28

1. The birth of the Drittwirkung doctrine in Germany. 28

1.1. Historical background. 28

1.2. The approaches of direct and indirect Drittwirkung. 29

1.3. The horizontal application of fundamental rights in the Bundesver­fassung­­sgericht case law   33

2. The dispersion of the theory of the horizontal effect of fundamental rights in other European and the US legal systems 35

2.1. The horizontal effect of fundamental rights in European countries with a centralised system of judicial review   35

2.2. The horizontal effect of fundamental rights in countries with a mixed system of judicial review: the case of France. 36

2.3. The horizontal application of fundamental rights in legal systems lacking a written constitution: the case of the United Kingdom.. 39

2.4. The vertical effect of fundamental rights in the USA and the theory of State action  43

3. The integration of the horizontal effect of fundamental rights theory in the Greek legal system   48

3.1. The permeation of the "Drittwirkung" theory in Greece and its conte­sta­tion by certain legal scholars 48

3.2. The "interpersonal" effect of fundamental rights as a positive law norm comprised in the Constitution: Art. 25(1) subsection 3 of the Greek Constitution. 51

3.3. The judicial character of the Greek Drittwirkung and its various versions 52

3.3.1. The indirect effect of fundamental rights through general clauses of private law   53

3.3.2. The interpretation of private law provisions in the light of fundamental rights as a form of a mild indirect horizontal effect 55

3.3.3. The implementation of fundamental rights through private law provisions: the case of Art. 57-59 Greek Civil Code protecting the right to personality. 56

3.3.4. The exceptional character of the direct application of fundamental rights in private relations 57

4. Concluding remarks and comparative observations 61

II. The reception of the theory of the horizontal effect of fundamental rights by European law   66

1. The horizontal effect of the ECHR. 66

1.1. The foundations of the horizontal effect of the ECHR built on the theory of positive obligations of Member States 66

1.2. The case law of the ECtHR concerning the horizontal effect of the ECHR. 67

1.3. The lack of a theoretical elaboration of the horizontal application of the ECHR. 69

2. The horizontal application of fundamental rights in EU law.. 70

2.1. The principle of non-discrimination as a general principle of EU law and the recognition of its horizontal effect in private relations 71

2.2. The horizontal effect of EU economic freedoms 75

2.2.1. The direct horizontal effect of Community freedoms 76

2.2.2. The indirect horizontal effect of Community freedoms 78

2.2.3. The balancing of fundamental rights and freedoms 79

2.3. The horizontal application of the EU Charter of Fundamental Rights 83

2.3.1. The position of the issue. 83

2.3.2. The CJEU C-176 Association de Médiation Sociale v. Union locale des Syndicats (AMS) CGT case  86

2.3.3. The Charter provisions with horizontal applicability. 88

2.3.4. The Charter provisions establishing general principles 89

2.3.5. Τhe suitability of the horizontal effect of Charter provisions protecting workers’ rights 91

2.3.6. The indirect horizontal effect of Charter provisions 92

2.4. Concluding remarks 92

C. The Strengthening of the influence of fundamental rights on private relations through judicial dialogue. 94

1. Introduction. 94

2. The concept and forms of judicial dialogue in the European legal order 95

2.1. The context of judicial dialogue. 95

2.2. Institutionalised and informal judicial dialogue. 97

3. Institutionalised dialogue between the courts of Member States and the ECJ/CJEU through preliminary ruling  98

3.1. Main characteristics of the institution of preliminary ruling. 98

3.2. The use of the proceeding of preliminary ruling by Greek courts 100

4. The institutionalised dialogue between national courts and the ECtHR. 105

4.1. The normative character of ECtHR case law.. 105

4.2. The attitude of Greek courts regarding the case law of the ECtHR. 107

5. The recourse to foreign case law by national courts as a specific form of non-institutionalised judicial dialogue  114

5.1. The notion of jurisprudential dialogue and its contestation. 114

5.1.1. Arguments for and against the recourse of national courts to foreign case law   116

5.2. The non-binding character of case law invoked in the framework of jurispru­dential dialogue  120

5.3. Additional factors affecting the recourse of national courts to foreign case law.. 121

5.3.1. Personal choices and legal education of judges 121

5.3.2. Foreign influences on national legal systems 122

5.3.3. Judicial approach and reasoning. 125

5.3.4. The prominent role of legal theory. 126

5.3.5. The citation practice of the courts 127

Conclusions 129

PART II

THE INFLUENCE OF FUNDAMENTAL RIGHTS IN SPECIFIC FIELDS OF PRIVATE LAW

Preliminary remarks 133

D. Fundamental Rights  in Contract Law.. 133

1. Origins, main principles and constitutional foundations of Greek contract law.. 133

2. General clauses and the principle of protection of the weaker party as a means to restricting contractual freedom   135

3. Europeanisation of contract law and the involvement of fundamental rights in its implementation  137

3.1. Informal Europeanisation of contract law.. 137

3.2. EU legislation in contract law.. 139

3.2.1. ΕU legislation in consumer protection. 139

3.2.2. EU legislation in equality and non-discrimination law.. 140

3.2.3. The provisions of the Charter of Fundamental Rights of the EU concerning contract law   142

3.3. Fundamental rights and contract law in CJEU case law.. 142

3.3.1. Cases recognising the contractual freedom as a fundamental freedom.. 142

3.3.2. Cases enhancing the protection of the weaker party. 146

3.3.3. Cases concerning restrictions to contractual freedom posed by equality and non-discrimination law   148

4. Contract law and fundamental rights in Greek case law.. 149

4.1. Fundamental rights as restrictions to the freedom of an individual to agree to or to refuse a contract award  149

4.1.1. The position of the problem.. 149

4.1.2. Refusal of a contract award due to discrimination against the other party. 150

4.1.3. Restrictions to the freedom to enter into contract through consti­tutional provisions protecting human value and childhood. 152

4.2. Fundamental rights as a limitation to the content of a contract 153

4.2.1. Consumer contracts 153

4.2.2. Assimilation of guarantors and consumers 154

4.2.3. Protection of employees against abusive terms of the employer 156

4.2.4. Expansive equality and equal pay. 158

4.3. The impact of fundamental rights on ancillary obligations deriving from contracts 160

4.4. The effect of fundamental rights on the dissolution or termination of a contract 162

4.4.1. Breach of contract as infringement of personality and restitution of non-pecuniary damage  162

4.4.2. Termination of indefinite-term labour contracts 163

5. Proposals and recommendations for enhanced interaction between funda­mental rights and contract law   167

E. Fundamental Rights in the Law of Torts. 169

1. General characteristics and foreign origins of Greek tort law 169

2. Europanisation of tort law and the role of fundamental rights 172

2.1. Informal and formal Europanisation of the law of torts 172

2.2. Tort law and fundamental rights in CJEU case law.. 173

2.2.1. CJEU case law concerning State liability for breach of EU law as a factor enhancing the impact of fundamental rights on private rela­tions 173

2.2.2. Other CJEU rulings exemplifying the influence of fundamental rights on tort law   176

3. Tort law and fundamental rights in Greek case law 178

3.1. The right to personality and its strong interconnection with the law of torts 178

3.1.1. The right to personality and environmental torts 179

3.1.2. The right to ethnic origin versus the right to scientific freedom.. 180

3.1.3. The right to privacy and its correlation with freedom of expression. 180

3.1.4. The issue of wrongful life. 181

3.1.5. The impact of personality rights on extending the beneficiaries of non-pecuniary damages 184

3.1.6. Νon-pecuniary damages and the constitutional principle of pro­portio­nality. 187

4. Proposals and recommendations to enhance interaction between fundamental rights and tort law   188

F. Fundamental Rights in Property Law.. 191

1. Origins, general principles and constitutional background of Greek property law.. 191

2. The broadened concept of "property" deriving from Art. 17 GC and Art. 1 of the 1st Protocol to the ECHR  192

3. Property rights limitations 193

4. The elementary character of EU property law and the limited involvement of fundamental rights in its formation  196

5. Intellectual property law and its strong correlation to fundamental rights 197

5.1. The internationalisation and Europanisation of intellectual property law and its influence on Greek case law   198

5.2. Interaction between fundamental rights and intellectual property in CJEU and Greek case law   199

6. Proposals and recommendations for enhanced interaction between fundamental rights and property law   201

G. Fundamental Rights in Family Law.. 203

1. The socio-political background of Greek family law and the contribution of fundamental rights to its renovation  203

2. General principles of family law and clauses permitting the invocation of fundamental rights in the field of family relations 206

3. Law 3719/2008 recognising the civil union of opposite-sex couples and its opposition to the principle of non-discrimination: the Vallianatos v Greece case of the ECHR. 207

4. Europanisation of family law and the role of fundamental rights 209

4.1. General remarks 209

4.2. ECHR case law on the right of family life and the right to marry (Arts 8(1) and 12 ECHR) 210

4.2.1. The dynamic and evolutive interpretation of Arts 8(1) and 12 ECHR. 210

4.2.2. The pragmatist interpretation of the notion of family. 210

4.2.3. Recognition of family life of same-sex couples and rejection of their right to marry  213

4.2.4. Recognition of the ability of same-sex couples to adopt a child. 214

4.2.5. The violation of Arts 8 and 14 ECHR by the refusal of Greek courts to enforce a foreign decision affecting the adoption of a person by a bishop. 216

4.2.6. The recognition of transsexual individuals’ right to marry. 217

4.3. Τhe emergence of EU family law.. 219

4.3.1. General remarks 219

4.3.2. EU legislation on family law.. 220

4.3.2.1. CFREU provisions concerning family law.. 220

4.3.2.2. Legislation on the free movement of persons, family reunifi­cation and the harmonisation of asylum and immigration law.. 220

4.3.2.3. EU legislation concerning cross-border family relations. 223

4.3.3. Fundamental rights in CJEU case law on family matters 224

4.3.3.1 Cases recognising the rights of transexual persons and of persons living in same-sex or opposite-sex partnerships. 225

4.3.3.2. Cases concerning the interpretation of Directive 2003/86 on the right to family reunification  229

4.3.3.3. Cases concerning the interpretation of Brussels IIbis Regu­lation  232

5. Greek case law indicative of the influence of fundamental rights on family law  233

6. Proposals and recommendations for enhanced interaction between fundamental rights and family law 238

Final Conclusions

Bibliography

List of European Courts Cases

Ι. Cases of ECJ/CJEY and European Court of First Instance

II. Cases of ECtHR

Index

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