Alcune considerazioni sul rapporto tra libertà fondamentali del Trattato europeo e diritto privato

Abstract

The essay explores the “horizontal effectiveness” of fundamental rights and fundamental freedoms, i.e. the relationship between private law and the fundamental rights and freedoms recognized by the EU Charter, the European Convention and the EU Treaties. The author reflects on the reasons that impede the horizontal efficacy, i.e.the effectiveness in relationships between private parties, of certain fundamental freedoms. Particular attention is paid to the free movement of goods and to the reasons that, on a case-by-case basis, may justify the horizontal application of rules which instead should have only vertical effect. Finally, the author attempts to relate the issue of “horizontal effectiveness” to the so-called “remedial perspective”, and to the emerging phenomenon of the so-called “jurisprudence by principles”, which privileges reasoning based not on rules but rather, more or less directly, on constitutional principles, with or even without the mediation of either general rules or general clauses