The Old and the New Limits to Freedom of Contract in Europe
The Old and the New Limits to Freedom of Contract in Europe The Old and the New Limits to Freedom of Contract in Europe
270 Maria Rosaria Marella ERCL 2/2006 In Germany the human dignity clause is enclosed in Article 1 Basic Law s the utmost fundamental right. As such the right to dignity cannot be waived by the person whose dignity is concerned and cannot be balanced with other fundamental rights. In fact the human dignity principle shows a strong communitarian inspiration which justifies the sacrifice of individual’s wishes. Particularly when its natural law version overwhelms, dignity has a very controversial, unclear relation to liberty. For this reason what characterises today the enforcement of the dignity clause is mainly its operation as a (new) limit to private initiatives and to freedom of contract, notwithstanding the emphasis that several theorists put on a supposed role of dignity as enhancing individual self-determination. It has been enforced so far in disparate cases, including abortion, different aspects of free speech and housing. Following the same multifaceted pattern, French case law has recently (from 1994) implemented the dignity clause as a basic principle implicitly endorsed by the Constitution. From bioethics issues to housing, free speech and abortion, dignity is invoked at the same time as the basis and as a limit to individual self-determination. The EU Charter of Fundamental Rights and Liberties includes the dignity clause in the same terms as the German wording. In the Charter dignity is a pervasive principle which names an entire title of the Charter itself. The human body and body parts, human life, etc are ruled as issues of human dignity. In accordance with the notion of common constitutional traditions as fundamental basis in the ECJ decisions, it is to be expected that the ECJ will implement the Charter by making its own case law on dignity conform to German constitutional case law. 34 This could have significant implications for the harmonisation of contract law in Europe, specifically on the regulation of contracts’ illegality/immorality. Therefore, one can fairly expect that, with the enactment of the Charter, a re-assessment of the limits of freedom of contract will take place in European law and the general clauses of public policy, ordre public, bonus mores, Sittenwidrigkeit will be reinterpreted in the light of human dignity according to the perfectionist model. b) The Tyranny of Dignity versus The Tyranny of The Self Both in German and French case law, the respect of human dignity has been envisaged as a mighty weapon against the perils of commodifying the human body. Human dignity withdraws the human body and its parts to the market invasion of all aspects of social life. 34 J. Jones, ‘“Common Constitutional Traditions”: Can the Meaning of Human Dignity under German Law Guide the European Court of Justice?’ (2004) Public Law 167.
ERCL 2/2006 The Old and the New Limits to Freedom of Contract in Europe 271 For this purpose human dignity acts as a limit to freedom of contract and relies on three basic assumptions: i) human dignity has to be protected even against the wishes of the person whose human dignity is concerned (inalienability); ii) only the judge – not the individual whose human dignity is concerned – is entitled to assess individual human dignity and its violations; iii) the respect of human dignity can prevail over the social dignity of the individual whose human dignity is concerned. These features clearly emerge from German and French case law. In the two German Peep Show Cases a violation of human dignity is identified in the woman’s objectification, namely in the fact that her erotic performance is offered to customers within a kind of automatic and depersonalised context; that she is ultimately treated as a means (of somebody else’s sexual stimulation) rather than as an end, according to the renowned Kantian statement. 35 Sex-work is again the occasion for dignity violations in the Telefonsex cases where § 138 BGB is reinterpreted in the light of human dignity and the contract between the telephone company, the erotic chat line and the costumer is held void as inherently immoral. 36 In France the respect of human dignity is assumed as a necessary component of the ordre public clause in the famous Dwarf Throwing Case. 37 In 1991 two French municipalities forbade the game asserting that it infringed human dignity. Mr Wackenheim, whose job consisted in being thrown in disco shows, contested these orders, alleging by contrast that that the job provided him with a good income. Two administrative tribunals upheld his claim, 38 but the Conseil d’Etat stated that the game is against ordre public, because it violates the human dignity of people with disabilities. 39 Mr. Wackenheim appealed to the ECtHR and then to the Human Rights Committee of the 35 BVerwG, 15 December 1981, (1982) Neue Juristische Wochenschrift 664; BVerwG, 30 January 1990, (1990) JuristenZeitung 382. 36 See for example BGH, 9 June 1998, (1998) Neue Juristische Wochenschrift 2895. 37 This is a game originally played in Australia, which became popular in France and other European countries: a ‘dwarf’ protected by football apparel is thrown by clients of the disco on a huge pneumatic mattress; the winner is the person who throws the dwarf the farthest. 38 T. A. Versailles, 25 February 1992, (1992) Revue française de droit administratif 1026. 39 Conseil d’Etat, Ass, 27 October 1995, Ville d’Aix-en-Provence, (1996) Dalloz 177; Conseil d’Etat, Ass, 27 October 1995, Commune de Morsang-sur-Orge, (1995) Dalloz 257. With reference to the French debate see P. Martens, ‘Encore la dignité humaine: réflexions d’un juge sur la promotion par le juges d’une norme suspecte’ in Le droits de l’homme au seuil du troisièmemillénaire: mélanges en hommage à Pierre Lambert, (Paris: Bruyllant, 2000) 561; C. Girard / S. Hennette-Vauchez (eds), La dignitè de la personne humaine. Recherche sur un processus de jurisdiction (Paris: PUF, 2005).
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270 Maria Rosaria Marella<br />
ERCL 2/2006<br />
In Germany <strong>the</strong> human dignity clause is enclosed <strong>in</strong> Article 1 Basic Law s <strong>the</strong><br />
utmost fundamental right. As such <strong>the</strong> right <strong>to</strong> dignity cannot be waived by<br />
<strong>the</strong> person whose dignity is concerned <strong>and</strong> cannot be balanced with o<strong>the</strong>r<br />
fundamental rights. In fact <strong>the</strong> human dignity pr<strong>in</strong>ciple shows a strong communitarian<br />
<strong>in</strong>spiration which justifies <strong>the</strong> sacrifice <strong>of</strong> <strong>in</strong>dividual’s wishes. Particularly<br />
when its natural law version overwhelms, dignity has a very controversial,<br />
unclear relation <strong>to</strong> liberty. For this reason what characterises <strong>to</strong>day<br />
<strong>the</strong> enforcement <strong>of</strong> <strong>the</strong> dignity clause is ma<strong>in</strong>ly its operation as a (new) limit<br />
<strong>to</strong> private <strong>in</strong>itiatives <strong>and</strong> <strong>to</strong> freedom <strong>of</strong> contract, notwithst<strong>and</strong><strong>in</strong>g <strong>the</strong> emphasis<br />
that several <strong>the</strong>orists put on a supposed role <strong>of</strong> dignity as enhanc<strong>in</strong>g <strong>in</strong>dividual<br />
self-determ<strong>in</strong>ation. It has been enforced so far <strong>in</strong> disparate cases,<br />
<strong>in</strong>clud<strong>in</strong>g abortion, different aspects <strong>of</strong> free speech <strong>and</strong> hous<strong>in</strong>g.<br />
Follow<strong>in</strong>g <strong>the</strong> same multifaceted pattern, French case law has recently (from<br />
1994) implemented <strong>the</strong> dignity clause as a basic pr<strong>in</strong>ciple implicitly endorsed<br />
by <strong>the</strong> Constitution. From bioethics issues <strong>to</strong> hous<strong>in</strong>g, free speech <strong>and</strong> abortion,<br />
dignity is <strong>in</strong>voked at <strong>the</strong> same time as <strong>the</strong> basis <strong>and</strong> as a limit <strong>to</strong> <strong>in</strong>dividual<br />
self-determ<strong>in</strong>ation.<br />
<strong>The</strong> EU Charter <strong>of</strong> Fundamental Rights <strong>and</strong> Liberties <strong>in</strong>cludes <strong>the</strong> dignity<br />
clause <strong>in</strong> <strong>the</strong> same terms as <strong>the</strong> German word<strong>in</strong>g. In <strong>the</strong> Charter dignity is a<br />
pervasive pr<strong>in</strong>ciple which names an entire title <strong>of</strong> <strong>the</strong> Charter itself. <strong>The</strong><br />
human body <strong>and</strong> body parts, human life, etc are ruled as issues <strong>of</strong> human<br />
dignity. In accordance with <strong>the</strong> notion <strong>of</strong> common constitutional traditions as<br />
fundamental basis <strong>in</strong> <strong>the</strong> ECJ decisions, it is <strong>to</strong> be expected that <strong>the</strong> ECJ will<br />
implement <strong>the</strong> Charter by mak<strong>in</strong>g its own case law on dignity conform <strong>to</strong><br />
German constitutional case law. 34 This could have significant implications for<br />
<strong>the</strong> harmonisation <strong>of</strong> contract law <strong>in</strong> <strong>Europe</strong>, specifically on <strong>the</strong> regulation <strong>of</strong><br />
contracts’ illegality/immorality. <strong>The</strong>refore, one can fairly expect that, with<br />
<strong>the</strong> enactment <strong>of</strong> <strong>the</strong> Charter, a re-assessment <strong>of</strong> <strong>the</strong> limits <strong>of</strong> freedom <strong>of</strong> contract<br />
will take place <strong>in</strong> <strong>Europe</strong>an law <strong>and</strong> <strong>the</strong> general clauses <strong>of</strong> public policy,<br />
ordre public, bonus mores, Sittenwidrigkeit will be re<strong>in</strong>terpreted <strong>in</strong> <strong>the</strong> light<br />
<strong>of</strong> human dignity accord<strong>in</strong>g <strong>to</strong> <strong>the</strong> perfectionist model.<br />
b) <strong>The</strong> Tyranny <strong>of</strong> Dignity versus <strong>The</strong> Tyranny <strong>of</strong> <strong>The</strong> Self<br />
Both <strong>in</strong> German <strong>and</strong> French case law, <strong>the</strong> respect <strong>of</strong> human dignity has been<br />
envisaged as a mighty weapon aga<strong>in</strong>st <strong>the</strong> perils <strong>of</strong> commodify<strong>in</strong>g <strong>the</strong> human<br />
body. Human dignity withdraws <strong>the</strong> human body <strong>and</strong> its parts <strong>to</strong> <strong>the</strong> market<br />
<strong>in</strong>vasion <strong>of</strong> all aspects <strong>of</strong> social life.<br />
34 J. Jones, ‘“Common Constitutional Traditions”: Can <strong>the</strong> Mean<strong>in</strong>g <strong>of</strong> Human Dignity<br />
under German Law Guide <strong>the</strong> <strong>Europe</strong>an Court <strong>of</strong> Justice?’ (2004) Public Law 167.