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.