The Old and the New Limits to Freedom of Contract in Europe

ERCL 2/2006 The Old and the New Limits to Freedom of Contract in Europe
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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).