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
272 Maria Rosaria Marella ERCL 2/2006 United Nations, claiming there was discrimination of his labour rights. 40 The Human Rights Committee rejected his claim assuming the violation of human dignity and denying any discrimination against him. 41 Both the German and the French decisions raise the following questions. Whose dignity has been violated? For whom is the show or the performance degrading? In the name of dignity Mr Wackenheim’s freedom has been severely restricted; moreover he claims that that the job had enhanced his social dignity by granting good incomes, notoriety and his whole self-realisation. Who is the true recipient of human dignity protection then? Women performing peep shows would probably not prefer a job as cashiers in a supermarket: who is harmed by their performances? For all these questions ‘the community’ or ‘the group’ seems to be the right answer. Women’s dignity is offended by other women’s sex-work, dwarves’ dignity is offended by Mr Wackenheim’s unusual job, and the (willing) viewers’ dignity is offended by undignifying shows. The interpretation of human dignity that German and French case law embraces introduces a strong opposition between the community/individual into the rights rhetoric with the effect of reinforcing the group or minority identity against individual choice. This dignity clashes with the individual’s own sense of dignity and prevails over one’s own freedom; 42 it protects the individual against the individual him/herself. To be sure, this use of dignity is a reaction against what has been perceived as an overflow of the market rhetoric, as an abuse of (self-determination and) freedom of contract, as a sort of tyranny of the self. IV. Back to the Social (or Social Dignity versus Human Dignity) The definition of the limits to freedom of contract in line with the perfectionist model shapes the relation between the individual and the (state) community in its own way. After the individualism of the first model, after the solidarity paradigm of the second model, we confront now a different idea: according to which the community’s dominant values are potentially hurt by the individual’s free choice, which needs to be restricted in the name of those values. 40 The application to the ECtHR (no 29961/1996) was judged inadmissible on the 16 October 1996. 41 M. Levinet, ‘Dignité contre dignité. L’épilogue de l’affaire du “lancer de nains” devant le Comité des droits de l’homme des Nations Unies’ (2003) 55 Revue Trimestrielle des Droits de l’Homme 1024. 42 S. G. Resta, ‘La disponibilità dei diritti fondamentali e i limiti della dignità (note a margine della Carta dei Diritti)’ (2002) XLVIII Rivista di diritto civile II, 801.
ERCL 2/2006 The Old and the New Limits to Freedom of Contract in Europe 273 Is this our future? We can imagine a European scenario where freedom of contract – in line with a very thin version of the paternalistic model – will be widely conceived and enforced in reference to trade, labour, B2B and (most) B2C transactions, and by contrast intensely restricted – according to the perfectionist model – in relation to people’s existential choices, involving sexuality, the body, family relations and the like. This trend will probably couple a parallel strategy in the harmonisation process, with the victory of the maximum standard mode as to the former area and the success of the minimum common factor approach as to the latter. In my own view this is a quite frightening perspective. So far the ECJ has not directly enforced the human dignity clause as a fundamental principle of the EU Charter. However in the Omega case it balanced (and actually restricted) the Treaty free movement of goods and services with a fundamental principle of a Member State legal order, namely with the respect of human dignity endorsed by the German Basic Law. 43 Now, there are good ‘technical’ motives to resist the triumph of today’s prevailing conception of human dignity on the European scene. As a limit to freedom of contract, dignity is a too indefinite and uncertain notion, for two different reasons. First, unlike the way courts normally interpret standards like bonus mores and public policy that are historically determined and relative, and therefore likely to work as an objective limit to judiciary discretion, the human dignity doctrine presents dignity as a transcendent, pre-legal value, which is not influenced or defined by historical or social circumstances. As such it is completely detached from objective standards, so that the court is the only and absolute judge of it. Second, in the most significant case law the case could have been decided in two opposite ways, both based on dignity protection. In fact, courts prohibit an activity alleged as violating human dignity while the same activity is assumed by the person whose dignity is concerned as enhancing her/his social dignity. Social dignity has not disappeared from the wording of national courts. In another French dignity case the Conseil constitutionnel explicitly refers to human dignity in relation to the right to a decent home for everybody as precondition to a normal family life. 44 Similarly the Italian Constitutional Court affirmed the nature of fundamental (social) right of the right to housing as a necessary prerequisite for a dignified life. 45 43 Case 36/02 Omega v Oberbürgermeisterin der Bundesstadt Bonn [2004]. 44 Cons const, 19 May 1995, 94-359 DC. 45 Corte cost, 7 April 1988, n 404.
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272 Maria Rosaria Marella<br />
ERCL 2/2006<br />
United Nations, claim<strong>in</strong>g <strong>the</strong>re was discrim<strong>in</strong>ation <strong>of</strong> his labour rights. 40 <strong>The</strong><br />
Human Rights Committee rejected his claim assum<strong>in</strong>g <strong>the</strong> violation <strong>of</strong> human<br />
dignity <strong>and</strong> deny<strong>in</strong>g any discrim<strong>in</strong>ation aga<strong>in</strong>st him. 41<br />
Both <strong>the</strong> German <strong>and</strong> <strong>the</strong> French decisions raise <strong>the</strong> follow<strong>in</strong>g questions.<br />
Whose dignity has been violated? For whom is <strong>the</strong> show or <strong>the</strong> performance<br />
degrad<strong>in</strong>g? In <strong>the</strong> name <strong>of</strong> dignity Mr Wackenheim’s freedom has been severely<br />
restricted; moreover he claims that that <strong>the</strong> job had enhanced his social<br />
dignity by grant<strong>in</strong>g good <strong>in</strong>comes, no<strong>to</strong>riety <strong>and</strong> his whole self-realisation.<br />
Who is <strong>the</strong> true recipient <strong>of</strong> human dignity protection <strong>the</strong>n? Women perform<strong>in</strong>g<br />
peep shows would probably not prefer a job as cashiers <strong>in</strong> a supermarket:<br />
who is harmed by <strong>the</strong>ir performances? For all <strong>the</strong>se questions ‘<strong>the</strong><br />
community’ or ‘<strong>the</strong> group’ seems <strong>to</strong> be <strong>the</strong> right answer. Women’s dignity<br />
is <strong>of</strong>fended by o<strong>the</strong>r women’s sex-work, dwarves’ dignity is <strong>of</strong>fended by<br />
Mr Wackenheim’s unusual job, <strong>and</strong> <strong>the</strong> (will<strong>in</strong>g) viewers’ dignity is <strong>of</strong>fended<br />
by undignify<strong>in</strong>g shows. <strong>The</strong> <strong>in</strong>terpretation <strong>of</strong> human dignity that German<br />
<strong>and</strong> French case law embraces <strong>in</strong>troduces a strong opposition between <strong>the</strong><br />
community/<strong>in</strong>dividual <strong>in</strong><strong>to</strong> <strong>the</strong> rights rhe<strong>to</strong>ric with <strong>the</strong> effect <strong>of</strong> re<strong>in</strong>forc<strong>in</strong>g<br />
<strong>the</strong> group or m<strong>in</strong>ority identity aga<strong>in</strong>st <strong>in</strong>dividual choice. This dignity clashes<br />
with <strong>the</strong> <strong>in</strong>dividual’s own sense <strong>of</strong> dignity <strong>and</strong> prevails over one’s own freedom;<br />
42 it protects <strong>the</strong> <strong>in</strong>dividual aga<strong>in</strong>st <strong>the</strong> <strong>in</strong>dividual him/herself.<br />
To be sure, this use <strong>of</strong> dignity is a reaction aga<strong>in</strong>st what has been perceived as<br />
an overflow <strong>of</strong> <strong>the</strong> market rhe<strong>to</strong>ric, as an abuse <strong>of</strong> (self-determ<strong>in</strong>ation <strong>and</strong>)<br />
freedom <strong>of</strong> contract, as a sort <strong>of</strong> tyranny <strong>of</strong> <strong>the</strong> self.<br />
IV. Back <strong>to</strong> <strong>the</strong> Social (or Social Dignity versus Human Dignity)<br />
<strong>The</strong> def<strong>in</strong>ition <strong>of</strong> <strong>the</strong> limits <strong>to</strong> freedom <strong>of</strong> contract <strong>in</strong> l<strong>in</strong>e with <strong>the</strong> perfectionist<br />
model shapes <strong>the</strong> relation between <strong>the</strong> <strong>in</strong>dividual <strong>and</strong> <strong>the</strong> (state) community<br />
<strong>in</strong> its own way. After <strong>the</strong> <strong>in</strong>dividualism <strong>of</strong> <strong>the</strong> first model, after <strong>the</strong><br />
solidarity paradigm <strong>of</strong> <strong>the</strong> second model, we confront now a different idea:<br />
accord<strong>in</strong>g <strong>to</strong> which <strong>the</strong> community’s dom<strong>in</strong>ant values are potentially hurt by<br />
<strong>the</strong> <strong>in</strong>dividual’s free choice, which needs <strong>to</strong> be restricted <strong>in</strong> <strong>the</strong> name <strong>of</strong> those<br />
values.<br />
40 <strong>The</strong> application <strong>to</strong> <strong>the</strong> ECtHR (no 29961/1996) was judged <strong>in</strong>admissible on <strong>the</strong> 16 Oc<strong>to</strong>ber<br />
1996.<br />
41 M. Lev<strong>in</strong>et, ‘Dignité contre dignité. L’épilogue de l’affaire du “lancer de na<strong>in</strong>s” devant<br />
le Comité des droits de l’homme des Nations Unies’ (2003) 55 Revue Trimestrielle des<br />
Droits de l’Homme 1024.<br />
42 S. G. Resta, ‘La disponibilità dei diritti fondamentali e i limiti della dignità (note a marg<strong>in</strong>e<br />
della Carta dei Diritti)’ (2002) XLVIII Rivista di dirit<strong>to</strong> civile II, 801.