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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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.