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

274 Maria Rosaria Marella
ERCL 2/2006
However, the prevailing interpretation of human dignity does not correspond
to, but rather clashes with, social dignity, just as it does not grant –
but sometimes denies – dignified material conditions of life. In the ‘dwarfthrowing’
case Mr Wackenheim’s personal dignity was undermined by the
deprivation of his employment. The enforcement of the human dignity doctrine
not only affected his personal liberty, but also turned his life into an undignified
one. In the German cases of peepshows and sexy chat lines, the prohibition
of the shows and/or the contracts’ nullity will not have effects on the
sex workers whose dignity has been supposedly harmed other than that of
inducing them to work on the streets as prostitutes, which is not less degrading
from the point of view of the courts themselves. In the perspective of the
Prostitutionsgesetz’s invalidation in the name of human dignity – which some
German scholars today advocate – 46 prostitutes will not have any legal remedy
against the client’s breach of contract. Not only will this worsen their
economic conditions, but also the harm produced by being kicked out of the
realm of legality will undermine the social dignity of prostitutes, also in terms
of acceptance within the community.
I believe that the notion of social dignity still has an opportunity in Europe.
In turn social dignity is an opportunity for the social model to survive in the
harmonisation process. In the scenario I have sketched above, European contract
law would be ruled in this respect by the paternalistic model to a larger
extent and by the perfectionist model in a limited area of transactions. The
social model would disappear from sight … Now the inclusion of the dignity
principle in the EU Charter represents a big chance for the social model to be
vigorously reaffirmed if dignity is interpreted in its social meaning. The contrast
between human dignity and social dignity emerging from French and
German case law and the social use of dignity in the Constitutional case law
of some Member States prove that freedom of contract should be regulated
in the light of the redistributive outcomes a contract might or might not produce.
It’s time to disentangle the social model from the rhetoric of fundamental
rights, to look clearly at the social conflicts underneath market transactions,
and to take the distributive effects of contract rules seriously.
46 S. H. Hagen, ‘Menschenwürde und gute Sitten. Gedanken zum Prostitutionsgesetz’, in
Gedächtnisschrift für Jürgen Sonnenschein (Berlin: De Gruyter, 2003) 581.