Concept and Fundamentals of the Third-Party Effect of Fundamental Rights
Die Third-Party Effect of Fundamental Rights refers to the legal phenomenon by which the fundamental rights enshrined in the constitution become relevant not only in the relationship between the state and the individual (so-called vertical effect), but also in the relationships between individuals (so-called horizontal effect). While fundamental rights were originally conceived as defensive rights of the individual against state intervention, the third-party effect—also called indirect binding effect—addresses their protective function in private law (civil law). In German legal scholarship, the discussion concerning the extension of fundamental rights to private law has been established for decades and significantly influences the interpretation of statutory norms and case law.
Development and Doctrine of the Third-Party Effect
Original Doctrine: Fundamental Rights as Protection Against the State
The classical understanding of fundamental rights viewed them exclusively as limitations on state power. They were intended to protect the individual from excesses of the state (vertical effect). For example, under the German Basic Law (GG), the state is obligated to refrain from interfering with fundamental rights such as general freedom of action or freedom of expression.
Change Due to Practical Necessity
With increasing societal complexity, it became necessary to apply fundamental rights to private law circumstances as well. Private actors, such as companies, associations, or individuals, can interfere with the legal positions of third parties in ways comparable to the state. This development was significantly driven by the evolving legal nature of private orders and actual concentrations of power.
Distinction: Indirect and Direct Third-Party Effect
Indirect Third-Party Effect
The prevailing opinion in Germany is that of the indirect third-party effect of fundamental rights. According to this view, fundamental rights are to be taken into account “indirectly” in the interpretation and application of private and labor law provisions. This means that courts and other authorities applying the law must interpret statutory law in light of the value decisions reflected in fundamental rights. Indirectness results in fundamental rights protection also within private law—but only by way of interpreting existing norms.
A classic example is the applicability of the general right of personality in private law claims for injunctive relief.
Direct Third-Party Effect
Die direct third-party effect means that fundamental rights apply directly between private parties, that is, they are directly actionable. In Germany, direct third-party effect lacks general recognition and is limited to a few individual cases, such as in child and name law, less often in labor law. Internationally, however, there are countries where constitutional rights have a direct third-party effect (e.g., South Africa).
Emphasis of the Third-Party Effect in the Basic Law
The Basic Law stipulates in Article 1(3) GG that fundamental rights are binding on the legislature, the executive, and the judiciary. According to prevailing opinion, this also results in an obligation for courts to consider fundamental rights when interpreting private or labor law statutes. The attribution of fundamental rights in private law thus occurs through state action in the enforcement of private rights.
Third-Party Effect of Selected Fundamental Rights
General Right of Personality
The general right of personality exhibits a strong third-party effect, especially in the area of violations of personality rights by media, neighbors, or employers (as highlighted by the “Lüth decision” of the Federal Constitutional Court in 1958).
Freedom of Expression and Principle of Equal Treatment
Freedom of expression (Art. 5 GG) and the principle of equal treatment (Art. 3 GG) also have an indirect effect in private law. For example, concerns of freedom of expression must be considered in the context of house rules, employment relationships, and club memberships.
Freedom of Religion and Other Fundamental Rights
Freedom of religion (Art. 4 GG) and the prohibition of discrimination (e.g., ethics, gender, disability) can also have an indirect third-party effect, especially through the General Equal Treatment Act (AGG).
Third-Party Effect in Case Law
Leading Decisions
The landmark decision on the third-party effect of fundamental rights in Germany is the Lüth decision (BVerfGE 7, 198). The Federal Constitutional Court clarified that fundamental rights constitute an “objective value system” that must also be observed within civil law. This led to the establishment of the indirect third-party effect in case law.
Further guiding principles were developed by the Federal Constitutional Court in decisions on post-mortem personality rights, expression of opinion, and labor law—for example, regarding immediate dismissal on grounds of political activity.
Significance in Private and Labor Law
Fundamental rights influence private law and labor law particularly through the interpretation of general clauses such as § 138 BGB (immorality) and § 242 BGB (good faith). Judicial practice has shown that even formally equal contracting parties must be protected under fundamental rights in practice, for instance in cases of discrimination or violations of personal rights.
Criticism and Problems of the Third-Party Effect
Difficulties of Delimitation
The implementation of the third-party effect is not without controversy. It is criticized that fundamental rights were designed as protection mechanisms against the state, and their transfer to private legal relationships might contradict the principle of private autonomy. In addition, difficulties of delineation are discussed—such as when an indirect or a direct third-party effect is present.
Risk of Legal Uncertainty
An excessively broad application of the third-party effect may blur the line between state regulation and private self-determination. There is a risk that fundamental rights may be overstretched, thereby unduly restricting the freedom of private actors.
International Perspectives and European Law
Third-Party Effect of Fundamental Rights at the European Level
European jurisprudence, particularly the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ), also recognizes the institution of third-party effect. The European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights also exert a protective effect in private law, for example, through the obligation of member states to ensure effective protection of fundamental rights within civil law.
Peculiarities in Other Legal Systems
Whereas Germany and Austria mainly apply the indirect third-party effect, countries such as South Africa, India, or Ireland recognize a stronger direct third-party effect of fundamental rights. The debate over the scope of the third-party effect thus represents an international constitutional law issue.
Summary and Significance
The third-party effect of fundamental rights constitutes an essential component of modern fundamental rights doctrine and decisively influences the relationships between individuals. Its purpose is to ensure that fundamental values are asserted not only vis-à-vis the state but also in private law. In German law, it is established as an indirect third-party effect and particularly shapes the interpretation and application of civil law and labor law. The debate regarding the extent, range, and modification of the third-party effect remains a central topic of constitutional law scholarship and practice.
See Also
- Fundamental Rights in German Law
- Lüth decision
- General Equal Treatment Act
- Personality Right
- Constitutional Complaint
Frequently Asked Questions
What role does the third-party effect of fundamental rights play in the relationship between private individuals?
The third-party effect of fundamental rights describes the spillover effect of fundamental rights on legal relationships between private individuals (so-called ‘third-party relationships’), even though fundamental rights are primarily designed as defensive rights against the state. In practice, this means that fundamental rights do not apply directly but rather indirectly within private law (indirect third-party effect). Courts must consider the affected fundamental rights of the parties when interpreting and applying ordinary law—such as the Civil Code (BGB)—and perform a balancing of interests. As a result, fundamental rights do not work directly between private parties, but still significantly influence the decision and ensure that fundamental rights considerations are integrated into civil law.
To what extent are legal persons affected by the third-party effect of fundamental rights?
Legal persons may be holders of fundamental rights insofar as the relevant fundamental rights are applicable to them by their nature (Art. 19(3) GG). Within the framework of the third-party effect, they too benefit from the indirect effect of fundamental rights in their legal relationships with other private parties, particularly where freedom of expression, principles of equal treatment, or property rights are concerned in contractual relationships. Courts are obligated to consider the fundamental rights positions of legal persons as they would those of natural persons in private law disputes, integrating fundamental rights considerations into the interpretation of the legal framework at hand.
How is the indirect third-party effect implemented concretely in civil law?
The indirect third-party effect in civil law is realized through general clauses and indeterminate legal concepts, such as those found in § 138 BGB (immorality), § 242 BGB (good faith), or § 823 BGB (liability for infringement of legal interests). These provide points of reference for incorporating fundamental rights considerations into private law decisions. Courts are required to interpret and apply civil law with a fundamental rights orientation, ensuring that in weighing interests—such as between personality rights and freedom of expression—the constitutionally protected positions of both parties are carefully considered.
What is the significance of the third-party effect of fundamental rights for the Federal Constitutional Court’s case law?
The Federal Constitutional Court has developed and continuously specified the principles of indirect third-party effect in its established jurisprudence (for example, in the famous Lüth decision). The Court emphasizes that fundamental rights must be understood as an objective value system that claims validity for the entire legal order, thereby extending beyond the direct binding of state authority. The Court’s reasoning requires the specialized courts to always take fundamental rights into account in private law disputes.
Does the third-party effect of fundamental rights also apply in labor law?
The indirect third-party effect also has significant relevance in labor law, as the employment relationship is characterized by the relationship between two private parties: employer and employee. Here, fundamental rights regularly collide, for example between the personal rights of the employee and the employer’s entrepreneurial interests as well as property or occupational freedom. Labor courts are required to resolve these conflicts in their decisions by taking fundamental rights considerations into account. This results in an interpretation and application of labor law that is “in conformity with fundamental rights,” adequately balancing the interests of both sides.
What are the differences between direct and indirect third-party effect of fundamental rights?
Direct third-party effect would mean that private individuals could invoke fundamental rights directly against each other and enforce them in court. In Germany, however, as a rule, only indirect third-party effect applies, in which fundamental rights exert their influence on the private law order as objective value standards through ordinary law. Exceptions allowing for direct third-party effect are rare and are mainly recognized in anti-discrimination law or with specific European provisions, such as in the context of Union law or with third-party binding human rights pursuant to the European Convention on Human Rights (ECHR).
Are there differences in the third-party effect of fundamental rights between public law and private law?
Whereas in private law the indirect third-party effect of fundamental rights is applied, particularly through general clauses, in public law it is above all the direct binding of state authority to fundamental rights (Art. 1(3) GG) that prevails. Nonetheless, in public law—such as in administrative actions between “private” parties—fundamental rights considerations can also be relevant, but always within the scope of state binding. The peculiarity of the third-party effect lies in the fact that it explicitly impacts extra-statutory private law relationships. In public law, in contrast, the direct binding of the public authority to fundamental rights dominates.
