European Fundamental Rights Law – Literature Notes Week 1
Lecture Notes – The European System(s) of Fundamental Rights Protection
Kai Möller, ‘The global model of constitutional rights: Introduction’, LSE Law, Society and Economy
Working Papers 4/2013, only pp. 1-16
I The Project
The global model of constitutional rights sees rights as protecting an extremely broad range of interests but at
the same time limitable by recourse to a balancing or proportionality approach.
II The Global Model and the Dominant Narrative
This section will introduce the four central features of the global model of constitutional rights. It will do so by
contrasting them with what I shall call the dominant narrative of the philosophy of fundamental rights, which
holds that (1) rights cover only a limited domain by protecting only certain especially important interests of
individuals; (2) that rights impose exclusively or primarily negative obligations on the state; (3) that rights
operate only between a citizen and his government, not between private citizens; and (4) that rights enjoy a
special normative force. However, in the global model of constitutional rights all four of these elements have
been given up due to a number of developments:
1. Rights inflation
Rights inflation refers to the increasing protection of relatively trivial interests as (prima facie) rights,
such as the Court reading into the Right to Private Life (Article 8 ECHR) a right not to be affected by
noise or other pollution. However, there is an important conceptual distinction between an
interference with and a violation of a right: an interference will only amount to a violation if it cannot
be justified at the justification stage.
2. Positive obligations and socio-economic rights
The doctrines of positive obligations or protective duties hold that the state is under a duty to take
steps to prevent harm to the interests protected by (otherwise negative) rights. The existence of such
positive obligations is well established in the ECtHR’s case law, but the legally difficult question is
whether the state has done enough to comply with its obligation. The textual basis for the assumption
that Convention rights generally impose positive obligations is weak. There is furthermore the
aforementioned trend towards the acknowledgement of socio-economic rights, which obviously
impose positive duties on the state and thus conflict with the dominant narrative according to which
rights are concerned only with negative obligations. The ECtHR, while regularly stressing that it does
not guarantee socio-economic rights, has accepted some socio-economic entitlements mainly through
the use of its doctrine of positive obligations as flowing from several Convention articles.
3. Horizontal effect
Constitutional rights are no longer seen as affecting only the relationship between the citizen and the
state, but rather apply in some way between private persons as well. The first time this was
acknowledged was in 1953 in the Lüth decision, which was about an individual calling for a boycott
against a film director based on his involvement with the Nazi-regime. Here, the German
Constitutional Court ruled in favour of the freedom of opinion and subsequently the idea of an
objective system (or order) of values became one of the cornerstones of German constitutional
jurisprudence. Thus, the idea of constitutional rights affecting only the relationship between the
citizens and the state was abandoned in Germany in 1953. There exist a number of complex issues
about horizontal effect; in particular, first, the question of whether it is strong or weak, and second,
whether it should be direct or indirect.
4. Balancing and proportionality
Even though some rights are absolute, most rights can generally be limited in line with the
proportionality test, at the core of which is a balancing exercise where the right is balanced against a
competing right or public interest. When it comes to proportionality, different courts use different
formulations of what is essentially the same test, as they have in common a balancing exercise where
the right is balanced against the competing right or public interest, which implies that in contrast to
, the dominant narrative, rights do not seem to enjoy any special or elevated status over public
interests, but rather operate on the same plane as policy considerations.
III Terminological Clarifications
1. Global?
The global character of the global model of constitutional rights flows from two factors: first, that its
appeal is not limited to certain countries or regions; and second, that it can claim greater appeal on a
global scale than any rival model.
Stephen Gardbaum, ‘The structure and scope of constitutional rights’, in Tom Ginsburg and
Rosalind Dixon, Comparative Constitutional Law (Edward Elgar: 2011), 387-405.
1 Conceptions of Constitutional Rights and Their Limits
The dominant general conception of a constitutional right among contemporary constitutional systems around
the world is an important prima facie legal claim against (mostly) government infringement that can,
nonetheless, be limited or overridden by certain conflicting public policy objectives. This general conception of
a constitutional right is typically operationalised and adjudicated through a two-step process: first, it
determines whether a constitutional right is implicated and has been infringed, and second, whether the
infringement is nonetheless a justified one. These two steps employ different types of limits on constitutional
rights, namely internal and external ones. The former concern the definitional scope of a constitutional right
and are part of determining whether a right is implicated in a given situation. External limits, by contrast, are
constitutionally permissible restrictions on rights that are implicated and do apply in a given situation. It is
sometimes claimed that, exceptionally, the US engages only in the first step, as courts treat constitutional rights
claims exclusively – or almost exclusively – as issues of definition and scope and not also as issues of balancing
rights against conflicting public policy objectives. The second step is typically and increasingly operationalised
by application of the principle of proportionality, which, despite not being expressly contained or referenced in
many constitutions, has been implied by courts as the proper methodology for applying textual limitation
clauses. The proportionality test is operationalised through a common three-prong test: (1) that the means
used are suitable or rationally related to the objective; (2) that they are necessary or minimally impar the right;
(3) and that the means used are proportionate, i.e. they do not impose disproportionate burdens on the right
relative to the objective.
2 The Scope of Constitutional Rights: Vertical and Horizontal Effect
Constitutional rights can regulate the conduct of governmental actors in their dealings with private individuals
(vertical) or also relations among private individuals (horizontal). The traditional idea informing the vertical
approach is the perceived desirability of a public-private division in the cope of constitutional rights, leaving
civil society and the private sphere free from the uniform and compulsory regime of constitutional regulation.
The arguments for adopting the opposite, horizontal approach express an almost equally well-known critique
of the ‘liberal’ vertical position. First, the society’s most fundamental and important values should apply to all
its members, and, second, constitutional rights and values may be threatened at least as much by powerful
private actors and institutions as by governmental ones; the vertical approach automatically privileges the
autonomy of privacy of such citizen-threateners over those of their victims.
One concept that describes an intermediate third position in between these polar positions originates from the
German Lüth judgement and is known in German as ‘mittelbare Drittwirkung’ and more generally as ‘indirect
horizontal effect’. In essence, this intermediate position is that although constitutional rights apply directly only
to the government, they nonetheless have some degree of indirect application to private parties. In other
words, there are two different ways in which constitutional rights might regulate private actors, that is, have
horizontal effect: (1) directly, by governing their conduct; or (2) indirectly, by governing the private laws that
structure their legal relations with each other.
3 Negative and Positive Constitutional Rights
A third important topic is the distinction between negative and positive constitutional rights that is manifested
and institutionalised within and among different contemporary constitutions. Negative constitutional rights are
rights not to have certain things done to you, typically by the government, whereas positive constitutional
