The Constitutionalization of Contract Law in the Irish, the German and the Italian systems: is horizontal indirect effect like direct effect?
A comment on Professor Kumm's view
Historically fundamental rights were confined to governing the relationship between the State and the individual, and they did not affect in any way relationships between private actors. Over time, the growing influence of constitutional right on contract law makes it clear that the sphere of constitutional rights and the sphere of contract law cannot be considered as two separate worlds. As a consequence, today a horizontal effect of constitutional rights has been accepted by many European countries, but it is still controversial how this effect should operate: directly or indirectly. This paper analyses the direct approach followed by the Irish legal system and the indirect approach followed by the Italian and the German legal systems. It is argued in this paper that even if the German and the Italian doctrines insist upon a clear distinction between horizontal direct and indirect constitutional effect, in practice this distinction seems more formalistic that substantive. In fact, this paper, by supporting Professor Kumm’s view, shows that the doctrine of indirect effect, as applied by courts, seems to have substantively the same consequences of the doctrine of direct effect.