The Constitutionalization of European Private Law

In the last 20 years, the influence of Fundamental and Human Rights on Private Law has been steadily increasing with many scholars and experts describing this phenomenon as a process of “Constitutionalization of Private Law.” This process however despite its name is not simply confined to singular countries in the European context, while it might seem that the concept of constitutionalization seems to imply, prima facie, that two requirements must be met in order for the process to exist namely, the existence of a constitution and of a well-defined national territory within which the constitutional principles are applied. As for the first condition, Micklitz correctly pointed out in his book “Constitutionalization of European Private Law” that this phenomenon is not only limited to jurisdictions such as the French and German ones , which present a “traditional” written constitution but also extends to jurisdictions which do not have a proper written constitution such as for example the UK which relies instead on Human Rights Act (1998) which is an implementation of the ECHR to protect Fundamental and Human rights. As for the second condition, it must be recognized that the concept of territoriality is not to be associated only with Sovereign States but that it can also be applied in the context of International Organisations such as the European Union, the Council of Europe or the NATO. This hints at the fact that the process of Constitutionalization is not limited to the legal systems of Individual States but can also extend to the legal systems of International Organisations such as the previously mentioned EU or the Council of Europe which are not only subject to “Constitutionalization” but also actively help in the harmonization of this process through their own “Constitutions”, such as the Charter of Fundamental Rights of the European Union and the European Charter of Human Rights (hereinafter CFREU and ECHR respectively). This paper will focus on the effect that these supranational constitutions have had on national legal systems in the field of private law across Europe. The aim is therefore that of conducting an analysis of the phenomenon of “Constitutionalization of European Private Law” through an investigation whose objective is that of firstly, trying to highlight the limits and criticisms which have emerged in the interaction between Private and Public Law, under the perspectives of the structural differences of the fields on one hand, and the impact of the horizontal effect of Human and Fundamental rights in Private Law and secondly answering the question of whether the previously mentioned treaties can be seen as being akin to a constitution, in its accepted meaning