Protection against private power through European Fundamental Rights

• Applicant: Professor Dr. Johannes Masing
• Subject Area: Public Law ; Principles of Law and Jurisprudence
• Term: since 2025
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 568570031

The project aims to establish a common cross-border understanding of fundamental rights in Europe as protection against private power. Under the conditions of digitalization and internationalization, in which private actors are gaining ever greater power, this question is of fundamental importance. It will determine whether fundamental rights will continue to be a formative force in the future and can be regarded as the basis of freedom and equality. In view of the different national traditions of fundamental rights, it ties in with the ECHR and the EU-Charter of Fundamental Rights as a connecting element, but is also intended to carry the national guarantees of fundamental rights along in a transnational perspective. The different status of fundamental rights in the European legal systems is not questioned, but rather assumed and recognized in principle. Consequently, the project does not aim to standardize the doctrine of fundamental rights or the doctrines of fundamental rights developed in the individual states. On a meta-level, however, it aims to work out the possibility and necessity of a common European understanding of the content of fundamental rights, which also understands them in a differentiated way as protection against private power. Besides the ECHR and the EU Charter of Fundamental Rights, the legal systems of France, the UK and Germany provide the frame of reference. Other legal systems will only be considered selectively in a supplementary manner. The study strives for a cross-border exchange and intends from the outset - unlike what is usual in constitutional law - to also address the academic community of other countries. The project aims to take up an impetus from German constitutional case law, especially insofar as it has also been reflected in European case law, while leaving behind some of the non-connectable constructions of the German discussion (mittelbare Drittwirkung / “indirect third-party effect”). The aim is to develop an understanding of fundamental rights that is at its core relatively simple, substantively founded and transnationally compatible, with a view to their significance for the relationship between private actors. This should bring the discussions on the content of fundamental rights closer together and give the courts a more precisely reflected foundation. In terms of content, the project is aimed at an understanding of fundamental rights that realistically aims for substantial freedom between private individuals and an elementary equalization of power imbalances. In this respect, the requirements of fundamental rights are indeed open to political shaping and require subjective evaluation. Also for a common European understanding, a stricter, asymmetrical protective effect of fundamental rights must be distinguished when the state is enforcing abstract public interests. However, there is a need for intermediate distinctions to be developed in more detail, for which there is little preliminary work.

• DFG Programme: Research Grants