Applying the ECHR in the private law sphere & its implications for Malta

Abstract

This thesis delves into a question that has so far been relatively unexplored in Malta, that of whether and, if so, how fundamental rights should play a role in the private law sphere. It looks at the relationship between fundamental rights and private law and describes four alternative basic models, which such relationship may follow, namely the direct application model, the non-application model, the indirect application model and the application to the judiciary model. An insight into the rationales underpinning each model as well as the objections raised thereto is also provided. In several national jurisdictions, fundamental rights protection has been extended from the vertical relationship between the individual and the State to the horizontal relations of private parties inter se. In particular, the extent to which private sphere protection of fundamental rights is afforded in Germany, England and Wales, Ireland, France and Italy is explored. The experience of these States is later compared and contrasted to the approach of the Maltese courts in recent judgements in the fields of contract and tort law. Possible reasons why Maltese courts may find it more difficult to afford private sphere protection to fundamental rights are also highlighted. Moreover, it is argued that Maltese private law does not exist in a vacuum. As a Party to the ECHR, Malta must keep pace with the case-law of the ECtHR. Research into recent ECtHR decisions show an increasing willingness on its part to play a more prominent role in the private law sphere, through the use of various particular and innovative mechanisms. These different mechanisms are analysed in light of Strasbourg case-law. They have implications not only for core principles of private law but also for the way Maltese courts choose to configure the relationship between fundamental rights and the private law sphere.