Powers and Duties: a brief analytical examination of the horizontal applicability of fundamental rights

Abstract

This article first determines the conditions for the applicability of fundamental rights provisions between individuals, before concluding that the outcomes differ from vertical applicability. Once the distinction between the concepts used has been made, the analysis of internal horizontal applicability focuses on two requirements: the identification of private individuals within the scope of the norm’s addressees, and the existence of the capacity, whether natural or institutional, of the private individual concerned to affect the enjoyment of the constitutional right protected by the norm by another private individual. Once this issue is resolved, external horizontal applicability is addressed in two stages: in the context of principle-principle and principle-rule conflicts, concluding that the system offers greater resistance to the horizontal applicability of fundamental rights norms where the legislature has already enacted a conforming norm. Finally, the topic of the effects of horizontal applicability under the proposed terms is addressed, where a distinction in outcomes is maintained, in contrast to other theories, in cases where the infra-constitutional system does not contain a protective provision.