Koncepcja obowiązku ochrony podstawowych swobód. Pośredni horyzontalny skutek przepisów TWE o podstawowych swobodach
The concept of duty of protection of fundamental freedoms. the indirect horizontal effect of ec treaty rules of fundamental freedoms

Summary/Abstract: Since the primary addressees of the provisions of the Treaty concerning the free movement of goods, persons, services and capital are the Member States (and the Community itself), to these provisions can be attributed vertical direct effect. The question remains whether these provisions have also horizontal direct effect, so whether to the category of the addressees of them belong also private parties (i. e. parties not connected functionally or structurally with the Member States). The answer to this question is affirmative only in case of private parties with regulatory power, i. e. in case of parties who regulate "in a collective manner" the economic operations covered by the objective scope of fundamental freedoms. As far as the others private parties (i. e. with no regulatory power) are concerned the arguments against their direct bond by rules on free movement (especially the danger of excessive transgression of their private autonomy, which is respected by the EU and by the Member States under the auspices of fundamental rights) are strongly prevailing over the arguments for such a direct bond (especially the need of much more effective realization of the internal market's idea). But the rejection of the concept of horizontal direct effect (also in case of free movement of work ers, even if it is contrary to the Angonese judgment of the ECJ) does not mean that fundamental freedoms of the internal market (which are the prominent prin ciples of EU legal order) should not be materialized within the relations between private parties. The values and principles included in fundamental freedoms of the internal market should also be in force in case of horizontal relations between private parties, but thanks to the concept of "duty of protection" and the concept of "indirect third party effect" (the latter being the part of the former concept) which were elaborated in some constitutional legal orders of the Member States in case of fundamental rights. The important teleological and structural differences between fundamental freedoms of the internal market and the fundamental rights are not an insurmountable obstacle in that respect, although they should influence to some extent on the way in which both concepts are applied in case of fundamental freedoms. Being bound by the "duty of protection" Member States are obliged to combat such conduct and acts of private persons which form an ob stacle in the free movement. The concept of "indirect third party effect" obliges the courts of Member States to interpreting and applying of the provisions of the national private law in the light of the fundamental freedoms. Materializing the fundamental freedoms within the relations between private parties (through the recourse to the discussed concepts) the Member States are also obliged to respect the private persons' fundamental rights which are involved here and mulhere fore thoroughly outweigh fundamental freedoms and fundamental rights in all situations in which this appears to be necessary.

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