Do We Need the Concept of Drittwirkung to Protect Fundamental Rights in Private Relations? A Lesson from Germany

Abstract The Drittwirkung determined the discussion on the impact of fundamental rights on private relations, significantly influencing the dogmatics of fundamental rights and the paradigm of their application in Germany. The current state of development of the Drittwirkung is a result of a dialogue over the course of several decades in German academia between the Federal Constitutional Court and legal scholars, who point out the dogmatic deficiencies of this concept. The development of the problem of the phenomenon in question in the jurisprudence of the FCC progressed along two lines. Firstly, it consisted of the dogmatization of the Drittwirkung , as this is how the process of the clarification of the conditions for the radiating impact of fundamental rights can be described in its subsequent rulings. Secondly, the efforts of the FCC were aimed at searching for solutions alternative to Drittwirkung , which could justify the horizontal application of fundamental rights norms. The article reconstructs the dogmatization process of Drittwirkung with reference to the key rulings in the development of this concept. It presents a possible account of the relationship between Drittwirkung and Schutzpflichten . Finally, it argues in favour of a reorientation of the doctrine of the Drittwirkung , framing the horizontal application of fundamental rights as an interpretation in accordance with the constitution.