20 January 2026
Double-Layered Horizontal Effect
In the Egenberger case, the CJEU again effectuated a directive’s content via the horizontal direct effect of EU fundamental rights. The FCC not only continues to show openness to the CJEU’s approach, but even finds that notwithstanding differences in legal construction, it can achieve equivalent substantive results via its own doctrine of indirect horizontal effect. This leads to a curious result that may be described as a “double-layered horizontal effect”: Effectuating a directive via both the horizontal direct effect of EU fundamental rights and the indirect horizontal effect of German fundamental rights. Continue reading >>
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18 May 2023
From Contract Law to Online Speech Governance
For years, contract law has been a hidden protagonist in the in the discourse on platform governance. he sound of this silence is especially salient against the backdrop of recent European case law that uses the contractual toolbox to infuse social media terms of service with fundamental rights, in particular the freedom of expression. In this way, contract law has produced – somewhat counterintuitively – one of the most telling responses to the key constitutional issue of social media: how to reconcile freedom of expression as a public value with the private nature of social media platforms. Continue reading >>
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