Lüth and Elfes – A German Approach to a Horizontal Effect of Fundamental Rights

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Sarah Katharina Stein

University of Freiburg

The famous Lüth-judgment (1958) of the German Federal Constitutional Court (Bundesverfassungsgericht) developed the horizontal application of fundamental rights in Germany (enforced as between private citizens rather than vertically as against the state). The judicial reasoning in Lüth has since been widely used by other courts to establish their own reading on the horizontal application of human rights. To understand this landmark decision, this contribution will first set the scene of the circumstances leading to it, including the conception of fundamental rights under the German Constitution, before analyzing the judgment in depth. 

Background 

Veith Harlan made movies for the NSDAP (National Socialist Party) most famously “Jud Süß”, an antisemitic film, ordered by Goebbels, which was shown in Germany and Eastern Europe to stoke anti-Semitic sentiment. He was later cleared of all wrongdoings in the Nazi era and continued to direct movies. In 1951 he produced Gefährliche Geliebte, based on a novella by Theodor Storm. When Harlan’s movie was selected to be played at the “Week of German Film”, Erich Lüth, the director of the press office of Hamburg, intervened. He called on the public and the press to boycott Harlan’s movie. According to him, the director of Jud Süß was unfit to restore the reputation of the German movie industry, which lost all credentials during the Third Reich. Harlan, as the “Nazi-Regisseur No 1”, was responsible for antisemitic agitation. All decent Germans not only had the right, but the duty to boycott the movie to “fight against the ignoble representative of German film”.

The production company subsequently filed a lawsuit against Lüth, which resulted in an injunction: Lüth was not allowed to call on German cinema operators to cancel the film or on the German public to boycott it. His actions constituted intentional damage contrary to good morals (§826 BGB), because Harlan had never been convicted in relation to Nazism and thus his ability to work couldn’t be lawfully impaired; the personal opinion of Lüth about Harlan was irrelevant. Lüth filed a constitutional complaint on the basis of an infringement of his fundamental right to freedom of opinion under the German Constitution (Art. 5.1).

The German Constitutional Court delivered its judgement in 1958. The case reached the Court just six and a half years after its establishment, while it was still in a phase of finding its own place in the just recently established Federal Republic of Germany. Its first cases dealt with matters concerning the federal organization and prohibitions of political parties. The court was initially not built to become a counter-majoritarian, rights-protecting stronghold, as it is seen nowadays. It was built with more power than its predecessor Weimarer Staatsgerichtshof, but rather centered around conflicts between state organs as the focus of constitutional review. Fundamental rights as the main component of judicial activity were not foreseen. This shift started a year before the Lüth-decision, when the Court decided Elfes in January 1957. Both decisions can be read together, as they were decided by the same Senate with the same composition of judges; they approach the same topic from different angles. Before to consider Lüth, we have to take a look at Elfes to understand the foundation on which the horizontal application was developed.

Elfes as the Opener for a Broad Constitutional Review

Wilhelm Elfes, a German politician was known for his East-leaning stance and prioritization of the reunification of Germany. He was denied a passport to travel East, because the authorities were afraid of what he might say about the German-German relationship during his attendance at a peace conference with Eastern elites. Elfes fought this decision up to the Constitutional Court. While he didn’t succeed there, the Court delivered its first right-based landmark-ruling, stating that individual freedom, as granted in Art. 2.1 of the German Constitution, comprises every human conduct possible. “Personal liberty”, as the right of Art. 2.1. was coined, is so extensive that every act of public authority (including every act of legislation) interferes with Art. 2.1. Because of the broad understanding of personal liberty, the justifications for state acts limiting Art. 2.1 are nearly equally broad. The Constitutional court is competent to judge the constitutionality of every legislative act and administrative decision, to analyze if the infringement is justified or constitutes a breach of the German Constitution. The Court did two things here: first, it acknowledged that basic rights, especially Art. 2.1, and the constitutional order as a whole are reflected in every German law. Second, because the Constitution recognizes an individual complaints mechanism, the breath of Art. 2.1 subsequently expanded its own jurisdiction.

Lüth as the Facilitator of Horizontal Effect

Lüth, as the second fundamental ruling regarding basic rights, is positioned against this background. Basic rights, as provided in the German Constitution (Art. 1 – 19), are rights for citizens against the state. In ordinary cases, the state directly intervenes with a basic right, like censoring a book (Art. 5.1.2), discriminating against a church (Art. 4) or shutting down a demonstration (Art. 8). It’s a classical vertical application of rights: the citizen defends her rights against the state.

In this case the situation is different. Lüth, a private citizen, interferes with Harlans right to work. Two citizens face each other, both armed with their constitutional rights: Lüth claims freedom of expression (Art. 5.1), Harlan occupational freedom (Art. 12.1). However, from a traditional vertical understanding of constitutional rights, neither can Harlan limit Lüth’s right to free expression, nor can Lüth directly meddle with Harlans rights. Basic rights generate effects only in vertical relationships. In other words, the relationship between Lüth and Harlan is not, strictly speaking, regulated by the Constitution. Instead, the relationship between Lüth and Harlan is facilitated through the German Civil Law Code, or, if things really fall apart, by the Penal Code. The Constitution, though, is not relevant. This traditional understanding of constitutional rights changes with the Lüth judgment.

The Constitutional Court starts its analysis by noticing that the judgement of the Civil Regional Court constitutes an act of public authority. This judgement is thus the point of access to the Constitution. In this case, the application of §826 BGB led to the injunction against Lüth, who wasn’t allowed to call on the public to boycott the movie anymore. This injunction thus restricted Lüth’s freedom of expression. However, an infringement of Lüth’s constitutional rights could have been facilitated by the lower court ruling, if the civil courts had an obligation to consider the fundamental rights of Lüth in the first place. This would be a new concept. Traditionally, civil courts had to apply the civil law codes, not the Constitution.

Should the Constitution be Applied Between Private Parties? 

There are two extreme positions for the question of “Drittwirkung” (horizontal application), and both are shut down by the Constitutional Court. It neither follows arguments that the distinction between civil and constitutional law must be very sharp and the latter should never influence the former, nor that the basic rights of the Constitution have a direct, non-mediated effect between citizens.

The Court states that first and foremost, basic rights are directed against the state, they are “Abwehrrechte” (defensive rights). The development and the position in the Constitution – at the beginning, focusing on human dignity – is illustrating the rights of citizen against the state. Thus, constitutional complaints are only possible against acts of public authorities. Unexpressed, but surely implied, is the contrast of the new Constitution to the Third Reich.

However, the Court continues, the Constitution is not built to be an impartial law without values. It builds an “objektive Werteordnung” (objective system of values) through the basic rights, centered around personal freedom (Art. 2.1) and human dignity. This value system has to be applied in all areas of law; it influences all three branches of government. Thus, civil law is naturally influenced by it. No law may be in contradiction to it and every law must be interpreted in its spirit. While civil law remains civil law, the Constitution materializes itself in it, especially in so-called blanket clauses like “good morals”. These clauses refer to extra-judicial circumstances of human conduct and must be interpreted according to the value order of the Constitution. They are the points of incursion in which the specific constitutional content of the basic rights glare into civil law. The judge must interpret these clauses in the light of the basic rights of the parties to the conflict. If she fails to do so – either because she misses the constitutional implications altogether or she misconceives their significance in balancing them against each other – she violates a basic right as a public authority. Her judgement can be appealed to the Constitutional Court for review, regardless of its civil nature. The Constitutional Court in turn will review the constitutional matter only; the application of civil law will not be tested.

In its judgment, the Constitutional Court found that the Civil Court disregarded Lüth’s right to freedom of expression, because it failed to read it into the good morals clause of §826. The case was thus remanded to the Civil Court.

Conclusion

In Lüth, the Constitutional Court established an indirect effect of basic rights on private relationships. It showed that the Constitution is not isolated and its decisions on values saturate the whole body of law of its constituency. Constitutional rights have to be balanced on an individual basis. No right exists on its own; the enjoyment of one’s rights interferes with others’. Nevertheless, the Constitution will facilitate this relationship, whether it originates in civil or constitutional law. Lüth, together with Elfes, established the basic rights of the Constitution as all-embracing principles, which reach deep into everyday life; interferences can be challenged at the Constitutional Court. These decisions are a vital part of German “Grundrechtsdogmatik” (basic rights dogmatics) and framed freedom of expression as the “schlechthin konstituierende Grundrecht” (“the constitutional right per se”), a phrase every German law student knows by heart.

The German Constitutional Court was the first in Europe to change the direction of a traditionally vertical approach to fundamental rights to a somewhat horizontal understanding. This development and Lüth’s impact can be traced in other jurisdictions (e.g., South African fundamental rights jurisprudence was influenced and explicitly quoted Lüth, as well as Canadian and Czech judgements where influence can be inferred without explicit reference). In addition, the European Court of Justice developed its own appreciation of horizontal effect based on Lüth. Even the European Convention on Human Rights can have horizontal effect in certain circumstances. Surely, these developments could have happened without Lüth. However, the precise and differentiating language of the decision, which handled the question of horizontal application delicately and with an eye not just for the entire Constitution but the whole legal system en gros, established an argumentative basis, which is heavily referred to all over the world.

Sarah Katharina Stein is a research assistant at the Institute of Public Law at the University of Freiburg and a legal trainee (Rechtsreferendarin) at the District Court of Freiburg

Suggested citation: Sarah Katharina Stein, ‘Lüth and Elfes – A German Approach to a Horizontal Effect of Fundamental Rights’, IACL-AIDC Blog (14 June 2022) https://blog-iacl-aidc.org/globallandmarkjudgments/2022/6/14/lth-and-elfes-a-german-approach-to-a-horizontal-effect-of-fundamental-rights-mmac4.