Fundamental Rights, Social Principles, and Non-Discrimination

The Credit Agreements Directive represents an improvement in information requirements and is concerned with aspects of responsible lending. However, it does not address related social issues and is limited in scope. For example, it does not provide protection to vulnerable contractual parties, such as non-professional guarantors for consumer credit.

Given these limitations, it is important to establish whether the progressive influence of constitutional and fundamental rights in Europe may lead to more extensive protection. In particular, will these provisions help protect weaker contractual parties, by promoting fair business practices or specific fundamental rights values, thus going beyond an information-focused approach?[1]

Signs that this is starting to happen are emerging in the national case law.[2] For example, as we have seen previously, a jurisprudential trend has developed in Germany whereby constitutional principles are applied in credit guarantee disputes in order to protect weaker contractual parties. Similarly, there are reasons to believe that such a trend may be developing at the EU level.

Certain provisions of the Charter of Fundamental Rights can be seen as steps in this direction; moreover, as exemplified by a recent case before the ECJ that we will examine later on, fundamental rights may strengthen general values such as that of non-discrimination.

  • [1] T. Wilhelms son, ‘The Ethical Pluralism of Late Modern Europe and Codification ofEuropean Contract Law’ in J. Smits, The Need for a European Contract Law: Empirical and LegalPerspectives (Groningen: Europa Law Publishing, 2005), p. 145; Hesselink, ‘European ContractLaw’ (n 6), pp. 323 et seq.
  • [2] Cherednychenko, Fundamental Rights, Contract Law and the Protection of the Weaker Party,A Comparative Analysis of the Constitutionalisation of Contract Law, with Emphasis on Risky FinancialTransactions (n 2).
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