Fundamental Rights and Private Law: A Blueprint of Comparison with Spanish Eyes

Discussing the role of fundamental rights in Private law is challenging not because the subject is complex (which it is) but because we have to argue against our own preconceptions as experts in a specific field. This article tries to approach the relationship between fundamental rights and private law in light of existing case law from Spanish and European Courts. It concludes that the importance of the general issue of "horizontal effect" is overrated, as the issue does not predetermine the courts' views on a case-by-case basis. On the other hand, other relevant issues emerge, such as the multi-level balancing of interests that takes place in non-contractual cases, or the strange game of smoke-and-mirrors that takes place when consent (typically through contract) is involved. The conclusions should contribute to take the debate about fundamental rights and private law onto the real issues.