Regarding the decision of the German Federal Constitutional Court of 11.04.2018 – 1 BvR 3080/09

Discussion with Carl-Wendelin Neubert and Emanuel Towfigh [in German]

Podcast, 48:18 minutes • Recording date: 27 March 2023 • Published on 29 December 2023

»BLURB«

Fundamental Rights are first and foremost defensive rights of the citizen against the state. However, since the »Lüth« decision of the German Federal Constitutional Court (decision of 15.01.1958 – 1 BvR 400/51), it has been recognized that the fundamental rights of the Constitution also embody an objective value decision that applies to all areas of law. For private individuals, it follows that fundamental rights also have an impact on the legal relationship with other private individuals. They have an indirect third-party effect.

But in which constellations do fundamental rights have an indirect third-party effect—and to what extent? This question arose in a case in which a soccer fan was given a comprehensive stadium ban by a soccer club for alleged involvement in rioting—and took legal action against it. In its decision, the Federal Constitutional Court specifies the requirements and consequences of the indirect binding of private individuals to fundamental rights (decision of 11.04.2018 – 1 BvR 3080/09). Due to its fundamental importance for the doctrine of fundamental rights, the stadium ban decision is already a »classic« in the case law of the Federal Constitutional Court.

Professor Emanuel V. Towfigh, holder of the Chair of Public Law, Empirical Legal Research and Legal Economics at EBS University of Business and Law, recalls this leading decision and places it in its context:

• What do we mean by the principle of indirect third-party effect of fundamental rights?
• What motivated the Federal Constitutional Court in its »stadium bans« decision to extend the dogmatics of indirect third-party effect?
• What criteria does the Federal Constitutional Court use to determine whether and to what extent private individuals are subject to indirect third-party effect?
• Are private individuals—unlike the state—generally allowed to discriminate against other participants in legal transactions?
• How does the indirect third-party effect of fundamental rights relate to the extent to which fundamental rights are directly binding?
• What are the consequences of the »stadium bans« decision?
• Does the »stadium bans« decision also have an impact on the indirect fundamental rights obligation of social media platforms?

In the Smartbook Fundamental Rights by Professor Towfigh and Alexander Gleixner, you will also find systematic explanations of the indirect third-party effect of fundamental rights and the stadium ban decision.
You can find a detailed analysis of the Mauerschützen decision on the Jurafuchs learning platform (here)

Click here for the Constitutional Court ruling. You can find out more about Spruchreif and Jurafuchs at www.jurafuchs.de.

[Translated by DeepL]