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Abstract:
This Article aims to show what the political, rather than the technical stakes, are in the current debate over the harmonization of private law in Europe. Part One analyzes the main actors, the legal sources, the ideological divide, and the process animating the current debate on European private law. It sheds light on the incremental transformation of European private law in a scholarly industry. Part Two sheds light on the main obstacles and inconsistencies that jurists encounter in envisioning a Social private law. This section argues that the notion of the Social in private law scholarship as well as the idea of Social Europe is rarely a useful notion to articulate a progressive agenda for European private law. Finally, Part Three offers some modest proposals of the methodological and strategic nature on the possibilities and the limitations of setting a progressive agenda for European private law. We argue that a progressive agenda for European private law can be conceived today as a significant platform only by breaking with the current hegemonies and ideologies, as well as by unveiling the transformation of European private law into a scholarly industry.

In light of Antonio Gramsci's notion of a philosophy of praxis, we hope that this paper will spark further thoughts and self-criticism on current mainstream, progressive, and neo-liberal projects tackling the harmonization of private law in the European Union.

Abstract:
There are two progressive scholarly perspectives on the harmonization of law within the European Union (EU). Both focus on the constitutionality of European institutions and the legitimacy of their decision-making processes. The constitutional asymmetry criticizes the EU institutional arrangement for prioritizing market objectives over social policy goals. The proceduralization perspective, on the other hand, celebrates Europeanization for enabling transnational deliberative democratic projects. Neither perspective, however, addresses the distributive consequences of the harmonization of European law and the indeterminacy of its socio-economic impact in local contexts. Through the analysis of several European Court of Justice (ECJ) judgments, this essay argues that jurists need a third progressive approach - one that attempts to take into account both the uneven distributive impact of harmonization in a multi-level system of governance and the distributive consequences of harmonized private law rules.

Eurpoean Union, harmonization

Abstract:
Is European consumer protection an anomaly in this globalizing economy, particularly in light of its counterpart in the United States? How are we to understand the new Consumer Policy Strategy and the recent call from the European Commission for Better Regulation? Stephen Weatherill's book, a second and more comprehensive edition of his previous EU Consumer Law and Policy, answers these and other questions. The book presents an accurate institutional account of European Union consumer law and policy, an approach that is both the strength and weakness of the volume. Weatherill offers a clear and thorough analysis of EU consumer law and policy, beginning with the creation of the European Economic Community in the mid-1950s and finishing with the draft Constitutional Treaty rejected by the French and Dutch referenda in 2005. There is likely nobody better than Professor Weatherill to explain to an academic readership the evolution of EU law in light of the major institutional challenges, constitutional compromises and federal tension that arose in the last fifty years of the common market. Though this institutional perspective is meticulously constructed through insightful analyses and future predictions, some blind spots remain. As a result, at the end of the book the reader is left with some important unanswered questions, such as: Does the European trend reflect a global consumerist perspective? Or is the European model substantively different from its U.S. counterpart? And, ultimately, what is happening to consumer protection in the West?

Eurpoean Union, consumer protection law, consumer protection policy

Abstract:
The recurrent claim made by judges, scholars and lawyers shaping the debate on European private law is that there is a constitutional asymmetry in the European Union. The asymmetry lies in the fact that European Community competences mostly encompass market and economic matters at the expense of social issues, while Member States have full jurisdiction over social matters but only limited jurisdiction over economic matters. Thus, the European constitutional structure leads to a market/technocratic orientation in its supranational institutions, as opposed to the social/political orientation of Member State governments. The pervasiveness of this claim allows jurists critiquing European adjudication from both the Right and the Left to systematically claim that the European Court of Justice lacks democratic legitimacy to adjudicate particular cases in European contract or torts rules. Recently, European scholars, lawyers and judges have departed from constitutional asymmetry claims. This article demonstrates that there are several factors that have played an important role in undermining the credibility of the constitutional asymmetry claim. First, the emergence of a well-established scholarship in European private law has raised awareness among academics and lawyers regarding the complexities of the process of harmonization of private law. Second, in light of a transatlantic legal dialogue, European jurists have increasingly received law and economics from the United States in a context that has been hermeneutically rich but increasingly ideologically divided. While the Right and mostly neoliberal scholars welcomed United States law and economics, the Left rejected it and promoted a social justice agenda for the internal market. Such selective reception of U.S. legal thought contributed to the radicalization of the debate over European private law. Ultimately, with the establishment of a European private law scholarship and the emergence of new academic debates, which are increasingly ideologically divided, lawyers and scholars are frequently departing from constitutional asymmetry claims; instead, they are evaluating the consequences of the European Court of Justice decisions on their own terms.

European Union, constitutional asymmetry, European private law, law and economics,

Abstract:
The Treaty Establishing the European Community announces in EC TREATY art. 5.1. the principle that the powers of the European Community are limited to those specifically conferred on it. However, experience and judicial interpretation have shown that, in practice, the allocation of power between the Community decision maker and Member States is neither clear nor immutable.

In its Treaty Establishing a Constitution for Europe, the Community attempts to clarify the allocation of competences. Article III-278 of the Draft E.U. Constitution (Public Health Article) is a public health provision that expressly refers to the regulation of tobacco. To many, the Public Health Article reflects a shift toward European federalism by guaranteeing greater power to Member States over their national health regulations while limiting the power of the Community legislature. We argue that in reality, that this constitutionalization of tobacco does not guarantee Member States' autonomy. As long as the Community decision maker can standardize national tobacco laws whenever the functioning of the internal market is at stake, the Community will exercise some degree of control over States' national health standards. On the one hand, the Public Health Article can be used as a sword by the Community legislature, allowing intervention of a complementary and supportive nature. Community action may include monitoring, early warning of and combating serious cross-border threats to health. On the other hand, the Public Health Article may be used as a shield by States seeking to preserve their disparate public health standards. Because of this ambiguity, we argue that the Public Health provision remains open to interpretation and is susceptible to policy arguments made by either side. Consequently, the "constitutionalization" of tobacco fails to clarify the allocation of competences and provides little guidance in determining the substantive outcomes of pending disputes before the European Court of Justice.

European Union, Member State Law, European federalism, private law

Abstract:
This Article reassesses the Turkey-European Union trade relationship in light of the doctrine of promissory estoppel. It argues that the European Court of Justice (ECJ) in Yedaş Tarim should have used more explicitly the doctrine of promissory estoppel as an equitable device to create liability for the potential detriment suffered by Turkey in relying on the promises made by Brussels. Through an overview of Turkey-European Union (E.U.) relations from the early 1950s until today, with particular attention to accession negotiations and the trade relationship between Turkey and the European Economic Community, this Article highlights the anomalous trade context that characterizes the unbalanced Turkey-E.U. relationship. The Author suggests understanding the Yedaş Tarim litigation as a response to the disappointment of the Turkish elites, especially the ones who were most committed to Turkish membership in the European Union. While the Luxembourg courts might not be the most appropriate fora to clarify the costs and benefits of the E.U.-Turkey trade relationship, in Yedaş Tarim, the Courts lost the opportunity to assess the existence of major imbalances created by the obligations in the overall trade regime between Turkey and the E.U. By focusing on the reasons of the Turkish distrust towards Brussels, Yedaş Tarim marks an important shift of perspective towards the current debate on the Turkish membership to the E.U. In this respect, the Author suggests reassessing the macro-economic implications created by the Ankara Agreement, the Customs Union between the E.U. and Turkey and the promises of accession by Brussels vis à vis Turkish legal and political elites, local businesses at home and immigrant workers in Europe.

international trade, Turkey, European Union