Constitutional Aspects of European Private Law: Freedoms, Rights and Social Justice in the Draft Common Frame of Reference

146 Pages Posted: 3 Jun 2009 Last revised: 22 Feb 2014

See all articles by Martijn W. Hesselink

Martijn W. Hesselink

European University Institute

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL); University of Amsterdam - Faculty of Law

Jacobien W. Rutgers

VU University Amsterdam - Faculty of Law

Date Written: June 2, 2009

Abstract

This report analyses the academic DCFR in the light of freedoms, rights and social justice. It first investigates whether the DCFR takes the autonomy of equally strong parties as its starting point or rather incorporates elements of ‘social justice’. The evaluation takes place on the basis of five key elements of social justice, i.e. legitimacy, the protection of weaker parties, the ideology underlying rules of private law, the role of general clauses, and the principles and values underlying the DCFR. Subsequently, the report addresses the question to what extent the DCFR takes into account the European free movements (of goods, services, persons and capital) and what its relation is with European competition law. Finally, it looks into the potential impact of fundamental rights, laid down in national Constitutions and international treaties, on the application of the DCFR. The overall aim is to determine whether the future CFR, if it followed the present academic draft, would on principle comply with current European constitutional standards.

Keywords: Draft Common Frame of Reference, European private law, social justice, EC freedoms, fundamental rights

Suggested Citation

Hesselink, Martijn W. and Mak, Chantal and Rutgers, Jacobien W., Constitutional Aspects of European Private Law: Freedoms, Rights and Social Justice in the Draft Common Frame of Reference (June 2, 2009). Centre for the Study of European Contract Law Working Paper Series No. 2009/05. Available at SSRN: https://ssrn.com/abstract=1413089 or http://dx.doi.org/10.2139/ssrn.1413089

Martijn W. Hesselink (Contact Author)

European University Institute ( email )

Villa Salviati
Via Bolognese 156
Florence, Tuscany 50139
Italy

Chantal Mak

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

Jacobien W. Rutgers

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

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