A Shift in Focus: Systematisation in European Private Law through EU Law
European Law Journal, Forthcoming
Tilburg Institute of Comparative and Transnational Law Working Paper No. 2009/12
27 Pages Posted: 23 Nov 2009 Last revised: 8 Aug 2010
Date Written: November 23, 2009
The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi-level European legal order. With the realisation that private law is and will remain complementary regulated at EU level and in national laws, a re-orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re-orientation is needed in relation to substance, process, instruments and enforcement; a more fundamental question needs to be addressed, however, in order to ensure coherence in the development of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.
Keywords: European Commission, Europeanisation, private law, consumer law, competition law, convergence, development
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