Constitutional Aspects of a European Civil Code

Abstract

The idea of a European Civil Code shares an intriguing feature with that of a European Constitution: while both relate to concepts that are well-known at the national level, traditional doctrines of private law and constitutionalism do not seem to fully capture the specific characteristics of these European instruments. Traditional constitutional theory does not take into account such elements as ‘supranational citizenship’ or the co-existence of autonomous political communities that are part of the European constitutional order. Traditional contract law theory does not address the particular tension between market integration and consumer protection that characterises many harmonising instruments in European contract law. Consequently, questions have arisen regarding the definition of the new European constitutional order and the development of an adequate system of contract law for the regulation of the EU’s Internal Market. This contribution explores the common ground in these debates, in order to find out to what extent the private law and constitutional projects can take inspiration from each other. In particular, the focus is on the constitutional credibility and relevance of a European Civil Code.

Keywords: European Private Law, constitutionalisation, legal theory, EU freedoms, fundamental rights