A Toolbox for European Judges
European Law Journal, Vol. 17, Issue 4, pp. 441-469
34 Pages Posted: 17 Dec 2010 Last revised: 20 Sep 2011
Date Written: December 15, 2010
The forthcoming instrument on European contract law, be it in the shape of an optional code for cross-border contracts or as an official toolbox for the European legislator, is likely to have a spill-over effect on adjudication. Judges will have no great difficulty in finding model rules and definitions that might come in handy when dealing with gaps and ambiguities in European private law. However, the question is whether such a role as a toolbox for judges would be legitimate. I discuss three types of possible legitimation strategies: the new European methods, traditional methods of legal interpretation, and merely political legitimation. It will often depend on the circumstances of the case at hand and the characteristics of the particular model rule or definition that is being borrowed what mode of legitimation will prove to be more convincing. However, generally speaking legitimation in terms of the general principles of civil law that the CJEU has recently been developing seems a particularly promising strategy. On the other hand, it seems unlikely that European courts could even come under a duty, following from the principle of sincere cooperation, to use the instrument as a toolbox.
Keywords: Optional Instrument, CFR, Adjudication, General Principles off EU Law, General Principles of Civil Law, European Legal Method, Interpretation, CJEU, Political Philosophy, Private Law Theory
JEL Classification: K12
Suggested Citation: Suggested Citation