Instrumentalisme, Legitimiteit en de Onderstroom Van Het Europees Contractenrecht ( Instrumentalism, Legitimacy and the Undertow of European Contract Law) (in Dutch)
HET GROENBOEK EUROPEES CONTRACTENRECHT: NAAR EEN OPTIONEEL INSTRUMENT?, M.W. Hesselink, A.A.H. van Hoek, M.B.M. Loos & A.F. Salomons, eds., pp. 41-52, Den Haag: Boom Juridische uitgevers, 2011
13 Pages Posted: 21 Feb 2011 Last revised: 16 Jun 2011
Date Written: January 31, 2011
This paper was submitted as a contribution to the public consultation on the European Commission’s Green paper on policy options for progress towards a European contract law for businesses and consumers (COM(2010)348 final, July 2010). In the Green paper, the Commission presented seven options for an ‘instrument’ that could ‘strengthen the internal market by making progress in the area of European Contract Law’. Although the Commission’s current initiatives in this field appear to be moving towards a self-standing optional instrument that parties may choose to apply to their contracts, the policy questions raised in the Green paper invite a broader discussion on the role of contract law in the process of European integration.
This contribution explores two aspects of this broader debate: in the first place, the instrumentalist conception of contract law in the European Union’s multi-level system of private law, and in the second place, the institutional framework for the further elaboration of European contract law. Taking inspiration from the research done on questions of social justice in this area, it is submitted that the European Commission’s agenda for European contract law continues to follow a technocratic approach (perceiving contract law as an instrument for the economic development of the internal market), while it remains silent on further-reaching legal-political goals (concerning the balance between economic and social ideals in the regulation of contracts). It is argued that with an eye on legitimacy it would nevertheless be desirable to foster a more explicit discourse on the legal-political colour(s) of European contract law. For this purpose, some starting points are suggested for the elaboration of an institutional framework that may enhance both the procedural and the substantive legitimacy of European integration through contract law.
Note: Downloadable document is in Dutch.
Keywords: EC Green paper, European contract law, optional instrument
JEL Classification: K12
Suggested Citation: Suggested Citation