The General Principles of Civil Law: Their Nature, Roles and Legitimacy

Abstract

The references made by the Court of Justice in a number of recent cases to ‘the general principles of civil law’ may have been accidental, but they may also represent a deliberate first step towards a new European legal category and a new approach towards European private law. Because of their flexible and chameleonic nature, the general principles of civil law could contribute to horizontal and vertical coherence of the developing system of European private law without imposing, in a top-down manner, new rules on Member States. They could even facilitate a Member-State-friendly interpretation of EU private law. New general principles of civil law could be the outcome of a transnational dialogue between (and among) national and European lawmakers, informed by an equally transnational legal scholarship. However, it is important that such a European private law space be as open as possible, and be informed by arguments and reasons not merely from legal elites at the political and economic centre but also from ordinary citizens at the periphery.

Keywords: Principles, European private law, legitimacy, coherence, horizontal effect, direct effect, private enforcement of competition law, market freedoms