Full Harmonization in European Private Law: A Two-Track Concept

Abstract

This article seeks to elaborate a new understanding of full harmonization in European private law as a two-track concept. The Court of Justice of the European Union (CJEU) applies it in two different ways, namely in a ‘result-oriented’ or in a ‘basis of liability’ manner. Connecting them to private law theory, these distinctly different approaches bring to mind a famous dichotomy between common law and civil law systems on the way in which they perceive the relation between rights, wrongs and remedies. The article proposes that a new understanding of the CJEU’s legal reasoning in light of private law theory can provide new insights for law-making in European private law.

Keywords: Full harmonization, private law theory, CJEU, unfair commercial practices, product liability