Private Law and the European Constitutionalisation of Values

25 Pages Posted: 27 May 2016 Last revised: 3 Jun 2016

Martijn W. Hesselink

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

Date Written: May 25, 2016

Abstract

According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values.

This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road.

Keywords: CFREU, values, pluralism, horizontal effect, perfectionism, human dignity, freedom, equality, solidarity, democracy, the rule of law, respect for human rights, private law

JEL Classification: K12

Suggested Citation

Hesselink, Martijn W., Private Law and the European Constitutionalisation of Values (May 25, 2016). Amsterdam Law School Research Paper No. 2016-26; Centre for the Study of European Contract Law Working Paper Series No. 2016-07. Available at SSRN: https://ssrn.com/abstract=2785536 or http://dx.doi.org/10.2139/ssrn.2785536

Martijn W. Hesselink (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

University of Amsterdam, Faculty of Law
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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