Directives and Private Law

Abstract

INTRODUCTION A great deal of European (private) law is embodied in secondary European legislation, that is, in directives and regulations. A regulation ‘shall be binding in its entirety and directly applicable in all Member States’ (Art. 288(2) TFEU). So it has direct effect with respect to anyone to whom it is addressed, regardless of whether it is a public body or an individual. In the wording of the ECJ ( Prosciutto di Parma , C-108/01, paragraphs 87–89): ‘a regulation (…) creates not only rights but also obligations for individuals, on which they may rely against other individuals before national courts. Nevertheless, the requirement of legal certainty means that Community rules must enable those concerned to know precisely the extent of the obligations which they impose on them’. A directive, on the other hand, ‘shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’ (Art. 288(3) TFEU). Regulations will be discussed in the next chapter. This chapter is devoted to directives in the area of general private law (excluding family law and the law of succession). I will deal in turn with the operation of directives in private law (section 2), with the general aspects of the directives that are relevant to private law (section 3) and with some interpretation issues (section 4). The substance of the directives referred to here is briefly summarised in Chapter 7 (no. 235 ff.). I will not discuss the possible legal bases for directives in the TFEU. I have only one observation on the subject. Practically all directives in the area of general private law are based on Article 95 EC (formerly Art. 100A EC, currently Art. 114 TFEU); some older directives (product liability, doorstep selling, commercial agency and consumer credit) are based on Article 94 EC (formerly Art. 100 EC, currently Art. 115 TFEU). These treaty provisions regulate the approximation of such laws, regulations or administrative provisions of the member states ‘as directly affect the establishment or functioning of the internal market’ (Art. 115 TFEU) or as ‘have as their object the establishment and functioning of the internal market’ (Art. 114 TFEU), respectively.