ECJ case-law as a means of unification of private law?

Abstract

The author emphasizes that the ECJ's case-law may be bold, or even audacious, when it relates to the interpretation of basic Treaty provisions, particularly when the legal protection of the Community rights of individuals is concerned. That is normally not the case, however, where the interpretation of provisions of secondary law, such as directives, is concerned. The observation is important because it explains why, in the view of the author, the ECJ's case-law will have a more substantial impact in the area of extra-contractual liability, i.e. tort law, than in the area of contracts law. For indeed, tort liability is regarded by the ECJ as a crucial remedy for individuals to enforce their rights against Community institutions before the ECJ (Art. 215 EC) as well as, and more importantly so, against all branches or organs of Member States (so-called Francovich-liability) before national courts. The author develops this point in sections B and C of his article, mentioning that sooner or later Francovich-liability might be broadened by the ECJ to include also liability of individuals for breaches of Community law. In the last part of his article the author then assesses the present and possible future impact of the ECJ case law on domestic contracts law in the light of the Uniform Consumer Contract Terms Directive. As said before, he is of the opinion that in the area of contracts law the impact of the ECJ's case-law will be much less important because contractual liability is, under Community law, far from being a remedy of the same significance as tort liability.