Europäisierung des Privatrechts - Zwischenbilanz und Perspektiven: Achte Tagung der Gesellschaft Junger Zivilrechtswissenschaftler Mainz, 10.-13. September 1997

Abstract

On the occasion of its Eight Annual Meeting (Mainz, September 1997), the Society of Young Researchers in Civil Law tried to sum up the present-day discussion on 'Europeanisation of Private Law'. In the context of German legal scholarship, necessity and desirability of this process are still controversial even among younger authors. In the continental tradition of strict separation of public and private law, the EC remains a phenomenon to be described and controlled in terms of constitutional law. The actions of such a phenomenon with reference to private law relationships, therefore, appear as necessarily isolated and a dangerous interference with sovereignty and with the civil law system so fundamental to lawyers' state of mind. However, the economic and political necessities of market integration cannot avoid reshaping even basic structures of general private law (e.g. in the field of consumer protection). The very aim of the treaties is a continuous growth of general welfare within the legal community of Europe; the key mechanism to achieve that aim can be seen in the full release of private freedom and entrepreneurship. There can now can be observed, in EC law, complex and multipolar relationships between private parties, States, and the Community (e.g. in the well-known issue of directives' horizontal direct effect). This situation is not likely to be explained sufficiently by recourse to the fixed and formal sub-ordination structures of nineteenth-century rooted public law. Accordingly, the congress opened with reflections on the general question of competition or unification of legal orders in Europe. This basic feature emerged also in many contributions to specific problems. The congress continued with historical and comparative presentations. The crucial issue under all these perspectives is how to find models apt to meet the requirements of an unprecedented harmonisation process. Certain fields of substantive law were at the centre of the following lectures, especially Labour, Company, and Competition Law. Unfair competition and merger control was also discussed in a round table with renowned representatives of legal practice. The final contributions concerned Private International Law and methodological problems in European Law. The last mentioned aspect is of outstanding importance also for the current debate on the reform of legal studies in Germany. The bulk of knowledge tested in the state examinations has become too great; it even hampers a structural understanding of law. It could be, however, just the links of EC law to foreign legal systems and to other sciences that introduce the student to the inherent openness and incompleteness of law. Method will again turn out to be the only key to a high-level legal argument and practice, as it has always been. In the light of such developments, a further harmonisation of private law should be 'tolerable' even from the continental, systematic, point of view.