Fundamental Rights before the Court of Justice of the European Union: A Social, Market-Functional or Pluralistic Paradigm?

Abstract

As the Court of Justice of the European Union (CJEU) increasingly applies EU fundamental rights to contract law cases, basic assumptions are put to the test. How do fundamental rights change contract law, how do they contribute to its evolution? What, besides the many intricacies of doctrinal structure, is their substantive impact? After the early years of adjudication in this area, several patterns become visible. Taken together, these patterns arguably form components of a general tendency, a unifying paradigm. This chapter seeks to explore those patterns as well as the overall influence that EU fundamental rights have had on contract law to date. The aim is not to argue what the impact should be but to describe what it is, and to put this into context. To do so, it is first necessary to sketch out narratives of fundamental rights, contract law and the economic order at the national level (see section 1). National discussions of the topic have been ongoing for decades and they build the backdrop to the more recent discourse at EU level. While many scholars have assumed that the impact of EU fundamental rights will resemble national developments, related discussions also shed light on possible differences (see section 2). Based on an analysis of the CJEU's adjudication, it will be suggested that the influence of EU fundamental rights takes its own direction and does not simply make contract law more social or more pluralistic but can best be described to follow market logics (see section 3). This, the chapter will then argue, is a result both of particular features of EU law but equally of how the CJEU uses its discretion (section 4). Concluding remarks follow (section 5). NARRATIVES OF NATIONAL FUNDAMENTAL RIGHTS, CONTRACT LAW AND THE ECONOMIC ORDER Over the last two centuries, the implications of fundamental rights for private law have changed, just as the role of the state and the economic order have changed. Well-established narratives suggest that those evolutions were related. In this regard, one can speak of changing paradigms that link up legal developments with broader trends in social theory and practice. In Habermas ‘words, a paradigm’ is discerned primarily in paramount judicial decisions, and it is usually equated with the court's implicit image of society’.