Is there a European law and economics? A reflection on identity, method, and national traditions

Over the course of the last few decades, the European legislature has adopted a total of 18 Regulations in the area of private international law, including civil procedure. The resulting substantial legislative unification has been described as the first true 'Europeanisation' of private international law, and even as a kind of 'European Choice of Law Revolution'. However, it remains largely unclear whether the far-reaching unification of the 'law on the books' has turned private international law into a truly European 'law in action': To what extent is European private international law actually based on uniform European rules common to all Member States, rather than on state treaties or instruments of enhanced cooperation? Is the manner in which academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or, rather, is the actual application and interpretation of European private international law still influenced, or even dominated, by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law? In bringing together academics from all over Europe, How European is European Private International Law? sets out to answer - for the first time - these crucial and interrelated questions. It sheds light on the conspicuous lack of 'Europeanness' currently symptomatic of European private international law and discusses how this body of law can become truly European in character in the future. With contributions by Jürgen Basedow (Max Planck Institute for Comparative and International Private Law), Paul Beaumont (University of Sterling), Sabine Corneloup (University Paris II, Panthéon-Assas), Gilles Cuniberti (University of Luxembourg), Agnieska Frackowiak-Adamska (University of Wroclaw), Stéphanie Francq (University of Louvain), Pietro Franzina (University of Ferrara), Jan von Hein (University of Freiburg), Michael Hellner (Stockholm University), Eva-Maria Kieninger (University of Würzburg), Thomas Kadner Graziano (University of Geneva), Xandra Kramer (Erasmus University Rotterdam), Johan Meeusen (University of Antwerp), Pedro A. de Miguel Asensio (Complutense University Madrid), Dário Moura Vicente (University of Lisbon), Marta Requejo Isidro (Max Planck Institute for Procedural Law Luxembourg), Giesela Rühl (University of Jena), Alix Schulz (Heidelberg University) and Marc-Philippe Weller (Heidelberg University).

National Traditions and European Community Law : Margarine and Marriage by Elies Steyger. Dartmouth Publishing, 1997, 252 pp + Indexes, Tables + Bibliography 33 pp. Get access Helen Toner Helen Toner Search for other works by this author on: Oxford Academic Google Scholar Yearbook of European Law, Volume 17, Issue 1, 1997, Pages 719–721, https://doi.org/10.1093/yel/17.1.719 Published: 01 November 1997

It has been suggested recently by several scholars that the ideas of Friedrich von Hayek should play a prominent role in shaping the future of European private law. This paper examines what we can learn from Hayek for the further development of European contract law. Hayek rightly underlines that law is a contingent phenomenon, historically grown in response to needs of a specific society. This means that we should be suspicious of universalism and strong functionalism (related to strong pragmatism). Whatever the future of European contract law should look like, it would be wrong to think that we could start designing it with a clean slate. Therefore, the drafters of the CFR have been rightly inspired by the existing national, European and international traditions. One of the most fundamental insights from Hayek's work (already centrally present in The Road to Serfdom) is that of our incurable ignorance and its implications for the limits of central planning. This insight certainly also affects private law although not necessarily in the ways suggested by some of his contemporary followers. Also, Hayek's warnings against nationalism are still most relevant today. Finally, he rightly reminds us that we should not be unduly impressed by the scientism of the economic analysis of law that is based on the illusion that welfare consequences for individuals of legal rules, including those of the consumer acquis or the CFR, can be measured and compared. What we should certainly reject, however, is Hayek's totalitarianism. His all or nothing approach has no empirical basis; it is completely detached from reality. The implication is dramatic. If the only argument for a spontaneous order is that it will save us from totalitarianism then there is little reason to adopt Hayek's spontaneous order. A mixed economy of the kind that we are familiar with in Europe is much more attractive. However, as Posner has pointed out, on the crucial question of what would be the right mix Hayek had hardly anything to say, and he also uttered precious little on the kind of contract law (how much freedom?) such an economy would need. Therefore, a democratically designed contract law drawn up by a legislator inspired by the private laws in Europe as they have grown organically, but making its own choices on the issues that it deems socially most important, seems to be a much better way forward for Europe than a spontaneous order.

Law and Economics can be considered the most exciting development in legal scholarship in recent decades. The application of economic methodology to legal concepts and institutions has become a major issue in North America, but the importance of the economic approach to law is also steadily growing in Europe. One could not think of better evidence for the existence of a growing European Law and Economics movement than this bibliography, which lists more than 700 publications in languages other than English. In this introductory essay I consider the ways in which the European Law and Economics movement differs from its American counterpart.

The article is devoted to the study of the peculiarities of international legal regulation of the right to be forgotten on the Internet as an independent legal category. The author examines the origins of the concept of «right to be forgotten» or «right to erasure» in European law. The current state of international legal regulation of the right to be forgotten on the World Wide Web is analyzed. The author divides international acts in this area into two groups: 1) documents specifically devoted to the protection of personal data; 2) treaties recognizing the right to privacy as a component of a fundamental human right. Special attention is paid to the study of challenges and problematic issues that impede the unification of norms on the right to be forgotten at the global level. The author analyzes the approaches to the recognition and interpretation of this right by the states of the world. The author emphasizes the significant differences caused by the peculiarities of their legal systems, law enforcement practices, specifics of culture and national traditions. The author analyzes the difference between the European approach which recognizes the superiority of the right to privacy over freedom of expression and the American approach which interprets freedom of speech extremely broadly. Jurisdictional risks in the area of the right to be forgotten are investigated. The issue of the territorial effect of data deletion orders is currently unresolved. The Court of Justice of the European Union leaves this to the discretion of the Member States, without obliging companies to delete information in search engines outside the country in which the relevant decision was made. In addition, there is a threat of non-recognition of court decisions by third countries and, as a result, their non-enforcement. The author analyses the need to strike a balance between the protection of the right to privacy and the right to freedom of speech in the light of the case law of the European Court of Human Rights and the Court of Justice of the European Union. The article also examines the challenges associated with the automation of the data de-indexing process. The author highlights the threat of abuse of the right to be forgotten by public figures in order to conceal information of public interest, as well as the risks associated with the automatic deletion of certain information.

This paper begins by briefly outlining private law’s evolution alongside the emergence of the Nation States; it then aims to set out the mutual influence of these concepts on national culture, tradition and identity in order to highlight the significance of the political, economic and legal as well as social and cultural contexts in which the processes of integration and Europeanisation occur. Against this background, the scope for European private law to emerge as a plural, multi-level construct and a dynamic endeavour is recognised. Building on this analysis of the significance of the diversity and commonality of cultures, traditions and identities in national private law development, institutionalised at the Union level in the principle of unitas in diversitate, the paper explores the need for a single, common European notion of culture, tradition or identity. This examination is undertaken with reference to an example, namely the evolution of the concept of consumer, from its national foundations to its engagement in Union legislation and CJEU jurisprudence. Drawing conclusions as to the need for such a common, European concept, the paper advances a plea for the recognition of a shift in the perspective of legal development, to one which acknowledges the dynamic evolution of private law within a pluralist, multi-level regulatory construct.

In Europe's multilayered constitutional arrangements, the work of national courts is increasingly influenced by directives and regulations of the European Council and Commission and decisions of the Court of Justice of the European Union and the European Court of Human Rights or Strasbourg Court as it is generally identified. Examined in this article are the recent efforts by courts in Germany, France, Italy, and the United Kingdom to keep pace with developments in European human rights law, especially the decisions of the Strasbourg Court, dealing with asylum and immigration. By focusing on recent decisions dealing with asylum and immigration issues, this article reveals the variety of approaches taken by courts in Europe to harmonize national law with international human rights law and concludes that the decisions that contributed most to the expansion of judicial power in this domestic policy area were those invoking principles of European human rights law to bolster the protection of rights that were already part of the national constitutional tradition.

Long analyzed as biopolitics, the regulation of population always entailed geopolitics as well, although tracing the connections and separations of these strands across time, and across political cultures, is not easy. To appreciate the many dimensions of population in world history, a new approach is needed; something like an integrated and global gendered political economy of population. Considered at a global level, the eighteenth and nineteenth-century expansion of Europe was both demographic and geographic. The politics of fertility decline as it played out in international and racial relations has received much historical analysis, and within many different national traditions. The fertility decline has been read as depopulation. Imperial German scholars and statesmen had been deeply interested in population density, overpopulation, before and during the First World War. European demographic history was the main focus for European and non-European economists, both the massive population growth of the nineteenth century and the localized fertility declines.

When drafting the Principles of European Tort Law (PETL), the members of the European Group on Tort Law decided to omit wrongfulness as a specific requirement for civil liability, considering it as a concept underlying the notions of interference with legally protected interests and the standard of conduct. This paper tends to demonstrate that this terminological and conceptual choice is still valid eighteen years after the publication of the PETL. On the basis of two case studies examined under German and French law, it is suggested that national traditions are too disparate to adopt a common understanding of what wrongfulness exactly means to a tort lawyer in Europe. The irreconcilability of the different interpretations becomes particularly apparent in mixed tort law systems, such as Japan or Belgium, where the French and the German approach struggle to coexist.

The book brings together contributions to theorising comparative public law in order to highlight its distinctive features. Nationality was an important criterion in the selection of the many possible contributions. This is because the presentation of contributions from Germany is the second aim of this work. Comparative constitutional law (as well as international law or European public law) is still characterised by national traditions and contexts. Taking these traditions and contexts into account, however controversial they may be, helps to create a transnational but rooted field of comparative public law. Such rootedness is valuable in a world that celebrates diversity and self-determination.

The adoption of Bill 21, which bans religious symbols for civil servants in Quebec, has stirred considerable debate politically and constitutionally in the province and in the rest of Canada. Neglected, however, has been a more in-depth analysis of how international human rights law often serves as an implicit frame of reference for many of the debates surrounding Bill 21. This essay focuses, in particular, on the invocation of the case law of the European Court of Human Rights, which seems to have validated bans of religious symbols in various contexts. It gives an overview of that jurisprudence and specifies the parameters within which it operates, emphasizing the complexity of translating a supranational case law into a domestic debate. It argues that whilst Quebec is less alone in banning religious symbols than is sometimes argued, the European case law needs to be handled carefully. In particular, the essay emphasizes the importance of the so-called “margin of appreciation” as heavily impacting the outcome in those cases. Although the margin suggests that there is national leeway in adopting bans based on certain national traditions and specificities, it hardly opens the door to all bans. Rather, the margin emphasizes the significance of divergences between states parties on an issue and respect for procedural safeguards. The essay concludes with some thoughts on how importing human rights arguments out of context can be perilous, but also about how the margin itself may be problematic.

Twenty years have passed since the new Family Code of the Russian Federation (RF), which has become the key source for family law in Russia, was signed into law. During this period, the Family Code has frequently been criticized by experts on the administrative and judicial practice of civil jurisprudence. Legislators have begun to pay attention to these experts’ assessments of the law to determine what reforms may be necessary. The purpose of this paper is to analyze the current problems with Russian Family Law by drawing upon the experience of both European Family Law courts and the Russian legal system.

Lost in Translation? Bill 21, Human Rights and The Margin of Appreciation

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The European Commission has ‘launched a reflection on the opportuneness, the possible form, the contents and the legal basis’ of ‘non-sector-specific-measures’. That sounds tentative, thoughtful, scrupulous, and, it must be said, opaque. What is a nonsector-specific-measure (NSSM)? What is to be launched so cautiously, camouflaged behind this new jargon? Launching a NSSM does not sound so very risky, not as dangerous as, say, weapons of mass destruction (WMD). So why engage in circumlocution, hesitantly testing the waters, while pondering such questions as opportuneness and legal basis? In truth, NSSM, once stripped of its distracting multiple hyphenation, is code for nothing less than a European Code. ‘Non-sector-specific’ means a general law, applicable to all market transactions in Europe. What is being considered is a code of contract law, broadly conceived, perhaps as a first step to a wider codification of private law. One suddenly understands the Commission’s need for reflection and camouflage, whilst reflecting on whether they can get away with it (opportuneness), and how to explain that it is even constitutional (legal basis). This proposal is contemplating what would amount to a kind of mass destruction, that is destruction of the national private law traditions of every Member State and their replacement with uniform laws. In the light of these developments, however, it is certainly opportune for us in this special issue to consider the future of European private law. Opinions of legal scholars about these intimations of the future for private law express the widest possible spectrum of reactions, from infectious enthusiasm to fierce hostility. The issue does not simply divide opinion between European integrationists and Euro-sceptics, but also creates fissures within and between the political left and right. Without attempting to encompass the whole spectrum of views, the essays in this special issue share the starting-point that beneficial European integration may require further legal measures for facilitating trade within the internal market. But it is also common ground that these further legal measures cannot be regarded as some mere technical problem to be overcome by experts. European Law Journal, Vol. 10, No. 6, November 2004, pp. 649–652. © Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA