Law at, to or from the Centre? The European Court of Justice and the Harmonization of Private Law in the European Union†

Abstract

This chapter analyses the contribution of the Court of Justice to the harmonization of private law through the lens of the Court's rulings on Directives in the field. In particular, the implementation of such Directives by Member States is discussed, in the context both of the Court's rulings under Article 226 EC as to the adequacy of these implementation measures and their enforceability in national law via the doctrine of direct effect. Further, the use of such Directives as an interpretive guide to the development of national law is also considered, again focusing upon the obligations upon national law and national courts to secure the application of these EC law rules in the national legal order. The structure of how cases get to the Court is also considered, as are other factors which may have an impact upon how (and how many) cases arrive at the Court of Justice on such matters, and from which jurisdictions. It is argued that the Court's case law has significantly narrowed the discretion of Member States in the implementation of such Directives into national law. Specific and comparative examples from the UK and Germany are employed (from the Unfair Terms in Consumer Contracts Directive and the Consumer Sales and Associated Guarantees Directive and their respective implementation) to develop these points and to illustrate the structure within which these forces operate.