More Consistency and Legal Certainty in the Private Law Acquis: A Plea for Better Justification for the Harmonization of Private Law

Abstract

The use of Article 114 TFEU to harmonize private law seems to be based on standard justifications that have facilitated legislative practices that may undermine the quality of the private law acquis. Arguably, better justification might limit these practices. Firstly, better justification entails exploring more thoroughly which aim should be pursued by the harmonization of private law, and to make this aim explicit in directives reforming and repealing older directives. Secondly, better justification of the degree of harmonization would have been based on a careful analysis of which degree of harmonization should be pursued in what cases, rather than choosing a degree of harmonization, and abandoning it if disadvantages emerge. Moreover, a careful analysis of the advantages and disadvantages of the different degrees of harmonization might prompt a reconsideration of maximum harmonization, especially in rapidly developing areas. Thirdly, better justification would involve consideration of which aims blanket clauses in the acquis are to pursue, whether they are likely to further flexibility and fair decisions, and which disadvantages may arise from the use of blanket clauses. Also, there would be more attention paid to the availability of a hierarchical court structure and enforcement mechanisms, as these elements may significantly affect the effectiveness of blanket clauses.