Multiculturalism, Europhilia and harmonization: harmony or disharmony?

Ruth Sefton-Green

doi:10.18352/ulr.140

Abstract

This paper examines the difficulties of reconciling the values promoted by multiculturalism with the objectives of harmonization. In the event of conflict, examples from English and French law show that harmonization of private law rules does not always achieve its aim of approximating national laws but, on the contrary, often backfires. The question of whether and why these divergences produce Europhile or Eurosceptic positions amongst Member States is addressed. It appears that when maximum harmonisation clashes with multiculturalism this can lead to legal nationalism, whereas minimum harmonization has less negative effects and can stimulate legal experimentation. It is suggested that harmonization requires a mutual listening and learning process in order to accommodate the multiculturalism of Member States and enable Europhilia to flourish in the European Union.

Highlights

It is easy to conceive of Euroscepticism going hand in hand with the promotion of multiculturalism in the EU
The difficulty lies in being a Europhile and in favour of multiculturalism in the EU
Three preliminary remarks follow to define and explain harmonization, multiculturalism, or cultural diversity, and the challenges presented by the EU

Summary

Introduction

Recital 18 of the directive relating to liability for defective products,[4] states that harmonization ‘cannot be total at the present stage, but opens the way towards greater harmonization’. The degree of this harmonizing measure was clarified by the former ECJ (hereafter the CJEU) in a number of decisions in 2002.5 More recently some directives, such as the Unfair Commercial Practices Directive,[6] contain more hard-core measures of maximum harmonization providing expressly for uniform rules.[7] It follows that objections as to the possibility, desirability and even the efficacy of harmonization will be even stronger with respect to measures aimed towards maximum or total harmonization.[8]. The fifth part, maintaining a Euro-friendly stance, attempts to find a third path enabling us to reconcile and live with our differences, in order to avoid hostility and intolerance induced by a fear that multiculturalism will be eliminated

The linkage between multiculturalism and harmonization

Harmonization does not approximate private law rules: it creates divergences

Harmonization can lead to national resistance engendering legal nationalism

Harmonization leads to a contrapuntal movement

Can disenchantment be overcome?