Of Harmonization and Fragmentation: The Problem of Legal Transplants in the Europeanization of Private Law

Abstract

The purpose of this Essay is to re-evaluate the project of private law harmonization via directives in the vocabulary of classical comparative scholarship on legal transplants. The Essay draws on writings according to which the Community legislature, when employing foreign rules for the purpose of harmonising private law, does a job that resonates with that of any other legislature wishing to introduce into legislation rules based on foreign material. For it will have to deal with the extent to which the intended legal transplant can be successfully actualised or otherwise, in relation to favourable or not contextual factors. On the basis of this approach two claims look appropriate. First: that, in shaping and advancing the agenda of private law Europeanization, the actors involved in the Community legislative process pay little attention to a range of adverse contextual conditions that happen to obstruct harmonization. This is what legal comparative analyses that focus on legal transplants would call a ‘misuse’ of the comparative legal method, which typically results, as it does in our case, in the failure of various intended legal transplants. Second: that the Community legislature can learn one important lesson from the teachings of comparative scholarship on legal transplants. That is: there are situations in which contexts, at the receiving end of the legal transplants, are fundamentally at odds with the rules-to-be-transplanted. Although the purpose of harmonization is to narrow down the variety of laws, in such problematic situations the harmonization agenda could be adjusted in relation to the targeted contexts, so as to avoid problems associated with the rejection of various legal transplants. The article suggests a number of context-sensitive techniques available for a legislature committed to avoid ‘misuse-by-legislation’ in as diverse areas as unfair contracting, product liability and guarantees. It is submitted that the ongoing work of the Commission aimed at reviewing a triad of directives (the ‘Product Liability’, ‘Unfair Terms' and ‘Doorstep’ Directives) would be ideal terrain for initiating the required change, if only because of the ample accumulated evidence of the many failures in enforcing key rules contained in each such directive. It is also submitted that the Commission, regrettably, is not at all embracing such techniques. Recent moves towards ‘full harmonization’, such as proposed ‘directive on consumer rights' are criticised in this light.