Abstract
This article aims to demonstrate and identify principles derived from primary legislation which govern European contract law. This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation. However, the view taken here is that not all ‘primary principles’ are shaped to integrate secondary legislation dealing with contract law. Only proportionality, effectiveness and, to some extent,non-discrimination prove appropriate in the context of contract law. The first part of the article supports the view that these principles have been used to remedy limits in European legislature competences in contract law. Part two takes the view that the principles have been used by the European Court of Justice as a tool of contractual policy making.
Highlights
According to Giuseppe Mazzini, ‘[i]n politics, as in any other field, a principle inevitably leads to a system, a series of consequences, a process of applications easy to anticipate for persons with common sense’.1 This assertion certainly applies to European contract law
This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation
The aim of this article is to demonstrate the important role played by the European Court of Justice (ECJ) in such a process
Summary
According to Giuseppe Mazzini, ‘[i]n politics, as in any other field, a principle inevitably leads to a system, a series of consequences, a process of applications easy to anticipate for persons with common sense’.1 This assertion certainly applies to European contract law. Its use in the framework of European contract law is the result of ECJ practice It was soon integrated in Directives dealing with contract law, especially due to the fact that Member States were left to choose remedies independently.[7] As its effect on contract law is presented in detail elsewhere,[8] this principle is not discussed in depth here. Communautaire example can be taken from the 2011 proposal for a Regulation on a Common European Sales Law where remedies offered for non-conformity of goods are no longer subject to a hierarchy In this context, the principle of effectiveness would give judges the opportunity to apply the most appropriate remedy.
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