The Instrumentalist Conception of the Acquis Communautaire in Consumer Law and its Implications on A European Contract Law Code

Abstract

Countering the frequent assumption that the European consumer contract law directives could provide the hard core of a future European contract law code, this article argues that the instrumentalist conception of European consumer law, which is biased towards market integration, is fundamentally incompatible with the classic conception of private law, which aims at realising justice among the parties. This thesis is first expounded in a brief sketch of the societal development of modern private law and then illustrated by three examples drawn from the jurisprudence of the European Court of Justice. These downsides notwithstanding, this article concludes that a desirable shift of European private law back to a more justice-oriented conception might be facilitated by a European code provided that a set of legitimacy conditions were observed in its drafting and application.