‘Where Angels Fear to Tread’: The EU Law of Remedies and Codification of European Private Law

Abstract

The article considers the impact of codification of European Private Law on the EU law of remedies. It discusses the ‘culture’ of the existing remedial arrangement in the EU and highlights its main advantages, such as its organic, nuanced and diversified character. It then considers the features and effects of codification and discusses how the operation of the EU law of remedies might be affected by a European codification of such branches of private law as contractual liability, non-contractual liability and unjust enrichment. As for the content of the codified rules, the article looks at the Draft Common Frame of Reference (the DCFR) as the most prominent of the European Private Law codification documents and contrasts the rules proposed in this document and the existing structure of the EU law of remedies. It incorporates in its analysis the recent proposal for Regulation on a Common European Sales Law and explains why its impact on the existing EU law of remedies will be very limited. The article then examines the general threats posed by codifying the law of remedies, in particular the threat of imploding the existing limits of the effectiveness of EU norms in national courts. It argues that any codification proposal should above all be sensitive to the constitutional and institutional arrangement of the EU legal system and respect the division of competences between the Court of Justice and national courts.