European Private Law Research Articles

Public and Private Enforcement of European Private Law: Perspectives and Challenges

Editorial to the Special Issue on Public and Private Enforcement: Perspectives and Challenges.

Public and Private Enforcement of European Private Law in the Financial Services Sector

Abstract: Particularly in the wake of the global financial crisis, ensuring effective enforcement of the rules governing the relationship between financial institutions and their (potential) clients ranks high on the EU political agenda. Traditionally, such rules were enforced by civil courts at the initiative of one of the parties through the means available within national private laws. Over the past three decades or more, however, the EU and national legislators have tended to resort to the state and its agencies in monitoring the financial institutions’ compliance with their obligations towards the clients and ensuring the optimal level of enforcement. The rise of public enforcement by administrative agencies in the field of European private law for financial services gives rise to many interesting issues. How do financial watchdogs actually ‘manage’ private relationships between financial institutions and their clients? In what way does this affect the development of (European) private law? What role is left for private enforcement, in particular that by the judiciary, in the new reality? How do public and private enforcement interplay with each other? To what extent are the answers to these questions determined at EU level? And what are the major challenges in ensuring effective enforcement in the financial services field? By using the examples from EU law, as well as several European legal systems, this article seeks to address these issues and develop an agenda for further research.

The Internal vs. the External Dimension of European Private Law A Conceptual Design and a Research Agenda

Research on the external dimension of European Private Law is still in its infancy. However it is possible to group the debate around four major observations which seem to hold the external European private law together and which indicate a move: (1) (from) legal rules and (to) legal practice; (2) (from) formal law making and (to) European governance; (3) (from) substantive law and (to) procedural law; (4) (from) private law and (to) trade law. It will have to be shown that the ‘from… to’ by and large corresponds to the distinction between traditional private law and regulatory private law. The paper is meant to set out a research design rather than coming up with proposals for solution.

Liability for Pure Financial Loss: Revisiting the Economic Foundations of a Legal Doctrine

As generally understood in the law and economics literature, the economic loss rule states that a plaintiff cannot recover damages for a pure financial loss. The comparative study of the pure economic loss rule reveals that the recognition and significance attributed to such rule, and to the notion of ‘economic loss’, varies considerably across Western legal systems. Bussani and Palmer analyse the results of an extensive case study on the issue of pure economic loss across all national legal systems of Europe and provide an interesting grouping of the approaches followed by national courts of Europe, describing them variously as ‘liberal’, ‘pragmatic’ or ‘conservative’. The question has emerged in the European context in conjunction with the ongoing search for a common core of European private law and the consideration of a unified European civil code. Comparative legal analysis reveals that the policies and rules governing tortious liability for pure economic loss in Europe are not governed by common principles. Legal systems simply do not share a common approach to this issue. Even those that seek to preclude recoverability of pure financial loss use different definitions and follow different formulations of the problem. An interesting point recently brought to light by comparative legal analysis is that, unlike most other issues in the field of torts, the different approaches on the issue of pure economic loss do not follow the familiar common law/civil law divide.

Hacia los orígenes del derecho civil europeo. Algunas observaciones sobre las relaciones entre pandectística alemana y doctrina civilista italiana en materia de negocio jurídico

<p>La historia del derecho civil italiano del último siglo estuvo marcada por un acontecimiento de gran relevancia: la sustitución de la influencia francesa por la alemana. Sin embargo, esta influencia ha disminuido desde hace algunas décadas. Hoy en día es marcado el interés que la cultura italiana muestra por el modelo angloamericano. A pesar de ello, el estudio de este capítulo fundamental de la reciente historia del derecho privado europeo, al cual podemos denominar “pandectística italiana”, podría facilitar la comprensión de ciertos caracteres estructurales del derecho civil italiano y mantener en vida la conciencia de un aspecto de la cultura iusprivatista que Italia comparte con Alemania y otros países europeos.</p>

Book Review: Nationalism and Private Law in Europe, by Guido Comparato. (Oxford: Hart Publishing, 2014)

Book Review: <i>Nationalism and Private Law in Europe</i>, by Guido Comparato. (Oxford: Hart Publishing, 2014)

Book Review: The Struggle for European Private Law. A Critique of Codification

Book Review: The Struggle for European Private Law. A Critique of Codification

GLOBALIZACIÓN, UNIFICACIÓN DEL DERECHO Y JUECES

This article aims to discuss the role of judges for the unification of contractual law in the European Union. It starts from the assertion that the judicial governance is an institutional answer to the cultural differences part of a globalized market, as well as an answer to the market and the lacks of legislation. At the instance of European private law, it is necessary an uniform regulation, and the most adequate area is the contractual, since it is the less liable to different national regulations. Hence this essay analyzes two typically judicial mechanisms, the preliminary question before the European Court of Justice and the use of European private documents. In sum, the author concludes that only jurists can put order and provide security to the meanings of transactions among consumers and big creditors.

When Law and Culture Collide: The Uniform Application of European Private Law

As a consequence of the current fragmented state of the consumer law acquis in the European Union, the European Commission has indicated its desire to move from away from the harmonisation effort that is achieved through directives towards the realisation of uniform law that can be provided by (optional) instruments. In this article, the cultural barriers to the uniform application of legal transfers within the European Union are considered. Through using Japan as a case study, this contribution constructs a method that can both predict and explain the process that a legal transfer undergoes during its transplantation into a foreign legal order. The constructed model employs an interdisciplinary approach by fusing anthropological and legal theory in order to explain the aforementioned process and has as its starting point the role that cultural obstacles play on the mind and actions of those actors who are in the position to ensure or preclude the correct application of a transplanted legal rule. The article concludes that education is the linchpin in determining behaviour and, consequently, which perspective of the three perspectives generate by the model shall be employed; be it enculturation of traditional cultural values or formal education received in schools, universities and working life. Subsequently it is argued that culture is only as powerful as the weight attributed to a concept within the mind of the actor, the deep structures of law and its link with culture are largely irrelevant; therefore, cleavages in the uniform application of Union law will only continue to transpire for as long as actors continue to perpetuate internalised biases.

Professional Diligence as a Standard in European Private Law

Art. 2(h) Unfair commercial practices Directive 2005/29/EC refers to the 'professional diligence', without making clear what this standard entails. Comparative legal research on the topic of professional diligence shows varying implementation of this legal standard, and the way in which the standard is developed in concrete rules. This leads to several tentative conclusions regarding standards in European private law.

European Private Law: Up in the Air?

This paper compares the existing rights granted to consumers when they purchase services in the EU, whether in a shop or within a distance selling scheme, with the provisions of Regulation 261/2004. While the works on the new European rules on air passengers’ rights are still ongoing it is important to examine what protection measures the air passengers are currently missing that European consumers may already be enjoying while concluding contracts other than for air transport services. Additionally, I will also discuss whether certain air passengers’ rights in Europe and the methods of providing these rights could serve as a model for the further development of European consumer protection measures. The assumption underlying this comparison is that air transport services are just one of many services that European consumers purchase. Conceivably, consumers should enjoy similar, if not the same, protection regardless of the type of service they are interested in. Special justifications, e.g., of an economic nature, could, however, justify the introduction of divergent rules with respect to air transport services. Therefore, where my research indicates such differences in the protection levels of air passengers and consumers concluding contracts other than for air transport services, I will consider whether these differences could be justified due to the need to protect interests of one of the contractual parties or due to the internal market’s objectives.

Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

AbstractThis paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.

Services, Including Services of General Interest

This contribution provides an overview of the law of service contracts in European private law, with a focus on consumer law. In order to present the research on EU consumer and contract law regarding services, I will start with discussing the concept of services as such. This will be followed by a brief overview of current (national) private law doctrine regarding services. Next EU consumer and contract law regarding services is analysed. Finally I will discuss the category of Services of general interest (SGIs).

Wilhelm Brauneder Europäische Privatrechtsgeschichte

Although this is, to the best of my knowledge, the latest addition to studies on the history of European private law, it does not presume to supplant any of the previous works, such as the monumental historical gems of Franz Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer Berucksichtigung der deutschen Entwicklung (1967) and Paul Koschaker, Europa und das Romische Recht (1966). It does, however, give a useful overview (the author refers to it as a Grundriss or outline) of the history of European law in historical context.

Hungarian Case Law Relating to European Private Law (2014-2015)

Hungarian Case Law Relating to European Private Law (2014-2015)

The Struggle for European Private Law: A Critque of Codification, Leone Niglia, Oxford, Hart Publishing, 1st edition, 2015.

The Struggle for European Private Law: A Critque of Codification, Leone Niglia, Oxford, Hart Publishing, 1st edition, 2015.

The rationales of financial inclusion in the changing European private law

This contribution traces the development and the politics of the idea of the inclusion of citizens in the financial market and in particular in the credit market. It shows that financial inclusion is fundamentally meant to perform both an economic and a social function and describes how that idea has been understood and implemented specifically in the multi-level European system. The policy of financial inclusion as understood at the European level is strongly characterized by a market rationale that is mostly concerned with granting access to the credit market and, as is now emerging more clearly, ensuring the stability of that market. The social function remains on the contrary less developed. Given this framework, the negative consequences of the inclusion of citizens in the financial market, which can manifest themselves as a form of social exclusion, have to be faced primarily by the law of the Member States, although this is bound to have repercussions at the supranational level.

Unjust Conduct in the Internal Market. On the Role of European Private Law in the Division of Moral Responsibility between the EU, its Member States and their Citizens

This paper argues that the EU can be held morally responsible for ensuring justice in the internal market. In particular, the EU must prevent and sanction unjust market conduct by private parties through appropriate private law rules and ensure at least minimal protection of the private rights of internal market agents. The EU’s moral responsibility for maintaining justice in the internal market requires an EU discourse of civil justice going well beyond (and at times against) the European Commission’s slogan of ‘justice for growth’. The article first discusses and rejects three potential challenges to its main claim, all of which are based on different alleged divisions of labour, as a result of which it would seem to follow that European private law has no role to play in assuring distributive and interpersonal justice in the internal market. It then outlines how we might arrive at a conception of unjust conduct in the internal market that is compatible with the value pluralism that characterises Europe today. Finally, it explains why the private law acquis, because of the way it is currently constituted, is unlikely already to be in compliance with such standards of civil justice in the internal market.

Systemic and Topical Mapping of the Relationship of the Draft Common Frame of Reference and Arbitration

The work endeavors to blaze a trail to the uncharted relationship of the most meaningful recent product in the area of European private and commercial law – the Draft Common Frame of Reference (DCFR) – and international commercial arbitration. The focus is on three areas of private and commercial law – i.e., sales, franchise and secured transactions (collateral) law (systemic mapping) – and on the specific issues of culpa in contrahendo (liability for breaking the negotiations), remedies for breach of contracts and force majeure (topical mapping). The main findings of the paper are the following:First, as arbitration of sales disputes has become quite normal by now, the DCFR – especially the six-volumes of Comments thereto (Oxford University Press publication) – could turn into a valuable tool of orientation for laws of Europe. Secondly, Europe could learn from the rich experiences of the United States as far as the arbitration of franchise and financial contracts (including disputes related to self-help repossession) is concerned. This is of importance because the DCFR is recommending introduction of business format franchise as a nominated contract and out-of-court enforcement (self-help) as important building block of a new secured transactions law for Europe; both essentially stemming from the United States.Thirdly, primarily due to the backpedaling of the European Union, however, the advancement of the DCFR as a tool for arbitrators is doomed to be very slow. One of the problems is that, save some isolated efforts, nobody is really working on spreading the information on the DCFR, in particular in arbitral circles. Fourthly, the DCFR (esp. the Comments) might prove to be, however, a valuable tool for comparatively oriented scholars and for teaching European private and commercial law. Last but not least, perhaps the most important contribution of the DCFR are enshrined in Book IX and X, the two clearly most forward-looking parts of this soft law instrument. Inherent in these are two important recommendation for Europe: while the message of Book IX is that Europe should embrace the unitary model of secured transactions law originating in Article 9 of the Uniform Commercial Code, Book X stresses the need of the introduction of the concept of ‘trust.’

Public Policy Exceptions in European Private Law: A New Research Project

Abstract: Public policy exceptions arguably exist in all fields of private and commerciallaw, not only in private international law but also in substantive law. In substantive private law, the term 'public policy exception' could be used to indicate general illegality rules that make an act of private autonomy (a contract, a testament, etc.) invalid when it conflicts with public policy or good morals. In primary EU law, one may call 'public policy exceptions' the derogations from the four freedoms for reasons of public morality, public policy, public security, or public health. Like the ordre public exceptions in private international law, the public policy exceptions in substantive private and commercial laws can also be seen as conflict rules. In fact, the public policy exceptions in substantive private law address the conflict between state regulation and policy, on the one hand, and private (self-)regulation and policy, on the other hand. Moreover, the public policy derogations from the four freedoms regulate the conflict between EU and national law and policy. A long-term research project initiated in Groningen aims at a cross-cutting comparison of interpretations and applications of concepts that function as public policy exceptions in different branches of substantive, international, and EU private and commerciallaw. In particular, this project aims at discovering and comparing the governance aspects, the fundamental rights based aspects, and the social justice aspects of these interpretations and applications. Resumé: On trouve sans aucun doute des exceptions d'ordre public dans tous les domaines du droit privé et commercial, non seulement en droit international privé mais aussi en droit matériel. En droit privé matériel, le terme 'exception d'ordre public' pourrait être utilisé pour indiquer des règles générales d'illicéité invalidant un acte d'autonomie privée (un contrat, un testament etc.) lorsqu'il est contraire à l'ordre public ou aux bonnes mœurs. Dans le droit primaire de l'UE, on peut appeler 'les exceptions d'ordre public' les dérogations aux 'quatre libertés' pour des raisons de morale publique, d'ordre public, de sécurité publique ou de santé publique. Comme les exceptions d'ordre public en droit international privé, les exceptions d'ordre public en droit privé matériel et commercial peuvent aussi être considérées comme des règles de conflit. En fait, les exceptions d'ordre public en droit privé matériel traitent le conflit entre la réglementation et la politique publiques d'une part et l'(auto-)réglementation et la politique privées d'autre part. De plus, les derogations d'ordre public aux 'quatre libertés' règlementent le conflit entre le droit et la politique au niveau national et au niveau de l'UE. Un projet de recherche à long terme lancé à Groningen vise à établir une comparaison transversale d'interprétations et d'applications de concepts fonctionnant comme exceptions d'ordre public dans différentes branches de droit matériel, international et de droit commercial et privé de l'UE. Ce projet tente en particulier de découvrir et de comparer les aspects de gouvernance, les aspects basés sur les droits fondamentaux et les aspects de justice sociale de ces interprétations et applications.