Principles of European Private or Civil Law – A Reminder of The Symbiotic Relationship Between the ECJ and the DCFR in a Pluralistic European Private Law (original) (raw)
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The prospect of a constitution for Europe sheds a new light on, and transforms the parameters of, the debate over the future of European private law. Today, among many private lawyers and comparative lawyers, a consensus seems to prevail that 'a serious effort must be undertaken to develop a common core of European legal principles and rules, to engage in the construction of a European legal lingua franca'. 1 Here I propose a different perspective on the issue of the Europeanization of private law by addressing the following questions: How should private law and constitutional law be interrelated in the new European multi-level system? What should an 'alignment' 2 of private law to constitutional principles recognised in Europe look like-in particular, does the integration of private law into the broader aspirations of the new Europe require a code? Start with the idea-familiar from domestic legal systems-that constitutional law not only gives rise to a 'protective function of the state' 3 or 'positive obligation of the state' 4 to develop private law with due regard constitutional values, but that it is also
Cambridge Companion to European Union Private Law
2010
The emergence of EU private law as an independent legal discipline is one of the most significant developments in European legal scholarship in recent times. In this Companion, leading scholars provide a critical introduction to the subject's key areas, while offering original and thought-provoking comment on the field. In addition to several chapters on consumer law topics, the collection has individual chapters on commercial contracts, competition law, non-discrimination law, financial services and travel law. It also discusses the wider issues concerning EU private law, such as its historical evolution, the role of comparative law, language and terminology, as well as the implications of the Common Frame of Reference project. A useful 'scene-setting' introduction and further reading arranged thematically make this important publication the student's and scholar's first port of call when exploring the field. Christian Twigg-Flesner has researched and written on aspects of EU private law, particularly consumer law, for over a decade. He is also a member of the Acquis Group, which has worked on the principles of existing EC private law and contributed to the Draft Common Frame of Reference on European contract law. Dr Twigg-Flesner has taught EU private law both at the University of Hull and abroad, having been a visiting professor at the German universities of Bielefeld, Mü nster and Osnabrü ck. He is a widely acknowledged expert on the subject and has been consulted by government departments, the Law Commission and parliamentary select committees.
DESC - Direito, Economia e Sociedade Contemporânea, 2018
Is there such a thing as European private law, a set of rules of EU law distinguished by the binary opposition public and private law? This article aims to shed light on the debate over the rise and the fall of the classic concept of private law and how the legal consciousness of the latter enhanced the legal awareness of European private law. Philosophy and sociology of law claim reasons in the search for answers, from a metaphysical and epistemological points of view. Furthermore, the reality of private law in practice put the ancient concepts in challenge by the phenomena of transnationalization of Law. Globalization, europanization, and the privatization of private Law are factual claims against the persistence of the classic concept of private law. These categories reveal the inconsistences between the theory of will in books and law in practice, suggesting that pluralism can face the lack of sense of a universal model of private law to all the realities involved in the European Union. The belief that the harmonization (or systematization) of national Civil Codes at the European level would lead to the coherence of private law is one of the bases to a final question about the extent to which the persistence of the classic concept of private law among legal scholarship is still an obstacle to the effectiveness of EU integration through the combination of public and private enforcement.
European Private Law In-Formation
CITTADINANZA EUROPEA (LA), 2000
The paper focuses on the issue of the Union’s legitimization, looked at from the point of view of the new constitutional architecture set up with the Lisbon Treaty, thus putting emphasis on the need for a broader and deeper community among the peoples of Europe, in the light of a true common citizenship at European level.
The harmonisation of European Private Law
Hart Publishing eBooks, 2000
List of Contributors xiii 1. The Harmonisation of Private Law in Europe: Some Misunderstandings viii Contents 3. The structure of private law 4. Demarcation between contract and property law 5. Legal reasoning and harmonisation: from an axiomatic to a postaxiomatic stage 4. The Debate on a European Civil Code: For an "Open Texture" 63 Anthony Chamboredon 1. Introduction 2. An indictment against a European civil code 2.1. The traps of stereotype and "retrodiction" 2.1.1. A stereotype of a Civil Code A. A caricature of a Civil Code 67 B. A "de-dialectised" Civil Code 68 2.1.2. Traps of "retrodiction" A. A hypothetical "retrodiction" B. The taking-up of historical discourse 2.2. Codification and jurisprudentialisation, or the oscillation and fragmentation of the sources of law 2.2.1. The development of a kind of codification in the common law A. The historical evolution of the sources of law: towards a codification? B. With nuances 2.2.2. The "jurisprudentialisation" of the French Civil Code A. The classical model of the French Civil Code: an "official fiction" B. Case Law, an "unofficial" legal source of the French Civil Code _ 3. A plea for the idea of a European contract code with "open texture" 3.1. Topicality of a codification 3.1.1. Why a codification? A. The perils of a decodification B. The meaning of codification 3.1.2. The limits of the current French coordination model of "codification" A. Methods of codification B. Limits of the method of reordering existing law 3.2. For a European contract Code with "open textured rules" 3.2.1. Doctrinal contributions to a Contract Code with "open textured rules" Contents ix A. A common concept: "open textured European legal rules" 89 B. Two examples: the "Unidroit principles" and the "Lando Commission" 91 B.I. Unidroit 91 B.2. The Lando Commission 92 3.2.2. Case law's contributions to a European Contract Code with "open textured rules" 92 A. A common case law interpretation between form and substance 93 B. The "open texture" conception and the restraints in interpretation 94 B.I. The creation of "open textured rules" by the European judges 94 B.2. Open texture and restraints in interpretation 95 4. Conclusion 97 5.