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)

The development of research on European Private law has accelerated massively in the last decade. While in the past EU law has been largely associated with issues of what in national legal systems is referred to as Public law, its increasing Private legal dimension becomes vividly illustrated on several accounts. Major part of the discussion has evolved around the question whether there are certain European principles of Private law, their composition and legal value, which will not be recalled here. The aim of this piece is to switch the attention of this debate to an institutional question. The question who ‘detects’ these principles of European Private law was long neglected and started to raise attention only recently, after the Draft Common Frame of Reference (hereinafter DCFR) has been published. I will first provide some terminological clarifications (I.), before I introduce the significance of the authority question who detects principles of European Private law with regards to the two players ECJ an the the academic circle “Joint Network on European law” (hereinafter the Network) (II.). According to these findings, I will then analyse the role of these players. Shall private law principles (that are principles derived from the analysis of contractual relationships by academics) or principles of civil law (derived from conflict solution by judges), govern the principles debate in European Private law? (III.) In my conclusion, I will argue for a pluralistic understanding of European Private law, where neither academia nor the ECJ enjoy a monopoly on the detection of principles in European Private law. Instead, they form a symbiotic relationship in several respects. European Private law as part of European law derives from a multiplicity of sources, where each actor of the ‘European legal society’ takes part. Understood in this way, the DCFR’s role as a toolbox for the legislator is supplemented with its maybe even stronger significance as a toolbox for judges (IV.).