Description
Book SynopsisGeneral Principles of EU Civil Law focuses on a rapidly developing but still highly controversial area of EU law: the emergence of general principles with constitutional relevance for EU civil law, guiding its interpretation, gap filling and legality control. This study brings to light seven principles in the case law of the Court of Justice of the European Union and in the Charter of Fundamental Rights. Principles 1 to 3 on framed autonomy, protection of the weaker party and non-discrimination are now part of substantive EU law, mainly contract law. Principle 4 on effectiveness, together with the principle of equivalence, is an "old acquaintance" of EU law and has mostly to do with procedures but can also be extended to cover substantive and remedial matters. Principles 5 and 6 on balancing and proportionality are primarily concerned with methodological questions: the first has to do with judicial interpretation and application of EU civil law, the second with legal-political questions on the future of a (questionable) codified or optional EU civil law, in particular sales law. Finally, principle 7 on good faith is still an emerging principle but is gradually gaining importance. This book will allow the reader to understand and to assess the current evolution of EU civil law in days where its autonomous character is increasingly recognised in the case law of the Court, and where the Charter is having a growing impact on its constitutional foundations. About this book 'Professor Reich has written a book that is not merely rich and broad in ambition,but in fact genuinely ground-breaking. In identifying, explaining and analysing seven key principles of EU civil law, he has drawn us a map that will help scholars to find their way through the forbiddingly dense jungle populated by EU Treaty provisions, the legislative acquis and the Court's case law. And, in showing how proudly 'social' much of the EU's protective regulation affecting private parties truly is, he has set a tone that EU policymakers should embrace.' Stephen Weatherill, Jacques Delors Professor of European Law, University of Oxford 'For the private lawyer, probably the most interesting recent development in EU law is the emergence of principles of private law, developed by the European Court of Justice. This phenomenon unfolds in three strands. Firstly, the Court has developed general principles of EU law which are also relevant for private law. Secondly, since the entry into force of the EU Charter of Fundamental Rights (2009) a process of judicial interpretation has started which shows that not a few provisions have a significant impact on private law. In a third wave of innovations the ECJ seems to be willing to develop principles of civil law, in a more restricted sense, playing their role purely within the ambit of private law. In his new book, General Principles of EU Civil Law, Norbert Reich reaches out to these different categories of principles, combining them under one heading and systematising them in a new and original way.' Arthur Hartkamp, Professor of European Private Law, Radboud University, Nijmegen
Table of ContentsIntroduction. What are General Principles of EU Civil Law? 1. An ongoing debate: "principles" vs. "rules" 2. Some preliminary suggestions 3. The express recognition of general principles by the Charter 4. What do we mean by EU civil law: acquis communautaire vs. acquis commun 5. The competence dilemma of EU civil law 6. Why seven principles? Chapter 1. The Principle of "Framed" Autonomy 1. Freedoms framed by law 2. Fundamental freedoms, autonomy and public interest restrictions 3. Freedom of contract as fundamental yet limited right and principle 4. Competition law and autonomy 5. Conclusion: framing of autonomy under welfarism aspects - going beyond the traditional approach? Chapter 2. The Principle of Protection of the Weaker Party 1. Elements of protection of the weaker party 2. Minimum standards of working hours and paid annual leave 3. EU consumer law: information vs. protection 4. Conclusion: generalising the protection of weaker parties and its limits Chapter 3. The Principle of Non-Discrimination 1. "Spill-over" effects of non-discrimination on civil law? 2. Non-discrimination in employment law relations: overview 3. Citizenship: extending the scope of the principle of non-discrimination by primary law 4. Extension of the non-discrimination principle to business-consumer relations by EU secondary law 5. A controversy: unisex tariffs in insurance and conflicts with private autonomy 6. Non-discrimination in access to and treatment in services of general economic interest and in network services: framed autonomy 7. Equal treatment beyond non-discrimination? 8. Conclusion: the varied impact of the non-discrimination principle on civil law relations Chapter 4. The Principle of Effectiveness 1. Article 47 of the Charter and Article 19 TEU: anything new? 2. The "eliminatory" function of the effectiveness principle 3. Effectiveness as a "hermeneutical" principle 4. Effectiveness as a "remedial" principle: "upgrading" national remedies 5. Some examples applying the effectiveness test in EU civil law 6. Primary Union law: rules on competition 7. Compensation for violations of directly applicable provisions of primary Union law 8. The importance of Article 47 of the Charter and Article 19(1) TEU for EU civil law revisited 9. Conclusion: how effective is the effectiveness principle? Chapter 5. The Principle of Balancing 1. Introduction: a dialogue on balancing in EU civil law 2. Balancing in unfair term jurisprudence: transparency, "core terms" and the unfairness test 3. Balancing to avoid "over-protection" 4. Role of Balancing in social conflicts: fundamental rights vs. fundamental freedoms? 5. Conclusion Chapter 6. The Principle of Proportionality 1. Importance of the principle of proportionality for EU civil law: some general remarks 2. The Draft Common Frame of Reference 3. The "feasibility study" and draft Common European Sales Law 4. Open method of coordination, convergence and improved law-making in reflexive contract governance in the EU 5. The "positive proportionality" principle in EU civil legislation: two examples 6. Conclusions on the principle of proportionality as an instrument of legal control and support of EU measures Chapter 7. An Emerging Principle of Good Faith and of a Prohibition of Abuse of Rights? 1. Some misunderstandings about good faith in contract law: elements of a duty of loyal cooperation in contracting 2. Good faith in commercial law settings 3. Directive 93/13 on unfair terms 4. Absence of good faith obligations for the bank in B2C financial services 5. "Co-responsibility" as an indirect good faith-obligation: some examples 6. Elements of good faith in recent soft law initiatives 7. Relevance of Article 54 of the Charter to an EU concept of abuse of rights? 8. Conclusion: good faith on the move? Summary. Seven Theses and a Conclusion Index
