More Consistency and Legal Certainty in the Private Law Acquis: A Plea for Better Justification for the Harmonization of Private Law

AuthorEsther van Schagen
Publication Date01 Mar 2012
19 MJ 1 (2012) 37
E  S*
e use of Article 114 TFEU to harmonize private law seems to be based on standard
justi cations that have facilitated legislative practices that may undermine the quality of
the private law acquis. Arguably, better justi cation might limit these practices. Firstly,
better justi cation entails exploring more thoroughly which aim should be pursued by the
harmonization of private law, and to make this aim ex plicit in directives reforming and
repealing older directives. Secondly, better justi cation of the degree of harmonization
would have been based on a careful analysis of which deg ree of harmonization should be
purs ued in what ca ses , rathe r than c hoosi ng a de gree of harm oniza tion, and aba ndoni ng it
if disadvantages emerge. Moreover, a careful analysis of the advantage s and disadvantages
of the di erent degrees of harmonization might prompt a reconsideration of maximum
harmonization, especially in rapidly developing areas.  irdly, better justi cation would
involve consideration of which aims blanket clauses in the acquis are to pursue, whether
they are likely to further  exibility and fair decis ions, and which disadvantages may arise
from the use of blanket clau ses. Also, there would be more attention paid to the availability
of a hierarchical court structure and enforcement mechanisms, as these elements may
signi cantly a ect the e ectiveness of blanket cl auses.
Keywords: blanke t clauses; competence; European private law; harmonizat ion; internal
* Esther van Sc hagen is a PhD candidate i n the Department of Pr ivate Law at Tilburg University.
Esther van Sc hagen
38 19 MJ 1 (2012)
Competence is not usually ass ociated with private law, as is clear from the seminal work
of Scholten1 on Dutch private law, which expressly states that t he private lawyer does not
concern himself wit h the question of who may legislate on private law.  is point of view
takes the general legi slative competence of the national legislator as a starting poi nt. A er
all, when the legislator has established a Civil Code, questions on competence should
already be answered. Yet, since the 1980s , the existence of a Civil Code no longer means
that questions of competences have been dealt wit h. Instead, small pa rts of the competence
of the national legislator have been real located to the European level as t he European
Union has harmonized parts of private law to further the internal market. Gradually, as
the private law acquis continues to expand, the presu mption that private law need not
concern itself with quest ions on legislative competence has become less adequate.
is article will start by discussing the competence to streng then further the internal
market, as laid down by Ar ticle 114 TF EU,2 its limits, and its u se in the harmonization of
private law.3 Althoug h the wide legislative competence of the Union under Ar ticle 114 TFEU
need not be problematic as such, the current use of th is legal basis is problematic. Under
Article 114 TFEU, poorly justi ed harmoniz ation of private laws has developed. Notably,
the justi cations used for the harmonization of private law – fu rthering the internal
market and furthering consumer con dence – seem to have become standard formulae
that could be used for the har monization of any area of private law.  is article will argue
1 P. S cho lten , Algemeen Deel (Tjeen k Willink, Zwol le 1974), nr.1, p.1: ‘Wel kan het we er een vraag
worden welk gezag tot de v aststellin g van de regel bevoegd is en wa arom die de bevoegdhe id bezit, doch
met deze vrage n houdt, wie privaatrecht b eoefenen wil, zich nie t bezig; dat zijn vrage n van staatsrecht.’
(‘Although it is possible to ask w hich authority is competent to e stablish a rule, and w hy that authority
is competent, thes e questions do not concern private law yers; these are public law ques tions.’ [present
author’s translation]).
2 is article wi ll focus on Article 114 TFEU, as this i s the most frequently used a rticle for harmoniz ing
private law.  at is not to say that furthering the internal market should ideally be the only reason
for harmonizat ion of private laws. Of course, other ar ticles, such as Article 352 TFEU, may become
increasingl y relevant if the Union would cho ose to enact an optiona l instrument. Not ably, there is some
overlap between Ar ticles114 and 169 TFEU. S. de Vries, Tensions within the internal market (European
Law Publishi ng, Groningen 2006), p.279, states t hat by referring to Art icle114 TFEU, Article169 para.
2 subpara. (a) TFEU sanct ions the use of Ar ticle114 TFEU as the legal basis when e stablishing mea sures
with the twofold a im of promoting the internal ma rket and consumer protection.  is conclusion is
supported by CJEU ca se law, see most recently the opin ion of Advocate General Colomer i n Case
C-374/05 Gintec Inter national Import-Ex port GmbH v. Verband Sozialer Wettbe werb eV [2007] E CR
I-9517, para. 29.
3 ere has also been debat e on whether Artic le114 TFEU allows for mi nimum harmoni zation. See,
among others, M. S chillig , Konkretisierungskompetenz und Konkretisierungsmethoden im Europäischen
Privatrecht (De Gruyter Recht, Berlin 2009), p.51, 58–62. See, more convincingly, M. Dougan, ‘Vive
la di érence? Explor ing the legal framework for re exive harmon isation within the sing le European
market’, in R. Mi ller and P. Zumbansen (eds.), 1 Annual of German & European Law (Bergha hn
Books, New York 2003), p.154; K. Gutman, e constitutionalit y of European contract law (Leuven,
forthcoming ), p.39, 382.

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