Jean Monnet Center at NYU School of Law

Private Law Paradigm of European Integration


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[*] An earlier version of this paper, part of an ongoing research and still far from final, was presented at Boston University School of Law during a faculty workshop on January 11, 1996. While all errors of fact and weaknesses of opinion are my own, I am especially indebted to critical feedback from Joseph Weiler. Warm thanks also to Duncan Kennedy and Roberto Pardolesi for their constructive criticism. Insightful comments and encouragement came from the participants to the BU workshop (in particular from Hugh Baxter, Jack Beerman, Ronald Cass, Jane Cohen, David Dana, Alan Feld, Betsy Foote, Pnina Lahav, Fran Miller, Maureen O'Rourke, Rusty Park, Dan Partan, David Seipp, Kate Silbaugh and Manuel Utset) as well as from Luisa Antoniolli, Mark Devlin, Marlo Fogelman, Anne Gowen, Ugo Mattei and Sarah Robinson.

[**] Boston University School of Law.

[1] Legal categorizations along conventional, public/private lines, as well as arbitrary partitions between law and politics in the process of integration, are neither fashionable nor correct. This paper endorses neither formalist partitions nor pure legalism (see infra Part IV). Yet it does explore an area of law marked, in the European legal experience, by a high degree of formalism. This stylistic and substantive choice serves to highlight the unexplored impact of allegedly self-referential legal discourses (the private laws of the several Member States) upon the general dynamics of integration.

[2] See David J. Gerber, European Law: Thinking About It and Teaching It, 1 COLUM. J. EUR. L. 379, at 381 (1995) "The law professors who initially shaped issues for U.S. observers were virtually always public international law specialists, and thus they used concepts and categories from this area of law in dealing with the EU."

[3] Joseph H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2043 (1991).

[4] For the sake of simplicity, we shall focus here on the continental version of the private/public distinction, as exemplified by the basic institutional models of France, Germany and Italy. Since 1973, however, the United Kingdom and the Republic of Ireland have been part of the European Community and have brought onto the Union's stage the heritage of the Anglo-Saxon common law. Unlike the civilians on the Continent, the British and Irish have never adopted a highly-developed scheme of rigid classifications. Instead, they tend to favor a vaguer, more intuitive division: private law is anything regulating exclusively the relations between legal subjects, public law is anything involving the state. Even Scotland, whose legal system grew not from Anglo-Saxon but from Roman roots, has adopted this relaxed attitude, influenced perhaps by centuries of association with the English. See Tom Mullen and Tony Prosser, Introduction to Scottish Public Law, 1 EUR. PUB. L. 46, 46 (1995) ("There is no formal separation of public and private law in Scotland, either institutionally or in terms of doctrine.") Still, U.K. lawyers may sufficiently share with their continental colleagues the tacit assumption that tort, contract and property law do belong to the same conceptual category. This conventional assumption relies on rather pragmatic grounds: all of these subjects originated in the common law courts of England; all relate to the private enjoyment of commodities; and all involve the dispersed adjudication of individual disputes, as opposed to centralised regulation and legislative fiat addressed to the public at large. When granting victorious plaintiffs monetary relief in antitrust litigation, for instance, common-law adjudicators are fully aware of the doctrinal distinction between public antitrust regulation and private remedies sounding in tort or contract law, as demonstrated by this example of the House of Lords allowing damages in a private suit for violation of European antitrust law: A breach of [Treaty of Rome art. 86, prohibiting anticompetitive abuse of a dominant market position] can thus be categorised in English law as a breach of a statutory duty that is imposed not only for the purpose of promoting ... the Common Market but also for the benefit of private individuals to whom loss or damage is caused by a breach of that duty.... It is private law, not public law, to which the [plaintiff] has had recourse. Garden Cottage Foods Ltd. v. Milk Mktg. Bd., [1983] 2 All E.R. 770, 775-78 (H.L. 1983) (Diplock, L.J.). It seems plausible, therefore, to conflate civil- and common-law perspectives when discussing the impact of European legislation on the national private law of all Member States.

[5] WOLFGANG KUNKEL, RÖMISCHE RECHTSGESCHICHTE. EINE EINFÜHRUNG (1972)[Linee di storia giuridica romana, Napoli, 1973, at 225].

[6] By the end of the 12th century, the School of the Glossators (from Latin glossa, "exegesis of a word") began to apply formal logic to the Corpus Juris, just as scholastic theologians did to the Scripture. See R.C. VAN CAENEGEM, AN HISTORICAL INTRODUCTION TO PRIVATE LAW 48-49 (1992).

[7] See VAN CAENEGEM, supra, at vii ("Private law is concerned with individual men and women whose relations, one hopes, will be harmonious; otherwise the courts intervene and settle their disputes peacefully and authoritatively."). "Formal equality" pertains only to the lack, on both parties to a private-law relationship, of sovereign power. It has nothing to do with "substantive equality," i.e. equality of bargaining power or of access to commodities.

[8] Parallel attempts to reduce private law to one form or another of conceptual wholeness are to be found in pre-realist American law. These works all faced the legal realist critique that private law rules and standards are just one more tool in the hands of market regulators, and that the courts' adjudication of private conflicts may affect wealth allocation and distribution at least as much as, say, a state's antitrust policy. See Morton Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV. 1423 (1982). In contemporary U.S. libraries, one may still find monographs on "the idea of private law." See, e.g., ERNEST JOSEPH WEINRIB, THE IDEA OF PRIVATE LAW (1995).

[9] See, e.g., BGB § 242 (establishing contractual duty of good faith).

[10] See, e.g., COSTITUZIONE [1948 Italian Constitution] Art. 42 (putting an ex post facto social "spin" on certain property provisions of the 1942 Italian Civil Code).

[11] In a civilian mind, all law is automatically divided into private law and public law. This dichotomy, recognized by Ulpian (d. 223 A.D.) and reflected in Justinian's Digest (Dig. 1, 1, 1, 2), was never questioned by Roman scholars from Irnerius to Savigny and was left intact by the codifiers.... The codes, if anything, deepened the chasm between the two spheres of law.... From a practical standpoint, the great importance of the dichotomy lies in its jurisdictional aspect. SCHLESINGER ET AL., COMPARATIVE LAW. CASES-TEXT-MATERIALS, 5th edition, at 300. See also Merryman, The Public Law-Private Law Distinction in European and American Law, 17 J. PUB. L. 3 (1968).

[12] See, e.g., Julian Lonbay, Differences in the Legal Education in the Member States of the European Community, in THE COMMON LAW OF EUROPE AND THE FUTURE OF LEGAL EDUCATION/LE DROIT COMMUN D'EUROPE ET L'AVENIR DE L'ENSEIGNEMENT JURIDIQUE 75, 84 (BRUNO DE WITTE CAROLINE FORDER eds., 1992) (describing the division of French law students into public and private law streams after completion of the basic legal education).

[13] W. Brian Arthur, Self-Reinforcing Mechanisms in Economics, in THE ECONOMY AS AN EVOLVING COMPLEX SYSTEM (PHILIP W. ANDERSON ET AL. eds., 1988).

[14] See DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 92-104 (1990) (discussing path dependence as a factor in the development of legal and economic structures).

[15] For critical remarks on this point see Antonio Gambaro, Codes and Constitutions in Civil Law, in ALESSANDRO PIZZORUSSO (ed.), ITALIAN STUDIES IN LAW, VOL. II, 79-104 (1994).

[16] Council Directive 89/392, O.J.L. 183/9 (June 29, 1989).

[17] Council Directive 89/48/EEC of 21 December 1988, O.J.L. 19/16 (Jan. 24, 1989) (establishing "a general system for the recognition of higher-educational diplomas awarded on completion of professional education and training of at least three years' duration.").

[18] Preliminary Programme of the European Economic Community for a Consumer Protection and Information Policy, O.J. C 92/2 (Apr. 25, 1975), at § II.14 ("Given the tasks assigned to the Community, it follows that all action taken has repercussions on the consumer. One of the Community's prime objectives, in general terms, is therefore to take full account of consumer interests in the various sectors....").

[19] Id. at § II.B.19. (a) (i).

[20] Council Directive 85/374/EEC of 25 July 1985, 1985 O.J. (L 210) 29.

[21] Uniformity, in an ideal EU, would be both substantive and procedural. Not only would black letter law be the same in all Member States, as if diligently copied or faithfully translated from a single private-law code, but judicial remedies would reflect an identical sense of procedural justice as well. Damage awards, for instance, would look alike in like cases, as they would stem from analogous doctrinal guidelines and uniform computational methods. Identical criteria would govern the allocation of legal expenses among private litigants, and identical canons would govern the ethics of their counselors. On the need for homogeneity of remedies see Walter van Gerven, Bridging the Unbridgeable: "Who, then, is my neighbour?" in Community tort law, Durham European Law Institute, European Law Lecture, 24 November 1995. In the real world, however, the EU strives towards a less ambitious goal. Private law uniformity, after all, is a formalistic intellectual construct and may fail to materialize even within the borders of each Member State.

[22] See Daniela Caruso, Note in margine al convegno: The Common Core of European Private Law. Trento, 6-8 luglio 1995, in CARDOZO ELECTRONIC LAW BULLETIN [], The Trento Common Core Project: Papers and Comments.

[23] See Gunther Frankenberg, Critical Comparisons: Re-Thinking Comparative Law, 26 HARVARD INT'L L.J. 411, 416-421 (1985) (characterizing comparative law scholars as "Cinderellas" in the step-family of legal academia).


[25] The University of Trento, Italy, whose law faculty hosts brilliant comparative lawyers, is currently running a research project seeking to define "The Common Core of European Private Law." The project is conducted by academicians from all Member States and enjoys the contribution of non-European comparativists. On the result-free approach of the Common Core project, see Ugo Mattei and Mauro Bussani, The Trento Common Core Project, July 6, 1995, in CARDOZO ELECTRONIC LAW BULLETIN []. It has been noted, however, that "[l]egal comparativists have often very strongly argued in favour of [...] European harmonization of private law." THOMAS WILHELMSSON, SOCIAL CONTRACT LAW AND EUROPEAN INTEGRATION 2 (1995).

[26] In 1990 the EC Commission requested a group of experts, including well-known scholars of comparative procedural law, to draw up a study on the approximation of procedure in the then twelve Member States. The group, which perhaps not surprisingly shared the Commission's concern that "the existing divergencies in the field of civil procedure directly and most seriously affect the establishment and functioning of the internal market," proposed that the Commission create a greater uniformity through a series of directives. APPROXIMATION OF JUDICIARY LAW IN THE EUROPEAN UNION IX (MARCEL STORME ed., 1994). For all this dynamic towards a unified European procedural code, however, the Brussels Convention remains the most thorough attempt to coordinate Member State civil procedure to date.

[27] Anne Solente and Kathie Claret, France: Recent Developments through Court Action, LLOYDS PRODUCT LIABILITY INTERNATIONAL, September 30, 1994: "a more lenient regime relating to product liability in one Member State would unfairly prejudice manufacturers of other states (whose product costs would reflect higher insurance premiums), thereby distorting competition between manufacturers."

[28] A projet de loi on implementation of the product liability directive underwent two readings in the National Assembly in 1992, but was then withdrawn from the Assembly's agenda right before a final vote could take place. The ECJ has already condemned France's breach in an opinion rendered on January 13, 1993 (C-293/91, Commission v. France). In 1995, the Commission inititated new proceedings against France for failure to comply with the ECJ's decision. See Alan Davis, European Union. Liability for defective products, [1996] 4 CONSUM. L. J., Current Survey 15-16. See also the first report of the Commission on the application of Council Directive 85/374 [COM(95) 617 final, December 13, 1995]. In general, the litigation on product liability has not increased in national courts after the enactment of the directive. Most interestingly, no question of interpretation ex Art. 177 has been submitted to the ECJ concerning Directive 85/374.

[29] And even so, implied sales warranties may prove difficult to enforce, as they are, according to code prescription, narrow in scope and easily time-barred. For a blatant case of product liability, where the Cour de Cassation considered plaintiff's recovery time-barred ex Article 1641 of the Code Civil, see case ___ June 1993 (Bull civ 1. n. 201).

[30] Article 1394, para. 1.

[31] Cf. C.A. Versailles, February 5, 1988 (1988) RECUIL DALLOZ IR 103.

[32] French courts have rejected the state-of-the-art defence, holding the producer responsible for so-called development risks (see C.A. Paris November 28, 1991, 1992 RECUIL DALLOZ 85. 7eme Cahier, holding in a blood transfusion case that, because of the irrebuttable presumption that a seller in the course of business is aware of the defect, the supplying organization is responsible for the defect in the blood, even if it was undetectable), and have treated agricultural products as any other products (see Cass. Civ., January 14, 1965, 1965 RECUIL DALLOZ 389). As for the damage cap, France will most likely reject this option. See e.g. Solente Claret, supra.

[33] Pending legislative implementation, some courts have recently sought to align the provisions of French law with the EC Directive by enforcing a general 'safety obligation' in favor of consumers: see Albespy, RJDA 6/93 no. 488. This new, judge-made doctrine seems strikingly independent of the requirements for torts- or sales-based claims and has been phrased in quite sweeping terms. The Albespy doctrine covers "any defect which could give rise to danger in respect of persons or goods," whereas traditionally defects had to be defined in relation to intended use and specification. There is no limit to the recovery of damages to property, and the time-barring provision of Article 1641 does not apply. No defences need be read into the doctrine, nor does the victim need to be the actual purchaser of the product. Plaintiffs must, however, still prove that damage resulted from a defect in the product. See Solente Claret, supra.

[34] The draft bill proposed by Professor Ghestin suggested, in fact, the introduction of a new title in the civil code, specifically concerned with "liability for defective products" and doctrinally severed from general torts or contracts law.

[35] For an account of the political debate in the National Assembly see Jerome Franck, Product Liability: Incorporation into National Law Impossible?, 2 CONSUM. L. J. 83 (1994).

[36] The key principle of European antitrust, at least in its conception, was not so much economic efficiency, but rather integration. See Barry E. Hawk, Antitrust in the EEC - The First Decade, 41 FORDHAM L. REV. 229, 231 (1972). The Commission --the EU institution most directly involved in antitrust enforcement-- was put in charge of dismantling all undertakings' agreements (whether horizontal or vertical) which produced or sclerotised the partitioning of Europe along Member States' borderlines. The task was, on its face, one for the Community as a whole. Moreover, national anti-monopoly laws were mostly undeveloped; and in an early case of conflict with Germany --the only Member provided with a specific statute on the matter (Gesetz gegen Wettbewerbsbeschränkungen [GWB], 1957. On its genesis see David J. Gerber, Constitutionalizing the Economy: German Neo-liberalism, Competition Law and the "New" Europe, 41 AM. J. COMP. L. 25, esp. at 64-66 (1994))-- the ECJ made clear that local antitrust authorities were not to prejudice the uniform application of the Commission's policing guidelines (Walt Wilhelm v. Bundeskartellamt, Case 14/68, 1969 E.C.R. 1.)

[37] According to established principles of Community law, Treaty provisions, if sufficiently precise and unconditional, produce a "direct effect" on national systems. The doctrine of direct effect enables individual citizens, in private controversies and before their own national courts, to rely on the whole range of rights and duties stemming from such Treaty provisions. Contrary to classical international law, EC law is immediately applicable by national courts: there is no need for implementing legislation. A number of Treaty articles, including Articles 85 and 86, may serve as immediate sources of private claims. The doctrine of direct effect relies on the existence, in each Member State, of a set of private-law rules and remedies. The effectiveness of the antitrust provisions of the Treaty, for example, presupposes public, regulatory enforcement by State authorities on the one hand, and the availability of private antitrust actions on the other. Such private actions sound primarily in tort, and occasionally in contract.

[38] See the Cooperation Notice OJ 1993 C 39/6, 4 CMLR 12, esp. at §§ 13-16 (1993).

[39] See BRT v. SABAM, Case 127/73, 1974 ECR 51, at § 16 of the judgment (emphasis added): "[a]s the prohibitions of Articles 85(1) and 86 tend by their very nature to produce direct effects in relations between individuals, these articles create direct rights [...] which the national courts must safeguard."

[40] For an insightful and thorough analysis of this topic, dated 1984, see J. Temple Lang, EEC Competition Actions in Member States' Courts - Claims for Damages, Declarations and Injunctions for Breach of Community Antitrust Law, 7 FORDHAM INT'L L. J. 389 (1984).

[41] "[I]t is for the domestic legal system of each Member State to [...] determine the procedural conditions governing actions at law intended to safeguard the rights which subjects derive from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature..." (Denkavit, Case 61/79, [1980] ECR 1205, at § 25 of the judgment).

[42] See Benedict P. B. Francis, Subsidiarity and Antritrust: The Enforcement of European Competition Law in the National Courts of Member States, 27 LAW AND POLICY IN INT'L BUSINESS 247 (1995).

[43] Exceptions may occasionally be found. As early as 1964, a Belgian corporation injured by the discriminatory pricing practices of three colluding competititors was awarded monetary relief ex Articles 85 and 86, local doctrinal hurdles notwithstanding (Union de Remorquage et de Sauvetage v. Schelde Sleepvaartbedrijf, 1964 COMM. MKT. L. REV. 251).

[44] Should the Brussels strategy prove victorious, the national courts' option could be later pursued with much higher chances of sucess. For this pattern of counduct see the famous Magill saga. See also R. Whish, The Enforcement of EC Competition Law in the Domestic Courts of the Member States, in A. SCHUSTER ed., KEY ASPECTS OF IRISH COMPETITION LAW AND PRACTICE, Dublin 1994, p. 116 ff. and esp. at p. 124: "A would-be litigant in an action based on the EC competition rules would be in a much better position if he had the benefit of a Commission decision establishing that the conduct complained of was an infringement of Article 85 or 86. [...] The argument would be even stronger where the Commission's decision had been upheld on appeal by the Court of First Instance or the European Court of Justice."

[45] This leads one to assume that, if national systems were more inclined to translate EU rights into national remedies, individuals would predictably opt for the domestic strategy.

[46] See Temple Lang, supra.

[47] For an indicative version of this point of view, see the dissenting opinion of Lord Wilberforce in Garden Cottage Foods v. Milk Marketing Board, 1 [1984] AC 130, at 152, B-C.

[48] In Garden Cottage, the leading case on the matter, Lord Diplock --drafting the majority opinion for the House of Lords-- did not really decide that damages were available as a remedy; he simply stated that, if a contravention of Article 86 gives rise to any cause of action at all, then not only an injunction, but also damages will be available as remedies. This point of view has been obiter endorsed in later cases: Bourgoin SA v. MAFF, [1985] 3 WLR 1027; and Plessey Co. plc v. General Electric Co. plc and Siemens, [1990] ECC 384.

[49] Kieron Beal, Of Giants and Pygmies: Analysis of Rights and Remedies between two Contracting Parties under Article 85 of the Treaty of Rome, HARVARD JEAN MONNET WORKING PAPER 8/95.

[50] In the UK there are no general antitrust prohibitions. The UK Government is working on making up for this obvious lacuna: see the White Paper "Opening Markets, New Policy on Restrictive Trade Practices," Cm 727. This White Paper was submitted to the Parliament in July 1989 and recommended to replace the existing Restrictive Trade Practices Act, as well as ("probably") the Resale Prices Act with a statute on competition based on Article 85 of the Treaty of Rome.

[51] See, e.g., Section 35(2) of the Restrictive Trade Practices Act 1976, whereby parties to a registrable agreement who have failed to notify it in full to the Director General of Fair Trading may be sued for breach of statutory duty; but there have been no successful third party actions against infringers. A damage action may lie as well for some infringements of the Resale Prices Act 1976 (Section 23(3)); however, those who have been injured by a breach generally comply to the Office of Fair Trading rather than bringing private suits: see John H. Pratt, Changes in UK Competition Law: A Wasted Opportunity?, [1994] vol. 15 (2) ECLR 89). The number of RTPA and RPA third party actions has, so far, been negligible. Some damage claims have been settled out of court.

[52] See Beal, supra. As early as 1974, i.e. shortly after the UK's accession to the Community, Lord Denning had said obiter that there were two new torts in English law: abuse of a dominant position, and undue restriction of competition within the Common Market (Application des Gaz v. Falk Veritas Ltd, [1974] Ch. 381, [1974] 3 All ER 51-CA). But UK courts have since been looking for more traditional ground for private actions: cf. R. Whish, The Enforcement of EC Competition Law in the Domestic Courts of Member States, [1994] vol. 15 (2) ECLR 60, at 64.

[53] See Mark Hoskins, Garden Cottage Revisited: The Availability of Damages in the National Courts for Breaches of the EEC Competition Rules, 13 (6) ECLR 257, 1992. According to Hoskins, the "economic tort of unlawful interference" would provide a more appropriate cause of action; it would, in fact, replace the mechanic, factual test of causation used by courts to assess breaches of statutory duties with a more sophisticated test of legal causation. But cf. Whish, supra, at 65.

[54] As early as 1966, the Commission conducted a study on the remedies available under national laws of the (then six) Member States for breach of Articles 85 and 86: La réparation des conséquences dommageables d'une violation des articles 85 et 86 du Traite instituant la CEE, serie concurrence No. 1 (1966).

[55] Judgment of Oct. 23, 1979, Bundesgerichtshof, W. Ger., 1980 Wirtschaftsrecht 392, (excerpt reproduced in English by Temple Lang, supra).

[56] Id. (emphasis added).

[57] Supra, at 399-400.

[58] This brings about a more permissive attitude towards distribution practices: see e.g. the Conseils decision of June 18, 1991, La Societe Honda France, No. 91-D-31, 1991 Bulletin Officiel de la Concurrence, de la Consommation et de la Repression des Fraudes, also commented by J. I. Zuckerman, Note, 86 AM. J. INT'L L. 561 (1992).

[59] See, for example, Pierre Roseren, The Application of Community Law by French Courts from 1982 to 1993, in 31 C.M.L. REV. 315, at 362 (1994). The Author reports the holding of Cour de Cassation, Cass. Com. 1 March 1982, Syndicat des expéditeurs et exportateurs en légumes et pommes de terre primeurs de la région malouine v. L'hourre et autre, Bull. Civ. IV No. 77, p. 70: authorities of the Member States have exclusive jurisdiction to decide on the liability incurred by the undertakings which, in breach of Article 85(2), engage in concerted actions of a monopolistic character. The Cour thus approved the application by a court of appeal of the general principles of liability enshrined in French Law. In Ireland one can also observe an analogous contrast between the regulatory and the judicial attitudes towards antitrust enforcement. The Competition Authority (new-born antitrust unit of the executive) "pursue[s] a policy of interpretation and application of the Act based rigidly, even obsessively, upon what it believes to be the analogous position in Community Law. [...] By way of contrast, one can see in the approach of the Supreme Court [...] a tendency not to be overawed by the EC analogy." And the latter approach meets with scholarly approval: "[T]here appears to be no reason why the Irish courts might not treat the Act as nothing more than a new piece of domestic legislation in respect of which decisions of the European Commission and judgments of the European Court were of neither binding nor persuasive authority": J. D. Cooke, The Competition Act: One Year On. Resolving the EC/Irish Law Dichotomy, in KEY ASPECTS, supra, p. 82, at 83.

[60] As one would expect, where Member States' resistance reaches some level of consistency, Brussels abstains, at least momentarily, from intervening. In 1984, an 'insider' of EC law considered an increase in domestic private claims not only most desirable in order to achieve full implementation and enforcement of the Community's antitrust policy, but also quite likely to occur in the near future (Temple Lang, supra, at 463-66). In this perspective, a Council Directive aimed at harmonizing substance and procedure of private claims throughout Europe seemed a step both logical and necessary. This is not, however, the way things developed in the following decade. No Directive harmonizing civil adjudication of antitrust claims has ever been enacted.

[61] Jeffrey Goh, Enforcing EC Competition Law in Member States, 1993 Vol 14 (3) ECLR 114.

[62] What is especially obvious is the procedural advantage that would be gained if the decision-making power on Article 85.3 were transferred from the Commission to peripheral State authorities.

[63] For a tripartite sketch of antitrust evolution in Europe see the analysis of David J. Gerber, The Transformation of European Community Competition Law?, 35 HARVARD INT'L L. J. 97 (1994), who, in turn, drew inspiration and borrowed insights from Joseph Weiler's Transformation of Europe. According to Gerber's scheme, the early years of the Community were characterized by the juridification of enforcement: Europe had to prove that the prosecution of violations could take place through mere application of the rule of law; these were the years of the blooming of Regulation 17, black-letter source of a much discussed cumulation of both prosecuting and adjudicating roles in the Commission's hands. Only through the process of juridification could a politically young and weak Europe obtain the necessary legitimacy to centralize antitrust enforcement, way beyond the letter of the Treaty of Rome. With the 70's came the economic crisis, reified by the oil shock and culminating in a stall of the integrationist drive; it was then up to the Court of Luxembourg to keep the EEC alive. By resorting to a teleological construction of the Treaty and injecting political goals of integration into formalist legal discourse, the court further expanded the scope of European competition law (for instance, by finding some sort of inter-state impact --an essential condition to assert EC jurisdiction-- in just about every anticompetitive conduct) and, more generally, laid the basis for the mid-80's relaunch of the European project. And then the 90's came, with the Common-Market dream finally coming somewhat true, and with the Maastricht Treaty embracing the principle of subsidiarity (Article 3b). Subsidiarity, introduced almost incidentally in the Single European Act of 1986 and later turned by Maastricht into a loud criterion for the apportionment of Member States' and Union's non-exclusive competences, provides for the Community to intervene "only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States [...]"; nor may Community action exceed "what is necessary to achieve the objectives of [the] Treaty." In the same direction moves "the November revolution."

[64] See Gerber, supra at 137-38.

[65] Here is how a scholar heavily involved in the process of contract law harmonization describes an incomplete-harmonization scenario: "Suppose a manager of a Dutch enterprise operating as a contractor and selling contractor's supplies as well, asks his lawyer: 'Is it from a legal point of view too risky for us to attempt to export our services and supplies to other countries in the European Community?' He may then get the following brief answer: If you get a contract in a Member State, your employees, both white and blue collar, may go and work there. You can set up a branch of your company or form a subsidiary company. You can bring and sell your supplies there without paying important duties, and even the non-tariff barriers have been abolished, at least in theory. You can do many things which you were not able to do before the European Communities were established. However, in many respects you will still face local laws which are very different from ours, for instance, their laws of contract. Some of the Member States now have the same rules on international sales as we have got recently. In case you want to sell your supplies through an agent some of the Member States also have rules on the agency contract which are similar to ours. But their general contract rules and their rules on most of the specific contracts are different. We cannot give you sufficient information on their laws. We shall probably have to consult the local lawyers. Anyhow, you will run risks which you do not run in this country. You may limit the risks somewhat if you can manage to have your contracts governed by Dutch law, and your disputes, if they arise, settled in the Dutch courts. You may also persuade your customers to agree on the use of international contract terms [...] But all this is uncertain." Ole Lando, Is Codification Needed in Europe? Principles of European Contract Law and the Relationship to Dutch Law, 1 EUR. REV. PRIV. L. 157, 158-159 (1993) [footnotes omitted].

[66] The main harmonization achievement of the international community in the area of contract law is still the United Nations Convention on the International Sale of Goods (1980).

[67] Martin Boodman, The Myth of Harmonization of Laws, 39 AM. J. COMP. L. 715-716 (1991).

[68] EC Commission - The European Community and Consumer Protection, European File 14/90, Nov. 1990, at pages 6-11: "Consumers must be protected against unfair or dishonest business practices on the part of certain suppliers. For this, measures are required on a European scale [...]."

[69] Council Directive 93/13/EEC, OJ 95, 21/4/93, p. 29.

[70] Only since November 1993, when the TEU entered into force and added new provisions to the Treaty of Rome, have EC legislators relied on an express attribution of powers concerning consumer protection. See Article 129a: "1. The Community shall contribute to the attainment of a high level of consumer protection through: (a) measures adopted pursuant to Article 100a in the context of completion of the internal market; [...]"

[71] Germany, amongst the Member States, had the most sophisticated tradition of judicial and administrative control of unfair contract terms. EC legislators borrowed from the German experience to a large extent: the directive provides for a black list of contract terms whose content is presumed unfair. However, they filtered the German canvas through the legitimizing lens of consumer protection. As a result, the directive only covers transactions occurring between professional sellers, or suppliers of services, and ordinary citizens.

[72] For insightful criticism see Roberto Pardolesi, Clausole abusive (nei contratti dei consumatori): una direttiva abusata?, IL FORO ITALIANO, 1994, V, 137. ID., Clausole abusive, pardon vessatorie: verso l'attuazione di una direttiva abusata, in CARDOZO ELECTRONIC LAW BULLETIN, 1995 [].

[73] Christian Joerges, The Europeanization of Private Law as a Rationalization Process and as a Contest of Disciplines-- An Analysis of the Directive on Unfair Terms in Consumer Contracts, in EUI Working Papers in Law, n. 94/5, 2.

[74] Id., at 17.

[75] Id., at 17-18.

[76] The process of Europeanization of the Italian national system has been defined as schizophrenic: courts help it move forward, while legislators, out of idleness or negligence, let it lag behind. A. Barone, Note, IL FORO ITALIANO 1992, I, 1600.

[77] See Nicola Scannicchio, 1996 CONSUM. L. J. Current Survey 11-12.

[78] Daniel K. Tarullo, Beyond Normalcy in the Regulation of International Trade, 100 HARVARD L. REV. 546, 559 (1987) (referring to Duncan Kennedy and Frank Michaelman, Are Property and Contract Efficient?, 8 HOFSTRA L. REV. 711, 739-749 (1980).

[79] When interpreting private law in a way not completely manifested by its black letters and colored with social implications, judges invoke pertinent constitutional rules or principles in order to provide their decisions with due formal authority. Constitutional law is the prototypical realm of value-laden, political choices and, as exemplified most forcefully by the German Constitutional court in its Maastricht decision, stays well within the jurisdiction of individual Member States.

[80] Caveats of the following type are abundant in the literature on private law integration: "A civil code is a highly complex and integrated whole; especially the rules on obligations and property are interdependent to such a degree that an isolated unification of rules of such central importance is not advisable." Ulrich Drobnig, Transfer of Property, in A.S. HARTKAMP ET AL. (eds.), TOWARDS A EUROPEAN CIVIL CODE, 1994, 345, 360.

[81] See Ted M. de Boer, The Relation between Uniform Substantive Law and Private International Law, in TOWARDS A EUROPEAN CIVIL CODE, supra, 51, at 60: "The limits of legal integration are marked by national idiosyncrasies and local circumstances. Like language, law is part of a community's cultural heritage. It is one of the factors that define a nation's identity. Unless we want to eradicate a tradition of centuries, we should be careful to retain those segments of national law that have particular value for the community in which such rules and principles developed. Unless we are ready to trade our national identity for a true cosmopolitan awareness, the unification of substantive law should be halted where it fails to acknowledge a single community's cultural values and specific needs. [...] The process of European integration --expected to bring economic, political, and even legal unity --need not go so far as to extinguish all the differences, including those in private law, that still mark the cultural identity of each Member-State." (This Author makes the case for dealing with legal differences with the usual tools of private international law, rather than with intensive uniformization.)

[82] See Ugo Mattei, Efficiency in Legal transplants: An Essay in Comparative Law and Economics, 14 INT'L REV. L. ECON. 157 (1994).

[83] For a thorough analysis of the literature on the point see Anne-Marie Slaughter and Walter Mattli, Europe before the Court: a political theory of legal integration, 47 INT'L ORGANIZATION 41 (1993).

[84] Slaughter Mattli, supra.

[85] Reflectivism is, on this point, in line with the insights of institutional economics and path-dependence theory, illustrated above in Part II. See Douglass C. North, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE, Cambridge University Press, 1990: "[T]he formal rules change, but the informal constraints do not. In consequence, there develops an ongoing tension between informal constraints and the new formal rules, as many are inconsistent with each other. The informal constraints had gradually evolved as extensions of previous formal rules. An immediate tendency [...] is to have new formal rules supplant the persisting informal constraints. Such change is sometimes possible, in particular in a partial equilibrium context, but it ignores the deep-seated cultural inheritance that underlies many informal constraints. Although a wholesale change in the formal rules may take place, at the same time there will be many informal constraints that have great survival tenacity because they still resolve basic exchange problems among the participants, be they social, political or economic. The result over time tends to be a restructuring of the overall constraints --in both directions-- to produce a new equilibrium which is far less revolutionary."

[86] The expression "decisional supranationalism" was first used by Joseph Weiler, The Community System: The Dual Character of Supranationalism, 1 YEARBOOK OF EUROPEAN LAW 1981.

[87] Slaughter and Mattli, supra.

[88] Weiler, Transformation.



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