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The purpose of this contribution is to discuss the extent of the Union's competence to adopt a comprehensive instrument of substantive contract law in light of the options set forth in the Commission's 2010 Green Paper on European contract law, with a view to exploring the limits of, and the relationship between, certain prominent Treaty provisions in the debate -- namely, Articles 114, 115, 81, 169 and 352 TFEU (ex Articles 95, 94, 65, 153 and 308 EC, respectively) -- and the roles played by the principles of subsidiarity and proportionality in guiding the exercise of Union competence inside, as well as outside, the EU decision-making process. Moreover, given the reference to certain American techniques in the Green Paper, this contribution seeks to facilitate discussion of the comparative dimensions of the constitutional assessment of contract law in the European Union and the United States. [ABSTRACT FROM AUTHOR]

Although based on academic background and literature, my answer to the questions posed by the European Commission turns out to be rather political as from my point of view it is impossible to address those questions in a purely technical way. Although there are other, probably more relevant, obstacles to the internal market, I consider that there is enough evidence to assume that different legislation is an obstacle well worth looking at. I begin with the discussion of goals, strictly connected to the scope of application, and move to the debate on formal/informal harmonisation of contract law. As on one side there is not enough evaluation to sustain solidly that harmonisation or unification is better that diversity that meets local preferences, and on the other side liberty, subsidiarity and proportionality claim for parties' freedom to opt for their better solution, I support the view that Member States must be able to maintain their internal law but at the same time must wide the parties' scope of options with the approval of a Regulation on European contract law. In any case, a lot of assessment should still take place. [ABSTRACT FROM AUTHOR]

This paper is aimed at illustrating how the traditional idea of "inalienability" of personality rights has been reshaped and transformed by the increasing commodification of corporeal and incorporeal components of identity. Three different legal regimes have recently emerged in Europe: market-inalienability with regard to body rights; limited inalienability rules with regard to personal data; modified contract law applicable to incorporeal components of identity – such as name or likeness – having commercial value. The objective of this paper is to describe each of these models and provide a contribution both to the theory of inalienability and of contract law. [ABSTRACT FROM AUTHOR]

Using Finnish case law on complex financial products as an example, this paper deals with the question of what role national courts could, and indeed should, have in the future disputes between investment firms and their clients, given that their private law relationship is embedded in an increasingly self-sufficient EU rulebook. Will there be room for principles deriving from national private law, or could the courts take a more active role in interpreting principles deriving from the MiFID itself? The paper argues that national courts should complement the 'administrative paradigm' of the European Union's financial services law, enhanced by the new MiFID regime, with a more principles-based enforcement. [ABSTRACT FROM AUTHOR]

The paper aims at unfolding the ideological underpinnings and the cultural-historical foundations of one of the latent basic assumptions of modern legal scholarship, which is the link between private law and the national idea. In particular processes of denationalisation triggered by European integration have led to resistance from Member States and a defense of the idea that law should remain national. This link is often ideally justified by the view that law is an expression of the cultural values embedded in the nation, which can be termed 'Volksgeist' theory. This particular view, which has long historical roots but is mainly entangled with the ideology of cultural nationalism, has now become generally accepted, albeit in a disguised form, in modern political and legal discourse. Combining insights from legal and political studies, the paper traces the circumstances that led to the affirmation of the national idea in private law, tracking that idea in legal history, in political theory and finally legal scholarship. It asserts that, notwithstanding the historical defeat of the most notorious manifestations of nationalism, several assumptions of cultural nationalism have become commonly accepted and can still be detected in the legal discourse. [ABSTRACT FROM AUTHOR]

This paper considers Option 4 of the Green Paper which proposes a ''Regulation setting up an optional instrument in European Contract Law.'' It does so from the perspective of the dual vision of freedom of contract in national contract laws and in the Union acquis, visible both in its substantive law and its private international law: freedom of contract as promoting market transactions and freedom of contract as promoting individual autonomy. In this respect, in the case of consumer contracts, it argues that such an Optional Instrument would either not give sufficient recognition to the importance of the quality of consent of consumers or, if it did, the concomitant legal uncertainty would reduce its effectiveness in terms of the development of the internal market. Secondly, as regards commercial contracts, it argues that the existing balance between chosen applicable law and other laws (whether of the forum or the law otherwise applicable) in the Rome I Regulation should not be put aside without more explicit justification than an appeal to the economic advantages of an exclusive legal regime. Moreover, it argues that the limits on the effectiveness of choice of applicable law as regards non-contractual liability (whether pre-contractual or arising in the course of a contract) and difficulties of defining the scope of a system of rules of the likely breadth of the Optional Instrument are likely to generate both uncertainty and complexity for any businesses which were to choose it. [ABSTRACT FROM AUTHOR]

This paper explores the possible implications of leading contemporary theories of political philosophy for some of the main questions that the political institutions of the European Union will have to decide on concerning the future of European contract law. Thus, it explores what a utilitarian, liberal-egalitarian, libertarian, communitarian, deliberative/citizenship idea of European contract law might look like. The primary aim of the paper is to demonstrate the relevance of social justice theories to some of the main issues concerning the future of European contract and, conversely, to indicate the relevance of (European) contract law to political philosophy. A second, more practical aim is to provide the stakeholders (including legal academics) and politicians that are currently called upon, by the European Commission's Green Paper, to submit their views on ''policy options for progress towards a European Contract Law for consumers and businesses'' with an idea of what a position in terms of an articulate and comprehensive political theory might look like. An important question is whether it is possible and desirable to explain and justify one's concept of European contract law and its future exclusively in terms of one single of these five political ideas of European contract law. The tentative answer in this paper is that a pluralist or composite idea of European contract law is more attractive than a monist one. [ABSTRACT FROM AUTHOR]

In 2001, the European Commission mooted the idea that contract law should converge in Europe. The idea generated wide-ranging debate about the merits of convergence. The multi-disciplinary nature of this debate has led to important insights, but also conceptual confusion. In this paper, I rely on philosophical tools to clarify key concepts, and identify central issues. In particular, I argue that value pluralism and state sovereignty give rise to the central problem of the legitimacy of the harmonisation project. The issue of legitimacy has not been handled well in the literature. There has been an overly narrow focus on the issue of constitutional legitimacy, or the notion of 'legitimacy as consent'. I attempt to broaden the discussion by considering other accounts of legitimacy. I argue that whichever account is used, the legitimation burden is significant and it is unclear it has been surmounted. Beyond legitimacy, I consider how efficacy considerations seem to militate against convergence. [ABSTRACT FROM AUTHOR]

The aim of this paper is to contribute to the understanding of the implications of CESL for European Contract Law by looking into the remedies available to the parties for the breach of a sales contract, and in particular to examine the legal regime of termination for breach of contract. Our approach emphasizes the strategic and economic dimensions induced by the legal solutions in CESL as this is a particularly promising way to evaluate the likely impact of proposed legal solutions. We focus on the heterogeneity of the effects that termination may induce both in terms of incentives and overall social costs. Our findings lend some support to the policy option in CESL of a more liberal termination regime for consumers in B2C contracts than for commercial parties. [ABSTRACT FROM AUTHOR]

The European Commission's recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However, its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The reason is that it fails to address the widespread notion, underlying also many technical arguments, that Member States should remain sovereign in matters of general private law for the reason that private law is a matter of national identity. In this paper, I address that argument head on. I do this by first identifying the nationalist undertone in many technical arguments raised against the Europeanisation of private law and by then defending the CESL as an expression of another identity that many Europeans share, ie their European identity. I argue, in particular, that the proposed CESL should be welcomed as a common European model of justice between private parties, as rules of just conduct for the internal market. Since most people in Europe identify with both their nation-state and Europe, albeit in different degrees, it makes sense to offer them the choices between national and European contract law. Although the question whether to opt into a CESL should be a matter of private autonomy, the question which legal options will be available is matter of the public autonomy of citizens and requires a full democratic legitimation. Therefore, Article 352 TFEU, the flexibility clause that bypasses the ordinary legislative procedure, would be unacceptable as a legal basis. [ABSTRACT FROM AUTHOR]

This paper examines forms of crypto-nationalistic discourse - a strong variant of Euroscepticism or even Europhobia - which have emerged as a reaction to growing European integration in the field of private law. The existence of such crypto-nationalistic rhetoric indicates that legal scholars are adopting an unbefitting role, by confusing reason and sentiment. I attempted to examine the various strands of this discourse through a critical comparative lens: French crypto-nationalism is more rife, more vehement and of a different nature than its English counterpart. French legal academic discourse is more rhetorical and impassioned, while English legal discourse is more rational and instrumental, coming rather from the legal profession and the politicians. After drawing up an empirical but non-exhaustive inventory, this enquiry enables us to draw inferences about the perception that French and English jurists have of their respective roles and the tendencies they have towards national conservatism and protectionism in the face of change. Granted, this message is not very encouraging for the construction of European private law. But by uncovering the cryptic nature of the arguments examined, let us hope we can move towards greater mutual understanding by using reason rather than sentiment. [ABSTRACT FROM AUTHOR]

Questioning the link between private law and the nation-state that is implied by nationalist perceptions of the law, this paper seeks to find support for a transnational (Europeanist, constitutional-patriotist or cosmopolitan) view on private law in constitutional theory. Normative theories of constitutionalism have a bearing on questions of European private law insofar as private legal relationships are affected by the division of legal competences and the deliberation of values in the EU's legal order. It is submitted that of three types of normative constitutional theories (constitutionalism, systemic pluralism and constitutional pluralism) a constitutional-pluralist version can provide the best framework for supporting a European private law that overcomes nationalist objections. In this context, particular attention is paid to the clarification of the relationship between the recently proposed Common European Sales Law (CESL) and national regimes of sales law. It is suggested that a constitutional-pluralist model can accommodate suborders of private law so as to relate them to the imagination of a legal-political community on the level of the EU (Euronationalist view) or to a political community based on universal values that transcend the nation-state (constitutional-patriotist view or cosmopolitan view). A conceptual connection between the fields of European private law and constitutional law is then found in fundamental rights, which define the allocation of value choices among judicial, political and market processes. Given this nature of rights, the EU Charter of Fundamental Rights may guide the articulation of principles underlying the CESL and can facilitate an institutional dialogue aimed at resolving conflicts between different orders of private law in Europe. [ABSTRACT FROM AUTHOR]

The Green Paper points towards option 4, the Optional Instrument, as the instrument of European contract law. But it is a deceptively reassuring option: the emphasis on choice is misguided. Choice is not necessarily good. If it allows parties to avoid rules or principles of national law which have been developed for good reasons within the national legal system, it can undermine the national policies. And ''choice'' is not necessarily free choice. The appropriate place for the discussion of consumer protection is in relation to the Consumer Rights Directive. ''Choice'' is not always present in relation to business contracts, either. The only context in which the emphasis on ''choice'' makes sense is where there is a negotiation between two equal business parties. The desirability of an Optional Instrument hinges on that case. But this still raises questions about whether a business party would rationally choose the Optional Instrument over its own or the other party's law, given questions of legal certainty which will arise (at least in the early years), and given the substantive rules of the final text of the Instrument. [ABSTRACT FROM AUTHOR]

After shortly introducing the most promising options presented in the Green Paper -- the introduction of an optional instrument, a European contract law or a European civil code -- their potential personal and material scope are analysed. As with regard to the optional instrument, the EC's assumption that businesses as well as customers would opt for it is challenged by showing that practical obstacles other than legal differences hinder cross-border trade. With regard to the personal scope, the disadvantages of provisions based on a stereotyped consumer notion and of the adoption of European rules by merely copying them into national law are demonstrated. Consequently it is advocated that specific provisions applying only to B2C relations should to a certain extent be substituted by general clauses. It is concluded that a broad personal scope including B2C, B2B as well as C2C relations would best serve the purpose of enhancing the internal market by reducing the legal regimes businesses would have to deal with. In line with the EC's goal to promote cross-border trade by reducing legal differences, a broad material scope is recommended since the limitation to certain types of contracts or to cross-border transactions would not reduce transaction costs. Finally, the importance of an effective enforcement of European rules is stressed. [ABSTRACT FROM AUTHOR]

The paper intends to show why the DCFR is not yet ready to be adopted as an Optional Instrument. The author explains her reasoning by examining the solutions adopted by the DCFR on standard contract terms and on unfair contract terms and unfair exploitation in contracts between businesses. The first point made by the author is that there are a lot of general provisions and open-ended concepts. The second point is that some legal options may, actually, produce consequences incoherent with the declared aim. The third refers to the fact that the project does not even attempt to solve some longstanding ambiguities. The fourth, and last point, regards the fact that with the opt-in system, the protection of the ''weak'' business is not effective and, therefore, it does not succeed in the aim of harmonization. [ABSTRACT FROM AUTHOR]

The paper examines the role of the Common Frame of Reference in a multilevel private law system where it is asked to work as a parameter for interpretation and application of internal law. It reaches the conclusion that the best solution for the progress of European contract law could be the adoption of a non binding instrument for, such as a Commission Recommendation (option 3). [ABSTRACT FROM AUTHOR]

This paper addresses a fundamental but somewhat neglected issue regarding the discussion on the function of European Contract Law. At a time when both academics and political actors show their interest in drafting a comprehensive body of rules meant to be available to market operators across Europe, a thorough analysis of the aims of such legal instrument is fundamental and cannot be sufficiently addressed by an all-encompassing list of values that European Contract Law is expected to pursue. The work tries to show how using an economic method can be of help at the core of European Contract Law, to identify its function(s) and to provide guidance as to the appropriateness of the rules set to become part of it. Such guidance includes both suggestions as to the appropriate regulatory level, going beyond the incomplete cross-border transaction costs argument, as well as indications as to what constitutes contract law of good quality. [ABSTRACT FROM AUTHOR]

This contribution explores the relationship between (private) law and nationalism from a public choice perspective. Its main point is that the nationalist ideology in law is largely guided by the self-interest of citizens, legislatures, courts and academics. 'Nationalists' (those who favour the congruence of state and nation) maximise their chances in life by capitalising on homogeneity: by acting in accordance with the unified norms of the nation-state, they are able to put themselves in a better position. This framework is used to explain the importance of the nationalist view of law in the 19th century. In addition, it allows an analysis of both the question of how to organise private law today and the question of how to explain present resistance against Europeanization. At the normative level, the claim is made that citizens should be allowed to search for community elsewhere, e.g. by opting into European sets of norms (such as the proposed CESL). A possible explanation for resistance against Europeanization is found in the close relationship between engaging in things European and the economic or psychological advantages obtained from this. This is confirmed by a limited survey of the extent to which national academics are active in the debate on European private law, which can be explained by the different incentives universities provide to academics for obtaining tenure and prestige. [ABSTRACT FROM AUTHOR]