Harmonization of Private Law in the European Union: Methods and Mechanisms

2014 ◽  
Author(s):  
Hasna Haj Najafi
Keyword(s):  
European Union ◽  
Private Law ◽  
The European Union

scholarly journals Protection of fundamental rights in the private law of the European Union

2020 ◽  
Vol 2 (2) ◽  
pp. 117-153
Author(s):  
Tatjana Josipović
Keyword(s):  
European Union ◽  
Member State ◽  
Fundamental Rights ◽  
Private Law ◽  
Eu Law ◽  
The European Union ◽  
Freedom Of Contract ◽  
Optimal Balance ◽  
Private Autonomy

The paper considers and comments on the instruments of protection of the fundamental rights of the Union in private law relationships that are in the scope of applicable EU law. Special attention is paid to the influence of fundamental rights of the Union on private autonomy and the freedom of contract in private law relationships depending on whether fundamental rights are protected by national law harmonized with EU law, or by horizontal effects of the Charter of general principles. The goal of the paper is to determine the method in private law relationships that can attain the optimal balance between the protection of fundamental rights of the Union and the principle of private autonomy and the freedom of contract regulated by national law of a member state. The author favors the protection of fundamental rights in private law relationships by applying adequate measures that create indirect horizontal effects of the provisions of EU law on fundamental rights. These concern national measures that can also secure adequate protection of fundamental rights via interpretation and application of national law in line with EU law in private law relationships.

scholarly journals A Brief Assessment of the Main Commercial Contracts under the New Romanian Civil Code

2020 ◽  
Vol 20 (2) ◽  
pp. 274-289
Author(s):  
Dan Velicu
Keyword(s):  
European Union ◽  
Civil Code ◽  
Private Law ◽  
Legal Systems ◽  
The European Union ◽  
Short Article ◽  
Brief Assessment ◽  
Commercial Code ◽  
New Institutions ◽  
General Regulation

Summary From 2011 Romania has a new Civil Code. Although the government’s initiative was to unify the private law according to the model of the Italian Civil Code of 1942 by repealing the Commercial Code of 1887, the new Civil Code only succeeded in putting together civil rules and commercial rules, the latter being relocated from the former Commercial Code. Obviously, an exhaustive analysis of the new Civil Code is impossible in the frame of a short article. That’s why the author of this study tries to evaluate the new Civil Code regulation by focusing on the main commercial contracts. Some general civil rules that are traditionally applied for centuries in most of the European continental legal systems (e.g. ownership concept, warranty for defects, the buyer’s duty to pay the price etc) will be premeditatedly neglected or just shortly approached. The commercial contracts are very important in the field of the international commercial relations – even between the borders of the European Union –, when in many cases the parties agree that the national law will govern the contract. The goal of the study is to offer a brief commentary on the new institutions together with a comparative presentation of the general regulation of the main commercial agreements.

scholarly journals La promesa de hecho ajeno: cuestiones de competencia judicial internacional en la Unión Europea = The promise of a third party´s fact: issues of international judicial competence in the European Union

2019 ◽  
Vol 11 (1) ◽  
pp. 841
Author(s):  
Gabriel Mengual Pujante
Keyword(s):  
European Union ◽  
Third Party ◽  
Private Law ◽  
The European Union ◽  
Provision Of Services ◽  
Brussels Regulation ◽  
The Eu

Resumen: La promesa de hecho ajeno es una modalidad contractual ampliamente conocida en la Unión Europa y, a su vez, paradigma de uno de los principios fundamentales del Derecho privado: la relatividad de los contratos. Desde una perspectiva axiológica y práctica, el operador jurídico debe conocer el escenario que puede devengarse en un supuesto internacional. Por ello, resulta oportuno trazar una aproximación al sector de la competencia judicial internacional en el Derecho Internacional Privado de la UE.Palabras clave: promesa de hecho ajeno, relatividad de los contratos, Reglamento Bruselas I-bis, contrato de prestación de servicios, competencia judicial internacional.Abstract: The promise of a third party´s fact is a contractual modality widely known in the European Union and, in turn, paradigm of one of the fundamental principles of private law: the relativity of contracts. From an axiological and practical perspective, the legal operator must know the landscape that may arise in an international case. For this reason, it is appropriate to draw an approximation to the sector of the international judicial competence in the EU Private International Law.Keywords: promise of a third party´s fact, relativity of contracts, Brussels Regulation I-bis, contract for the provision of services, international judicial competence.

The New Transformation of Europe: Arcana Imperii

2020 ◽  
Vol 68 (1) ◽  
pp. 151-185
Author(s):  
Leone Niglia
Keyword(s):  
European Union ◽  
Member State ◽  
Structural Transformation ◽  
Monetary Union ◽  
Economic And Monetary Union ◽  
Private Law ◽  
Sovereign Power ◽  
The European Union ◽  
European Union Law ◽  
The Past

Abstract The European Union is undergoing a structural transformation—a regression from integration through law as an anti-hegemonic project of equal membership to a condition in which member state orders, under a transformed European Union law, gravitate around unequal relations of subordination. Alongside the surveillance mechanisms that constrain the member states to conform to the requirements of the Economic and Monetary Union are private law arrangements (the “memoranda of understanding” qua “contracts”) that equally, and with greater force, produce subordination. Adopting a critical comparative-historical approach, this Article delves into Europe’s collective legal memory, and the past of colonial relations, to make intelligible the deployment of the memoranda contracts whose harsh terms have been dramatically changing the condition of the “debtor countries” for the worse; in the arcana of private law lies the truth about the changing condition of sovereign power in contemporary Europe and about the potential to change direction and counter the “jurisdomination” turn.

scholarly journals Interpreting retained EU private law post-Brexit: Can commonwealth comparisons help us determine the future relevance of CJEU case law?

2019 ◽  
Vol 48 (1-2) ◽  
pp. 15-38
Author(s):  
Paula Giliker
Keyword(s):  
European Union ◽  
Case Law ◽  
Private Law ◽  
Eu Law ◽  
The European Union ◽  
Privy Council ◽  
Legal Perspective ◽  
The Future ◽  
The Uk ◽  
The Right

In June 2016, the United Kingdom voted in a referendum to leave the European Union (EU). The consequences of Brexit are wide-ranging, but, from a legal perspective, it will entail the repeal of the European Communities Act 1972. The UK government does not intend to repeal EU law which is in existence on exit day, but, in terms of the interpretation of retained law, decisions of the Court of Justice of the European Union (CJEU) will no longer be binding after Brexit. Nevertheless, s. 6(2) of the EU (Withdrawal) Act 2018 does allow the UK courts to continue to pay regard to EU law and decisions of the CJEU ‘so far as it is relevant to any matter before the court’. This article will consider the meaning of the phrase ‘ may have regard to anything…so far as it is relevant’. In empowering the courts to consider post-Brexit CJEU authority subject to the undefined criterion of relevancy, how is this power likely to be exercised? A comparison will be drawn with the treatment of Privy Council and the UK case law in Commonwealth courts following the abolition of the right of appeal to the Privy Council, with particular reference to the example of Australia. It will be argued that guidance may be obtained from the common law legal family which can help us predict the future relevance and persuasiveness of CJEU case law in the interpretation of retained EU private law.

Taking Private Law Rights Seriously: Of Balancing and the Jurisprudence of the Court of Justice of the European Union

2014 ◽  
Vol 16 ◽  
pp. 393-416
Author(s):  
Leone Niglia
Keyword(s):  
European Union ◽  
Private Law ◽  
The European Union ◽  
Consumer Law ◽  
Court Of Justice ◽  
As If

AbstractThis chapter reviews conventional understandings of the CJEU private (consumer) law jurisprudence towards overcoming the tendency to read it as if judges were just mechanically applying the relevant legislative texts (textualism). It argues that the CJEU jurisprudence revolves around the employment of balancing modes of reasoning; that it is characterised by an unresolved tension between balancing decisions that optimise rights and balancing decisions that under-optimise rights; and that scholarship should exercise vigilance, with an eye on national constitutional realms, in relation to the judges’ balancing acts towards promoting awareness over the extent of rights’ optimisation, rather than clinging on textualist readings that blind us as to what is really happening in the courtrooms.

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