In This Issue

Date01 September 2015
Published date01 September 2015
In This Issue
This issue opens with two contrasting views on the purpose, consistency and implica-
tions of the process of Europeanisation of national private law. Bartl claims that we
are witnessing a clash of normative rationalities. On the one hand, national private
law is still underpinned by a material understanding of justice, a legacy of the postwar
Social and Democratic Rechtsstaat. On the other hand, we can discern an emerging
supranational private law that aims at turning private law into a lever of single-
market-making. This clash is the result of the paradigmatic shift in the internal market
rationality that was initiated in the late seventies and has hardened as a result of the
government of the many European crises since 2007. Something that could perhaps
be referred as the shift from the common to the single market conception of the internal
market. Indeed, as the single market conception got entrenched, the legal diversity
resulting from deeply embedded and materialised national private law systems ceased
to be regarded as part of the patrimoine of Europe; on the contrary, diversity was
recharacterised as an obstacle on the path towards the single market. Supranational
institutions (led by the Commission) have since the late nineties pushed for an in-depth
Europeanisation of national private law, aiming at a uniform set of private law rules.
This has not only fostered the depoliticisation of private law (indeed reversing the
referred postwar politicisation of private law) but has also resulted in a radical transfor-
mation of the very point and purpose of private law. Bartl shows that the drive to a
one-size-ts all private law is underpinned by a vision of private law as a means to free
circulation leading to cheap prices, and no longer as a means to achieve commutative
and distributive justice. Similarly, the addressee of this new breed of private law is not
the free and moral agent, but the transnational European who makes active use of the
single market (the dynamic, open-minded, exible, well-informed, self-standing and
self-conscious mobile consumer). The ultimate frontier of this radical new understand-
ing of private law is to be found in the project of creating and maintaining an online
internal market. By a close dissection of the narrative of the Commission on the matter,
Bartl shows how functionalist thinking has married neoliberal ideology to produce a
highly toxic mix which leads to tunnel vision (rendering EU law blind to any goal other
that integration for the sake of integration) and reduces knowledge to a (blunt) instru-
ment of domination. By zooming in the case law of the European Court of Justice on
unfair contractual terms, and very especially, on the Aziz ruling, Gerstenberg puts
forward a contrasting assessment of the interplay of supranational law and national
private law. In reaction to the legislative deadlock on unfair contractual terms (the
denition of which largely remains within the province of the national legislator), the
European Court of Justice would have established a full-blown supranational legal
regime. According to the author, the boldness of the Luxembourg judges should be
welcomed nonetheless, because the ECJ would not be imposing its views on an
undemocratic, dictatorial and uniformising fashion, but, on the contrary, the Court
would have managed to spark a non-hierarchical, citizen-based, democraticreconsid-
eration of how supranational and national imperatives should be reconciled. By means
of staying carefully clear of deciding the cases, but emphatically drawing the principled
framework within which national judges would have to solve them, the Court would
European Law Journal, Vol. 21, No. 5, September 2015, pp. 569571.
© 2015 John Wiley & Sons Ltd. 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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