In This Issue

• DOI: http://doi.org/10.1111/eulj.12146
• Date: 01 September 2015
• Author: Agustín José Menéndez
• Published date: 01 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-fits 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, flexible, 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

definition 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, democratic”reconsid-

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. 569–571.

© 2015 John Wiley & Sons Ltd. 9600 Garsington Road, Oxford, OX4 2DQ, UK

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