Principles of European Private or Civil Law?

• Published date: 01 November 2012
• DOI: http://doi.org/10.1111/eulj.12006
• Author: Kai Purnhagen
• Date: 01 November 2012

Principles of European Private or

Civil Law?

A Reminder of the Symbiotic Relationship between the ECJ

and the DCFR in a Pluralistic European Private Law

Kai Purnhagen*

Abstract: The aim of this piece is to draw the attention of the debate on principles in

European private law to an institutional question. As the question of who detects these

principles is crucial to understand the values and intentions behind the provisions on

principles, I turn to the significance of the authority question of who detects principles of

European Private law with regard to the two players ECJ and the academic circle ‘Joint

Network on European law’. After analysing the role of these players I will ask whether

private law principles (which are principles derived from the analysis of contractual

relationships by academics) or principles of civil law (derived from conflict solution by

judges) govern the principles debate in European Private law. I will argue for a plural-

istic understanding of European Private law, where neither academia nor the ECJ enjoy

a monopoly on the detection of principles in European Private law. Instead, they form a

symbiotic relationship in several respects. Understood in this way, the DCFR’s role as

a toolbox for the legislator is supplemented with its maybe even stronger significance as

a toolbox for judges.

The development of research on European Private law1has accelerated massively

during the last decade. While in the past, EU law has largely been associated with

issues of what in national legal systems is referred to as Public law,2its increasing

* Akademischer Rat aZ (Senior Researcher and Lecturer) at the Ludwig-Maximilians-University Munich.

Major parts of this paper were written at the European University Institute in Florence and at the

Universiteit van Amsterdam. I am grateful for comments from Martijn Hesselink, Chantal Mak and the

anonymous reviewer of the EULJ. Mistakes are my own.

1Within this text, I will use the term ‘Private law’ with a capital P for the sake of distinction to public

law (which I will likewise write for matters of consistence with a capital P). The term ‘private law’ with

low-letter p is used for the sake of distinction to civil law, see on the various meanings of private and

civil law, R. Zimmermann, ‘The civil law in European codes,’ in H. MacQueen, A. Vaguer, A. Espiau

Espiau (eds), Regional Private Laws and Codification in Europe (Cambridge University Press, 2003), at

23 et seqq.; J. Schapp, ‘Phänomenologie und Recht,’ in J. Schapp (ed.), Methodenlehre und System des

Rechts (Mohr Siebeck, 2009), at 245, 250 et seq.

2See D. Caruso, ‘Private Law and State-Making in the Age of Globalization,’ (2006) 39 New York

University Journal of International Law and Politics 1, 1, who stipulates: ‘The fully fledged legal order

established over the past fifty years and now known as the EU is commonly understood as a creature

of public law.’

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European Law Journal, Vol. 18, No. 6, November 2012, pp. 844–867.

© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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Private legal dimension is vividly illustrated on several accounts. A major part of the

discussion has evolved around the question of whether there are certain European

principles of Private law, as well as concerning their composition and legal value,3

none of which will be recalled here. Rather, the aim of this piece is to switch the

attention of this debate to an institutional question. The question of who ‘detects’

these principles of European Private law has long been neglected and began to raise

attention only after the Draft Common Frame of Reference (hereinafter DCFR) had

been published.4I will first provide some terminological clarifications (I) before I turn

to the significance of the authority question of who detects principles of European

Private law with regard to the two players European Court of Justice5and the

academic circle ‘Joint Network on European law’ (hereinafter the Network) (II).

According to these findings, I will then analyse the role of these players. Shall private

law principles (which are principles derived from the analysis of contractual relation-

ships by academics) or principles of civil law (derived from conflict solution by judges)

govern the principles debate in European Private law (III)? In my conclusion, I

will argue for a pluralistic understanding of European Private law, where neither

academia nor the ECJ enjoy a monopoly on the detection of principles in European

Private law. Instead, they form a symbiotic relationship in several respects. European

Private law as part of European law derives from a multiplicity of sources, in which

each actor of the ‘European legal society’ takes part. Understood in this way, the

DCFR’s role as a toolbox for the legislator is supplemented with its maybe even

stronger significance as a toolbox for judges (IV).

3See inter alia Case 101/08, Audiolux [2008] ECR I-9823, Opinion AG Trstenjak, para 66 et seqq.;

C. v. Bahr, ‘Paving the Way Forward With Principles of European Contract Law,’ in S. Grundmann and

J. Stuyck (eds), An Academic Green Paper on European Contract Law (Kluwer Law International, 2002),

at 137; J. Basedow, ‘The Court of Justice and private law: Vacillation, general principles and the

architecture of the European judiciary,’ (2010) 18 European Review of Private Law 443; Editorial

Comments, ‘The scope of application of the general principles of Union law: An ever expanding Union?’

(2010) 47 Common Market Law Review 1589; A. Hartkamp, ‘The General Principles of EU Law and

Private Law,’ (2011) 75 Rabels Zeitschrift für ausländisches und internationales Privatrecht 241; K.

Lenaerts and J. Gutiérrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU

Law,’ (2010) 47 Common Market Law Review 1629; V. Mak, ‘A Shift in Focus: Systematisation in

European Private Law Through EU Law,’ (2011) 17 European Law Journal 403, 416 et seqq.;

A. Metzger, Extra legem—intra ius: Allgemeine Rechtsgrundsätze im europäischen Privatrecht (Mohr

Siebeck, 2009); R. Michaels, ‘Of Islands and the Ocean: The Two Rationalities of European Private Law,’

in R. Brownsword, H.-W. Micklitz, L. Niglia and S. Weatherill (eds), The Foundations of European

Private Law (Hart, 2011), 139 et seqq.; K. Riesenhuber, ‘System and Principles of EC Contract Law,’

(2005) 1 European Review of Contract Law 297; M. Safjan and P. Miklaszewicz, ‘Horizontal Effect of the

General Principles of EU Law in the Sphere of Private Law,’ (2010) 18 European Review of Private Law

475; C. Semmelmann, ‘Legal Principles in EU Law as an Expression of a European Legal Culture between

Unity and Diversity,’ in G. Helleringer/K. Purnhagen (eds), Towards a European Legal Culture (C. H.

Beck/Hart/Nomos, 2013, forthcoming); S. Weatherill, ‘The “Principles of Civil Law” as a Basis for

Interpreting the Legislative Aquis,’ (2010) 6 European Review of Contract Law 74.

4See H.-W. Micklitz, ‘Failure or Ideological Preconceptions—Thoughts on Two Grand Projects:

The European Constitution and the European Civil Code,’ in K. Tuori and S. Sankari (eds), The Many

Constitutions of Europe (Ashgate, 2010), at 109, 133 et seq. who carefully points out that instead of the

principles stipulated by academics in the DCFR, the ECJ should be in charge of further developing

‘general principles of private law’ such as it developed ‘general principles of constitutional law.’

5Now officially named ‘Court of Justice of the European Union,’ see Section 5, Articles 251 et seq.

TFEU. Hereinafter I will refer to it as ‘the Court’ or the ‘ECJ.’

November 2012 European Private or Civil Law

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© 2012 Blackwell Publishing Ltd.