Review of Books on Private Law and EU Law

• Date: 01 June 1999
• Author: L. Antoniolli,U. Mattei
• DOI: http://doi.org/10.1111/1468-0386.00073
• Published date: 01 June 1999

Review of Books on Private Law

and EU Law

U. Mattei and L. Antoniolli*

Review Essay: H. Kötz, Europäisches Vertragsrecht, Band I: Abschluß, Gültigkeit und

Inhalt des Vertrages (Mohr 1996);H. Kötz, A. Flessner, European Contract Law, vol. 1:

Formation, Validity, and Content of Contract; Contract and Third Parties, translated by

T. Weir (Clarendon 1998); U. Drobing, Private Law in the European Union (Forum

internationale, N. 22, September 1996): G. Benacchio, Diritto privato della Comunità

europea—Fonti, modelli, regole (CEDAM 1998).

Today, there is much talk about European private law in all legal quarters: professors

and practitioners alike seem to be eager to define the character of this emerging

private law, its scope and its trends of development. The tone, however, is by no means

uniform: some fear that the very recognition of such a thing as ‘European private law’

will foster a hegemonic trend to impose a common law that will delete national

peculiarities, infringing the valuable diversity that reflects the deeper and unique

cultural characteristics of national private law. In a different mood, others consider the

building of ‘European private law’ as an attempt by the awesome Brussels bureaucracy

to overcome the variety of legal regimes that might impair the smooth working of the

European machinery. According to a positive brand of this idea, the unbearable

atomisation and inconsistency of national private law all over Europe must find some

powerful unifying force. A negative version considers Brussels’s attempt as merely

imposing one more crucial aspect of atomisation. Yet, another group of lawyers

perceive the dynamics of integrating private law on a European scale as a unique

opportunity to create a truly European legal environment, which ranges from common

rules to a common legal education and common legal scholarship. Even in this more

optimistic quarter, there is a large variety of options: some perceive the process as a

rebirth of the old splendour of the jus commune; others view the enterprise as a

modern task in search of new modern ideas, rather than the restructuring of old ones.

More importantly, there are considerable differences in the way that this new

European private law is related to the national legal systems, which co-exist with it in

the European institutional scenery in the making. Conceptions range from an idea of

mutual independence, according to which all areas falling outside the core of the

subjects harmonised by EC intervention remain totally under the control of national

law, to complex models where harmonised law interacts with national rules (and this

interaction can be both smooth or conflictual), according to a multiplicity of patterns

which spill over also to sectors of private law that are formally beyond the reach of the

Union.

European Law Journal, Vol. 5, No. 2, June 1999, pp. 135–140

© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

* Luisa Antoniolli Deflorian, University of Trento and Ugo Mattei, Hastings College of the Law and

University of Torino