10 research outputs found
Which Governance for European Private Law?
The paper describes the necessity to consider the role of private rule making and the
increasing importance of national regulatory agencies, in the process of European legal
integration. It then focuses on the legislative design and process implementation of EPL.
Its departing assumption is that EPL is and will remain a multilevel system where
national implementation of European legislation generates intentional and unintentional
spillover effects to be ‘governed’ through horizontal devices.
The author underlines that the current legislative and judicial trend towards total
harmonization is the wrong response to normative differentiation occurring in the
process of national implementation. He analyses in particular the areas of unfair
contract terms and commercial practices, providing examples of divergent
implementation which can not be tackled only at legislative level, claiming that
governance is a better response. He examines traditional modes of governance and then
considers the applicability of new modes of governance to EPL. He makes several
reform proposals; most of them do not require legislative intervention. At the legislative
level, given that the competences are organised around policy areas while private law,
following the national traditions, is conceptually organised around institutions, he
proposes different ways to improve coordination at the Commission level, concerning
legislative draft. Legislative drafting can also be improved by considering the different
impacts of new legal categories in national legal systems, especially the general clauses.
At the implementation level he emphasizes the role of judicial governance and the lack
of coordination among national judiciaries proposing the establishment of a permanent
judicial conference specialised in EPL to be coordinated with TFI and ECJ. He then
proposes the institution of committees operating according to subjects ( contract,
property, tort) that would cut across directorates competences and would analyse the
impact of European legislation on private law national systems. Finally he proposes the
use of OMC, adequately redefined to evaluate the policy effects of implementation
especially when it involves national regulatory agencies