The transformation of European private law, harmonisation, consolidation, codification or chaos?

Abstract

In present-day Europe, the basic nineteenth-century situation where each nation-state had its legal system still prevails. The codes have survived on the European continent, and the nation-states are still strong. The same can be said of uncodified English law, whose hold on England and Wales is still very powerful. While the tools contribute towards the approximation or unification of law, an issue that remains to be discussed is what form the harmonised or unified law should take. Besides the format, one must also look at the law’s substantive composition. The answer to this question depends on which tools are used. Harmonisation, even if comprehensive, does not lead to a unified law system, so the nation-state law is preserved as it is, at least in form. The answer to the question also depends on the substantive nature of the Europeanized law, including social, political and perhaps religious values behind the substantive law. Thus, one has to analyse the different fields of private law on their own merits, and the choice of tools may also depend on the field. The author demonstrates what can be achieved with the current mode of governance concerning the development of European Private Law (EPL). From the most recent developments, it can be concluded that Europeanisation is an ongoing process. However, with the current modes of governance, this will likely continue through more fragmentation and in a very limited role, sometimes without even achieving the desired objectives highlighted in the various preambles. As the Internal Market may necessitate the further development of EPL, which current modes of governance do not permit, it is clear that it may be necessary to examine how innovative modes of governance discussed earlier can take the development of EPL further.