Challenges to European private law

Abstract

The European Community as an economic entity that aspires to achieve a complete Internal Market has as its goal, the free movement of the four freedoms. The opening of the markets entails a considerable growth of trade. These cross border flows are particularly made by means of contracts. The diversity of the Member States' laws is considered to be an obstacle both to encourage such trading and to the development of Europe's economic welfare. A uniformed European law of contract would make it simpler to create and perform contracts. The thesis analyses the challenges for European private law from this point of view. First it establishes the relevance of European private law with regard to the Internal Market. Then it establishes the nature of private law in Europe as well as provides an analysis of the two main legal families in Europe. It distinguishes between the challenges for a substantive European civil law and those of a harmonised set of European private international law rules relevant to the formation of contracts. While not the same project, they are evidently connected with each other and can be conducted in parallel. If any of these projects is to the light of the day to the extent desired, an appropriate legal basis has to be established and the thesis discusses any of these potential bases. While acknowledging that the process of Europeanisation is already taking place, the critical question would be how such process is to be carried out. The thesis examines the different paths and the criteria to be taken into account for this process to move forward. It also includes a brief description of the studies and proposals that are made with regards to this field. Finally the thesis examines the perspectives of a likely European Civil Code and what is being proposed at present. It comes to the conclusion that while a code does have its advantages, it would probably only be introduced if, and when, there is the political will to do so and thesystem proposed is better than the current system. It is likely that although parallel in scope, the harmonisation of conflict of laws' rules relevant to contract would proceed at a faster step than that of substantive law, at least, in the near future.