The viability of the ‘29th regime’ in the development of European private law

Abstract

The policy option adopted in the development of EU private law is a salient issue worth exploring due to the sensitivity of such field of law. In the contemporary situation, directives with minimum harmonization are normally used to harmonize private laws, resulting in legal fragmentation. In the Commission`s view, the different national laws impede the functioning of the single market and thus favours the option of an Optional Instrument in order to reduce legal diversity and enhance cross-border trade. This thesis seeks to examine the desirability and practicality of adopting optional legislations in EU private law. This is achieved through a feasibility assessment wherein the legality (legal basis), structural (mode of application and content), interoperability (with community acquis, national laws and international laws) and judicial interpretation of the optional instrument are examined. Since the success of the optional instrument depends on the stakeholders` vote, the various factors that influence stakeholders` decisions were also assessed. The thesis then looks at the experience of already existing supranational legal forms namely Societas Europaea (SE), Societas Cooperativa Europaea (SCE) and European Small Claims Procedure (ESCP); in order to shed a light on the actual practicality of the optional regulatory tool. In conclusion, the thesis demonstrates that the viability of an optional instrument depends on two criteria: the field and type of law that the EU intends to enact. Regarding regulatory law, it is concluded that optional instrument would exacerbate the existing legal complications. The focus on qualitative measures hence the convergence of the various directives (as in the case of Consumer Rights Directive) is positively supported. In contrast, it is concluded that optional instruments could be viable in facilitative law depending on its degree of cognitive awareness and ‘self-standingness’. The adoption of optional standard contracts linked with Online Dispute Resolution (ODR) is therefore encouraged. The thesis remarks that the assumption that legal diversity hinders cross border trade is disputable since other limiting factors exists which even full harmonization would not possibly strike out.