General Principles of EU Law and European Private Law

General principles in European law have been widely debated in the last decade. During the two conferences on general principles held in Malmö (1999) and Stockholm (2007), general principles of law were mainly discussed from the perspective of human rights and administrative law. General principles of law, however, are essential to the development of European Private Law.

In fact, there are traces of general principles emerging in EU law, which can affect the private law sphere. All private relations have a public law component.First of all, overriding general principles will, of course, affect the private law sphere when issues like proportionality and legal expectations arise. The question though is whether there are any more specific principles of EU law, which have such an impact?What come to mind would be principles of law established by the Union courts, which in a very general way affect or regulate relations between private parties - rather than just being motivated by general welfare interest. Not legislative enactments, but judge-made principles. Right to property is already an established principle. One would also think of the freedom to contract, pacta sunt servandaor good faith. They are examples of general principlesin private law, which could qualify as such general principles – if it can be established that they have been pronounced on by the EU courts. But have the courts made statements, which specifically relate to them or to the private law sphere in general?

 

Issue 1: Methodology

It appears to us that the issues of methodology and legal theory have been addressed to an insufficient degree in relation to general principles of private law. What is the methodology (if any) of the CJEU in discovering general principles of private law? Could the human rights methodology based often on a comparative approach (‘the evaluative approach’) be used as a source of inspiration? Is there a role to play for the EU Charter of Fundamental Rights? Are there other sources of inspiration better fitted for European private law? What is the relationship between constitutional principles and private law principles in EU law? What is the impact of the Audiolux and NCC Danmark cases on the understanding of general principles of law? Is there a hierarchy between private law and public law principles? Ought we to talk about general principles of European private law? All these questions should be discussed during the 2012 conference.

 

Issue 2: Horizontal Effect

Another issue to be discussed will be the horizontal effect of EU law rights from a private law perspective. Advocate General Bot opined in Kücükdeveci, that “given the ever increasing intervention of Community law in relations between private persons, the Court will … be inevitably confronted with other situations which raise the question of the right to rely, in proceedings between private persons”. The Case C-70/10 Scarlet Extended offers, in that sense, a recent illustration of the horizontal effect of intellectual property rights. What is the status of horizontal effect in EU law? What are the rights boasting such a nature in EU Law? Is there a future for ‘increased’ horizontal effect in EU law after the entry into force of the EU Charter of Fundamental Rights? Horizontal effect also inevitably leads to the question of liability and damages. The Laval sagaconstitutes a perfect illustration. The Swedish Labour court afforded horizontal damages in Laval on the basis of, inter alia, Case C-94/07 Raccanelli. Still, it is rather unclear, to say the least, and contentious what criteria should be used in the context of damages between private parties for breach of EU law.

 

Issue 3: Private Law and General Principles of EU Law

Finally, the classical relationship between private law and general principles of EU law will be debated in light of recent jurisprudential developments and the entry into force of the EU Charter of Fundamental Rights. It is now well-known that the general principles constitute effective tools for the European judge reviewing acts of the Union institutions or of the Member States which have an impact on the private law context. The rights of defense, which are backed by general principles of EU law, are often an issue in competition law proceedings. Likewise, the general principle of effective judicial protection is extensively used in the field of civil remedies. Looking at the recent CJEU case law, it appears that the respect of the rights of defense in competition law proceeding constitutes a burning issue. This is even more true if we place it in the broader context of accession to the European Convention of Human Rights. The Grand Chamber in Case C-17/10 Toshiba Corporation from 14 February 2012 reflects this growing concern. In this case, the Court had to deal with the difficult application of the ne bis in idem principle in cross-border situations.

 

Concluding Remarks

In the end, it is clear that the scope of the 2012 conference is broad since it covers both the very existence of general principles of private law and the relationship between private law and general principles of EU law. This approach is in our view necessary in order both to understand the divide, or lack thereof, between private and public law in the EU legal order and to shape a EU methodology which is rendered unavoidable by the growing heterogeneity of the legal sources.