The constitutional transformation of private law pillars through the CJEU

Abstract

The person, contract, tort, property and remedies form the ‘ pillars ’ 1 of each and every private law system, whatever its origin might be, continental civil law or common law, and however it might appear, traditional private law or regulatory private law. 2 These pillars are subject to a deep transformation, that should be termed ‘ constitutional ’ and that is captured in Duncan Kennedy’s distinction between the three globalisations of law and their impact on legal thought. 3 Th e focus in this chapter is placed on European law and on the European Union (EU). EU law and the Court of Justice of the European Union (CJEU) are the drivers behind the transformation. This focus is justified because the EU is not a state, because the EU has no European constitution and no European Civil Code, and because the CJEU is neither a constitutional court nor a supreme court. In other words, the EU is a very particular and unique entity containing a little bit of everything that makes for a state and a sovereign legal order. Th us, I claim that the ‘ constitutional ’ transformation of the pillars of private law through the EU and the CJEU differs in form and in substance from seemingly comparable processes in at least some of the Member States. Personally, I take as plausible the notion of the experimental character of the EU as a new state formation. Th is perspective views the EU legal (dis)order as a new format for a legal order, with a court that, owing to its particular position in the multi-level structure of the EU, enjoys a degree of freedom and discretion that allows the Court to break boundaries that national courts (whether their position is constitutional or otherwise) tend to defend. However, such an understanding implies equally that my findings are tentative and premature.