Tilburg University
The development of European private law in a multilevel legal order
van Schagen, E.A.G.
Publication date: 2013
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van Schagen, E. A. G. (2013). The development of European private law in a multilevel legal order. Unknown Publisher.
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The development of European private law in a multilevel
legal order
Proefschrift ter verkrijging van de graad van doctor aan Tilburg University
op gezag van de rector magnificus, prof. dr. Ph. Eijlander,
in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie
in de aula van de Universiteit
op maandag 14 oktober 2013 om 16.15 uur door Esther Anna Gabriëlle van Schagen
2
Promotores: Prof. dr. J.M. Smits, Prof. dr. mr. T.F.E. Tjong Tjin Tai Members of the defense committee:
Prof. mr. J.B.M. Vranken Dr. V. Mak
3
Preface
During my research, I have received valuable support from my promotores, colleagues, family and friends.
I would like to thank my promotores, Prof. Jan Smits and Prof. Eric Tjong Tjin Tai, for their supervision and their valuable support, and their questions and comments on often very large documents. I would like to express thanks to Prof. A.L.B. Colombi Ciacchi, Prof. M.B.M. Loos, Dr. V. Mak and Prof. J.B.M. Vranken for participating in my defense committee. I am also grateful to Vanessa Mak for her advice and interest during my PhD research and to Aurelia Colombi Ciacchi for giving me time for and support in finishing the manuscript. The comparative research in this thesis was made possible by the financial support of the Max Planck Institute for Comparative and International Private Law. The Institute enabled me to make use of its renowned library and provided a wonderful environment for my research. I also owe thanks to my colleagues from the fifth floor in Tilburg and the private law department in Tilburg, for the pleasant years I worked there, and my colleagues in the Groningen Center for Law and Governance and the private law department, for their kind welcome and their interest in my research. Particularly, I would like to thank those colleagues who kindly agreed to participate in my test defense, and the colleagues who gave me the opportunity to present my research and prompted further thinking on my part with their valuable questions and comments. Specifically, also, many thanks to my paranimfs Zihan Niu, Stefanie Jansen and Lianne Hessels for their support, friendship and patience in organizing the defense.
Many things (moving, marriage, a family) have happened since I started my PhD research. The support of my family and friends has been very valuable to me, particularly the help and support of Jan Koenen, Jaspert and Lilian Koenen and Jan and Hennie Meijer, and my friends from Almere.
Finally, a special word of thanks to my parents, Peter van Schagen and Jacqueline Uchtman, who have always encouraged me and supported me, and to my husband, Michiel, for his love and support.
Esther van Schagen
4
The development of European private law in a multilevel
legal order
Index
The development of European private law in a multilevel legal order ... 1
Preface ... 3
Index ... 4
Chapter 1: Introduction ...14
Chapter 2: Benchmarks for European private law ...14
Chapter 3: Outlook ...51
Chapter 4: Actors developing private law in the German legal order ...57
Chapter 5: Actors developing private law in the Dutch legal order ... 123
Chapter 6: The role of actors and the development of European private law ... 173
Chapter 7: The use of national techiques in the development of European private law ... 186
Chapter 8: The use of additional and alternative techniques... 215
Chapter 9: The development of the law on standard contract terms ... 270
Chapter 10: The development of the law on Allgemeine Geschäftsbedingungen ... 281
Chapter 11: The development of the law on algemene voorwaarden ... 363
Chapter 12: Generalisation ... 441
5
The development of European private law in a multilevel legal order ... 1
Preface ... 3
Index ... 4
Chapter 1: Introduction ...14
1.1. Introduction ...14
1.2. Multilevel governance ...14
1.3. The main research question and sub-questions ...17
1.4. Limitations ...19
1.5. Methodology...20
Chapter 2: Benchmarks for European private law ...22
2.1. Introduction ...22
2.2. Benchmarks for good law ...22
2.3. The comprehensibility of European private law ...23
2.3.1. Predictability ...25
2.3.2. Accessibility ...26
2.3.3. Consistency ...27
2.3.4. Overlaps between predictability, accessibility and consistency ...28
2.4. Responsiveness ...28
2.4.1. Private law should be responsive to society’s views on justice ...30
2.4.2. Private law should be responsive to practice ...32
2.4.3. Relations between responsiveness and legal certainty ...32
2.5. Benchmarks of justice, coherence and legal equality ...35
2.5.1. Justice ...35
2.5.2. Coherence ...36
2.5.3. Legal equality ...37
2.6. Developing private law in a national or multilevel legal order ...40
2.6.1. Developing private law in the nation state ...40
2.6.2. Developing comprehensible European private law in a multilevel legal order: the role of non-state actors ...41
2.6.2.1. The increasing role of non-state actors ...42
2.6.2.2. Detriments ...43
2.6.2.3. Benefits ...43
2.6.2.4. Conclusion on the increasing role of non-state actors ...44
2.6.3. Multiple actors developing European private law ...45
2.6.3.1. More state actors ...45
2.6.3.2. Detriments ...47
2.6.3.3. Benefits ...48
2.6.3.4. Conclusion on the coexistence of more state actors developing European private law ...49
2.7. Conclusion ...49
Chapter 3: Outlook ...51
3.1. Introduction ...51
3.2. What actors are involved in the development of European private law? ...51
3.3. Comparing the role of actors ...51
3.4. Interdepedendence, interaction, and the use of techniques ...52
3.5. Techniques in addition or instead of currently used techniques ...54
3.6. Case study ...55
Chapter 4: Actors developing private law in the German legal order ...57
4.1. Introduction ...57
4.2. Central questions on the role of state actors and non-state actors ...58
4.2.1. The distinction between law and juridical acts as a basis for binding rules ....58
4.2.2. Problems of Fremdbestimmung ...59
4.2.3. German alternative regulation and constitutional rights ...61
6
4.2.5. The distinction between legislation and alternative regulation at the European level 62
4.2.6. The European view: Alternative regulation and fundamental rights? ...62
4.2.7. Comparison ...62
4.2.8. Conclusion on central questions ...64
4.3. State actors ...64
4.3.1. The national legislator and the judiciary ...64
4.3.2. The development of private law beyond the national level ...65
4.3.2.1. European actors developing private law in the German legal order ...65
4.3.2.1.1. The competence of European actors under the TFEU ...65
4.3.2.1.2. The competence of European actors under German constitutional law ....67
4.3.2.2. The role of actors under the TFEU and the GG and interdependence ...69
4.3.2.3. The role of international actors ...70
4.3.3. Conclusion on state actors ...71
4.4. State actors and non-state actors: co-regulation ...71
4.4.1. Referral ...72
4.4.1.1. Instances of referral to privately drafted rules ...72
4.4.1.2. The role of non-state actors in instances of dynamic referral ...74
4.4.1.3. The development of control mechanisms ...75
4.4.1.4. Comparison ...76
4.4.2. Collective agreements ...77
4.4.2.1. Tarifverträge (‘TV’s’), Betriebsvereinbarungen (‘BV’s’) and framework agreements ...77
4.4.2.2. The role of non-state actors ...79
4.4.2.3. The development of control mechanisms ...81
4.4.2.4. Comparison ...83
4.4.3. Conclusion on state actors and non-state actors ...83
4.5. Non-state actors ...84
4.5.1. Contractual self-regulation ...85
4.5.1.1. The role of individual contract parties ...85
4.5.1.2. Collective contracts ...89
4.5.1.2.1. The use of collective contracts ...89
4.5.1.2.2. The role of non-state actors ...91
4.5.1.2.3. Limitations to the role of non-state actors ...92
4.5.1.2.4. Conclusion on collective contracts ...93
4.5.1.3. Model contracts ...93
4.5.1.4. Standard contract terms (STC’s) ...95
4.5.1.5. Conclusion on contractual self-regulation ...97
4.5.2. Self-regulation through articles of association ...98
4.5.2.1. Internally binding codes of conduct ...98
4.5.2.2. Sports’ associations ...99
4.5.2.3. Internally binding codes for professionals ...99
4.5.2.4. The Pressekodex ... 102
4.5.2.5. The Werbekodex ... 103
4.5.2.6. The role of non-state actors ... 104
4.5.2.7. Limitations to non-state actors’ roles ... 105
4.5.2.8. Comparison ... 108
4.5.2.9. Conclusion on self-regulation on the basis of articles of association ... 108
4.5.3. One-sided juridical acts ... 108
4.5.3.1. Encouraging codes to complement hard law: corporate social responsibility 109 4.5.3.2. Lack of interference because of self-regulation: the BVI-Verhaltensregeln 109 4.5.3.3. Border cases: Binding one-sided declarations? ... 110
4.5.3.4. General declarations: consumer services ... 111
7
4.5.3.6. Limitations to non-state actors’ roles ... 114
4.5.3.7. Comparison ... 115
4.5.3.8. Conclusion on one-sided self-regulation... 115
4.5.4. Conclusion on non-state actors ... 115
4.6. Conclusion ... 117
4.6.1. The role of actors under the German framework ... 117
4.6.2. The role of actors under European law ... 117
4.6.3. Developing a European framework ... 118
4.6.4. Differences between the roles of actors under German and European law . 118 4.6.5. The German or European framework? The role of actors in the multilevel legal order 119 Chapter 5: Actors developing private law in the Dutch legal order ... 123
5.1. Introduction ... 123
5.2. Central questions on the role of state actors and non-state actors ... 123
5.2.1. The German constitutional framework as a starting point? ... 123
5.2.2. The distinction between legal norms and juridical acts... 124
5.2.3. Alternative regulation as a hybrid between law and contract? ... 125
5.2.4. Towards a framework for the role of actors developing private law in the Dutch legal order... 126
5.3. State actors ... 128
5.3.1. The legislator and the Hoge Raad ... 128
5.3.2. The development of private law beyond the state ... 128
5.3.2.1. European actors ... 128
5.3.2.2. The role of international actors in the development of private law ... 129
5.3.2.3. Conclusion on the development of private law beyond the state ... 130
5.3.3. Conclusion on state actors ... 130
5.4. State actors and non-state actors: co-regulation ... 131
5.4.1. Referral to private actors and new governance ... 131
5.4.1.1. Instances of referral ... 131
5.4.1.2. The role of non-state actors ... 132
5.4.1.3. Limitations on the role of non-state actors ... 132
5.4.1.4. A plea for a framework on the basis of private autonomy and Fremdbestimmung ... 133
5.4.2. Codes of conduct: The corporate governance code and the banking code 134 5.4.2.1. Reinforced codes of conduct ... 134
5.4.2.2. The role of non-state actors ... 136
5.4.2.3. Limitations on the role of non-state actors ... 136
5.4.3. Collective bargaining ... 137
5.4.3.1. Instances of collective bargaining ... 137
5.4.3.2. The role of non-state actors: exercising fundamental rights? ... 139
5.4.3.3. Limitations on the role of non-state actors? ... 139
5.4.3.4. A plea for a framework on the basis of principles of private autonomy and Fremdbestimmung ... 140
5.4.4. Conclusion on state actors and non-state actors ... 141
5.5. Non-state actors ... 143
5.5.1. Contractual self-regulation ... 144
5.5.1.1. The role of contract parties ... 144
5.5.1.2. Collective contracts... 147
5.5.1.3. Model contracts ... 149
5.5.1.4. STC’s ... 150
5.5.1.5. Conclusion on contractual self-regulation ... 151
5.5.2. Self-regulation on the basis of articles of association: ‘tuchtrecht’ ... 151
5.5.2.1. Internally binding codes on the basis of articles of association ... 152
8
5.5.2.3. The encouragement of self-regulation in a national and European context 152
5.5.2.4. Encouraging self-regulation ... 153
5.5.2.5. Codes as conditions for membership: consumer sales ... 154
5.5.2.6. Codes as conditions for membership in the absence of mandatory law . 154 5.5.2.7. The role of non-state actors ... 155
5.5.2.8. Limitations on the role of non-state actors ... 156
5.5.2.9. Conclusion on ‘tuchtrecht’ ... 156
5.5.3. One sided declarations ... 156
5.5.3.1. Binding declarations: consumer sales ... 157
5.5.3.2. Binding declarations: contracts for the supply of energy ... 157
5.5.3.3. Suggesting reinforced self-regulation: social corporate responsibility .... 158
5.5.3.4. Codes of conduct on the basis of recommendations ... 158
5.5.3.5. Primary payment services: binding declarations? ... 159
5.5.3.6. The role of non-state actors ... 160
5.5.3.7. Limitations on the role of non-state actors? ... 162
5.5.3.8. Conclusion on one-sided declarations ... 163
5.5.4. Reconsidering the distinction between tuchtrecht and one-sided declarations 163 5.5.5. Conclusion on non-state actors ... 164
5.6. Conclusion ... 165
5.6.1. The role of actors under Dutch law ... 166
5.6.2. The role of actors under European law ... 166
5.6.3. Differences between the Dutch and European view? ... 166
5.6.4. The role of actors in a multilevel legal order ... 167
Chapter 6: The role of actors and the development of European private law ... 173
6.1. Introduction ... 173
6.2. Frameworks for assessing the role of actors ... 173
6.3. State actors ... 174
6.3.1. The development of private law at the national level ... 174
6.3.2. The role of actors beyond the national level ... 178
6.4. The role of non-state actors ... 179
6.4.1. The role of non-state actors compared ... 179
6.4.2. The role of non-state actors and the development of private law ... 182
6.5. Conclusion ... 183
Chapter 7: The use of national techiques in the development of European private law ... 186
7.1. Introduction ... 186
7.2. The use of codifications in a multilevel legal order ... 187
7.2.1. The implementation of the acquis within codifications ... 187
7.2.2. The use of codifications in areas of private law with a ‘cross-border’ aspect 189 7.2.3. Conclusion on the use of codifications ... 191
7.3. The use of soft laws ... 194
7.3.1. Soft laws modelled on national codifications ... 194
7.3.2. Overlapping sets of soft law ... 196
7.3.3. Soft law(s) and the private law acquis ... 197
7.3.4. Conclusion on the use of soft laws ... 199
7.4. The use of blanket clauses in a multilevel legal order ... 200
7.4.1. Blanket clauses: furthering the responsiveness of European private law? 200 7.4.2. Interaction between courts in the interpretation of blanket clauses . 202 7.4.3. Conclusion on the use of blanket clauses ... 205
7.5. The use of general principles ... 206
9
7.5.2. Weaknesses arising from the use of general principles? ... 207
7.5.2.1. The ‘discovery’ of general principles and predictability... 207
7.5.2.2. The discovery and the use of general principles: problems of accessibility ... 210
7.5.2.3. Conclusion... 211
7.5.3. Conclusion on the use of principles ... 211
7.6. Conclusion ... 212
Chapter 8: The use of additional and alternative techniques ... 215
8.1. Introduction ... 215
8.2. Additional techniques supporting the legislative process ... 215
8.2.1. Consultations ... 218
8.2.1.1. The current use of consultations ... 219
8.2.1.2. Shortcomings in the use of consultations ... 220
8.2.1.3. Improving the use of consultations ... 222
8.2.1.4. Conclusion on the use of consultations ... 224
8.2.2. Impact assessments ... 224
8.2.2.1. Shortcomings in the use of impact assessments ... 225
8.2.2.2. Improving the use of impact assessments ... 228
8.2.2.3. Conclusion on the use of impact assessments ... 228
8.2.3. Networks ... 229
8.2.3.1. The current use of networks ... 229
8.2.3.2. Current shortcomings in the use of networks ... 229
8.2.3.3. Improvements in the use of networks ... 231
8.2.3.4. Conclusion on the use of networks ... 231
8.2.4. Databases ... 231
8.2.4.1. The current use of databases ... 232
8.2.4.2. Shortcomings in the use of databases ... 232
8.2.4.3. Improving the use of databases ... 233
8.2.4.4. Conclusion on the use of databases ... 233
8.2.5. Conclusion on the use techniques to strengthen the legislative process 234 8.3. Additional techniques beyond the legislative process: blanket clauses 237 8.3.1. Guidance on the interpretation of blanket clauses ... 237
8.3.2. Suggestions for comitology procdures ... 237
8.3.3. The use of alternative regulation in the interpretation of blanket clauses 238 8.3.4. The introduction of the prejudicial procedure in Dutch law ... 239
8.3.5. Conclusion on the use of techniques in addition to blanket clauses 240 8.4. Additional techniques beyond the legislative process: Standard Terms and Conditions (STC’s) ... 242
8.4.1. The current use of STC’s ... 242
8.4.2. Improving the predictability and responsiveness of private law ... 242
8.4.3. Conclusion on the use of STC’s ... 244
8.5. Additional techniques beyond the legislative process: The Open Method of Coordination (‘OMC’) ... 246
8.5.1. A closer look at the OMC ... 246
8.5.2. Improving the responsiveness of European private law? ... 247
8.5.3. Drawbacks ... 248
8.5.4. Conclusion on the use of the OMC ... 249
8.6. Alternative techniques ... 250
8.6.1. Implementation problems and strategies: Regulations instead of Directives? ... 250
8.6.2. Optional regimes ... 252
10
8.6.2.2. How can optional regimes contribute to more comprehensible European private law? 254
8.6.2.3. Drawbacks ... 254
8.6.2.4. Conclusion on the use of optional regimes ... 255
8.6.3. American inspiration ... 256
8.6.3.1. The use of Restatements in the European legal order ... 256
8.6.3.2. Experiences with the DCFR and the Restatements ... 258
8.6.3.3. The use of model laws ... 259
8.6.3.4. Conclusion on the use of American techniques ... 261
8.6.4. Collective bargaining ... 261
8.6.4.1. Suggestions for collective bargaining ... 262
8.6.4.2. The need for inclusive and representative negotiations between equal parties 262 8.6.4.3. Conclusion on the use of collective bargaining ... 263
8.6.5. Conclusion on the use of alternative techniques ... 264
8.7. Conclusion ... 265
Chapter 9: The development of the law on standard contract terms... 270
9.1. Introduction ... 270
9.2. The choice for a case study ... 271
9.2.1. Dilemma’s ... 271
9.2.2. The law on STC’s ... 272
9.3. Which actors coexist and has interdependence developed? ... 273
9.3.1. Actors developing the law on STC’s ... 273
9.3.2. Interdependence between actors ... 275
9.3.3. Conclusion on interdependence and the need for interaction ... 279
9.4. Conclusion and outlook ... 279
Chapter 10: The development of the law on Allgemeine Geschäftsbedingungen ... 281
10.1. Introduction. ... 281
10.2. The law on Allgemeine Geschäftsbedingungen ... 281
10.3. The development of the law on STC’s through the BGB ... 282
10.3.1. Codification or Sonderprivatrecht? ... 282
10.3.1.1. A national choice for Sonderprivatrecht ... 282
10.3.1.2. Comparative law and the continued existence of Sonderprivatrecht 284 10.3.1.3. The Schuldrechtsreform and the choice for incorporation ... 286
10.3.1.4. Conclusion on the choice for codification ... 289
10.3.2. The existence of well-developed legislation and harmonisation ... 289
10.3.2.1. The debate in the development of the Directive ... 289
10.3.2.2. The implementation of the Directive ... 290
10.3.2.3. The application of the Directive by the courts ... 293
10.3.2.4. The discussion on the revision of Directive 93/13 ... 295
10.3.2.5. Conclusion on the development of German law on STC’s and harmonisation 298 10.3.3. German law on STC’s and internatonal trade ... 299
10.3.3.1. Regulatory competition ... 299
10.3.3.1.1. Regulatory competition: undesirable in the law on STC’s ... 299
10.3.3.1.2. Interaction with non-state actors ... 300
10.3.3.1.3. The private initiative for regulatory competition ... 301
10.3.3.1.4. Conclusion on regulatory competition ... 303
10.3.3.2. The interpretation of international contracts ... 303
10.3.3.2.1. Negotiating STC’s ... 304
10.3.3.2.2. The valid inclusion of STC’s ... 305
10.3.3.2.3. Adequately making STC’s available ... 307
10.3.3.2.4. The interpretation of clauses in international contracts ... 309
11
10.3.3.3. Conclusion on the development of German law and international
trade 311
10.3.4. Conclusion on the development of the law on STC’s through the BGB 312
10.4. Blanket clauses ... 313
10.5. Principles ... 337
10.5.1. The development of the German law on STC’s ... 337
10.5.2. The development of the European law on the basis of principles? . 339 10.5.3. Principles underlying the development of the law on STC’s: similarities 340 10.5.4. Principles underlying the development of the law on STC’s: divergences 341 10.5.5. Conclusion on principles underlying the law on STC’s ... 342
10.6. Conclusion on the development of the law on STC’s through national techniques 343 10.6.1. The law on STC’s and the implementation of Directive 93/13 ... 343
10.6.2. The law on STC’s and international trade ... 345
10.6.3. More and better interaction? ... 346
10.7. The use of additional or alternative techniques ... 348
10.7.1. Techniques to support the legislative process ... 349
10.7.2. The development of the DCFR ... 350
10.7.2.1. The DCFR and the private law acquis ... 351
10.7.2.2. The DCFR and national practice ... 353
10.7.2.3. The DCFR and other soft laws ... 354
10.7.2.4. Conclusion on the DCFR as an additional technique ... 355
10.7.3. Techniques in addition to blanket clauses ... 355
10.7.3.1. The use of self-regulation ... 356
10.7.3.2. The use of lower regulation ... 356
10.7.3.3. Conclusion on the use of techniques in addition to blanket clauses 358 10.7.4. Studying the use of STC’s ... 358
10.7.5. Optional regimes: the CESL ... 358
10.7.6. Collectively negotiating STC’s for cross-border trade ... 359
10.7.7. Conclusion on the use of additional and alternative techniques ... 360
10.8. Conclusion ... 361
Chapter 11: The development of the law on algemene voorwaarden ... 363
11.1. Introduction ... 363
11.2. The law on algemene voorwaarden ... 363
11.3. The development of the law on STC’s through the BW. ... 365
11.3.1. The choice for codification ... 365
11.3.2. Replacing self-regulation through the BW ... 367
11.3.3. The development of Dutch law and harmonisation ... 369
11.3.3.1. The drafting of Directive 93/13... 369
11.3.3.2. The implementation of Directives affecting the law on STC’s ... 371
11.3.3.3. The application of Directives by the courts ... 373
11.3.3.4. The attempted reform of Directive 93/13 ... 376
11.3.3.5. The revision of the law on STC’s at a national level ... 379
11.3.3.6. Conclusion on the development of Dutch law and harmonisation ... 382
11.3.4. Dutch law on STC’s and international trade ... 383
11.3.4.1. Regulatory competition ... 383
11.3.4.2. The interpretation of international contracts ... 384
11.3.4.2.1. The valid inclusion of STC’s ... 385
11.3.4.2.2. Making STC’s adequately available ... 389
11.3.4.2.3. The interpretation of clauses ... 391
12
11.3.3.7. Conclusion on the development of Dutch law and international trade 393
11.3.5. Conclusion on the development of the law on STC’s through the BW 393
11.4. Blanket clauses ... 395
11.4.1. The development of the law through article 6:233 sub a BW ... 395
11.4.1.1. The drafting of article 6:233 sub a BW ... 395
11.4.1.2. Interaction between the judiciary in the interpretation of article 6:233 sub a BW 396 11.4.1.3. Conclusion on the development of the law through article 6:233 sub a BW 402 11.4.2. Model lists ... 403
11.4.2.1. The drafting of model lists ... 403
11.4.2.2. The interpretation of articles 6:236 and 237 BW ... 404
11.4.2.3. Conclusion on model lists ... 409
11.4.3. The evaluation of international and domestic business contracts ... 409
11.4.3.1. Applicable regimes ... 410
11.4.3.2. The evaluation of clauses under the Montréal Convention ... 411
11.4.3.3. The evaluation of clauses under the CMR ... 411
11.4.3.4. The evaluation of clauses in international contracts under Dutch law 412 11.4.3.5. The evaluation of domestic “black” and “grey” clauses under Dutch law 413 11.4.3.6. Conclusion on the evaluation of clauses in international contracts . 414 11.4.4. Conclusion on blanket clauses ... 414
11.5. Principles ... 416
11.5.1. The development of the Dutch law on STC’s on the basis of principles 416 11.5.2. Principles underlying the law on STC’s: similarities ... 417
11.5.3. Principles underlying the law on STC’s: divergences ... 418
11.5.4. Conclusion on principles underlying the law on STC’s ... 418
11.6. Conclusion on the development of the law on STC’s through national techniques 419 11.6.1. The law on STC´s and the implementation of Directives... 419
11.6.2. The development of the law on STC´s and international trade ... 422
11.6.3. More and better interaction ... 424
11.7. Additional and alternative techniques ... 427
11.7.1. Techniques supporting the legislative process ... 428
11.7.2. The development of the DCFR ... 430
11.7.2.1. Divergences between the DCFR, the acquis, and other soft laws. .. 430
11.7.2.2. The DCFR and national practice ... 431
11.7.2.3. Conclusion on the use of the DCFR as an additional technique ... 432
11.7.3. Techniques in addition to blanket clauses ... 433
11.7.3.1. Comitology ... 433
11.7.3.2. Guidelines ... 434
11.7.3.3. The prejudicial procedure ... 435
11.7.3.4. Alternative regulation ... 436
11.7.3.5. Conclusion on the use of techniques in addition to blanket clauses 437 11.7.4. The development of collective negotiations ... 437
11.7.5. Conclusion on the use of additional and alternative techniques ... 438
11.8. Conclusion ... 439
Chapter 12: Generalisation ... 441
12.1. The roles of actors ... 441
13
12.3. The use of techniques in addition to or instead of national techniques 446
12.4. Conclusion ... 447
Chapter 13: Conclusions ... 448
13.1. Introduction ... 448
13.2. What actors should develop private law? ... 449
13.2.1. A principled approach: the German framework ... 449
13.2.2. An instrumental approach: The European view ... 450
13.2.3. The middle road: the Dutch approach... 451
13.2.4. Consequences for the role of non-state actors ... 453
13.2.5. A coherent approach? ... 453
13.3. The use of national techniques ... 454
13.3.1. Problems because of restraint at the national level ... 454
13.3.2. Problems because of a lack of interaction at the European level .... 457
13.3.3. Benefits arising from interaction in the multilevel legal order ... 458
13.3.4. Improvements in the development of the law ... 460
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Chapter 1: Introduction
1.1. Introduction
As legal persons have entered into transnational trade, national legislators have become less capable to provide rules to control the conduct of these persons beyond their territory, and national legislators and courts may not be familiar with the needs and preferences of international actors. These developments necessitate the development of transnational rules. Consequently, more actors have become involved in the development of private law in the European Union. Accordingly, the European legislator1 has increasingly harmonised parts of private law, i.e. the area of material2 law3 that stipulates transactions between legal persons.4
Thus, the development of private law in the European Union entails the involvement of multiple actors, and increasingly complex processes through which private law is developed. Unfortunately, various problems have become visible: the implementation of the private law acquis has led to difficulties,5 the revision of the private law acquis has proven to be a lenghty process6 and shortcomings in the debate preceding harmonisation at the European level have become visible.7 Do these problems mean that the involvement of multiple actors is problematic, or can it also be beneficial?
The coexistence of actors in the European Union serves as a starting point for the debate on multilevel governance, further discussed in paragraph 1.2. Paragraph 1.3. will consider the main research question and the sub-questions in more detail. Paragraph 1.4. will outline limitations in this book, and paragraph 1.5. will turn to the methodology.
1.2. Multilevel governance
1
This book will focus on the coexistence of European and national state and non-state actors involved in the development of European private law. See further on this limitation, par.1.4.
2 This definition entails that the focus is not on ‘procedural’ law. See for a definition L. Del Duca, ‘Developing global transnational harmonization procedures for the twenty-first centruy: The accelerating pace of common and civil law convergence’, 42 Texas International Law Journal 2006-2007, p. 658.
3 “Law” includes both ‘hard law’, and other rules, referred to as alternative regulation (comp. I. Giesen, ‘Alternatieve regelgeving in privaatrechtelijke verhoudingen’, in: Alternatieve regelgeving (Handelingen Nederlandse juristen vereniging 2007-I, p. 73: all rules that are not ‘normal’ rules, i.e. rules that are established by the legislator. In this book, alternative regulation will also include rules developed through delegation). Accordingly, alternative regulation including soft law (norms without legally binding force which may affect parties’ behaviour:Comp. L. Senden, Soft law in European Community law (diss. Tilburg), Hart: Portland 2004, p. 111-112), co-regulation, which involves both the cooperation between public and private actors in the making of new rules, and the reinforcement of rules negotiated by stakeholders with ‘hard law’, while these forms cannot be characterised as ‘traditional’ legislation from the state. Comp. also for a definition of co-regulation Ph. Eijlander, ‘Possibilities and constraints in the use of self-regulation and co-regulation in legislative policy: Experiences in the Netherlands – Lessons to be learned for the EU?’, Electric Journal of Comparative Law 2005, p. 3, available at http://www.ejcl.org/91/art91-1.html, and self-regulation, which can be understood as the making of rules and norms by both by contract parties or a group of persons or bodies binding contract parties or this group, and often, but not necessarily, other private actors that choose to be bound by the rules made through self-regulation.
4
In this volume, European private law, or private law in the European Union, refers to law that stipulates the rights and duties of parties in transactions developed at the international, European and national level. The book focusses particularly on private law in the Dutch and German legal order, including relevant European law and treaties.
5
For example, the implementation of Directives may lead to inconsistencies in natonal codifications, see W.H. Roth, ‘Transposing “pointillist” EC guidelinesinto national systematic codes – Problems and consequences’, ERPL 2002, p. 761. 6 The revision of the acquis can be traced to COM (2001) 398 final. More than ten years later, important measures – including Directive 99/44 on consumer sales, Directives 93/13 on unfair contract terms and Directive 90/314 on package travel – still need to be revised. It is not clear if and when these measures will be revised.
15
In political science, the debate on multilevel governance has emphasised the coexistence of actors, and the interaction and interdependence between actors, as becomes clear from the well-established definition of multilevel governance by Marks:8
‘a system of continuous negotiation among nested governments at several territorial tiers – supranational, national, regional, and local – as the result of a broad process of institutional creation and decisional reallocation that has pulled some previously centralized functions of the state up to the supranational level’
According to this description, the authority of the state has been fragmented: upwards, especially to the European Union, as well as international actors, downwards, to sub-national actors, and sideways, to non-governmental actors.9 Multilevel governance thus emphasises developments in which the roles of governments across levels change and become more interdependent.
This book focusses on the European legal order, which refers to the competences of and relations between Member States and the Union, as well as international organisations and non-state actors, based on national constitutions, the TFEU and the TEU, treaties, and the law, in particular European private law, established in accordance with these constitutions and Treaties. The European legal order has both been characterised as a confederation, i.e. an organisation based on agreements between states, which however has increasing characteristics of a federation,10 and as a federation, particularly ‘a constitutional order that strives at unity in diversity among previously independent or confederally related component entities’, which may have characteristics of a confederation.11
The European legal order as a whole can be characterised as a legal order that consists of various levels. Accordingly, an international, European and national layer can be distinguished. Van Gerven and Lierman12 have held that there is no sharp distinction between these legal orders; they overlap and may conflict with one another, or inspire one another.
According to the discourse on multilevel governance, this multilevel legal order is characterised by interdependence and interaction. The increasing interdependence between actors necessitates interaction between actors.13 This interdependence and interaction for example becomes visible in the prejudicial procedure, where the CJEU and national courts need to interact with one another to ensure the correct interpretation of the acquis. Similarly, the interdependence between state actors and non-state actors14 also leads to more interaction, as becomes visible in the interaction between non-state actors and the European legislator in the development and review of Directives.15 The increased role of non-state
8 G. Marks, ‘Structural policy and multilevel governance in the EC’, in: A. Cafruny, G. Rosenthal (eds.), The state of the European Community Vol. 2: The Maastricht debates and beyond, Rienner: Boulder 1993, p. 392
9 L. Hooghe, G. Marks, “Unravelling the central state, but how? Types of multi-level governance”,
(2003) Am Polit Sci Rev 233. This thesis willfocus on the reallocation of competences to the European level and to non-state actors rather than the allocation of competences to sub-national actors, see further paragraph 1.4.
10 W. van Gerven, S. Lierman, Algemeen Deel, Veertig jaar later, Kluwer: Mechelen 2010, p. 49-54.
11 K. Lenearts, ‘Constitutionalism and the many faces of federalism’, Am Journ of Comp Law 1990, p. 205-206. 12
W. van Gerven, S. Lierman, Algemeen Deel, Veertig jaar later, Kluwer: Mechelen 2010, p. 33-39, similarly, L. Miller, The emergence of EU contract law: Exploring Europeanization, OUP: Oxford 2011, p. 155.
13 Comp. J. Neyer, ‘Discourse and order in the EU: A deliberative approach to multi-level governance’, JCMS 2003, p. 689, who points to the interdependence between the European institutions as well as the interdependence between Member States seeking to affect European Union policies.
14 I. Bache, M. V. Flinders, ‘Themes and issues in multilevel governance’, in: I. Bache, M. V. Flinders (eds), Multi-level governance, Oxford: OUP 2004, p. 3.
15
16
actors is also visible in the development of co-regulation and self-regulation at the European level.16 These developments are sometimes characterised as “governance”, in contrast to “government”, denoting the development of “hard law”.17 However, this contrast has been
criticised18 and there is wide disagreement on the definition of governance.19 In this book, “governance” can be defined as ‘rules, procedures and behaviour, that affect the way in which powers are exercised’.20
The interdependence between state actors from different levels and between state actors and non-state actors in the multilevel legal order has been recognised by the Study Group on Social Justice in European private law:21
‘Law production in the European Union’s multi-level system results from the continuous interaction between semi-autonomous actors comprising legislators, the judiciary, and non-governmental organisations, at different levels – European, national, and regional. Law making can neither be monopolised nor achieved in isolation by just one branch of government or a single institution.’ Interdependence becomes visible in the decreased ability of national legislators to safeguard the consistent, predictable and accessible development of European private law, for example through codifications22 such as the Dutch Nieuw Burgerlijk Wetboek (herafter: ‘BW’) or the German Bürgerlich Gesetzbuch (hereafter: ‘BGB’), as the private law acquis continues to develop. Similarly, European actors do not have sufficient insight in national practices and legal views on justice within Member States, and consequently have to rely on Member States’ and non-state actors’ insights if they wish to develop private law in accordance with these views and practices. Equally, when actors promote the development of alternative regulation, they should take into account relevant non-state actors and their initiatives.
Thus, interdependence between actors entails high standards for the process through which private law is developed. In particular, sufficient interaction between actors is important. As will become apparent later in this book, interaction may entail many forms of contact between actors, but mere contact will generally not suffice. Instead, the quality of interaction should enable actors to profit from one another’s insights. Therefore, this volume will refer to the concept of deliberation.23 Deliberation is interaction between actors based on arguments trying to reach consensus, and actors participating in debate have to be able to put themselves in the position of other actors.
Deliberation has also been defended for European decision-making. Neyer24 argues that deliberation is superior to other modes of negotiation when it comes to problem-solving. Although deliberation may not necessarily achieve consensus on future action – i.e. the way
16
For example in the involvement of the IASB in the development of international accounting standards under Regulation 1606/2002, see further par. 4.4.1.1.
17 J. Scott, D. Trubek, ‘Mind the gap: Law and new approaches to governance’, ELJ 2002, p. 1. 18 Ch. Mollers, ‘European governance, meaning and value of a concept’, CMLR 2006, p. 313.
19 See on the potential meanings of governance F. Möslein, K. Riesenhuber, ‘Contract governance – A draft research agenda’, ERCL 2009, p. 251, with further references.
20
Comp. European Commission, European governance, A white paper, COM (2001) 428 final.
21 Study Group on Social Justice in European Private Law, ‘Social justice in European contract law: A manifesto’, ELJ 2004, p. 670. See also on European private law and multilevel governance E.A.G. van Schagen, ‘The Draft Common Frame of Reference and multilevel governance’, Edinburgh Student Law Review 2010.
22 This book will consider the use of “codifications” in the multilevel legal order, which refers to traditional codifications such as the BW and the BGB. Codifications, in this sense, may appear more prone to problems when multiple actors develop private law, but of course it is also possible to codify the law through revising and replacing various statutes by one statute on a particular part of private law. These codifications may or may not seek to describe the law at a specific point in time, but they may also seek to initiate changes in the law. Codifications in this sense are similarly less capable of providing a consistent and predictable set of rules if the European legislator subsequently introduces harmonization, and the use of blanket clauses in these statutes may similarly be affected. Thus, the questions considered in this book should also be of interest for codifications in this sense. 23 J. Habermas, Between facts and norms,Cambridge: MIT 1996. See further on this concept par. 8.2.
17
in which European private law should be developed – deliberation generally limits the number of options for future action, and also contributes to the quality of those options. These options can subsequently be taken as a starting point in decision-making and facilitate political compromise.
Often, arguments for deliberative discourse presume that democratically drafted legislation should play a central role. Arguably, if legislation is developed through deliberative discourse, this would be, and often is, a lengthy process, but deliberation provides legislative processes with a clearly added value, which, in turn, may prompt a preference for legislation. However, possibly, deliberative discourse could also point to the use of alternative regulation, especially in rapidly developing areas, to which law, if drafted through lengthy deliberative processes, may not adequately respond. Moreover, deliberation may take place in the development of alternative regulation. Accordingly, Neyer25 and Joerges26 have defended deliberation especially in comitology.27
1.3. The main research question and sub-questions
From the perspective of private lawyers, the coexistence of national and European state actors developing European private law is perhaps the most noticeable difference between the “traditional” nation state28 and the multilevel legal order. Therefore, the main research
question asks to what extent the development of European private law by multiple actors is problematic or beneficial for the quality of European private law.
This question will be answered through the following sub-questions:
i) Which benchmarks can be defended to evaluate the quality of European private law? Benchmarks of predictability, accessibility, consistency and responsiveness will be defended as private law should facilitate transactions between legal persons.29 That does not mean private law may not impose restrictions on the freedom of parties to enter into transactions; mandatory law may be in accordance with society’s legal views on justice, for example when restrictions are imposed because one party is not capable of sufficiently protecting his interests. Notably, compliance with the benchmarks in this research is not a binary question but rather a matter of degree.
The perspective of private parties will be decisive for determining whether private law meets the benchmarks in this book. “Private parties” is a large, diverse group that consists of parties who are directly or indirectly involved in entering into transactions through private law. 30 This perspective will
25 J. Neyer, ‘Discourse and order in the EU: A deliberative approach to multi-level governance’, JMCS 2003, p. 690-691. 26 Ch. Joerges, ‘On the legitimacy of Europeanising private law: Considerations on a justice-making law for the EU multi-level system’, vol 7.3 Electronic Journal of Comparative Law 2003, available at http://www.ejcl.org/ejcl/73/art73-3.html. C. de la Porte, P. Nanz, ‘The OMC – a deliberative-democratic mode of governance? The cases of employment and pensions’, JEPP 2004, p. 270-271 distinguish the argument of Joerges and Neyer for deliberative supranationalism from deliberative democracy defended by Habermas. They argue that Joerges and Neyer focus on comitology, where experts involve in evidence-based deliberative discourse. Notably, deliberative discourse ideally takes place within a limited circle of people with sufficient expertise, as is the case in comitology.
27
Comitology entails that the European legislator, under articles 290 et seq TFEU, delegates further decisions on technical matters to expert committees, see further par. 4.4.1.1.
28 This does not refer to a historically correct picture of a particular traditional nation state but rather to an idea that implicitly underpins the development of European private law. See further N. Jansen, Legal pluralism in Europe’, in: L. Niglia (ed.), Pluralism in Europe, forthcoming, via www.ssrn.com, as well as P. Oestmann, ‘Rechtsvielfalt’, in: N. Jansen, P. Oestmann (eds.), Gewohnheit, Gebot, Gesetz, Mohr Siebeck: Tübingen 2011, p. 99 et seq. This has also been argued for the Dutch legal order, as the Dutch Civil Code dates back from 1809 while the role of contract parties in private law dates from before 1809. Comp. W.J. Zwalve, ‘Regelgeving in het vermogensrecht’, RM Themis 2009, p. 20. See further on the idea of the nation state and the differences between this idea and the multilevel legal order chapter 2.
29
That does not mean this thesis is limited to contract law. Parties may also enter into transactions when because a tortfeasor is paying damages to a victim. See further on the benchmarks chapter 2.
30
18
be decisive because private law primarily addresses private parties. Private parties need to rely upon private law, and therefore, their interests are directly affected by private law. Moreover, private law traditionally depends upon private parties for enforcement. This characteristic gives private parties and their representatives a prominent role.
The more European private law is in accordance with these benchmarks, the easier it will be for private parties and practitioners to comprehend European private law. Therefore, this book will also allude to the quality of material European private law by referring to the comprehensibility of European private law, which refers to the understanding of European private law by private parties and practitioners.
Before considering what actors are involved in the development of European private law, it is important to sketch differences between nation states and the multilevel legal order, to make clear in what respects the development of European private law differs from the development of private law in nation states.
This sub-question will be addressed in chapter 2, after which chapter 3 will provide an introduction to chapters 4-6 on the next sub-question.
ii) What actors develop European private law in the German and Dutch legal order? The actors considered in this book can be divided into state actors, including national legislators and courts, as well as the European legislator, the European Commission and the CJEU,31 international organisations, and non-state actors, including private parties (contract parties and other parties relying on private law), stakeholder groups, and academics.
Moreover, chapter 4 on the German legal order will also provide starting points for a normative framework to determine which actors should be involved in the development of European private law. The principles underlying this framework will also be considered in chapters 5 and 6. Chapter 6 will compare the involvement of actors in the development of private law in respectively the German and Dutch legal order and ask whether the involvement of different actors in the development of European private law affects the quality of European private law.
iii) Have actors, in the development of European private law through national techniques, adequately taken into account that other actors develop private law, which can limit the extent to which these techniques can contribute to benchmarks of predictability, accessibility, consistency and responsiveness, and how has this affected the quality of European private law?
“Techniques” is a broad, collective term for codifications, blanket clauses, soft law, general principles and other means through which private law may be developed.
‘National’ techniques refer to techniques the use of which is modelled on the assumption of the characteristics typical of the nation state. 32 The term does not refer to techniques that are used solely at a national level. National techniques are codifications,33 soft laws, blanket clauses, and general principles. Accordingly, codifications presuppose a central legislator, and blanket clauses typically require the existence of a hierarchical, well-developed judicial system that consistently associations. Typically, these stakeholder groups enable private parties to inform themselves of ongoing developments and organise themselves, trying to influence the formation of private law by legislators.
31
This research will refer to the CJEU, which, before the TFEU was known as the ECJ, for the sake of consistency. 32 See further below, par. 2.6.1.
19
interprets these blanket clauses, as well as an adequate system of enforcement. Also, general principles may play an important part in the development of coherent national private law, especially if national private law is codified.
Furthermore, soft laws such as the PECL and the DCFR will be considered as national techniques, as they are are typically based on models of national legislation, containing black letter rules and providing extensive rules in the area of private law. Often, these sets of soft law are based on national codes and seek to provide a model for a European code.34
This volume focusses on these techniques because they have played and will continue to play a central role in the development of European private law. Because they have been designed to function within nation states, at first sight, they are likely to be most affected by the coexistence of multiple actors who become increasingly dependant on each other and therefore need to interact.35 The use of national techniques will be considered in chapter 7.
iv) What techniques could be used in addition to or instead of currently used national techniques?
Notably, actors typically use multiple techniques, simultaneously, as one technique may compensate for the weaknesses of another technique. Accordingly, the use of techniques should not be considered in isolation from one another, especially as actors use techniques alongside one another.
The use of additional or alternative techniques will be considered in chapter 8.
v) Can the extent to which a particular area of law meets benchmarks of predictability, consistency, accessibility and responsiveness be traced to actors’ recognition of other actors’ initiatives and the interaction between these actors?
If multiple actors have been involved in the development of a particular area of law, this decreases the extent to which a single actor is capable of ensuring that that area of law meets benchmarks of predictability, accessibility, consistency and responsiveness. Thus, interdependence develops. As actors have become increasingly interdependent and need to interact, this may have consequences for the actors that are involved in the development of European priovate law and for the way in which European private law should be developed. Is this apparent from the quality of respectively the German and Dutch law on standard contract terms (hereafter ‘STC’s)?
Chapter 9 is an introduction to the case studies in chapters 10 and 11. Chapter 12 will ask what more general conclusions can be drawn from the case study that are also more generally of interest for the development of European private law.
Chapter 13 will draw conclusions and answer the main research question: Is the coexistence of actors beneficial or detrimental to the quality of European private law?
1.4. Limitations
The question discussed in this book is very broad, and it has been necessary to establish some limitations.
Firstly, to be able to sketch the role of actors in some detail, this research chooses to focus on two states in particular: Germany and The Netherlands. In subsequent chapters, a comparison between Germany and The Netherlands will take place. In the German legal
20
order, a constitutional framework has been developed that also provides indications for the development of private law through legislation or alternative regulation. Possible objections to the development of alternative regulation become visible in this framework, which may provide insight on possible objections to the development of alternative regulation in other Member States. The Dutch legal order provides little insight in similar objections.
Secondly, this overview should be seen in the light of the debate in European private law that portrays state legislatures and judiciary as primary actors in private law. European and national actors are the most active actors that develop binding private law, while the reallocation of legislative competences to the European level is likely to continue. Therefore, the research will focus on the interdependence between European and national actors. This also entails that the book will not pursue an in-depth analysis of the reallocation of competences to sub-national actors, which could also be seen against the background of multilevel governance.
Thirdly, the overview will moreover focus on the role of state actors and the use of techniques by those state actors as these actors and techniques currently still play a primary role in the development of private law, while other forms of private law, particularly alternative regulation, are often developed within the framework established by state actors and their legislation and case law. Yet eventually, non-state actors may gain a more prominent role, especially as matters that legislators have to cope with become more complex and require considerable expertise. Accordingly, this research does not overlook the possible role of non-state actors.
Fourthly, this research will study the development of private law in the Dutch and German legal order, and consider the initiatives from European actors where relevant. The overviews will show that European initiatives are increasingly relevant, but the primary level where private law is developed remains the national level. That does not mean that this might not change – but it is not yet sufficiently likely that the role of European actors, notwithstanding a considerable amount of new initiatives and proposals for harmonisation, will increase to the extent that the European level will become the central level where private law is developed. Essential parts of national private law, for example property law, remain applicable.
1.5. Methodology
This book started out from a traditional, national perspective on private law and it primarily uses the traditional legal research method by researching legislation, case law and legal literature, as well as other relevant documents.
However, political science, specifically the discourse on multilevel governance, adds an important insight to the development of European private law. Multilevel governance stresses the coexistence of actors in the European multilevel legal order and draws attention to the interdependence between actors and the need for interaction, a perspective that has generally not been considered in the debate on European private law.
21
interaction that is required in decision-making, thereby providing further clarification on the need for interaction between actors in accordance with the discourse on multilevel governance.
This volume also contains comparative legal research. The volume does not directly compare legal rules as such, but instead aims to analyse and compare the roles of actors in the Dutch and German legal order. However, some comparative remarks have been made in chapter 6 and comparative insights have served as interesting alternative or additional perspectives in chapters 2, 10, 11 and 12 as well.
22
Chapter 2: Benchmarks for European private law
2.1. Introduction
This chapter discusses benchmarks for the quality of European private law. As this research takes the perspective of private parties as a starting point, this chapter asks which benchmarks ensure that private parties may unproblematically rely on private law. Accordingly, this chapter will discuss predictability, accessibility, consistency and responsiveness as benchmarks.
If European private law is predictable, accessible and consistent, as well as in accordance with society’s legal views on justice and the needs and preferences of legal practice, it will be easier to comprehend private law. If private law is responsive to society’s legal views on justice, it will be more easily understood and accepted by private parties. If private law is aware of the needs of businesses, it might be less complicated to make a translation from the law in the books to legal practice. To the contrary, if European private law is not predictable, consistent or accessible, or if it does not develop in accordance with the needs of legal practice and legal views on justice, parties will have more difficulty relying upon private law as it will be difficult to comprehend private law.
These benchmarks have been widely recognised in national private law, and they have already frequently served implicitly as a starting point for criticism on European private law.36
However, the analysis from multilevel governance indicates that the multilevel legal order differs from the traditional nation state. This chapter will ask what these differences mean for the development of European private law in accordance with the benchmarks.
The approach of this chapter will be as follows. Paragraph 2.2. will discuss predictability, accessibility and consistency, and paragraph 2.3. will turn to the responsiveness of private law to society’s legal views on justice and to the needs and preferences of legal practice. Paragraph 2.4. will discuss why coherence and legal equality are not considered as separate benchmarks. Paragraph 2.5. will argue that developing European private law in accordance with these requirements becomes more complicated in the multilevel legal order. Paragraph 2.6. will draw conclusions and provide an outlook to the subsequent thesis.
2.2. Benchmarks for good law
This chapter will look at well-known requirements that become apparent when looking at national private law and emphasise the perspective of private parties as a starting point. This research benefits from previous, well-known attempts to determine common benchmarks for law. Bacon 37 already developed “laws of good lawmaking” that coincide with the requirements developed by Fuller:38
36 For example H.-W. Micklitz, N. Reich, ‘Der Kommissionsvorschlag vom 8. 10. 2008 für eine Richtlinie über „Rechte der Verbraucher”, oder: „der Beginn des Endes einer Ära …”’, EUzW 2009, p. 279.
37
F. Bacon, Treatise on universal justice or the foundations of equity, by aphorisms, from: The works of Francis Bacon, 1889, Yale, aphorism 8, who held that ‘[c]ertainty is so essential to law, that the law cannot even be just without it.’ See further on the similarities between Bacon and Fuller W.J. Witteveen, ‘Laws of lawmaking’, in: W.J. Witteveen, W. Van der Burg (eds.) Rediscovering Fuller, Amsterdam University Press: Amsterdam 1999, p. 328.
23
1) The generality of laws
2) The public promulgation of laws
3) Laws should not be developed or applied retroactively if possible 4) The comprehensibility of laws
5) The consistency of laws
6) The enforceability of laws that should not prescribe impossible results 7) The stability of laws
8) Convergence between laws as they are announced and applied
In Fuller’s view, rules had to comply with these requirements in order to qualify as “law”. Moreover, the parable of King Rex outlines that legislation that does not meet these benchmarks it not likely to affect behaviour.
Other authors, who criticised Fuller, in particular Hart,39 have not rejected these requirements outright. Bentham,40 to whom Hart41 referred, developed conditions that legislation – in particular codifications – had to meet in order to achieve the aims that were pursued. Bentham emphasises that legislation needs to be developed in accordance with utility, but also refers to more generally accepted criteria, such as the public availability of laws and their consistency.
2.3. The comprehensibility of European private law
The quality of European private law has become a subject of debate as national private law that does not meet these requirements may prompt harmonisation or amendment of the law in accordance with regulatory competition, or, if possible, circumvention of these rules through choice of law.
The benchmarks of good lawmaking have been considered in recent discussions on the quality of European private law.42 Yet this research does not follow these benchmarks for
several reasons. Firstly, the focus of this research is not the rule of law, or the legality of legal systems, but the quality of material private law. Secondly, benchmarks of good lawmaking have not been developed for private law, but more generally for law as such. Therefore, characteristics of private law, in particular the important role of private parties in the enforcement of private law, have not been considered as such. This also entails that the benchmarks for good lawmaking do not specifically take the perspective from private parties. Accordingly, some benchmarks of good lawmaking are less relevant for private law. Thus, the enforceability of private law depends on private parties, and this requirement does not stand in the way of vague provisions that leave room for discretion for the judiciary to enforce the law in accordance with the needs of legal practice and legal views on justice. These provisions have moreover evidently not stood in the way of the development of a considerable amount of case law, as becomes visible in both the Dutch and the German legal order. Thirdly, the definition of European private law in this research is broader than the
39 See further on this argument J. Waldon, ‘Positivism and legality: Hart’s equivocal response to Fuller’, New York University Law Review 2008, p. 1135.
40
J. Bentham, Principles of the Civil Code, in: J. Bowring (ed.), The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law), Chapter XIVV, available at
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php?person=172&Itemid=99999999. 41 H.L.A. Hart, ‘Positivism and the separation of law and morals’, Harvard Law Review 1958, p. 594 et seq. 42
24
understanding of law that becomes apparent from Fuller. Whereas the benchmarks and allegory from Fuller focus on legislation, this research also includes rules other than legislation, developed through self-regulation and co-regulation. Moreover, Fuller43 has developed benchmarks for a good system of law, not for the quality of a particular area of material law.
Which benchmarks enable private parties to enter into transactions with one another, in accordance with the general44 aims of private law?45 For private parties, the importance of legal certainty has often been emphasised and this benchmark accordingly plays a central role in debate on the quality of European private law. Benchmarks of good lawmaking largely coincide with legal certainty that requires that private law is:
i) Predictable
In turn, this benchmark entails that private law is not retroactively developed (in accordance with requirement 3), as well as the stability of of laws (requirement 7). In addition, for private law, the reliability of private law and the clear woridng of the law will be discussed.
ii) Accessible
In turn, this benchmark requires that private law is publicly promulgated (requirement 1). The accessibility of private law is specifically concerned with parties’ ability to identify relevant sources of law, which may be particularly complicated if it concerns unwritten law or unpublished binding alternative regulation. In particular, accessibility of private law requires that parties – or rather their lawyers – can understand laws (requirement 4) which is essential for the enforcement of private law. This further entails the convergence between the wording and the application of the law (requirement 8) that is also important for the predictability of law.
iii) Consistent
This benchmark is in accordance with the consistency of laws (requirement 5). Also, the generality of laws (requirement 1) diminishes the chance that laws develop in isolation from one another, which in turn decreases the chance that inconsistencies develop.
Thus, the requirements of legal certainty may roughly be divided in benchmarks of predictability, accessibility and consistency. These benchmarks may well overlap, and they may also influence and be influenced by benchmarks of responsiveness discussed in paragraph 2.4.
The subsequent paragraphs wll discuss requirements important for legal certainty. Paragraph 2.3.1. will discuss predictability, paragraph 2.3.2 will turn to accessibility and paragraph 2.3.3. will consider consistency. Paragraph 2.3.4. will consider the overlaps between these benchmarks.
43
L.L. Fuller, The morality of law, New Haven: Yale University Press 1969, revised edition, p. 43.
44 This does not mean that by facilitating private parties’ transactions with one another, other, more specific aims may not also be pursued.
