Monday, June 27, 2005
From a new book, Rule of Reason: Rethinking Another Classic of EC Legal Doctrine (Annette Schrauwen, ed. 2005), an interesting piece by J.W. Rutgers (University of Amsterdam), The Rule of Reason and Private Law or the Limits to Harmonization:
In its Communications on contract law the European Commission proposes to provide for an optional instrument which entails a comprehensive body of contract law that may apply in cross-border transactions. One of the legal grounds for such an optional instrument, mentioned by the Commission, is Article 95 EC. In this paper it is argued that Article 95 EC does not allow for an all-embracing instrument concerning contract law as for instance an optional instrument, since, considering the case law of the European Court of Justice, it only allows for approximation measures insofar as there is an impediment of the free movements of goods or services or a distortion of competition.
In addition, an optional instrument based on Article 95 EC will include less mandatory rules than the present national legal systems, since the number of interests recognized under European law is not as many as those included in national contract law. It implies that an optional instrument probably includes less rules in the general interest than national contract law generally does. This seems to include a conflict with respect to the values and aims proclaimed in the European Constitution, such as a social market economy and solidarity. If concerns such as the protection of weaker parties cannot be included in an optional instrument because of a lack of competence, it seems contradictory to those aims and values expressed in the Constitution and the present Treaty.