Wednesday, November 16, 2011
It's a relatively thin week, but we can fill it out with this abstract to a new article, Black Lists in EU Contract Law, by Daniela Carusa, that will appear in a forthcoming collection:
The policing of consumer contracts in EU legislation relies in large part on general clauses (good faith and prevention of significant imbalance) to be applied in member states’ courts. By contrast, EU legislators have occasionally resorted to the legislative technique of black lists, which displace discretionary adjudication and identify as void a finite set of contractual terms. Black lists epitomize an unusually high degree of supranational interference both with the private autonomy of EU citizens and with member states’ prerogatives in private law matters. They offer therefore a privileged stand-point for investigating three under-explored facets of the EU private law project.
First, while their practical relevance within the EU may be modest, black lists have notably impacted transnational (and trans-Atlantic) contract drafting. The presence of true black lists in some corners of the EU system allows for the impression that enforcement of consumer protection law is much sharper and more coherent than it really is. In the dynamics of consumer law globalization, black lists play a geo-political and economic role that is independent of their actual power within the internal market.
Second, black lists are intrinsically ambiguous as a regulatory strategy. Highlighting the analogy between black lists in consumer law and other well-known enumerated prohibitions in the field of competition law, this paper posits that the formulation of finite regulatory lists is likely to yield paradoxical de-regulatory results in the long term.
Third, the common perception of black lists as social legislation is only partly accurate. Black lists are indeed aimed at correcting the injustice that results from unleashed private autonomy when the bargaining power of one party (the consumer) is weaker. On the other hand, they add to the costs imposed upon structurally weaker traders in the socio-economic periphery of the Union.
Given the regulatory, distributive, and discursive ambiguity of black lists, their normative desirability cannot be assessed without a systemic appraisal of the political dynamics of European legal integration. The point applies, more generally, to the whole project of private law harmonization.