Is there such a thing as ‘European Private Law’?

 

By Professor Jaap C. Hage

Is there such a thing as ‘European private law’? In my opinion there is not, just as there is no Dutch, French, English, or Chinese private law. Let me explain. Legal rules, including rules of private law, have many characteristics. They have a content, a scope, many of them were created by some agent, and many of them are applied and enforced by law-enforcing agents, with a prominent role for the judiciary. None of these characteristics can be used to classify some legal rules as rules of European private law.

The scope and the content of a rule together determine to which agents and to which cases the rule applies and which consequences the rule attaches to these cases. That the content of a rule is relevant in this connection is obvious, but perhaps the scope of rules deserves more attention. All rules have a scope in time: they are potentially applicable to cases after some moment in time and before some other moment in time. Most often these moments coincide (more or less) with the moment at which the rule came into existence, for instance because it was created, and the moment at which the rule stopped to exist, for example because it was repealed. However, in exceptional cases rules apply retroactively, or with a considerable delay. Most rules also have a territorial scope: they can only apply to cases that are somehow situated in a particular territory. Many rules also have a personal scope: they can for instance only apply to nationals of a particular state, or to the adherents of a particular religion.

Is it possible that European private law is the private law that, going by its content, applies in all of the European territory? (I leave the question open whether Europe is in this connection the continent or the European Union, because it does not matter for the argument.) Of course it is possible to define it that way, but then all global treaties that deal with private law would create European private law. Moreover, if a particular country were to create private law rules that qua content would apply all over Europe, these rules would count as European private law. Use of the territorial scope condition to identify European private law would be too inclusive. The same holds for territorial limitations that are given by the conditions of the private law rules themselves, because these conditions seldom mention territorial limitations and the rules without territorial limitations would then on a large scale be rules of European private law.

Is it possible that precisely those rules are rules of European private law which were created by some agent with legislative powers on the European level (most likely an organ of the European Union)? If that were the case, only explicitly created law can be European private law and that would exclude all customary law and therefore most likely also soft law.

Perhaps we should look at rule-enforcing agents. The test would then become which rules can (succesfully, if applicable) be invoked before European courts. However, that is insufficiently precise. Are we talking about national courts, or special European courts, or a combination of the two? If only specialised European courts are taken into account, there would only be European private law on topics that fall under the jurisdiction of these courts. If other (national) courts are also taken into account, it becomes difficult to distinguish between European and other private law.

Admittedly the above survey of possibilities is very brief, perhaps too brief. However, the general picture is in my opinion revealing. Whatever test we apply, the test by itself leads to results which are either too broad or too narrow. In the past, and then in relation to national state-law, the situation would have been different. For some centuries there has been a coincidence of criteria: most law was created by state organs, applied by courts that belonged to the same states, and applied to cases on the territories of those states. Of course, even then there were exceptions to this coincidence of criteria, but these exceptions were … well: exceptional.

If such a coincidence occurs, we can speak of a national legal system. The present situation in Europe is characterized by the fact that such national legal systems fall apart. Legislative bodies make rules that are applied by courts of other countries (Private International Law). Rules may be applicable to heterogeneous sets of agents, defined by the nationality of the agents (e.g. Germans), by their religions (e.g. Catholics), but also by the topic of the rules (e.g. states, companies, citizens). Courts apply rules that were created by (sub)national legislators (on different levels), supranational legislators, courts (of many different kinds and hierarchical levels), or which were not created at all (customary law in all kinds of traditional and modern guises). It may be tempting to stick to the old category of legal systems and think of European law as one legal system next to many others. However, the message that needs to be driven home – whether one likes it or not – is that with the disappearance of the coincidence between legislation, scope and enforcement of rules, the very notion of a legal system has lost much of its original attractiveness. As a consequence, the idea of European law, including European private law, seems to become old-fashioned, a reminder of a kind of law that once flourished, but is now on its way to extinction. Legal systems are (almost) dead; long live law!

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