Abstrakt

§ 1. Introduction Regulatory Impact Assessments (RIAs) are an important method in the EU Better Regulation Programme1 aimed at enhancing deliberation and increasing evidence-based decision-making2. RIAs should help the EU legislator assess the need for harmonisation. In particular, EU RIAs could provide much needed insight on the question of whether harmonisation of private law is necessary for the internal market, an as yet unanswered question that has sparked ongoing debate in EU private law3. Disappointingly, however, serious deficiencies in RIAs mean that the question of whether harmonisation benefits the internal market has been glossed over (Section 2). Part I of this paper will summarise the problems in RIAs (Section 3), with Part II looking at what could and should be expected from RIAs. Do the shortcomings in RIAs indicate that the expectations from RIAs are too high, and what should we realistically expect from RIAs? (Section 4) Part II of this paper will argue that, although RIAs are not well-suited to impose restrictions on EU legislative competence, the potential benefits for European private law justify more efforts towards raising the quality of RIAs. The paper then considers potential starting points that could trigger improvements, including the EU Better Regulation regime, combined with political support for better RIAs and CJEU case law on subsidiarity and essential procedural requirements. The paper concludes by reflecting on the potential of RIAs for European private law.§ 2. The development of the private law acquis and RIAs The EU private law acquis has been developed under Article 114 TFEU, which confers competence on the EU legislator to adopt measures in order to foster the functioning of the internal market and to enhance consumer confidence. According to Article 26 TFEU, this internal market is ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.’ In other words, a market unhindered by national borders, despite the regulatory differences between the Member States. This does not mean that all these regulatory barriers must be eliminated – this would be difficult to reconcile with the Union’s motto of ‘unity in diversity’, for example, or with fundamental principles such as the principle of conferral. Barriers only breach the right to free movement where they exert ‘considerable’ influence on consumer behaviour4 or result in a ‘serious’ inconvenience5, and those barriers require justification, or are rendered unlawful by the CJEU.  The private law acquis gives the impression that the differences between consumer contract laws pose regulatory frontiers that hinder trade between Member States and should therefore be eliminated. However, S. Vogenauer...