The EU Codification of Private Law: Between Constitutional and Regulatory Rationales

Studia Prawa Prywatnego | 03/2018
DOI: 10.32027/SPP.18.3.6
Maria Breskaya

Until recently, the notion of private law has been closely tied up with the concept of the nation-state. There are no doubts that national private law reflects the achievements of national legal tradition and national identity, at the same time preserving historical memory and reassuring democratic legitimacy1, thus presenting a unique cultural value per se for the relevant state. However, the narrative of the twentieth century introduced changes to the classical ideas of cross-border cooperation and trade, and even redefined the ideas of a Westphalian State. New processes of deeper regional integration have made a significant impact on Europe: the classical definitions of governance, economic growth, the role of the legal system and law-making have ceased to exhaustively fit the European context2. The emergence of new institutional structures and the formation of the European Union legal order as a novel autonomous supranational set of directly binding rules with the primacy effect have weakened the solid bonds between territory and law. In such a context, we are faced with the situation of the de-territorialisation of a great variety of national rules3, which have traditionally been a matter for national law. However, the place of a European Private Law as an element promoting Single Market efficiency and EU development generally remains undefined, both regarding its rationale and its relations with already existing national legal traditions. New challenges of market integration within the EU transform the character of private law. In the EU context, the mere ideological character of private law known for national practices is shifted towards a notion of regulatory private law. However, this is the moment when the idea of a unified private law is trapped by its own philosophy. New developing categories of the EU, such as supranational citizenship, new levels of social and political participation, as well as the acquisition of a new level of directly claimable rights, tend to withdraw the project of EU Private Law beyond its initial market-oriented rationales. In this context, the problem of legal uncertainty ceases to be treated only as an impediment towards the smooth completion of the economic integration process, but also starts to present a barrier for the plain convergence of non-legal values and the constitution of a new level of belonging. For example, the process of the creation of an EU Private Law in the framework of the Draft Common Frame of Reference, or the draft of the European Civil Code, still try to define the new concept of a purely functional EU Private Law through the 19th-century national experience of codification. In the context of a post-feudal and highly fragmented society, the civil code has been a tool not only of legal convergence, but also a method of eliminating social inequalities through the notion of a citizen, the reinforcement of national identity and the strengthening of feelings of national solidarity. This article suggests drawing a parallel between the national and supranational modes of building private law, and to analyse whether the so far known national legal experience can be applied for the characterisation of the EU Private Law. In this way, an alternative perspective to look at the idea of the EU Private Law is suggested. This perspective is released from the intention to define the EU Private Law through national legal experiences. Neither does it propose to analyse the reasonableness of the EU Private Law project in light of its inconsistency with the national rationales of private law systems. On the contrary, this new perspective allows the process of the EU Private Law formation to be looked on as a natural and organic process relevant to the context of own emergence. In this way, it is possible to note that the EU Private Law takes its roots and develops in close connection with other components of the EU as a ‘new set of values’ idea, spilling over from the construction of purely economic values of the open market to the notions of a new supranational social order4. Thus, by finding its own context, the EU Private Law presents a necessary tool both for the enhancement of new market dimension and for establishing a new unifying element of such a new kind of social order, which lacks the usual cultural or historical bonds and can be integrated through a common regime of private law.