Ius Commune Lectures on European Private Law, 6
The Ius Commune Lectures on European Private Law are published under the auspices of the Ius Commune Research School. This Research School consists of the Law Faculties of Maastricht University, Utrecht University and the Catholic University of Leuven, and is directed towards research in the field of European Private Law and related subjects. Associated members of the School are the Law Faculty of the Free University Amsterdam, the Law Faculty of the Université de Liège and individual members of the University of Amsterdam.
Christian Joerges, On the Legitimacy of Europeanising Private Law: Considerations on a Justice-making
Law for the EU Multi-level System, vol 7.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2003),
ON THE LEGITIMACY OF EUROPEANISING PRIVATE LAW:
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The Europeanisation of private law is very much a topical theme. And although this theme is no longer very new, it has, in the last three years, developed a new dynamic. Anyone taking it up with the intention or hope of keeping up with the pace of legal policy development and remaining on top of the current stage of the academic debate is letting himself in for a race in which he will inevitably feel like the unfortunate hare which, despite all its efforts, kept on arriving too late: something else will have changed or articles whose relevance has to be assessed first will have appeared. Anyone seeking to dodge such a race by specialising in the general is not necessarily better off. Has not everything already been said? Is it enough to add, as Karl Valentin did in a ceremonial address, 'Quite so, but not by everyone'?
Surveys of the development of the law, legal policy and the academic debate remain meaningful if and because every new systematisation of the material takes some constructive steps. Admittedly, the more immense the material appears, the more time consuming it becomes to sift through it. In the present context, I have to have recourse to a form of reconstruction of the factual position that allows me to refer to previous work,(2) which I now sharpen so as to relate the debates on the Europeanisation of private law to the basic problem of the legitimation of law production in the EU (I). I distinguish between three strategies of legitimation and, in the next section (II), go on to test and to query their viability on the basis of three sets of examples. These theses and antitheses are intended to pave the way for a synthesis in the closing section (III).
I Three competing patterns of legitimation
Europe expects much of the law, exposing it to changes from top to bottom - and it has to justify these challenges itself. This is a requirement that may sound like a matter of course, which, indeed, is really a claim raised in the treaties and treaty amendments, but is, in reality, in need of clarification and hard to meet. Why? The process of European integration has been seen as forming and formatting a 'sovereignty association of a special nature' (Herrschaftsverband eigener Prägung) as M. Rainer Lepsius(3) puts it - a happy formulation, since, by simply using the Weberian category of Herrschaft (domination/sovereignty), it designates a continuing key problem in the European project. This Herrschaftsverband is dependent on recognition by its subjects - and this de facto dependency has continued to become visible and perceptible.(4) Social scientists ought not, and we lawyers may not, satisfy ourselves with an empirical concept of legitimacy: Are Europe's sovereignty claims so justifiable as to deserve our recognition, too? This is a question which we have to ask ourselves, irrespective of whether we bring in Jürgen Habermas(5) for the purpose or not.
And, in fact, legal science did ask the question of the basis of the validity of European law 'from the outset', namely, in the very stage of the establishment of the EEC. It is my impression that this happened more fundamentally in Germany than elsewhere - not necessarily for good reasons, but certainly for compelling ones: the Federal Republic was still a very young democracy at that time and could not be expected to call this achievement into question. At the same time, it was dependent on being included in Europe. The Basic Law of 1949, however, had anticipated such dilemmas and provided a sibyllic and prudent response: it had constitutionalised both principles, the inviolability of democracy (in Article 79 III) and its openness to integration (in Article 24). Is this a paradox documenting the intrinsic contradictoriness of all law? It is, at any rate, a challenge around which all European law to date must turn and which keeps its interpreters so restless. I wish to distinguish between three sets of attempts to find fixed points here and give the European process a firm normative basis.I.1 Market rationality as a principle of (constitutional) law?
The first, 'ordo-liberalism' (a German version of neo-liberalism), was ready even before the EEC existed. It had been developed in the turmoil of the Weimar Republic, and posited that a free order for economic life must be legally shaped ('constituted') so as to be protected from the opportunistic, discretionary encroachments of politics.(6) This tradition survived the Third Reich, and marked the Federal Republic's sensibility in relation to economic policy as Ordnungspolitik.(7) In the course of European integration, ordo-liberalism became the German 'dominant theory', with a peculiar double meaning for both components of the term: it 'dominated' among professors of economic law and in many unofficial and officious policy statements; but the practice of law and of politics looked different.(8) The same holds true for the Community and its law: The 'four freedoms' guaranteed in the EEC Treaty, the opening up of the national economies, the bans on discrimination and the competition rules, were understood as a 'decision' in favour of an economic constitution which met the conceptions of the ordo-liberal school with regard to the framework conditions for a competitive market system.(9) And the very fact that Europe was set in motion as a mere economic community conferred plausibility on the ordo-liberal argument: through the interpretation of the economic law provisions in the EEC Treaty as a legally established order committed to guaranteeing economic freedoms, the Community gained a legitimacy of its own, which was independent of the institutions of the democratic constitutional state, and from which legally binding policy commitments of this Community followed.(10) This was a framework which left room for alternatives. For many years, in fact, until the internal market programmes of 1985 and the Single European Act of 1987, private law was left to itself.(11) In the course of these initiatives, the legal principle of mutual recognition was discovered for private law, thus establishing the hope that the mechanisms of regulatory competition would promote an 'economic' rationalisation of private law in Europe.(12) At any rate, a European code of private law was also envisaged in the early 1990s.(13) The newest version of this idea is now, however, called the 'privatisation of private law'.(14)I.2 Integration functionalism
The ordo-liberal assignment of constitutional validity to the 'system of undistorted competition' was never dominating, certainly not beyond German borders. On the one hand, the normative yardstick it provided seemed simply to narrow to provide guidance for the broad range of activities in which the European Economic Community was involved. Equally important, the idea of an 'economic constitution' was not accepted, or was simply unheard of, in the legal disciplines which started to explore the 'nature' of that new phenomenon. That is certainly true for international law.(15) But even in German constitutional law (law of the state, Staatsrecht), the economic policy was widely held to be the responsibility of the - democratically elected - government. This exactly was the challenge for the new discipline: since this type of legitimacy, i.e., one based on a parliamentary majority, was not available for supranational political governance, it became imperative to find an alternative basis for legitimising supranational governance. Hans Peter Ipsen succeeded in developing a particularly interesting response. He characterised the (then) three European Communities as 'special purpose associations for functional integration' (Zweckverbände funktioneller Integration).(16) The term 'special purpose associations' denoted areas not foreseen in the ordo-liberal concepts - without, however, exposing Community law to democratic requirements. As a special purpose association, Europe was supposed to deal with questions of 'technical realisation', i.e., administrative tasks that could - and had to - be conveyed to a supranational bureaucracy.(17)
That all this has to do with private law may seem a far-fetched assertion, but it is, perhaps, easier to understand if one bears in mind that Ipsen's functionalism was a continuation at the European level of the second tradition in German economic law, which K.W. Nörr has called the concept of 'organised economy'.(18) This tradition is agnostic as to the ordo in its economic policy. To put this in a constitutionally positive way: it leaves the ordering of the economy to the democratically certified legislator. But, once again, the question arose how politics is to be legitimised if it outgrows this framework without being able to find a basis in international law? Ipsen's ingenious answer: Europe should be understood as institutionalising technocratic, functionalist rationality as the basis of and contents of its law. And this type of output legitimacy seemed, for a considerable period of time, to be an adequate cause for what integration policy was actually doing. However, this ceased to be the case when the by now legendary programme to 'complete' the internal market by 1992 was implemented. Europe then witnessed its own 're-regulation'.(19) It started to complement its market building efforts with new regulatory strategies that, according to Giandomenico Majone, would lead to the transformation of the European Community into a 'regulatory state'.(20)
From such perspectives, 'private law proper' continues to be marginal. Both European lawyers and private lawyers shared this view: the former were participating in renewing the whole regulatory framework for Europe's economy; the latter - most insistently the German academic community - complained about distortions of private law by European statutes but also emphasised that the core areas of private law continued to be in national hands: the logic of integration policy and the logic of the development of private law were, seemingly, operating autonomously.(21)I.3 Europe as a Sozialstaat (welfare state) and codifier of private law?
'Hard Code Now!' This title sounded a bit like a battle cry and was meant to. Ugo Mattei, who inscribed it on his banners,(22) is more conciliatory and circumspect in reality than the slogan he chose is. A European civil code ought to lay down binding provisions, but be content with a minimal programme and be process orientated. Only in this way could it fit the 'social fabric of European capitalism'. Would this, then, mean a code 'with deep enough foundations and high enough vaulting' to include these social matters 'in its conceptual edifice' to a sort of Otto von Gierke redivivus?(23) Otto von Gierke may be forgotten outside Germany, but his critique of the formalism of the German code still seems to be alive and topical.(24)
Would the 'social' dimensions of private law be in a safe harbour in a European civil code? This is a question that does not concern private law alone, but is connected with the fate of the welfare state as a whole. We shall come back to this.(25) The difficulties that such a vision faces are, however, so massive that there is no sense in putting them off. To anticipate the argument that we are developing: the normative quality of the constitutional 'social private law' is dependent on the interplay of parliamentary legislation and the non-parliamentary production of law, on regulatory policy, special statutory law and codification, on expert communities and on the general public.(26) These circumstances are not present in the European context, and will not emerge in any near future. That this is the case follows simply from 'state of the (European) Union': this polity is not unitary, but plural(27) ('heterarchical', as some call it;(28) or 'mixed', as others do(29)). In it, there are - relatively - autonomous political units, none of which are empowered with the Kompetenz-Kompetenz which would be needed for an authoritative resolution of jurisdictional conflicts. The result is a very specific disjunction of 'society' and 'state', of economic freedoms and political rights, market citizenship and political citizenship. Let us distance ourselves from the two approaches initially dealt with: Europe has never become a 'market without a state' in which a supranational economic constitution can structure the systems of private law; and it is even less the European transformation into a statal entity with comprehensive political powers. Instead, it is a tertium which finds itself in a 'constitutional moment' that will continue to last for some time yet.(30)
II Three sets of examples
Verba docent, exempla trahunt. But it is by no means the case that the sets of examples from the case law of the ECJ discussed below could 'confute' the paradigms sketched out in the first section, or represent some 'higher law'. This is because these paradigms merely refer to sets of ideas in which legal concepts and arguments can find a theoretical basis. To that extent, they compete with each other. But it is not to be expected, say, that one of them will totally dominate 'practice', or that one tradition of thought will disappear without trace. Nevertheless, the analyses below pursues systematic and theoretical claims: they are intended to illustrate problems graphically with all three of the paradigms set forth in the previous section, thus preparing the transition to the synthesising perspectives in the concluding section.II.1 Centros and Überseering: The transformation of the freedoms of market citizens into political rights, and the obsolescence of traditional private international law
Centros(31) may be regarded as the ECJ's most interesting judgment on European market building since the legendary Cassis de Dijon decision of 1979;(32) it is, at any rate, the most intensively debated one.(33) Expectations about the subsequent Überseering litigation were correspondingly tense.(34) So much has been written that it would seem appropriate to start with the three theses that are to be established below: (1) This case law transforms economic freedoms into political rights. (2) It strives towards a juridification (proceduralisation) of regulatory competition. (3) It has the potential of 'constitutionalising' the Europeanisation process through a law of just(ce)-fication that reaches beyond both orthodox supranationalism and traditional private international law.II.1.1 Centros
The judgment in Centros concerns the core of the European legal acquis, namely the freedoms of market citizens which apply directly and ought therefore to take primacy over national law. Moreover, the decision is widely perceived as a step towards a long expected new type of 'negative integration', because it seems to expose the national company laws to regulatory competition. But Centros is more sophisticated than such interpretations suggest.(35)
As so often occurs, the facts of this seminal case were trivial: a Danish married couple, Marianne and Tony Bryde, wished to import wine into Denmark but not pay the fee of the DK 200,000 (28,000 Euro) that Denmark requires for the registration of companies. The two then hit on the idea of 'cocking a snoot' at their Danish Law.(36) They founded, and this was in May 1992, a private limited company in England, the now legendary Centros Ltd., and set up a subsidiary in Copenhagen - for none of these steps did they require more than the minimum capital investment.
However, the Danish authorities refused registration; the Brydes went to court. After all the courts had been gone through, the Højesteret brought the question(37) whether the refusal of registration was compatible with the guaranteed freedom of establishment (Article 43 (ex 52) taken together with Articles 52 and 58 EC Treaty) before the ECJ in early June 1997. The ECJ's answer (given on 9 March 1999) read:
The ECJ is seen by some(39) as cautiously continuing its earlier case law on freedom of establishment(40) or radicalising it in a questionable fashion.(41) The incorporation theory (Gründungstheorie) is seen as having won through against the Sitztheorie (company seat principle) with the help of the ECJ.(42) None of this is true, it is argued by others: in Denmark, the incorporation theory applied anyway, and recognition of the seat of the company principle through the Daily Mail decision(43) does not come into it: hence, it is business as usual for private international law (PIL).(44) Again, the ECJ is seen as opening the road to regulatory competition, so one would now have to expect Delaware effects in Europe.(45)
My first thesis(46) seeks to demarcate itself from the doctrinal dichotomy between European law and PIL, between thinking in terms of primacy and linkage and the associated policy dualism of 'negative' and 'positive' integration. The way the ECJ treated the conduct of the Brydes seems to me to make this sort of interpretation plausible. European law, says the criticism of the ECJ, has no business interfering with a purely internal Danish matter. The Brydes, who were pursuing no business interests in England, ought to have bowed to their home sovereign. But are the Brydes only Danes? May they have the 'right to the most favourable legal system',(47) just because they are not merely citizens of Denmark, but also citizens of the EU? This is the way that I, in fact, read the ECJ: there is nothing in itself abusive in a citizen of a Member State founding a company in accordance with another Members State's provisions which are more favourable for him. That is simply his right.(48)
Certainly, Centros concerned the incorporation of a company in England; the Brydes never intended to do business in England, but merely wished to start their activities to Denmark. But can one call the freedom to exploit the provision of English law an abuse? No, the ECJ insists:
Is this, then, 'negative integration', interference with Denmark's constitutional autonomy, and a new confirmation of the deregulatory effect of the freedoms?(50) Is the ECJ sending Europe's constitutional law off on the road to Delaware? Not really. For Denmark remains entitled to impose regulatory requirements on both its own - and on foreign - citizens, but has to adduce 'compelling grounds of public interest'. European law does not push Danish law aside, but places it under pressure of justification. It was this pressure that Denmark could not stand up to: it was completely unable to achieve the protection of creditors which, according to the Danish government's presentation, was the object of the Danish regulation - that was the ECJ's finding.(51) The ECJ acted as a constitutional court. It assumed the right to test Danish law according to whether it respects rights guaranteed at the European level. However, the limits imposed on Denmark are limited. Denmark remains entitled to protect creditors and act against fraud - but in accordance with the provisos familiar to the readers of the case law on Article 28 (ex 30).(52)
Denmark very soon, in May 2000, adopted a new regulation according to which companies wishing to do business in Denmark and having their main centre there, must either deposit a caution amounting to DK 110,000 with the Danish bank authorities in the form of cash, government bonds or bank guarantees (which in the event of insolvency serve exclusively to meet tax demands), or else it must be clear that minimum assets of at least DK 125,000 are available.(53)
Merely putting new gloss on the old provisions? At least some Danish commentators think so.(54) In its judgment of 3 February 2002, the Danish Supreme Court was silent on the issue of Centros's tax liability; it simply reprimanded the company that the forms had not been completed correctly.(55) What, then, is so 'rotten' - in the State of Denmark - or elsewhere?(56) Denmark has to justify itself before its own citizens in the forum of the ECJ. It is entitled to pursue its regulatory interests, but it also has to show that the means it chooses serve the ends it pursues. What sort of law, then, are we dealing with here? With provisions that subject the case to the 'geographically' best-suited jurisdiction? A legal innovation supported by comparative studies? What is at stake - rather a European 'conflict of laws' to the extent that it involves dealing with legal differences or a conflict of laws that seeks to reconcile Denmark's political autonomy with the granting of European citizenship rights to Danish citizens? In reshaping economic freedoms as rights to political participation, I see the constitutional core of the decision: private autonomy and political rights in democracies, as Jürgen Habermas has continually argued since Between Facts and Norms,(57) have to be conceived as both having an equivalent original dignity.(58) What does this mean in the European context? According to the Centros judgment, it means that a Danish citizen can bring his sovereign to court with the argument that the latter has no good reasons for denying him the use of the regulatory alternatives offered by another Member State. Rudolf Wiethölter's Recht-Fertigungs-Recht seems to capture this type juridification of the Europeanisation process quite well.(59)
So much for the bright side of the Centros story. It is, however, not the only one. Neither the Danish legislature nor administrative practice, and not even the judiciary present themselves as deliberating actors ready, let alone eager, to learn from their European neighbours. It seems all the more important, then, that the ECJ can play its role convincingly. And this is one of the troubling impasses of the Europeanisation process: although the Court's statements convince normatively, it is questionable whether the Court will be able to cope factually with the supervision functions it has assigned to itself. I will have to come back to this question in all sets of the examples and in my conclusions.II.1.3 The impact of Centros, and 'Überseering'
What will the impact of Centros be on European company law? Will the courts of the Member States 'implement' its deregulatory potential?(60) Will Europe's small firms flee to British law?(61) Will increasingly outlandish services be offered by limited companies incorporated in the UK?(62) Will the German model of company law that seeks to protect the public interest through mandatory organisational provisions and regulation be replaced by Anglo-Saxon corporate governance philosophies?
Can the ECJ be expected to have the answers to all these questions? To start with, it has had to face the legal 'logic' of its views. In a reference for a preliminary ruling by the Federal High Court of 30 May 2002 (Überseering),(63) the ECJ was asked whether German law could prevent a Dutch plaintiff from suing for over 1,000,000 DM by, firstly, restricting in § 50(1) of its Zivilprozessordnung locus standi to those legally competent (rechtsfähig) companies, and secondly, by prescribing that a company incorporated according to Dutch law could lose its legal capacity once it transferred its activities to Germany in a way which constitutes, according to German law, a transfer of its 'seat' (Verwaltungssitz).(64) In an internal market, such legal principles seem downright incredible - if they were indeed as rigid or as stringent as the Federal High Court insinuates. As Advocate General Colomer noted, the German government had argued in the oral hearings that a company in the plaintiff's position could, in fact, continue to assert its rights under German law;(65) and that, in German law, Überseering's passive locus standi continued to exist despite the new 'seat' of the company.(66) But even if the ECJ had kept strictly to the preliminary question submitted to it, it would have been sufficient to rule that German law must not foreclose the Dutch company's rights to sue in Germany, and that German international civil procedural law, if prescribing such effects, was not discriminatory, but unreasonable. The arguments of the Advocate General are noteworthy in one further respect: the general reasons in favour of the 'seat' theory (protection of creditors; protection of subsidiary companies; co-determination; avoidance of double taxation), which all have to be acknowledged as compelling reasons of general interest, simply are of no concern here.(67)
Advocate General Colomer's arguments and recommendations fit in with a Europeanisation practice that would respect the autonomy of Member States while nevertheless insisting on the compatibility of national policies with Community values.(68) By contrast, in its judgment of 5 November 2002, the ECJ used much stronger language. Its criticisms of German private international law and international procedural law leave the possibilities addressed by Advocate General Colomer out of account, and sound correspondingly self-confident, if not self-righteous: 'A necessary precondition for the exercise of the freedom of establishment is the recognition of those companies by any Member State in which they wish to establish themselves.'(69) German law ought not to disregard the point that the Dutch company never actually intended to transfer its seat.(70) Is one to understand the statement to the effect that, in the EU, it cannot be tolerated that each Member State determines 'unilaterally', according to its lex fori, what legal significance it attaches to border-crossing actions, without taking into account the legal views of the Member States concerned and/or the interests of other Community citizens? This sort of civilising admonition is one thing. An unconditioned comprehensive conversion of German PIL to the incorporation theory would be another problématique.(71)
This issue arises once again in connection with the ECJ's discussion for the reasons adduced for the 'seat' theory. To be sure, according to para. 92 of the judgment, it is 'not inconceivable that overriding requirements relating to the general interest, such as the protection of the interests of creditors, minority shareholders, employees and even the taxation authorities, may, in certain circumstances and subject to certain conditions, justify restrictions on freedom of establishment'. But the next paragraph goes on to say: 'Such objectives cannot, however, justify denying the legal capacity and, consequently, the capacity to be a party to legal proceedings of a company properly incorporated in another Member State in which it has its registered office. Such a measure is tantamount to an outright negation of the freedom of establishment conferred on companies by Articles 43 EC and 48 EC.' Did the ECJ wish to indicate that it seems no longer necessary to say anything about the rationale underlying the 'seat' theory; that there is no longer any reason to take co-determination commitments seriously, because the regulation on the societas europa will come into force on the 8 October 2004,(72) and that, alongside, there is a Directive on Employee Participation?(73) An interpretation of the judgment which takes its practical outcome in the decision, and not its generalising doctrinal framework, as its rationale would suit the Court's authority better.(74)II.2 De-couplings and rearrangements of regulatory law and general private law: Pronuptia and Courage
The second set of examples has to do with the tensions between private law and economic law, and between general and statutory private law. Such conflict constellations have been widely and intensively discussed, especially in Germany.(75) These tensions cannot be adequately understood as doctrinal problems which arise from imperfectly systematicised legal fields. They usually relate to regulatory functions of legal provisions, especially of economic law, which are in conflict with the background assumptions of 'classical' private law.(76) Déjà-vu reactions are not, however, appropriate when one encounters such conflicts in the course of Europeanisation processes. It is a specific feature of the European multi-level system that, particularly in the course of the programme to 'complete' the internal market being pursued since mid-1980s, practically the whole of economic law was Europeanised. Consumer protection fits into this pattern. This explains why the academic European law community could ignore private law for so long.(77) Yet, the de-couplings of (European) regulatory law and statutory private law, on the one hand, from general (national) private law, on the other, were all to produce ever more disintegrative side-effects in national legal systems, the more resolutely the internal market policy was pursued.(78)
Let us again anticipate the findings of the analysis below in the form of theses. (1) Just as the 'juridified' regulatory competition that the ECJ promotes in company law does not fit the guiding ideas of the ordo-liberal tradition, so the patterns for resolving conflicts between the European regulatory law and national private law do not fit the guiding ideas of functionalism and the models of a European 'regulatory state'. (2) Instead, we witness the emergence of a law of conflict of laws for 'diagonal' conflict situations that makes European-initiated regulatory policy - the law covered by EU competence - compatible with general private law - the sphere of competence of the Member States. Here, three answers are conceivable: a) European law and/or national law each insist on their own legitimacy (they reach for their lex fori); b) both pursue a strategy of conflict avoidance by each treating their own law restrictively; and c) they discover a principle or a rule that allows a conflict resolution which is compatible with the regulatory concerns of both legal layers.
The examples that demonstrate this pattern of conflict are legion. Let us here merely pick out two prominent cases involving tensions between European competition law and national private law. These examples will illustrate once again how limited the potential of the three paradigms set forth at the outset is to provide guidance in the just-ification of law in the Europeanisation process. European antitrust law has developed into an increasingly more complete system - so strong that, by now, the mere interest in getting it implemented has made the strengthening of the Member State level inevitable.(79)
The need to co-operate across the levels of governance in the EU has 'always' existed in relation to the civil law implications of antitrust violations. To be sure, national legal systems, too, have to decide how far the objectives of antitrust law take primacy over private law. But in the EU context, the division of competences between the two levels of governance renders this issue more complex: to what extent can antitrust powers 'intrude' on the realm of private law where that law remained national. Neither the principle of the supremacy of European law - a 'vertical' conflict of law rule - nor PIL with its 'horizontal' conflict rules are equipped to handle such constellations: what is involved here are 'diagonal' conflicts.(80)II.2.1 Dodging the conflict: Pronuptia
Franchising has found legal form in Europe through the ECJ's Pronuptia decision, which declares the franchisees ties, which are regarded as essential to this business concept, to be outside the reach of Article 81 (ex 85), and franchising to be an innovative and, in general, pro-competitive business strategy.(81) The acceptability of franchising from the antitrust viewpoint has its price in civil law: imposing it effectively requires that the ties, which are legalised in antitrust terms, are not found unfair by law of contract.(82) These tensions between 'competition justice' and 'contractual justice' first emerged in the distribution systems in the motor-car sector - they were there softened by including provisions to protect dealers in the relevant group exemptions.(83) In franchising law, this escape route was not sought. The resulting potential for conflict has, however, been kept latent. Yet the situation in itself is definitely potentially conflictual: the contract for marketing the Pronuptia collection that Ms Irmgard Schillgalis had signed provided for territorial protection which can be taken as a precise precondition for the fairness of the ties that Ms Schillgalis was asked for; and the resale price maintenance throughout the system was also thoroughly in the interests of the franchisees. But even were one to regard the antitrust penalty of nullity of the contract as irrefutable, this in no way means that Ms Schillgalis was not due at least compensation under the law of unjust enrichment.(84)
This was the position that Pronuptia sought with extraordinary stubbornness to defend.(85) The Pronuptia suit, originally launched in Hamburg in December 1981, went through all the German courts, then to the ECJ and back again until, in 1994, the Oberlandesgericht Frankfurt allotted Pronuptia precisely the amount that the Hamburg district court had already awarded in 1981. 'Justice delayed is justice denied'? 'Postponed does not mean suspended'? Both questions can be answered in the affirmative. The German judicial system was not prepared to enrich Ms Schillgalis sine causa in the name of an antitrust effet utile. However, from the viewpoint of EC antitrust law, there is in fact nothing wrong with Germany's law of unjust enrichment. Antitrust law is not really interested in interfering with way Pronuptia seeks to further the sales of wedding dresses in the region outside Hamburg or even abroad. Nor is it intended seriously to disrupt the pricing polity of a franchise system as long as that system is exposed to the competition by other distribution strategies. What the ECJ's Pronuptia judgment achieved was the removal of uncertainties in antitrust law which had impeded the development of contractual arrangements that seemed thoroughly pro-competitive.(86) This did not concern a 'true' conflict but only a false one.(87) The fact that it took so many years to get it straight is a high tribute levied by EU practice in the manufacture of law on its citizens.II.2.2 Justi(ce)-fication in a legal vacuum: Courage
The annulment of an agreement under European competition law was also at issue in the Courage case,(88) a case which certainly deserved the attention it attracted:(89) Bernhard Crehan, licensee of a Courage pub, not only refused to pay £ 15,266 for beer supplied, but in a counter suit asked to be compensated for the drawbacks he had suffered because the 'tied house' contract imposed an exclusive supplier obligation upon him for beer at prices considerably above those asked from free houses which were not tied to a sole brewery. The Court of Appeal (for England and Wales) that made the submission stated that, in English law, a party to an unlawful contract was not entitled to claim compensation for damages.(90) The legal position is, as it were, a mirror of the one in Pronuptia: there, EU antitrust law had to be enriched by law of contract; but here antitrust law had to equip itself with sanctions that were non-existent in English law. The judgment treats this as a matter of course: 'As regards the possibility of seeking compensation for loss caused by a contract or by conduct liable to restrict or distort competition, it should be remembered from the outset that, in accordance with settled case-law, the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals.'(91) This statement is accompanied by an emphatic reference to the Community guarantees of subjective rights and the direct effect of the competition rules.(92) Yet the matter is not simply a sort of European command. The ECJ pays its respects to the procedural(93) and substantive(94) autonomy of national law. It takes account of the fact that the innovations that European law requires differ from country to country, and tolerates legal divergences. It is manifestly concerned not to homogenise the legal systems, but to have each of the private law systems learn what they have to learn in order to lend European competition law its validity. And, as in Centros, it is individual rights that can be asserted by the citizens of the European Union in order to achieve a reshaping of their own law in each case.II.3 The logic of market integration and the logic of private law
It is always a delight to re-read: 'Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type Europe';(95) and even now that the ECJ has definitely become visible, respect has remained high: criticisms like those which national courts are accustomed to are exceptional phenomena. There are many reasons and explanations for this.(96) Assessments of the ECJ's performance usually refer to, and appreciate, its role as a promoter of integration project. But this is not the only conceivable yardstick. The Court is exposed to very diverse expectations: its case law is not just to promote integration but also to guarantee the normative integrity of the integration process, to respond sensitively to political concerns. Can such a court at the same time operate as a court of ultimate review, earning the respect of the specialised courts of Member States? And with all that, can it alleviate the pangs of citizens seeking justice in courtrooms?
Specifically, consumer protection, which has been the pioneer and engine for the Europeanisation of private law, raises such questions. The two examples dealt with here concern two very prominent instances of European legislation, namely, the Clause Directive of 1993(97) and the Product Liability Directive of 1985.(98) Let us once again recall the outcome of the analysis: in the Océano decision(99) on the Directive on unfair terms in consumer contracts, the ECJ managed to implement the Directive's provision in national (Spanish) law by redefining the functions of courts in such a way that Spain's legal system could transform that intervention into an innovative reform. One can, in contrast, attribute to the decisions on the Product Liability Directive of 25 April 2002(100) the much more ambitious goal of taking on product liability law in the European system - an undertaking that, admittedly, would, in all likelihood, fail thoroughly.II.3.1 Océano
Océano Grupo Editorial SA(101) was the first legal pronouncement, urgently awaited by the protagonists of European consumer policy, on the Directive about unfair terms in consumer contracts, adopted in 1993 after long preliminaries.(102)
The defendants to the underlying cases had entered into contracts for the purchase, by instalments, of an encyclopaedia for personal use. The instalment purchase contract was signed in 1995 but the instalments had not been paid. The purchaser filed suit in 1997 with the Juzgado de Primera Instancia No. 35 in Barcelona. This was in line with the conferral of jurisdiction on the courts in Barcelona in the contractual terms. The defendants, who came from all over Spain, did not turn up for the hearing scheduled in Barcelona.
Not a very tough story in itself, one might think. Yet the Juzgado saw itself barred from rejecting the suit. The 'juicio di cogniciòn' is a summary procedure for legal cases with a small sum in dispute (between 80,000 and 8,000,000 Pesetas).(103) Admittedly, the Tribunal Supremo had repeatedly declared such venue clauses to be unfair. What was disputed, however, was whether the Juzgado was also entitled to make this finding when it had not been brought up in the proceedings by the defendants themselves. The question whether it could pronounce nullity ex officio had been presented to the Juzgado by the Spanish Attorney General, and had received a negative answer.(104) Undaunted, it approached the ECJ with a preliminary ruling question as to whether Directive 93/13 required verification ex officio.
Before addressing that procedural issue one has, in the Advocate General's view,(105) to deal with the unfairness of the clause conferring jurisdiction to the Barcelona courts. This question was answered by the ECJ without further ado: the clause, not having been individually negotiated, was held to be unfair within the meaning of Article 3 of the Directive.(106) The importance of the fact that this clause was not contained in the indicative list in the annex to the Directive was not explored by the ECJ. Similarly, the further question concerning the competence of the Spanish court submitted to the ECJ and discussed in great detail by the Advocate General,(107) caused no headache: it would be contrary to the Directive's protective objectives if one were to require a consumer to appear before a court even though the venue clause requiring such appearance is unfair.(108) This holding may seem quite a modest step but is nonetheless a noteworthy reform: Spain is expected to adapt national procedural rules to consumer policy objectives agreed throughout Europe. Since Spain itself shared these objectives, it is at the same time merely a sort of self-correction, namely, the realisation of procedural requirements without which agreement to judicial review of general terms of business would not be credible.II.3.2 Product liability
In its three judgments of 25 April 2000,(109) the ECJ seems to have enhanced the value of the, so far quite dormant, Directive 85/374/EEC(110) on product liability by asserting that this legislative act did not merely lay down minimum standards but instead aimed at 'complete harmonisation'. This came as a surprise: at the time, the very modest harmonisation effects had been minutely elaborated,(111) and the Directive was characterised as a product with limited effect in terms of integration policy and rather defective in terms of liability law. There was, at any rate, broad agreement that the Directive did not affect the general law of delict in the Member States.(112)
This consensus has an objective basis. To be sure, product liability in tort law in the various countries overlaps with the Product Liability Directive. But the conceptual approach of, say, the German law of tort on manufacturer liability and the conceptual design of the Product Liability Directive differ as significantly as do the procedures of national and European law. What is true of Germany is true equally of other jurisdictions, for instance, with regard to France and its non cumul principle. It is this very consensus which the ECJ now seems to wish to dismiss that tends towards a position which was called the 'petrification theory' (Versteinerungstheorie) at the time.(113) The decision on the Spanish law in particular(114) nourishes such fears.
The plaintiff had been infected by Hepatitis C virus in a clinic, because of a blood transfusion. She based her suit on Law No. 22/94 on civil liability for damage caused by defective products of 6 July 1994 that transposed the Directive, on the general liability provisions of Spanish civil law, and finally on the General Law No. 26 of 19 July 1984 for the Protection of Consumers and Users, which, in its turn, is based on a 'objective liability regulation' according to which the suing party had only to prove its damage and a causal connection. She directed her action for compensation for damages against the owner of the medical establishment (Medicina Asturiana SA), not the manufacturer of the blood product (the Centro Comunitario de Transfusión del Principado de Asturias).
The submitting court found that the provisions of Law No. 22/94 that implemented Directive 85/374 were more restrictive than the older 1984 law. The lex posterior states that the older provisions 'do not apply to liability for damage caused by products defective within the meaning of the (new) law'.(115) This perception brought it to the preliminary ruling question whether Article 13 of the Product Liability Directive could 'be interpreted as precluding the restriction or limitation, as a result of transposition of the Directive, of rights granted to consumers under the legislation of the Member State.'(116)
Oddly, there is no further mention in the sequel of the temporal conflict provision of the Spanish law just cited. Instead, the court employs the traditional principles on full harmonisation of the directives enacted under Article 100, old version, with its pre-emptive effects: Hence, 'the margin of discretion available to the Member States in order to make provision for product liability is entirely determined by the Directive itself and must be inferred from its wording, purpose and structure'.(117) And, accordingly, it is not some self-correction of Spanish law but the supremacy claim of Community law that is the basis for lowering the standard of protection in Spain. Is this then also to lead to the 'petrification' of the general civil law which was forewarned in the early debate on the Product Liability Directive?(118) The ECJ pronounced:
Less dramatic questions are raised by the two parallel decisions. Both concerned the conformity with the Directive of transpositions going beyond its standards of protection: Greece had wanted to spare its citizens from the personal contribution of 500 Euro provided for in Article 9 I (b) of the Directive.(120) France additionally wanted to hold the distributor liable alongside with the manufacturer, and additionally to restrict the exemptions from liability foreseen in Article 7 of the Directive.(121)
These deviations would have been unproblematic had the Directive sought to lay down minimum standards of the European consumer protection. And indeed, had the Directive been adopted after the Single European Act and accordingly based on Article 100a (now 95), then the procedure pursuant to Sections 4 and 5 of that provision would have applied. But that was, after all, an old directive, the spiritual father of which had always stressed that it was aimed at the development of the internal market and only implicitly achieved consumer protection objectives.(122) Thus, Advocate General Geelhoed - as also in Case C-183/00 - was able to bring the orthodox understanding of supremacy and pre-emption to bear.(123) The ECJ followed suit.(124) This is, after all, not particularly tragic, since Article 13 of the Directive 'does not preclude the application of other systems of contractual or non-contractual liability based on other grounds, such as fault or a warranty in respect of latent defects',(125) and because Article 9 (1) (b) means only that those harmed 'must bring an action under the ordinary law of contractual or non-contractual liability'.(126) Should one expect the ECJ, especially in view of the Spanish case,(127) to hold next that e.g. Germany's rules on the manufacturer's burden of proof are incompatible with the European directive? Hardly so.(128) Such a step would be damaging to product liability law - and to the ECJ's authority.II.4 Interim comment
Exempla trahunt? The three groups of examples are intended to demonstrate the relevance and the limited practical relevance of the legitimation patterns reconstructed in the first section. The three paradigms presented here, so we can summarise, have all left their traces but none of them applied 'in full' or exclusively. Centros and Uberseering by no means document the exposure of company law to unrestrained regulatory competition. Neither Pronuptia nor Courage can be used to deduce primacy of European competition policy over competing conceptions of contractual justice in private law. And nowhere, and definitely not in the case law on consumer protection, can one witness anything like the formation of a European (social) state. All three paradigms are insufficiently complex analytically, and have defects in normative terms. In the seemingly incomprehensible jigsaw puzzle of viewpoints that come to bear in the Europeanisation process, one can, however, certainly also find positive messages. This, admittedly, presupposes the extension of the conceptual frameworks hitherto employed.
III Justice-making law for the Europeanisation of private law
Back to the beginning: when conceptualising the Europeanisation of private law, we should - as was stated in our initial thesis - bear in mind the legitimation problématique that has, at times explicitly, at times less visibly, been on the agenda of the integration project from the outset, and which is now, after the success of the Human Rights Convention,(129) the Treaty of Nice,(130) the 'post Nice process' and 'Convention process'(131) been met with increasing academic and public attention. 'Europe is not a state but it needs a constitution' - this is not exactly a communis opinio, yet it is a formula that typifies the current discourse on European law.(132) 'Europe already has a constitution that now needs to be developed further, but not necessarily in writing' - this is one of the more nuanced contrary positions.(133) Private lawyers are hard to hear in the current legal disputes over Europe's constitution. This indication of shortcomings is not without its ironies or its deeper significance: for, after all, it concerns a project which the founding fathers set going as an 'economic community'. To be sure, a key piece of the overflowing debates on the Europeanisation of private law is formed by the question of the advisability of a European Civil Code. As such, this is a constitutional question par excellence. It cannot be dismissed on the model of Paolo Cecchini's writings on the internal market,(134) i.e., via some estimate of the 'costs of a non-code'; nor can we rely on the German experience of a pre-republican and pre-democratic history of private law unification. Unfortunately, the booming constitutional debate going on in public law offers limited help. Certainly, any internal market policy project, any directive, however technical and functionalist it may seem, regularly sparks off far-reaching controversies. But the constitutionalists, have lost the economy and society from their vision: their readiness to embrace a 'constitution without a state' - a prospect which now hardly seems to offend anyone anymore - seems to promote a constitutionalism beyond and above conflicts over the economic and social conflict constellations, thereby strengthening the traditions of a non-political, economic or technocratic rationality that determine the integration process in the formative stage.
Such an abstract constitutionalism would call valuable achievements into question. The private and the public, the economic freedoms and political rights of citizens, can, in a democratic constitutional state, be understood as interdependent categories.(135) Private law has made its way into these contexts, finding its constitutional place in the interaction between legislation, case law, legal expertise and the political public.(136) The European constellation is different. But is it really of such a nature that economic freedoms must be understood as operating in a sphere which remains disconnected from political processes and beyond the reach of the political rights of European citizens? The answers to this question will depend on our understanding of the re-configuration of politics, economy and society that characterise the European Union, and on the functions of private law in this new environment.
This is a very abstract way to describe the theme of this section. In order to alleviate its abstractness somewhat, we shall anticipate the end result in two theses. The first is that we cannot conceive of the process of the Europeanisation of private law as the construction of a private law edifice with a unitary structure. Instead, we have to accept a multi-layer process in which very different sets of problems will have to be dealt with. The second is that the Europeanisation of private law has to base its legitimacy on the quality of the processes through which it comes about; we have to juridify these processes; we must, to rephrase the title of this essay, juridify the changes and innovations that the Europeanisation process brings about; we need a procedural law of Europeanisation.
Let me develop this argument in five steps.
European integration research has kept on saying, for some years now, that the EU is to be understood as a 'multi-level system of governance sui generis.'(137) Jürgen Neyer, in particular, has enriched this debate in normative terms: if and because the powers of action and resources for action are located at various relatively autonomous levels in the EU, then coping with functionally interwoven problem situations will continually depend on communication between the actors competent in their various domains.(138) Such communication can be achieved in manifold ways. But Neyer is now seeking to make it plausible that, in the specific conditions of the EU, successful solutions to problems can be expected from the 'deliberative' mode of communication based on universalisable motivations and tied down to rules and principles.(139) To be sure, the multi-level approach cannot be understood as revealing a 'fact' to which legal constructions would have to orient themselves. This is especially true of Neyer's theoretical arguments. Nonetheless, the multi-level analysis does refer to new constellations that law and legal science too have to master, albeit in their own ways.(140) And the normative turn that Neyer gives to the multi-level approach does, at any rate, support the assumption that Europe need not sink into chaos if it relies on deliberative interaction instead of the formation of hierarchies.III.1.1 Diagonal conflicts
In delimiting and harmonising European and Member State powers, the parallels become particularly clear. Conflicts as to competencies are typified in the EU by the fact that the Member State defending its autonomy itself belongs to the Community against whose demands it is defending itself. Here, the principle of enumerated powers (Article 3-4; now 3-7), according to which the Community should act only in the areas specifically allotted to it, is quite often dysfunctional: activities oriented towards the solution of economic and social problems will often have to involve both Community and Member State powers. The resulting overlaps compel the Community and Member States de facto to complex coordination of their activities: each can block the other, but neither can arrive at solutions when acting alone.(141) 'Diagonal' conflict constellations of this sort are an everyday experience in European law and European policy:(142) the Community holds powers that relate only to one segment of interdependent issues. The Member States hold partial powers that equally do not suffice to achieve a solution of problems autonomously.III.1.2 Deliberative supranationalism I: European law as law of conflict of laws
It is a small step from this insight to an interpretation of legal provisions as precepts for a communication-oriented, 'deliberative' political style which can be more positively justified if set in its broader context. In the 'post-national constellation' typified by economic interpenetration and interdependency, the extraterritorial effects of the decisions and omissions of democratic polities are unavoidable; but the burdens loaded unilaterally on to one's neighbour in each case cannot be justified by democratic processes internal to the state: 'No taxation without representation' - this is a principle that imposes on the Member States of the EU the obligation to take account of the interests and concerns of non-nationals even within the national polity.(143)
But it is precisely this normative core of its supranational rules and principles which legitimise European law, where it requires Member States to 'apply' foreign law and to refrain from insisting on their lex fori and parochial interests.(144) This sort of restriction of a Member State's political autonomy is, however, limited. In particular, the case law on Article 30 (now 28) has repeatedly indicated(145) how the idiosyncrasies of individual states can be identified as such and reduced to a civilised level - 'autonomieschonend und gemeinschaftsverträglich'.(146)
The mediation between differences in regulatory policies and the diverse interests of the concerned jurisdictions that it achieves overcomes the one-sidedness of PIL rules; it represents a truly European law of conflict of laws. It is 'deliberative' if and because it does not content itself with appealing to the supremacy of European law; it is European because it seeks to identify principles and rules which make differing laws in the EU compatible; with this ambition it stands 'above' national law because it indicates and declares binding a metanorm under which intra-European conflicts can be resolved.III.2 Supranational law
One of the analytical strengths of deliberative supranationalism is to conceive of the EU as a non-unitary polity in which Member States are not only 'relatively' autonomous but also 'relatively' different, in which cultural differences(147) can continue to exist.(148) This opens up realistic perspectives for the design of the European policy. It suggests 'soft' forms of control that take account of the special features of national institutions and experience. At the same time, I believe, its compatibility with democracy of deliberative supranationalism is plain to see - indeed, it can be seen as a requirement for democracy, given that it seeks to enhance the influence of European citizens who are affected by decisions which they cannot influence.(149)
The legitimacy of a deliberative supranationalism which seeks to give voice to foreigners and seeks to promote deliberative political processes in the EU is not really problematical. Instead, what is questionable is whether the EU's institutional circumstances and configurations of interests actually do favour such solutions. The empirical dimension of this question must be left out of consideration here.(150) However, we do wish to assert, at least, that important rules and principles of European law can be interpreted as fostering a deliberative style of politics, and thus that, in supranational European law, there is indeed a layer of law that does not merely favour deliberative interactions, but also ties these interactions to substantive and enforceable rules.(151) This genuinely constitutional law includes the ban on discrimination in Article 12 (ex 6), the basic freedoms that have developed into civic rights, the European Human Rights Convention, and (probably in the foreseeable future) also the basic rights proclaimed in Nice. Also parts of it are the co-operation duties in Article 10 (ex 5), the ban on protectionism in Article 28 (ex 30) and the mutual recognition obligation derived from this provision. All these legal positions are important not just because of their direct, both vertical and horizontal, effects, but also because they give guidance in the production of law, including legislative and executive law-making. They can be invoked in all modern and not-so-modern governance arrangements and constitute a protective shield against strategic patterns of argument.III.3 Reinterpretations
Whether this conceptual framework is fruitful can be tested by using it to reinterpret the situation in the cases discussed in the second section, and contrasting it with the interpretations which keep to the traditional patterns of legitimation. In the requisite brevity: Centros and Überseering(152) confirmed the fundamental importance of the freedoms in the TEU. At the same time, they show that this supranational legal framework cannot be understood as a body of rules one may mechanically apply, or at any rate ought not to be understood that way: in the interpretation of the Centros judgment advocated above, the freedom of establishment is neither merely an economic freedom, nor some cornerstone of a European economic constitution - preordained for Member States and/or exposing their laws to processes of regulatory competition. Instead, it is more of a freedom that simultaneously acts as a political right, because it puts the citizens of a Member State in a position to place their sovereign under a compulsion to provide justification.(153) In this interpretation, what is involved is indeed a procedural law of just-ification, which sets first of all the courts and then the legislator (and then, if necessary, the courts again) in motion. Is this wishful thinking? To some degree; but one ought to bear in mind the implications of a more rigid, interpretation which Überseering seems to suggest: if freedom of establishment were understood as a legal principle that could set aside the regulatory keystones of company law and historically and politically important concerns which the seat principle had defended,(154) then this 'right' would not merely have disintegrative effects within some Member States but illegitimatise the Community and the integration project as a whole.
We have characterised the conflicts between European competition law and national private law in cases like Pronuptia and Courage as 'diagonal' conflict constellations.(155) The 'settlement' of this conflict occurred in the Pronuptia saga through sheer exhaustion. This is a mechanism which all legal systems use. But it is one which by no means does justice to the issues (and parties!) involved. What is at issue in cases like Pronuptia is whether European law incorporates elements of a law of franchisee protection as part of the European ordre public or tolerates such objectives where national contract law pursues them.(156) Again, we would then be witnessing a just-ification process emerging from the conflict between the two levels of governance in the EU; its legitimacy would rest either upon the insight that interests of franchisee protection are not discredited by competition law, although such protection need not be uniformly shaped throughout all European jurisdictions. What was merely implicit in Pronuptia came openly to the fore in Courage: here the conflict of laws has led to the justi(ce)-fication of new private law that the Member States have to incorporate in their 'law of the land'. In this case, the prescriptive claims of Community law are certainly more rigid, even though the incorporation it requires may take doctrinally different shapes.(157)
One can hardly interpret the competition law judgments as confirming the emergence of a European 'regulatory state'; such an interpretation would be equally implausible with the consumer protection judgments (on the Directives on Unfair Terms in Consumer Contracts and on Product Liability.(158) In Océano, the ECJ encouraged semi-autonomous developments of national laws.(159) Its holdings on product liability - hopefully! - cannot, despite their strong language, change anything in the fact that Directive 85/374/EEC has only a complementary significance that cannot contribute much to the tasks of extending the law that continually arise in manufacturer liability in tort law. Whether these decisions will instigate new Community legislation in the field of product liability remains to be seen. Even if such activities are being initiated, the tensions between the 'logic of market integration' and the 'logic of a law of private law justi(ce)-fication' will not come to a rest. The European legal machinery is simply not equipped to cope with the many facets of this field in a comprehensive, let alone centralising, fashion.III.4 Deliberative supranationalism II: Constitutionalising 'transnational governance arrangements'
In many important areas of regulatory policy, Europe has built up hybrid transnational governance arrangements, structured neither in purely private law terms not in purely public law terms, neither nationally nor European, neither purely governmental nor non-governmental,(160) in which societal and governmental actors adapt to a transnational reality which is no longer domesticisible nationally. What is so typical of regulatory policy also has to leave its traces in private law. Among the examples listed in section II, the one in franchising law is the clearest: this law is neither purely national nor purely European. The Commission, the ECJ and the Member State courts are involved in its making - not to mention the enterprise associations that work out the contractual arrangements to transport the various franchising concepts, which, at the same time, have to be kept compatible with European competition law and many kinds of national legal systems. Yet, the field is even broader. With increasing intensity, groups of academics and associations are having their say on the Europeanisation of private law, not merely 'portraying, but also producing' law, and referring, for the legitimisation of their claims to involvement, not just to their scholarly reputation, but also intending their contributions to apply in legal practice and legal policy.(161) What can be observed in legislation has long been underway in the context of judicial law finding. Public jurisdiction can play only a very limited part in settling disputes in European contexts. All of this is more than, and different from, the type of conflict of laws just described, because these transnational governance arrangements do not just mediate between different given policies and law, but are to elaborate genuinely transnational responses to transnational problem constellations. This type of governance cannot be rejected as being outright illegal or illegitimate, not just because of their factual importance, but also because of their normative potential. The need to design a law that would 'constitutionalise' such arrangements so that they deserve the recognition they claim is only gradually being realised - and all I wish to do here is to emphasise that we will have to face these challenges.(162)III.5 Bottlenecks
All this 'may be true in theory, but does not apply in practice', says Immanuel Kant famous General Maxim,(163) which may be appropriate here - even if one accepts all the benevolent reconstructions of the examples presented in the preceding sections. For everywhere, bottlenecks, weaknesses and omissions have also become visible: in such a complex organisation as the ECJ, there cannot be any unitary institutional self-perception. The interactions between the ECJ and the national courts are governed by formalist prescriptions and are vulnerable to strategic behaviour, be it of powerful private players, be it of governmental actors, be it of lower or higher courts: interactive adjudication does occur in the EU, although its quality is difficult to assess(164) and even more difficult to ensure.(165) And however careful courts may deliberate, they are not in control of the processes of law production. They do much if they ensure the respect for Europe's legal commitments and help to identify and to defend procedural guarantees which promote deliberative interactions. Do all these practical troubles, then, ultimately militate in favour of the project of a European civil code? First of all, they are in favour of accepting the view that, in such a project, the very difficulties that arise are those that it is supposed to solve. The 'classical' models of private law codification do not come into consideration for today's Europe. First, because Europe will not become some hierarchically structured polity, but will remain heterarchical and plural; there is no legislative actor with the vocation for universal legislation that would bring Europe under a unitary codified regime. Nor, however, is Europe some sort of cultural nation able to write down its code without having to wait for the formation of a state. The mixed position we find ourselves in - a 'primary law' that is about to learn how to organise the interdependence of the freedoms of the 'market citizens' with the aspirations of political citizenship in the European Union; and a heterarchical regulatory policy organised in networks; a patchwork of specific legislation tackling concrete problems which produces a host of disintegrative effects in national legal systems - this is the 'state of the (European) Union'. Is the normative quality of private law harmed thereby, and is the idea of equal originality (Gleichurspünglichkeit) of private autonomy and of political rights to be written off as theory? Will we be witnessing the generation of a 'quilt', consisting of colourful yet disparate pieces, which have to be put together by people who are colour-blind?(166) This has by no means been established. The point is whether the development exceeds the learning capacities and productive imaginative power of those involved.
1. Translated by Iain F. Fraser, EUI Florence. A preliminary German version of this essay was presented at a workshop on private law theory organised in co-operation with Gunther Teubner (Frankfurt a.M.) at the European University Institute in April 2002. That text was rewritten for the Ius Commune Conference in Amsterdam on 28-29 November 2002, and subsequently revised again. I would like to thank many participants of the Amsterdam conference and the contributors to the workshop in Florence for their comments and suggestions. I am in particular indebted to Christoph Schmid (Florence/Munich), much more than the references to his work in my footnotes can indicate.
The artificially created term in the subtitle is a translation of the German construct Recht-Fertigungs-Recht, a notion used by Rudolf Wiethölter in a recent essay: 'Recht-Fertigungen eines Gesellschafts-Rechts' (forthcoming in Christian Joerges and Gunther Teubner (eds.), Rechtsverfassungsrecht. Recht-Fertiging zwischen Privatrechtsdogmatik und Gesellschaftstheorie, Baden-Baden: Nomos). Iain F. Fraser suggests the translation 'just-ifications of a law of society', adding that the German Recht-Fertigung can be etymologised as making/manufacturing law/right. 'Justi(ce)-fication' or 'justice-making law' may retain a touch more of the German term's message. But it needed a connoisseur of Roman law, namely Wolfgang Ernst (Bonn), to remind me that justum facere is the common root of Recht-Fertigung and justification.
2. Esp. Ch. Joerges and G. Brüggemeier, Europäisierung des Vertrags und Haftungsrechts, in: P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, 2nd edn., Baden-Baden: Nomos 1999, 301 ff.; Ch. Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective, European Law Journal 3 (1997), 378 ff.
3. For this German term, see M. Rainer Lepsius, Die Europäische Union als Herrschaftsverband eigener Prägung (The European Union as a Sovereignty Association of a Special Nature), in: Ch. Joerges, Y. Mény and J.H.H. Weiler (eds.), What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer, Florence: The Robert Schuman Centre for Advanced Studies at the European University Institute/Cambridge, MA: Harvard Law School 2000, 203 ff. (213 ff.); <http://www.jeanmonnetprogram.org/papers/00/symp.html>.
4. This has now been given thorough treatment by the explanatory disciplines, most recently in K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe, Oxford/New York: Oxford University Press 2001; A. Wiener, They Just Don't Understand! Finality and Compliance: Opposing Rationales in the European Constitutional Debate, MS Belfast 2002.
5. For a very pointed recent restatement, see J. Habermas, Remarks on Legitimation through Human Rights, in: id., The Postnational Constellation, Cambridge: Polity 2001, 113 ff., 113. The whole issue is systematically discussed in Ch. Jetzlsperger, Legitimacy through Jurisprudence? The Impact of the European Court of Justice on the Legitimacy of the European Union, EUI Working Paper Law 12/2003.
6. Cf. on this tradition D.J. Gerber, Constitutionalising the Economy: German Neo-Liberalism, Competition Law and the 'New' Europe, American Journal of Comparative Law 42 (1994), 25 ff.; W. Sauter, Competition Law and Industrial Policy in the EU, Oxford: Clarendon Press 1997, 26 ff.; oddly (and significantly), this tradition hardly appears in political science and sociology. A remarkable exception is Ph. Manow, Modell Deutschland as an Interdenominational Compromise: Program for the Study of Germany and Europe, Working Paper No. 00.3, Center for European Studies, Harvard University, Cambridge, MA, 2000.
7. Again (see note 1 supra) a notion which tends to lose its meaning in translation. 'Economic governance', the term used in pertinent documents of the European Convention website (<http://european-convention.eu.int>) may be as close as one can get.
8. Cf., for example, Ch. Joerges, The Market without a State? States without Markets? Two Essays on the Law of the European Economy, EUI Working Paper Law 1/96, San Domenico di Fiesole 1996 (<http://eiop.or.at/eiop/texte/1997-019a.htm>; <http://eiop.or.at/eiop/texte/1997-020.htm>); 'Good Governance' in the European Internal Market: Two Competing Legal Conceptualisation of European Integration and their Synthesis, in: A. v. Bogdandy, P.C. Mavroides and Y. Mény (eds.), European Integration and International Co-ordination: Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann, Den Haag/London/New York: Kluwer Law International 2002, 219 ff.
9. Admittedly, the many important policy fields exempted from Ordnungspolitik in the EEC Treaties were then to be understood as mere exceptions from the governing ordo.
10. Particularly significant, here, is A. Müller-Armack, Die Wirtschaftsordnung des Gemeinsamen Marktes, in: id., Wirtschaftsordnung und Wirtschaftspolitik, Freiburg i.Br.: Rombach 1966, 401 ff.
11. Or more or less decisively preserved itself against relevant early 'special statutory private law' (sonderprivatrechtliche) projects, which existed from the mid-1970s onward (and fit in with the picture sketched out here; cf. Ch. Joerges, Zielsetzungen und Instrumentarien der Europäischen Verbraucherrechtspolitik. Eine Analyse von Entwicklungen im Bereich des Zivilrechts, Zeitschrift für Verbraucherpolitik 3 (1979), 213 ff.; cf. B. Börner, Die Produkthaftung oder das vergessene Gemeinschaftsrecht, in: W.G. Grewe (ed.), Europäische Gerichtsbarkeit und nationale Verfassungsgerichtsbarkeit. Festschrift zum 70. Geburtstag von Hans Kutscher, Baden-Baden: Nomos 1981, 43 ff.
12. For an official position, see Wissenschaftlicher Beirat beim Bundesministerium für Wirtschaft, Stellungnahme zum Weißbuch der EG-Kommission über den Binnenmarkt (Schriften-Reihe 51), Bonn 1986.
13. Cf., in particular, E.-J. Mestmäcker, Die Wiederkehr der bürgerlichen Gesellschaft und ihres Rechts, Rechtshistorisches Journal 10 (1991), 177 ff., 190 ff.; W. Tilmann, Eine Privatrechtskodifikation für die Europäische Gemeinschaft, in: P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, Baden-Baden: Nomos 1993, 485 ff.
14. See the programmatic title of the September 2002 Heidelberg conference of the German Association of young teachers of civil law, <http://www.junge.zivilrechtswissenschaftler.de>, recently published as Jahrbuch Junger Zivilrechtswissenschaftler 2002 (Die Privatsierung des Privatrechts - rechtliche Gestaltung ohne staatlichen Zwang), Stuttgart [etc.]: Boorberg 2003. Another school of thought, represented first and foremost by Reinhard Zimmermann, conceptualises private law as an autonomous body of law freeing itself from national ties (and finding the way back to the ius commune europaeum); cf. R. Zimmermann, Das Römisch-Kanonische Ius commune als Grundlage europäischer Rechtseinheit, Juristen Zeitung 1992, 8 ff.; Der Europäische Charakter des englischen Rechts. Historische Verbindungen zwischen civil law und common law, Zeitschrift für Europäisches Privatrecht 1993, 4 ff. (reprinted in P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft, 2nd edn., Baden-Baden: Nomos 1999, 103 ff.); see, also, id., Roman Law and European Legal Unity, in: A.S. Hartkamp, M.W. Hesselink, E. Hondius, C. Joustra and E. du Perron (eds.), Towards a European Civil Code, 2nd edn., Nijmegen/Den Haag: Kluwer 1998, 21 ff., and id., Savignys Vermächtnis, in: P. Caropni and G. Dilcher (eds.), Norm und Tradition. Welche Geschichtlichkeit für die Rechtsgeschichte?, Köln/Weimar/Wien: Böhlau 1998, 281 ff.
15. For an instructive account of the legal history, see Ch. Tietje, Internationalisiertes Verwaltungshandeln, Berlin: Duncker & Humblot 2001, 50 ff., 86 ff., 155 ff.
16. H.P. Ipsen, Der deutsche Jurist und das Europäische Gemeinschaftsrecht, Verhandlungen des 43. Deutschen Juristentages, München: C.H. Beck 1964, Vol. 2 L 14 ff.
17. H.P. Ipsen, Europäisches Gemeinschaftsrecht, Tübingen: Mohr/Siebeck 1972, 176 ff.
18. K.W. Nörr, Die Republik der Wirtschaft, Teil I: Von der Besatzungszeit bis zur Großen Koalition, Tübingen: Mohr/Siebeck 1999, 5 ff.; cf. earlier id., Zwischen den Mühlsteinen. Eine Privatrechtsgeschichte der Weimarer Republik, Tübingen: Mohr/Siebeck 1988.
19. See his Regulating Europe: Problems and Prospects, Jahrbuch zur Staats- und Verwaltungswissenschaft 3 (1989), 159 ff.; id. (ed.), Deregulation or Re-Regulation? Regulatory Reform in Europe and the United States, London: Routledge 1990, where he developed the corresponding legitimising formula.
20. For an interim balance, see G. Majone, Regulating Europe, London: Routledge 1996. Since then, the conceptual edifice has been steadily refined, for example, in id., Non-majoritarian Institutions and the Limits of Democratic Governance: A Political Transaction-Cost Approach, Journal of Institutional and Theoretical Economics 157 (2001), 57 ff.
21. For more details, see Ch. Joerges and G. Brüggemeier, Europäisierung des Vertrags und Haftungsrechts (note 2 supra); Ch. Joerges, The Impact of European Integration on Private Law (note 2 supra).
22. U. Mattei, Hard Code Now!, Global Jurist Frontiers 2(1) (2002), Article 1.
23. O. v. Gierke, Die soziale Aufgabe des Privatrechts, Berlin 1889, 17.
24. Cf. Ch. Schmid, On the Legitimacy of a European Civil Code, Maastricht Journal of European and Comparative Law 8 (2001), 277 ff.
25. Sections II.3 and III infra.
26. Cf. Ch. Joerges, Formale Freiheitsethik, materiale Verantwortungsethik und Diskursethik im modernen Privatrecht, in: F.U. Pappi (ed.), Wirtschaftsethik. Gesellschaftswissenschaftliche Perspektiven (Sonderheft der Christiana Albertina Universität), Kiel: s.n. 1989, 127 ff.; The Science of Private Law and the Nation-State, in: F. Snyder (ed.), The Europeanisation of Law: The Legal Effects of European Integration, Oxford/Portland: Hart 2000, 47 ff., 70 ff. ); O. Gerstenberg, Public Intervention, Private Ordering and Social Pluralism, in: Ch. Joerges and O. Gerstenberg (eds.), Private Governance, Democratic Constitutionalism and Supranationalism, Luxembourg: European Commission (Directorate-General Science, Research and Development; EUR 18340 EN), 1998, 205 ff.
27. As well argued by N. Walker, The Idea of Constitutional Pluralism, Modern Law Review 65 (2002), 317 ff.
28. K.-H. Ladeur, The Theory of Autopoiesis: An Approach to a Better Understanding of Post-modern Law. From the Hierarchy of Norms to the Heterarchy of Changing Patterns of Legal Inter-relationships, EUI Working Paper Law 99/3.
29. G. Majone, Delegation of Regulatory Powers in a Mixed Polity, European Law Journal 8 (2002), 319 ff.
30. This scepticism does not, as P. Legrand's (European Legal Systems Are not Converging, International and Comparative Law Quarterly, 45 (1996), 52 ff.), result from presumed unbridgeable communication difficulties between common law and civil law, nor is it meant, as, for instance, in H. Collins, European Private Law and the Cultural Identity of States, European Review of Private Law 3 (1995), 353 ff., a rigid defence of the 'cultural' ties of private law. Instead, it assumes 'two kinds of social integration - cultural and political. The former denotes the kind of integration that is needed for individuals and groups that seek to find out who they are or would like to be . . ., the latter does not rest upon a particular set of values but on trans-cultural norms and universal principles'; E.O. Eriksen and J.E. Fossum, The EU and Post-national Legitimacy, Oslo: Arena-Working Paper 26/2000, text accompanying notes 40 ff. It is in this sense that I understand M.W. Hesselink, The New European Legal Culture, Deventer: Kluwer 2001, 72 ff.
31. Case 212/97, judgment of 9 March 1999, ECR (1999-I) 1459, Centros Ltd. v. Ervervsog Selskabsstrylsen.
32. Rs. 120/78, Slg. 1979, 649 - Cassis de Dijon.
33. A Celex search on 25 March 2002 indicated 112 commentaries. That figure was too modest, for it did not take into account, for instance, H. Halbhuber's monograph Limited Company statt GmbH? Europarechtlicher Rahmen und deutscher Widerstand - Ein Beitrag zur Auslegung von Art. 48 EG und zum Europäischen Gesellschaftsrecht, Baden-Baden: Nomos 2001.
34. Rs. 208/00, U. v. 5 November 2002, Überseering BV v. Nordic Construction Company Baumanagement GmbH (NCC).
35. The following owes much to B. Trefil, Die Niederlassungsfreiheit für Gesellschaften in der Rechtsprechung des EuGH und ihre Auswirkungen auf nationales Recht, EUI Working Paper Law 2003/9, <http://www.iue.it/PUB/law03-9.pdf>. I am also indebted to Kara Preedy for many discussions on the normative contents of the freedoms; see K. Preedy, Fundamental Rights and Private Acts: Horizontal Direct or Indirect Effect, European Review of Private Law 8 (2000), 125 ff.
36. This is how the maître penseur of private international law, G. Kegel, interpreted what the Brydes were doing in his Editorial in Europäisches Wirtschafts und Steuerrecht (9) 1999 ('Es ist was faul im Staate Dänemark und anderswo …' - 'There is something rotten in the State of Denmark').
37. Para. 13.
38. Sentence 1 of the tenor of the judgment ECJ (1999) I-1947.
39. Completeness can scarcely be achieved in portraying the range of opinions. Specifically on the response in Germany, see H. Halbhuber, National Doctrinal Structures and European Company Law, Common Market Law Review 38 (2001); a very comprehensive survey 'from outside' on the overall development of company law is offered by J. Wouters, European Company Law: Quo Vadis?, Common Market Law Review 37 (2000), 257 ff.; more topically, B. Trefil (note 35 supra).
40. Judgment of 10 July 1986, Case C-79/85, (1986) ECR 2375 - Segers.
41. An opinion to be found in E. Steindorff, Centros und das Recht auf die günstigste Rechtsordnung, Juristen Zeitung 1999, 1140 ff.
42. Cf., for example, P. Behrens, Das Internationale Gesellschaftsrecht nach dem Centros-Urteil des EuGH, Praxis des Internationalen Privat und Verfahrensrechts 19 (1999), 323 ff.; this was the question the Federal High Court submitted to the EJC on 25 May 2000; cf. the Uberseering decision, II.1.4 infra.
43. Case C-81/87, judgment of 27 September 1988, (1988) ECR 5483, The Queen v. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust PLC.
44. Thus, for example, W. Ebke, Das Schicksal der Sitztheorie nach dem Centros-Urteil des EuGH, Juristen Zeitung 1999, 656 ff.; P. Kindler, Niederlassungsfreiheit für Scheinauslandsgesellschaften? Die Centros-Entscheidung des EuGH und das internationale Privatrecht, Neue Juristische Wochenschrift 1999, 1993 ff.; W.-H. Roth, Case Note, Common Market Law Review 37 (2000), 147 ff.
45. It was especially paragraph 20 in Advocate General La Pergola's Opinion that inspired this sort of interpretation.
46. Above text before section II.1.
47. E. Steindorff, Centros und das Recht auf die günstigste Rechtsordnung, note 41 supra.
48. Para. 27; cf. para. 29.
49. Para. 35.
50. M. Baudisch discusses and contests this point in a very comprehensive study: From Status to Contract: An American Perspective on Recent Developments in European Company Law, MS New York (Columbia Law School) 2002 (on file with the author).
51. Paras. 34-36.
52. Paras. 37-39; for a particularly lucid analysis, cf. U. Forsthoff, Niederlassungsrecht für Gesellschaften nach dem Centros-Urteil des EuGH: Eine Bilanz, Europarecht 2000, 167 ff., 192 ff.; for a very thoughtful recent comprehensive analysis of the Article 28 jursiprudence, cf. S. Feiden, Die Bedeutung der 'Keck'-Rechtsprechung im system der Grundfreiheiten. Ein Beitrag zur Konvergenz der Freheiten, Berlin: Duncker & Humblot 2003, passim.
54. F. Hansen, From C 212 to L 212: Centros Revisited, European Business Organization Law Review 2 (2001), 141 ff., 156: 'a flagrant violation of Article 43 EU'.
55. Ugeskrift for Retsvæn 2002.1079H; Laurits Christensen (Copenhagen) and Hanne B. Jensen (Florence) kindly pointed me to the judgment.
56. G. Kegel, note 36 supra.
57. J. Habermas, Faktizitiät und Geltung, Frankfurt a.M.: Suhrkamp 1992, 109 ff.; Between Facts and Norms, Cambridge, MA: MIT Press 1998, 82 ff., 133 ff.
58. Cf. his recent restatement in Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, Political Theory 29 (2002), 766-781, as well as 'Why Europe Needs a Constitution', in: E.O. Eriksen, J.E. Fossum and J. Menéndez (eds.), Developing a Constitution for Europe, London: Routledge (forthcoming).
59. See note 1 supra. S. Deakin, Regulatory Competition versus Harmonisation in European Company Law, Cambridge Yearbook of European Law 2 (1999), 231 ff., illustrates with the help of Centros his concept of 'reflexive harmonisation' which risks, in my view, deducing normative conclusions from analytical concepts and factual observations. However, see M. Dougan, Vive la différence? Exploring the Legal Framework for Reflexive Harmonisation within the Single European Market, MS Cambridge 2002; O. Gerstenberg, Expanding the Constitution beyond the Court: The Case of Euro-constitutionalism, European Law Journal 8 (2002), 172 ff., 179 ff.
60. Cf. the Case Note by K. Nemeth, 37 Common Market Law Review (2000), 1277 ff.
61. This is discussed and disputed by M. Baudisch, From Status to Contract: An American Perspective on Recent Developments in European Company Law, MS New York (Columbia Law School) 2002 (on file with the author).
62. Cf. D. Karollus-Bruner, Das steirische Bordell als Zweigniederlassung einer englischen 'Private Limited Company', Ecolex 2002, 725 ff.
63. BGH Europäische Zeitschrift für Wirtschaftsrecht 2000, 412; on which see the editorials by P. Behrens, Europäische Zeitschrift für Wirtschaftsrecht 2000, 385, und Europäische Zeitschrift für Wirtschaftsrecht 2002, 129.
64. Cf. para. 45 in Advocate General Colomer's opinion of 4 December 2001 in Case C-208/00 - Überseering.
65. Para. 55; cf., more generally, Bundesverfassungsgericht, decision of 2 September 2002 (1 BvR 1103/02), Neue Juristische Wochenschrift 48 (2002), 5333.
66. Para. 46.
67. Paras. 50 ff.
68. Cf. F.W. Scharpf, Autonomieschonend und gemeinschaftsverträglich. Zur Logik der europäischen Mehrebenenpolitik, in id., Optionen des Föderalismus in Deutschland und Europa, Frankfurt a.M. [etc.]: Campus 1994, 131 ff.
69. Case C-208/00, para. 59.
70. Case C-208/00, paras. 62, 63.
71. A problématique of huge dimensions at least in German perspectives; cf., for an overview, D. Sadowski, J. Junkes and S. Lindenthal, The German Model of Corporate and Labour Governance, Comparative Labour Law & Policy Journal 22 (2000), 33 ff.
72. Council Regulation 2157/2001 of 8 October 2001.
73. Council Directive 2001/86 of 8 October 2001.
74. E. Schanze and A. Jüttner, Annerkennung und Kontrolle ausländischer Gesellschaften. Rechtslage und Perspektiven nach der Uberseering-Entscheidung des EuGH, Die Aktiengesellschaft 2003, 36 ff., consider these concerns exaggerated and rather unhelpful for the development of a control theory moderated by European law ('europarechtlich moderierte Kontrolltheorie') (cf. P. Ulmer, Schutzinstrumente gegen die Gefahren aus der Geschäftstätigkeit inländischer Zweigniederlassungen von Kapitalgesellschaften mit fiktivem Auslandsbesitz, Juristen-Zeitung 54(13) 1999, 662 ff.). The more one believes in the benefits of competition between regulatory systems or in the competence and capacity of a European judiciary, the more one would agree with their views. This is, to cite Theodor Fontane, a vast field, cf. Ch. Joerges, Interactive Adjudication in the Europeanisation Process? A Demanding Perspective and a Modest Example, European Review of Private Law 8 (2000), 1 ff. and infra III.5.
75. Cf. Ch. Joerges, The Science of Private Law and the Nation State, in: Francis Snyder (ed.), The Europeanisation of Law: The Legal Effects of European Integration, Oxford/Portland: Hart 2000, 47 ff., 70 ff. But Sonderprivatrecht does by no means point to some German Sonderweg; here, it is sufficient to recall G. Calabresi's A Common Law for the Age of Statutes, Cambridge, MA/London: Harvard University Press 1982, 72 ff.
76. Cf. R. Wiethölter, Wirtschaftsrecht, in: A. Görlitz (ed.), Handlexikon zur Rechtswissenschaft, München: Ehrenwirt 1972, 531 ff.
77. See sections I.1 and I.2 supra.
78. Cf. Ch. Joerges, Economic Law, the Nation-State and the Maastricht Treaty, in: R. Dehousse (ed.), Europe after Maastricht: An Ever Closer Union?, München: C.H. Beck 1994, 29 ff.
79. Cf. The Commission's White Paper on modernisation of the rules implementing Articles 81 and 82 of the EC Treaty (formerly Articles 85 and 86 of the EC Treaty ), OJ C 132/1999; on its significance for integration policy, see R. Wesseling, The Modernisation of EC Antitrust Law, Oxford: Hart 2000, 168 ff., 174 ff.
80. Ch. Joerges (in co-operation with A. Furrer and O. Gerstenberg), Challenges of European Integration to Private Law, Collected Courses of the Academy of Law, Vol. VII, Book 1, Den Haag/Boston/London: Kluwer, 281 ff., 311 ff.; Ch. Schmid, Diagonal Competence Conflicts between European Competition Law and National Regulation: A Conflict of Laws Reconstruction of the Dispute on Book Price-fixing, European Review of Private Law 8 (2000), 155 ff.
81. Cf. Case C-161/84, (1986), ECR 353 - Pronuptia and in the follow-up Group Exemption Regulation, 4087/88, OJ L 359/88, 46.
82. On the ECJ's case law, cf. Ch. Schmid, Europäische Europäische Wirtschaftsverfassung und Privatrecht, MS Florence/Munich 2003, Part 1, Section 1.
83. Ch. Joerges, Relational Contracts Law in a Comparative Perspective: Tensions between Contract and Antitrust Law Principles, Wisconsin Law Review 1985, 581 ff.
84. § 817, 2 BGB does not run counter to this view as any connoisseur of that provision will confirm.
85. For a detailed history of the dispute, see W. Skaupy, Der Pronuptia-Prozess 1974-1995, Betriebsberater 1996, 1899 ff.
86. Cf., in detail, Ch. Joerges, Franchise-Verträge und Europäisches Wettbewerbsrecht. Eine Kritik der Pronuptia-Entscheidungen des EuGH und der Kommission, Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht 151 (1987), 195 ff.; 223; Contract and Status in Franchising Law, in id. (ed.), Franchising and the Law: Theoretical and Comparative Approaches in Europe and the United States, Baden-Baden: Nomos 1991, 11 ff., 50 ff.
87. On the conceptual and conflicts of law theory still worth studying B. Currie, Notes on Methods and Objectives in the Conflict of Law, in id., Selected Essays on the Conflict of Laws, Durham, N.C.: Duke University Press 1963, 177-187 (cf., for a concise summary, his comment on Babcock v. Jackson, Columbia Law Review 63 (1963) 1233 ff., 1242 ff.). For an instructive actualisation, cf. R. Wai, Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in a Era of Globalisation, Columbia Journal of Transnational Law 2002, 209 ff.; also H. Muir Watt, Choice of Law in Integrated and Interconnected Markets: A Matter of Political Economy, Columbia Journal of European Law (forthcoming), each with further references.
88. Case 453/99, judgment of 20 September 2001 (2001) ECR I-6279, Courage v. Bernard Crehan.
89. Already in the run-up to the ECJ decision; cf., for example, W. van Gerven, Substantive Remedies for the Private Enforcement of EC Antitrust Rules before National Courts, in: C.-D. Ehlermann and I. Atanasiu (eds.), European Competition Law Annual 2001: Effective Private Enforcement of EC Antitrust Law, Oxford/Portland: Hart 2002, and the references in A.P. Komninos, New Prospects for Private Enforcement of EC Competition Law: Courage v. Crehan and the Community Right to Damages, Common Market Law Review 39 (2002), 447 ff., 479 ff., to whose comprehensive assessment of the judgment we herein refer.
90. References on the English law can be found in A. Komninos (note 89), at 462.
91. Case C- 453/99, Courage, para. 25.
92. Case C-453/99, Courage, paras. 19, 20, 23.
93. 'However, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals which have jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding the rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)'; Case C-453/99, Courage, para. 29.
94. 'Similarly, provided that the principles of equivalence and effectiveness are respected . . . Community law does not preclude national law from denying a party who is found to bear significant responsibility for the distortion of competition the right to obtain damages from the other contracting party'; C 453/99, Courage, para 31.
95. E. Stein, Lawyers, Judges, and the Making of a Transnational Constitution, American Journal of International Law 75 (1981), 1 ff., 1.
96. Cf. only A.-M. Slaughter, A. Stone Sweet and J.H.H. Weiler, The European Court and National Courts - Doctrine and Jurisprudence: Legal Change in Its Social Context, Oxford/Portland: Hart, 1998; K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe, Oxford/New York: Oxford UP 2001.
97. Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95/1993, 29.
98. Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ L307/1988, 54; amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, OJ L 283/1999, 20.
99. Cases C-240-244/98, Judgment of 27 June 2000, (2000)-ECR I-4941- Grupo Editorial SA v. Rocío Murciano Quintero et al.
100. Case C-52/00, Commission v. France; Case C-183/00, María Victoria González Sánchez v. Medicina Asturiana SA; Case C-154/00, Commission v. Hellenic Republic; see, also, Case C-203/99, Henning Veedfald v. Århus Amtskommun - (2000) ECR I-3569.
101. See note 99 supra.
102. M. Tenreiro and J. Karsten, Unfair Terms in Consumer Contracts: Uncertainties, Contradictions and Novelties of a Directive, in: H. Schulte-Nölke and R. Schulze (eds.), Europäische Rechtsangleichung und nationale Privatrechte, Baden-Baden: Nomos 1999, 223 ff.
103. Para. 16 in Advocate General Saggio's Opinion of 16 December 1999.
105. Id., para. 20.
106. ECJ (note 99 supra), paras. 21 ff.
107. Id., paras. 20-27.
108. Id., paras. 25-29. In 1995 (the time when the encyclopaedias were being sold), Spain had not complied with its obligation to implement the Directive. This, according to the ECJ (id., para. 31), could, in the present case, be compensated for by an interpretation of Spanish law 'in accordance with the Directive'; cf. the interpretations by J. Stuyck in his annotation, Common Market Law Review 38 (2001),719 ff.
109. See note 100 supra.
110. See note 98 supra.
111. Cf., for example, H. Koch, Internationale Produkthaftung und Grenzen der Rechtsangleichung durch die EG-Richtlinie, Zeitschrift für das gesamte Handsels- und Wirtschaftsrecht 152 (1988), 537 ff.
112. References in G. Brüggemeier, Produkthaftung und Produktsicherheit, Zeitschrift für das gesamte Handsels- und Wirtschaftsrecht 152 (1988), 511 ff., 531 f.
113. Id., at 531.
114. Case C-183/00, judgment of 25 April 2002, María Victoria González Sánchez v. Medicina Asturiana SA.
115. Case 183/00, para. 8.
116. Case 83/00, para. 13. Article 13 states: 'This Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified.'
117. Cf. C-183/00, para. 25.
118. G. Brüggemeier, supra note 112.
119. Case 183/00, para. 31.
120. Case 154/00, para. 6.
121. Case 52/00, paras. 6 ff.
122. Cf. H.-C. Taschner, Die künftige Produzentenhaftung in Deutschland, Neue Juristische Wochenschrift 1986, 611 ff.; that it was also advisable to argue that way can be seen from B. Börner, Die Produkthaftung oder das vergessene Gemeinschaftsrecht, Festschrift zum 70. Geburtstag von Hans Kutscher, Baden-Baden: Nomos 1981, 43 ff.
123. Conclusions, Case C-154/00, para. 4; Cases C- 52/00 and C-183/00, paras. 27 ff.
124. Case C-154/00, para. 10; Case C-52/00, para. 14.
125. Case C-52/00, para. 22.
126. Case C-52/00 and Case C-154/00, both in para. 30.
127. See note 106 supra.
128. But see G. Viney, L'Interprétation par la CJCE de la Directive du 25 Juillet 1985 sur la responsbilité du fait des produits défectueux, La Semaine Juridique I 177 (2002), 1945 ff.; J. Calais-Auloy, Menace européenne sur la jurisprudence française concernant l'obligation de sécurité du vendeur professionel, Recueil Le Dalloz 2002, No. 31, 1458; A. Palmieri and R. Pardolesi, Difetti del prodotto e del diritto privato europeo, Il Foro Italiano IV (2002), 296 ff.
129. OJ C-364/2000, 1.
130. OJ C-80/2001, 1.
132. Quite symptomatically, J. Habermas, 'Why Europe Needs a Constitution', note 58 supra.
133. J.H.H.Weiler, Prologue: Amsterdam and the Quest for Constitutional Democracy, in: B. O'Keeffe and P. Twomey (eds.), Legal Issues of the Amsterdam Treaty, Oxford/Portland: Hart 1999, 1 ff.; M. Poiares Maduro, Where to Look for Legitimacy?, in: E.O. Eriksen, J.E. Fossum and A. José Menéndez (eds.), Constitution Making and Democratic Legitimacy, Oslo: ARENA Report No. 5/2002, 81 ff.
134. Cf. P. Cecchini, M. Catinat and A. Jacquemin, The European Challenge, 1992: The Benefits of a Single Market, Brookfield: Aldershot 1988.
135. References to Jürgen Habermas are insufficient as an explanation, yet must suffice here; cf. the references in notes 5 and 58 supra.
136. Cf. The references in note 26 supra.
137. For a summary, see M. Jachtenfuchs, The Governance Approach to European Integration, Journal of Common Market Studies 39 (2001), 245 ff., and F.W. Scharpf, Notes toward a Theory of Multilevel Governing in Europe, Scandinavian Political Studies 24 (2001), 1 ff.
138. J. Neyer, Discourse and Order in the EU: A Deliberative Approach to Multi-Level Governance, Journal of Common Market Studies 41 (2003), 687 ff.
139. Set out in the same sense and in more detail in his Habilitation Thesis 'Politische Herrschaft in horizontalen Mehrebenensystemen. Effektivität und Vergesellschaftung jenseits des Staates', Bremen 2002.
140. And this legal reconstruction of the European postnational constellation has, of course, been under way for quite some time; cf., for private law, A. Furrer, Zivilrecht im gemeinschaftlichen Kontext. Das Europäische Kollisionsrecht als Koordinierungsinstrument für die Einbindung des Zivilrechts in das europäische Wirtschaftsrecht, Bern: Stämpfli 2002, 56 ff., 155 ff, with references. Oddly (if not incomprehensibly), the comparative law tradition seems less impressed by all this than conflict of laws scholarship. At the same time, the conceptualisation of the EU as a multi-level system demonstrates with particular poignancy mutual influences between regulatory systems and the restructuring of international relations. Of course, generalising judgments on a discipline can always be falsified. The law will respond in some way to real problems, and legal science in turn will reflect on them, explicitly or more implicitly; cf. with further references H. Muir Watt, Choice of Law in Integrated and Interconnected Markets (note 87); R. Michaels, Im Westen nichts Neues? 100 Jahre Pariser Kongress für Rechtsvergleichung - Gedanken anlässlich einer Jubiläumskonferenz in New Orleans, Rabels Zeitschrift für ausländisches und internationales Privatrecht 66 (2002), 97 ff.
141. F.W. Scharpf, The Joint-decision Trap: Lessons from German Federalism, Public Administration 66 (1988), 239 ff.; A. Benz, Politische Steuerung in lose gekoppelten Mehrebenensystemen, in: R. Wehrle and U. Schimank (eds.), Gesellschaftliche Komplexität und kollektive Handlungsfähigkeit, Frankfurt a.M./New York: Campus 2000, 99 ff.
142. Cf. sections II.2 and II.3 supra.
143. Cf. earlier Ch. Joerges, The Impact of European Integration (note 2), 390; and, similarly, M. Maduro Poiares, Where to Look for Legitimacy?, note 133 supra.
144. Cf. the analyses by A. Furrer, Zivilrecht im gemeinschaftsrechtlichen Kontext. Das Europäische Kollisionsrecht als Koordinierungsinstrument für die Einbindung des Zivilrechts in das europäische Wirtschaftsrecht, Bern: Stämpfli 2002, 171 ff.; J. Fetsch, Eingriffsnormen und EG-Vertrag, Tübingen: Mohr Siebeck 2002, 126 ff., 139 ff. (on the conflict of laws principles, see 21 ff., 71 ff.); Ch. Schmid, Europäische Wirtschaftsverfassung und Privatrecht (note 82), ch. IV. For a heuristic using American conflict of law methodologies for the structuring of European Kollisionsrecht, cf. Ch. Joerges, 'Deliberative Supranationalism' - Two Defences, European Law Journal 8 (2002), 133 ff., 135 ff. with references esp. to B. Currie, Notes on Methods and Objectives in the Conflict of Law, in: id., Selected Essays on the Conflict of Laws, Durham, N.C.: Duke UP 1963, 177 ff. and B. Currie's particularly lucid summary of his position in his Comment on Babcock v. Jackson, Colum. L. Rev. 63 (1963) 1233 ff., 1242 ff.
145. See, for example, M. Maduro Poiares, We the Court, Oxford: Hart 1998, 150 ff.; J.H.H. Weiler, The Constitution of Europe, Cambridge: Cambridge UP 1999, 221 ff.
146. F.W. Scharpf, Autonomieschonend und gemeinschaftsverträglich, note 68 supra.
147. See note 30.
148. This is how I read the plea for 'constitutionalism pluralism' in N. Walker, The Idea of Constitutional Pluralism, Modern Law Review 65 (2002), 317 ff.
149. The critique by A. Peters, Elemente einer Theorie der Verfassung Europas, Berlin: Duncker & Humblot 2001, 660, of what she calls a 'democracy of concern' (Betroffenheitsdemokratie) does not meet our argument, which aims to explain why a European law rule of mutual considerations would be democratic, rather than to derive participation rights from a diffuse 'concern'.
150. Cf. the references to the recent work of J. Neyer in notes 138 and 139 supra.
151. Deliberative supranationalism tends to undervalue perfectly legitimate validity claims of supranational law, argues Hans-W. Micklitz; cf., e.g., his Principles of Social Justice in European Private Law, Yearbook European Law 19 (1999-2000), 167 ff. This objection is important, especially in the field of consumer protection. It seems to me, however, that our disagreement concerns the approaches to social protection in the EU, not the regulative idea of a 'social' private law as such (cf. Ch. Joerges, Interactive Adjudication in the Europeanisation Process? A Demanding Perspective and a Modest Example, note 74 supra). In his essay 'Transnational Governance without a Public Law?', in: Ch. Joerges, I.-J. Sand and G. Teubner (eds.), Transnational Governance and Constitutionalism, Oxford/Portland: Hart (forthcoming), C. Möllers distinguishes between 'private law frameworks of public institutions' that understand the production of law or the generation of norms as the result of spontaneous co-ordination processes) and a 'public law framework' that conceives of the law as the outcome of authoritative legislative acts legitimated by majority decisions. Both forms could or should complement each other. The argument in the paper goes part of the way towards meeting this demand in that it insist on the indispensability of mandatory rules and principles governing interactions in the European polity.
152. Section II.1 supra.
153. Section II.1.2. supra.
154. Section II.1.3 supra.
155. Section II.2 supra.
156. Ch. Joerges, Contract and Status in Franchising Law, note 86 supra, 50 ff.
157. Section II.2.2 supra.
158. Section II.3 supra.
159. Section II.3.1 supra.
160. On this term, see Ph.C. Schmitter, 'What Is there to Legitimise in the European Union . . . and How Might This Be Accomplished?', in: Ch. Joerges, Y. Mény and J.H.H. Weiler (eds.), Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance, Jean Monnet Working Paper No. 6/01, 79 ff., 83 ff. (<http://www.jeanmonnetprogram.org/papers/01/010601.html>).
161. For a comprehensive account, see K. Riedl, Europäisierung des Privatrechts: 'Recht-Fertigung' wissenschaftlicher Vereinheitlichungsprojekte, PhD Thesis, Florence: EUI 2002.
162. For the area of European risk regulation in the foodstuffs sector, cf. Ch. Joerges, Zusammenfassung und Perspektiven: 'Gutes Regieren' im Binnenmarkt, in: Ch. Joerges and J. Falke (eds.), Das Ausschußwesen der Europäischen Union. Praxis der Risikoregulierung im Binnenmarkt und ihre rechtliche Verfassung, Baden-Baden: Nomos 2000, 349 ff., 363 ff.
163. I. Kant, Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis, (Werkausgabe der Wissenschaftlichen Buchgesellschaft Vol. 9, ed. W. Weischedel), Darmstadt: Wissenschaftlichen Buchgesellschaft 1971, 125 ff.
164. There are very many examples of a fortunate interaction in the European judiciary. And there are counter-examples and borderline cases: Überseering (see section II.1.3) and the recent judgments on the Product Liability Directive (see section II.3.2) are certainly not particularly encouraging although they are not as disappointing as Case C-481/99, judgment of 13 December 2001, Georg und Helga Heininger v. Bayerische Hypotheken- und Vereinsbank and the critique by G.-P. Calliess, The Limits of Eclecticism in Consumer Law: National Struggles and the Hope for a Coherent European Contract Law, German Law Journal 3/8, 1 August 2002, <www.germanlawjournal.com>). Lasciate ogni speranza!? Such a desperate outcry would be premature.
165. Ch. Joerges, 'La langue de l'étranger': Observations on the Need to Observe and Understand Discourses on Foreign Territories, Comments on Silvana Sciarra (ed.), Labour Law in the Courts: National Judges and the European Court of Justice, Oxford/Portland: Hart 2001, <http://www.europeanbooks.org>.
166. Thus P. Schlechtriem, 'Wandlungen des Schuldrechts in Europa' - wozu und wohin?, Zeitschrift für Europäisches Privatrecht 10 (2002), 213 ff., 214.