Standards in European Private Law: A Model for European Private Law Pluralism

Abstract

The input from various law-creating actors in European private law can lead to unpredictability, or legal uncertainty. Strategies for lawmaking in Europe in recent decades have sought to tackle this problem by pursuing a decrease in divergence between Member States’ private laws in two ways: through top-down legislation and bottom-up through ‘spontaneous harmonization.’ However, both strategies appear to be unsuccessful. Efforts at harmonization or even just convergence of laws have been hampered by the EU Member States’ divergence in sociological, political, economic and cultural outlook. The multicultural and otherwise multi-faceted nature of the EU can therefore get in the way of the integration of the internal market through law. Moreover, since the main strategies for conceptualizing pluralism in European private law have focused on formalised law rather than on non-State law, the interplay of self-regulation with State law is insufficiently transparent to private parties and to lawmakers. This can contribute to legal uncertainty.

Acknowledging these problems, this article proposes a new strategy for lawmaking in European private law with two main aims. First, that it can accommodate legal, cultural and socio-economic differences between EU Member States whilst at the same time actively enabling the further integration of the internal market through law. Second, that it can facilitate private law transactions by increasing legal certainty for private parties.

The proposed model focuses on standards in European private law. Standards – which in this context are defined as ‘open’ norms to which more concrete legal rules can be attached – can function as reference points for lawmaking and for the application of norms. Examples are norms such as the ‘average consumer’ of EU law, or ‘responsible lending’. Although differentiation of rules may be justified, such as greater consumer protection with complex products, or differentiation between local markets, the use of standards can provide greater clarity on the interrelation of norms. It can so enhance transparency in lawmaking, and thereby legal certainty.

Keywords: legal pluralism, postnational lawmaking, European private law, private law theory, standards v. rules