The Chapters collected in this book explore the place and role of judge-made private law in an emerging European polity. Examining case-law from the perspective of different theories and viewpoints, scholars and judges assess and reflect on the role of judges in civil cases for polity-building in Europe. The Chapters thus present a kaleidoscopic view on the dynamics of private law adjudication against a European backdrop. The book aims to add a private legal perspective to existing discourses in European constitutional law on Europe’s political constellation. It aspires to enrich two debates – the first on the influence of fundamental rights in private legal relations, and the second on the constitutional dimension of European private law. The contributions are placed within a framework of five sub-categories or dimensions of judge-made European private law: politics of European private law adjudication, rights, remedies, representation and reflections of judges on specific cases.
Author(s): Chantal Mak; Betül Kas (editors)
Publisher: Hart Publishing
Year: 2023
Language: English
Pages: 293
City: Oxford
Acknowledgements
Contents
Contributors
Table of Cases
1. Civil Courts and the European Polity: An Introduction
I. Judges in Utopia
II. Fundamental Rights and European Private Law
III. Private Law and the European Polity
IV. Five Dimensions
PART I: THE POLITICS OF EUROPEAN PRIVATE LAW ADJUDICATION
2. Judge-Made European Private Law and European Polity-Building
I. Two Worlds Apart
II. The Body of CJEU Judgments
III. Assessment of the CJEU Judgments
IV. On the Way to a European Polity?
3. On the Doubly Constitutionalising Character of European Contract Law
I. Introduction
II. The Constitutional Dimensions of the Law of Contracts
III. Implications for 'Constitutionalism'
IV. An Alternative Response: Finding a New Forum for Addressing the Doubly Constitutionalising Character of Contract – The CJEU
V. Political Europe's Contribution to Contract Law
4. Reimagining Europe Through Private Law Adjudication
I. Private Law and a European Polity
II. Utopian Thinking in European Private Law Adjudication
III. Three Judicial Utopias
IV. The Europe-Making Capacity of Adjudication
5. Deconstructing the CJEU's Jurisprudence to Enable Judicial Dialogue
I. Introduction
II. A Methodological Roadmap
III. Effectiveness, Effective Judicial Protection and the Constitutionalisation of EPL
IV. A Critical Analysis of Effectiveness and Effective Judicial Protection
V. Measuring Effectiveness …
VI. … And Choosing Among Different 'Causes of Action'
VII. Unearthing the CJEU's Judicial Ideology
VIII. The Way Forward?
PART II: RIGHTS
6. The Societal Impact of EU Anti-discrimination Law: Widening and Deepening Equality in the Private Sphere
I. Introduction
II. Non-Discrimination in the Private Sphere
III. Three Paradigmatic Case Studies: Feryn, Chez, Achbita and their Follow-Ups
IV. Defining Private Duty-Bearers in EU Anti-Discrimination Law
V. Conclusions
7. Freedom of Speech, Consumer Protection and the Duty to Contract
I. A Missing Link: Consumer Protection and Freedom of Expression
II. A Story in Three (and a Half) Pieces
III. Strategies of Inclusion
IV. The Obligation to Contract Through Freedom of Expression
V. A Toolbox for EU Consumer Law
PART III: REMEDIES
8. Article 47 of the Charter of Fundamental Rights in the Case Law of the CJEU: Between EU Constitutional Essentialism and the Enhancement of Justice in the Member States
I. Introduction
II. The Indirect Judicial Review of National Procedural Rules by the CJEU
III. The Content of Article 47 of the Charter
IV. The Impact of Article 47 on the National Procedural Systems: Between Procedural and Substantive Justice
V. Conclusion
9. Justice in Times of Crisis: The Signalling Function of Article 47 of the Charter of Fundamental Rights in Consumer Debt Collection Cases
I. Crisis as a Catalyst of Procedural Transformation
II. Article 47 and Orders for Payment Issued Against Consumers in Spain
III. A Signal of Unconstitutionality
IV. Article 47 and Arbitration Clauses in the Netherlands
V. A Call for 'Open Constitutionalisation'
10. Judicial and Administrative Protection Intertwined: The Right to an Effective, Proportionate and Dissuasive Remedy
I. The Rise of Administrative Protection and the Transformation of Enforcement
II. The Relationship Between Administrative and Judicial Protection and the Enforcement Triangle
III. The Coordination and Complementarity of Enforcement Mechanisms
IV. The Right to an Effective Remedy and the Coordination Between Administrative and Judicial Protection
V. Conclusions
PART IV: REPRESENTATION
11. Representing Future Generations Through European Private Law Climate Change Litigation
I. Introduction
II. Climate Change and Future Generations
III. Political Theory Problematises the Representation of Future Generations
IV. Future Generations in Three European Private Law Climate Cases
V. Concluding Remarks
12. The Case of the Ilva Steel Plant: A Never-Ending Battle between Health, the Environment and Employment
I. The Tragedy Behind Ilva
II. Balancing the Rights at Stake
III. The Anthropocentric Proceduralisation of the Environment
IV. 'Reflected' Environmental Damages
V. Liability Without Fault
VI. Establishing the Causal Link
VII. Some Policy Remarks
13. The Causal Link in Tort-Based Climate Change Litigation: A Challenge for the Courts
I. Introduction
II. The 'But For' Test and the Conditio Sine Qua Non Formula
III. Specific Court Solutions for Complex Causality Constellations
IV. Causation and Climate Change Damage
V. Summary and Overall Conclusion
PART V: REFLECTIONS
14. The Job of the Judge in the Supranational European Rule of Law
I. Introduction
II. The Job of the Judge in the Dutch Rule of Law
III. Shaping the Job of the Judge in the European Rule of Law
IV. Article 47 CFR: Ubi Ius, Ibi Remedium
V. Towards Effective Judicial Protection under the Dutch Rule of Law
VI. Conclusion
15. Lights and Shadows of the Aziz Case
Index
