8 - The European Court of Justice as a motor of private law

Summary

Introduction

This chapter is about the role of the European Court of Justice (ECJ) in the development of private law. The ECJ has done so by modelling private law through the interpretation of primary law (for example, the fundamental freedoms and the competition rules) and secondary Union law (such as consumer directives and regulations) and by creating rights on the basis of the nature of the Union legal order and/or of general principles of Union law (liability for infringement of Union law). Institutional aspects, private international law (like the Rome Regulations), the role of the court in settling private law disputes according to the law applicable to the contract under Article 238 EC [Article 272 TFEU] (‘arbitration clause’) and the impact of EC sector-specific regulation on contract law will be disregarded. The future role of the ECJ, if and when some form of general European contract law emerges, or the court’s case law on unjust enrichment, which basically concerns the relationship between individuals and the administration, are also omitted. Six areas in which different aspects of the role of the court become apparent have been selected. Three relate to fundamental freedoms, two to secondary Union law and one to general principles of Union law. These different areas will also show differences in the degree of readiness of the court to interfere in national legal orders.