What turns an array of different rules, principles and institutions into a coherent body of law? To the philosopher, the answer may technically lie in an ultimate “basic norm” or “rule of recognition”. Yet the doctrinal scholar will want to obtain a deeper and more substantive understanding. She or he will ask how all the pieces of the puzzle fit together, so that it becomes possible to see the larger picture and to locate each fragment securely within it. In EU private law, seeing the wood for the trees has hitherto been a frustratingly elusive quest.
By “EU private law” is meant that part of the law emanating from the institutions of the EU which deals with (or has a bearing on) people's private legal relations. Typically, its impact on the individual is not direct, but mediated through national private law. Directives, the preferred form of enactment for most of the EU's private law rules, while binding on Member States as regards the result to be achieved, leave the choice of form and methods of implementation to the relevant national authorities (art. 288(3) TFEU). Certain basic legal tenets at EU level, such as the market freedoms or the principle of equality and non-discrimination, also filter through to the national level in other ways.
As a result of the way EU private law has evolved, interacts with, and ultimately depends on national private law, and as a result of the fact that much of it is driven by specific policies, it has remained fragmentary and largely unsystematic. At the same time, however, it has grown steadily and very substantially in both size and complexity, and it continues to expand ever further into the realm previously occupied by autonomous national law. In this situation, scholarly accounts grappling with EU private law have tended to adopt one of two strategies: either isolating particular fields or problem areas at EU level and dealing with them descriptively on their own specific terms (e.g. collecting all the Directives pertaining to EU consumer law and extracting from them any relevant underlying patterns), or looking at EU private law through the lens of national private law (i.e. staying within the well-established framework(s) of the law of persons, things and actions, of obligations arising from various sources and property rights, and highlighting where EU private law requires inroads to or modifications of a given system).
The book by Jürgen Basedow, Emeritus Director at the Max Planck Institute for Comparative and International Private Law in Hamburg, adopts a refreshingly different approach. Appropriately entitled “EU Private Law. Anatomy of a Growing Legal Order”, it portrays EU private law as a whole viewed against the backdrop of the structures from which it evolved and in which it is still firmly embedded. This is, in a sense, the polar opposite of the traditional angle: it views private law through the EU lens, rather than EU law through the conventional private law lens. Contrary to what one might perhaps fear with such an approach, the starting point is by no means an abstract snapshot taken around the year 2020. Instead, the author deliberately stresses the organic evolution of EU rules and principles, their broader background in institutional and policy terms, as well as – importantly – their connection with (and sometimes their deep roots in) historical precedents long predating the EU itself, comparative scholarship, public as well as private international law, and academic soft-law projects. In short, a red thread running through the book concerns the relationship between EU private law narrowly conceived and “European private law” in a wider sense (especially at pp. 25ff.).
Basedow divides his tome (for it is a very large and dense, yet nonetheless accessible book) into ten “Parts” spread out over four “Books”, totalling 38 chapters overall. Book I covers the fundamentals. It begins by outlining – in Part 1 – the process of European integration and the supporting role of private law within it, the policy-driven and thus necessarily fragmentary nature of EU private law, the disappearing boundary between public and private law, the resulting tension between two very different strands or “concepts” of private law in Europe (on which see further below), and the significance of judicial cooperation in linking them up. It then traces – in Part 2 – the development of EU law from the original Treaties to the current day, scrutinises both “negative harmonisation” (through decisions of the Court of Justice declaring certain national rules incompatible with EU law) and “positive harmonisation” (through legislation at EU level) and provides a thematic overview of the major fields impacted by EU private law, such as company and competition law, IP, consumer and labour law, and the conflict of law rules. This overview (pp. 121ff.) provides a useful gateway to the more detailed engagements with these fields found in the existing literature, while allowing Basedow to remain true to his endeavour of depicting the “anatomy” of EU private law rather than giving a fully comprehensive account of it. There follows – in Part 3 – a thorough and beautifully contextualised review of all the various sources of EU private law, from the Treaties and Charter of Fundamental Rights, via the so-called “General Principles” of (EU) law; via Directives, Regulations and Decisions (dealt with specifically as regards the Union's accession to uniform law conventions, at pp. 284ff.); to “soft law” instruments of either a public or private nature which occasionally seep into or supplement EU private law.
At the heart of the volume lies Book II, simply entitled “Principles”. Of all the novel aspects and insights Basedow's masterly account brings to the table, this is perhaps the most innovative and exciting. It is no less than an attempt to capture the core concerns of EU private law within a carefully structured framework of well-known general principles, clustered into three distinct groups: first, those – in Part 4 – which are constitutive of the legal community, namely the principles of equivalence and effectiveness, proportionality, legal certainty, prohibition of abuse and fraud, and sincere cooperation and mutual recognition; next come – in Part 5 – core principles of the market economy, namely undistorted competition, private autonomy and freedom of contract, and the right to property; the third cluster – in Part 6 – comprises what Basedow calls “solidarity principles”, namely equality and non-discrimination, good faith, the protection of the weaker party, consumer protection and the protection of workers. It will be immediately evident from this (avowedly non-exhaustive, cf. p. 325) list that the bulk of substantive EU private law can be understood as an emanation of one or more of these principles, or of a compromise between several competing principles. Since he is only exposing an “anatomy”, Basedow does not seek to fill in all the fine-grained details himself, yet the reader can nonetheless get a real sense of how the whole of EU private law might be (re-)conceptualised in this way. Two representative examples may suffice to illustrate the approach.
The first is drawn from the discussion of “legal certainty”, where the subheading entitled “validity of agreements” (pp. 359ff.) contains a passage relating specifically to competition law and another dealing with protecting the reliability of contracts more generally. It touches on the regulation of financial markets, the interface of employment law and private international law, and commercial as well as consumer law. Regarding the latter, Basedow points out that although many EU instruments emphasise consumer protection, the basic reliability of contracts is “the indispensable background for both parties to engage in cross-border transactions in the internal market” (p. 362). The ensuing subheading pertains to another aspect of legal certainty, namely the issue of “time-limits” (pp. 362ff.). It spans both the procedural and the substantive side and addresses time limits emanating from EU law as well as those where EU law potentially impacts on the handling of limitation periods imposed by national law. Looking at these in the round allows patterns to emerge that would otherwise be hard to discern in the mass of material, including the astute observation that the Court of Justice has so far left national private law limitation periods largely untouched, only requiring them to comply with the principles of effectiveness and equivalence, but “miss[ing] the opportunity to refer to the principle of proportionality so as to fix a minimum duration” (p. 365).
The second example concerns the principle of “good faith” (pp. 476ff.). After exploring this rather shimmering concept in a wider comparative perspective, Basedow hones in on its express integration into EU secondary law and the role it plays within the case law of the Court of Justice. As regards the former, he notes that while references to “good faith” in the recitals of numerous Regulations and Directives “often appear to have been added as a kind of ornamental speech” (p. 481), there are three areas in which the good faith standard is enshrined in key operative provisions of EU private law: situations where EU instruments prescribe certain B2B negotiations to be conducted in good faith, particularly in the context of granting access to networks; where they require cooperation between different providers or otherwise the performance of contractual obligations in good faith (here Basedow actually highlights the “limiting function of good faith”, at p. 483); and where good faith operates as a standard of review, such as for instance in the well-known Unfair Contract Terms Directive. Regarding the interpretation of the relevant good faith criterion in the case law of the Court of Justice, Basedow concludes that the concept has hitherto not been very successful in setting common standards for market practices, partly because meaningful harmonisation is impeded by the “division of labour” between the Court of Justice and national courts (pp. 485ff., especially p. 488). Given this finding, it is remarkable how much prominence the general principle of good faith has attained in many areas where the Court of Justice is invoking it without a clear textual basis. Basedow identifies (at pp. 489ff.) a whole series of cases invoking it, from ones concerning pre-contractual information duties to situations where the principle of “venire contra factum proprium” (an estoppel-like prohibition of self-contradictory conduct) was at stake, or where private parties have been required to cooperate in good faith. This leads him to maintain that although “the potential of good faith has been used insufficiently so far”, such that “good faith should … be designated as a general principle only with great caution”, a genuine EU standard of good faith may gradually be emerging which could in due course help “identify certain types of conduct as unlawful” (p. 499).
Book III of the volume turns to the implementation and enforcement of EU private law. It covers – in Part 7 – the institutional and procedural parameters within which the Court of Justice operates and scrutinises in particular the referral (“preliminary ruling”) procedure. Although Basedow acknowledges the significance of the latter as a “motor of integration”, he argues (at pp. 593ff.) that its drawbacks are particularly visible in and indeed detrimental to EU private law. He is especially critical of the tendency of the Court of Justice “to translate the horizontal conflicts of private individuals and groups … into vertical conflicts between EU law and the national law of the Member States” as well as of the highly selective approach to the questions submitted, leading to a “kind of tunnel vision of the judges” and a disproportionate amount of the Court's time being taken up with relatively minor disputes. The second half of Book III – Part 8 – is dedicated to the “Legal Method” of EU private law. Unsurprisingly, the focus here lies on the processes of interpretation and gap-filling. In line with what has become the generally accepted view, Basedow adds to the traditional canon of four interpretative methods (the textual, the historical, the systematic or contextual, and the teleological approaches) the comparative approach to interpretation (pp. 629ff.), which he underpins by various examples. He furthermore examines whether and to what extent “economic interpretation” based on the economic analysis of law plays a role (pp. 634ff.); yet though he pinpoints specific instances of economic arguments being used, he concludes that the approach is still “rather exceptional” in the practice of the Court of Justice and plays only a “minor role, if any” (pp. 639, 641). As far as gap-filling is concerned, Basedow observes that this is not clearly distinguished from interpretation, and he bemoans a lack of guidance as to how gaps can best be plugged, noting that “[a] broad interpretation and recourse to general principles, in particular the amorphous principle of effectiveness, compensate for shortcomings in terms of methodological guidelines” (p. 653).
The fourth and final Book IV turns to the “external dimensions of EU private law”. It is premised on the recognition that “[p]rivate relations reach out beyond the borders of the European Union in manifold ways” (p. 655), and thus expressly confines itself to analysing the conflicts regime for cases where private relationships have connections with third countries outside the EU, leaving purely “internal” EU cases to one side. In structuring his discussion, Basedow harks back to the more general distinction he draws (at pp. 19ff.) between a “formal” and a “substantive” sense of private law. The “formal” sense reflects the traditional understanding of private law as governing relations between individuals horizontally and from their own perspective as actors in the legal sphere. The “substantive” sense, by contrast, understands private law as a policy-driven regulatory tool employed by Member States or the EU so as to achieve certain social, economic, political or other goals. It thus has a distinctly instrumental flavour. In Book IV, Basedow first tackles the latter perspective – in Part 9 – under the heading “policy approach: scope rules”. This part surveys and critically assesses the Union's attempts to ensure a wide scope of application for its regulatory private law by adopting “unilateral scope rules” (pp. 659ff.) and, where a conflict arises with similar unilateral scope rules adopted by third countries, mechanisms for international coordination or harmonisation, such as by treaty (pp. 681ff.). There follows – in Part 10 – an assessment of what Basedow calls the “legal certainty approach”, which is essentially concerned with traditional-style bilateral conflict rules, regarding both the applicable law (pp. 696ff.) and procedural questions of jurisdiction as well as recognition and enforcement matters (pp. 707ff.). With respect to the latter, Basedow makes out an urgent need to introduce uniform EU rules on Member States’ jurisdiction vis-à-vis third countries and on the recognition and enforcement of civil and commercial judgments originating in third countries, because – he argues – this would facilitate the EU's external negotiations enormously.
A succinct Epilogue concludes the “Anatomy” (pp. 723ff.). It summarises the main findings and beautifully draws the various threads together. Anyone who has read the book will see the fragmented parts of EU private law growing into something resembling a system by the sheer force of analysis and critical engagement. There can be no doubt that Basedow's monumental contribution will become a major and lasting reference point for all future scholarship in the field. It is perhaps too early to call this new book a “classic” so soon after its first appearance, but not too early to predict that it is destined to become one in due course.
