Aurelia Colombi Ciacchi

The Constitutionalization of European Contract Law: Judicial Convergence and Social Justice

Abstract A form of contract law constitutionalization known by most European legal systems is the horizontal effect of fundamental rights and constitutional principles. This paper presents a comparative overview of fundamental rights adjudication in the private law of ten EU Member States. It draws attention to the spontaneous judicial convergences in contract law, which enable us to speak of the common ‘fact patterns’ of horizontal effect. This paper aims to demonstrate two theses: first, this horizontal effect is a pan-European phenomenon, not necessarily linked to a particular national legal culture. Second, horizontal effect in contract law is not politically neutral but inspired, at least in its application by national courts, by policies of social justice.

Party Autonomy as a Fundamental Right in the European Union

There is a parallelism between freedom and equality. Today, nobody doubts that attaining equality in the sense of non-discrimination requires more than simple, formal equal treatment. Taking the equality principle seriously means embracing a substantive understanding of equality, which includes the need for positive action to counterbalance existing factual and social imbalances that make people dramatically unequal. Why should this not be true also with regard to freedom of contract? Arguably, taking freedom of contract seriously means embracing a substantive understanding of this freedom, which includes the need for positive action to counterbalance existing factual and social constraints that make one contractual party dramatically less free than the other.

European Fundamental Rights and Private Litigations: Judicial Dialogue and Judicial Governance

This chapter focuses on the dialogue between the Court of Justice of the European Union and national courts in the adjudication of private litigations where fundamental rights come into play. It starts from the assumption that the assessment and balancing of conflicting rights, interests and policies by national and supranational courts constitutes a form of judicial governance. Taking two cases as examples (Angonese and Sturgeon), this chapter identifies and discusses patterns of conflict, judicial dialogue, and judicial governance. Firstly, this chapter takes position in the academic dialogue on judicial governance. Secondly, it assesses the conflicts between different fundamental rights, interests and policies at stake in the two cases. Thirdly, it analyses the dialogue between the European and the national courts in dealing with these conflicts. Fourthly, it relates the judicial dialogue in the Angonese case to the wider cross-national judicial dialogue on the horizontal effect of fundamental rights. Fifthly, it draws some brief comparative conclusions on judicial governance in the two cases.

Catalonia: Two Tales of Governance against the Law

The recent political events in Catalonia have taken the other European countries by surprise. Why did Carles Puigdemont push so hard on the Spanish government and organised an illegal unilateral referendum on Catalonia’s independence? And why did the Spanish government push so hard back, using so much unnecessary – and therefore unlawful – violence against the Catalan voters? How could the Catalan separatists believe that the European Union would be able and willing to defend them against the Spanish government? How could they believe that the Catalan citizens would become economically more prosperous after a declaration of independence? Why did they not foresee that banks and other powerful business actors would immediately move their headquarters out of Catalonia and make the region economically weaker? Was the pound crash and the dramatic fall of the uk house prices after Brexit not clear enough a lesson?1 And what about the Catalan separatists who are now withdrawing symbolic amounts of cash from the five main bank chains, as a sign of protest?2 How can

Political Parties' Programmes: Examples of Governance against Human Rights?

Even in the oldest and most stable Western European democracies such as in the uk and the Netherlands, some political parties seem to view international human rights as one of their fiercest enemies. Two contributions in a previous issue of ejcl1 already mentioned the 2015 Manifesto of the British Conservative Party, which plans to scrap the Human Rights Act and replace it with a British Bill of Rights. Through the scrapping of the Human Rights Act, the Conservative Party explicitly intends to “break the formal link between British courts and the European Court of Human Rights”, and make the uk Supreme Court “the ultimate arbiter of human rights matters” in the country.2 The planned scrapping of the Human Rights Act is now put on hold until the Brexit arrangements are confirmed. On 24 January 2017, in the House of Commons, Justice Minister Sir Oliver Heald said: “We are committed to

Contents and Effects of Contracts: Lessons to Learn from the CESL

This introductive chapter describes the background, objectives and possible future impact of the research project from which the present book has arisen. The first part of this chapter provides a brief history of the proposition and subsequent withdrawal of the draft Regulation on a Common European Sales Law (CESL). This brief history embeds the CESL in the discourse on the legislative creation of common European rules of private law from 1989 until today. The second part of this chapter describes the Groningen project “Content and effects of contracts: The CESL in the European multi-level system of governance” and its relation with the academic spirit of the Hanse Law School. The third and last part of this chapter addresses the lessons to learn from the withdrawn CESL and the usefulness of this book with regard to possible future national and supranational instruments in the field of European sales law.

Contents and effects of contracts - Lessons to learn from the Common European Sales Law

This book presents a critical analysis of the rules on the contents and effects of contracts included in the proposal for a Common European Sales Law (CESL). The European Commission published this proposal in October 2011 and then withdrew it in December 2014, notwithstanding the support the proposal had received from the European Parliament in February 2014. On 6 May 2015, in its Communication ‘A Digital Single Market Strategy for Europe’, the Commission expressed its intention to “make an amended legislative proposal (…) further harmonising the main rights and obligations of the parties to a sales contract”. The critical comments and suggestions contained in this book, to be understood as lessons to learn from the CESL, intend to help not only the Commission but also other national and supranational actors, both public and private (including courts, lawyers, stakeholders, contract parties, academics and students) in dealing with present and future European and national instruments in the field of contract law. The book is structured into two parts. The first part contains five essays exploring the origin, the ambitions and the possible future role of the CESL and its rules on the contents and effects of contracts. The second part contains specific comments to each of the model rules on the contents and effects of contracts laid down in Chapter 7 CESL (Art. 66-78). Together, the essays and comments in this volume contribute to answering the question of whether and to what extent rules such as those laid down in Art. 66-78 CESL could improve or worsen the position of consumers and businesses in comparison to the correspondent provisions of national contract law. The volume adopts a comparative perspective focusing mainly, but not exclusively, on German and Dutch law.

Good Neighbourliness and Fundamental Rights-based Interpretations of Public-Policy Clauses in eu Private International Law

The minimum standard of good neighbourliness in private international law is provided by the general principle of comity, which applies to all relationship between states that acknowledge private international law. Within the EU, higher standards of good neighbourliness apply: the member states are obliged to reduce the conflict of laws barriers between them as much as possible. A major conflict of law barrier consists in the public-policy clauses. The public-policy clauses contained in EU legislative instruments in the field of private international law must be applied restrictively. Such clauses may only be applied in exceptional cases, in presence of a manifest breach of a rule of law considered essential or a right considered fundamental in the national legal order. Both national and supranational public-policy clauses are often interpreted in the light of fundamental rights and constitutional principles. Do such interpretations strenghten or weaken the good neighbourliness between EU member states? The answer varies according to whether the fundamental rights interpretations are given by national or supranational courts. The fundamental rights based interpretations of supranational courts such as the ECJ/CJEU or the ECtHR seem to promote and strengthen good neighbourliness within the EU. On the contrary, national fundamental rights interpretations of public-policy clauses seem to weaken good neighbourliness.

Haftungsrecht im dritten Millennium - Liability in the third millennium

Citation for pulished version (APA): Smith, L. J. (2009). Grounding Space: Liability for Commercial Space Operations. In A. U. Colombi Ciacchi, C. Godt, P. Rott, & J. Smith (Eds.), Haftungsrecht im dritten Millennium: Liber Amicorum Gert Brüggemeier; Liability in the Third Millennium . (pp. 607-628). (Schriftenreihe des Zentrums für Europäische Rechtspolitik der Universität Bremen; No. 52). Baden-Baden: Nomos Verlagsgesellschaft.