Chapter 13: Regulating Private Law. The Rise of Regulations and their Impact on National Codifications

Abstract

The spirit of codification is still strong on the continent. Over the past decades, many countries have reformed their civil codes. The Netherlands (1992), Germany (2002), Romania (2011), the Czech Republic (2014), and Hungary (2014) are just a few examples. Important new reforms are currently making their way through the legislative process. The French government wishes to complement the recently introduced law of contract with a new law of delict. The Belgian government even intends to introduce a fresh codification embracing the whole of private law. These efforts are made against the background of an expanding body of secondary EU law. Since the 1980s, a range of directives has been introduced in order to improve the functioning of the internal market. Many of these directives regulate private law matters, such as misleading advertising, unfair commercial practices, the liability for the infringement of competition law and the return of cultural property. Over the past ten years, the Union legislature has developed a preference for using regulations rather than directives. This development can be seen in the areas of transport, consumer protection, judicial cooperation in civil matters and the internal market more broadly. As a result, important areas of private law are now governed by regulations, not by directives. The legislative shift from directives to regulations raises important questions that have, so far, received little attention, at least not from the perspective of private law. What does the preference for regulations entail for the future of the national civil codes? What impact does this development have on the clarity, accessibility and consistency of the current systems of private law, both at the European level and within the national legal orders? How can national legislatures and courts deal with this development? How can academics pay attention to these regulations in their education Chapter 13: