Rethinking the Instrumentality of European Private Law

Abstract

This article challenges the view that European Union private law (EPL) is inherently instrumental, due to its role in achieving the EU Treaties’ goals, such as completing the internal market. In particular, we claim that characterizing EPL as instrumental, and contrasting it to national private laws in that regard, misses the mark. This is because, contrary to national private laws, it is only a partial legal order. Accordingly, theoretical approaches to private law and its goals that have been devised for complete legal orders cannot apply to EPL, which is not self-standing and needs to be complemented by national private law concepts, in line with the EU principle of national autonomy. Moreover, even if taken on its own, EPL is not particularly instrumental. On the one hand, many of its provisions can be interpreted as applying non-instrumental considerations, such as personal autonomy and interpersonal justice. On the other hand, the European Court of Justice often uses non-instrumental concepts when adjudicating private law disputes and is not focused solely on implementing the public goals of the Treaties. In view of these facts, commentators should be careful when asserting that EPL is particularly instrumental, when compared to national private laws.