Jürgen Basedow, ‘General Principles of European Private Law and Interest Analysis: Some Reflections in the Light of Mangold and Audiolux

In recent years, the Court of Justice of the European Union has twice tackled the task of identifying general principles in the field of European private law. Both cases – Mangold and Audiolux – concerned issues of discrimination; however, the two rulings differ substantially in both methodology and outcome. With regard to methodology, the Court made clear in both cases that general principles of law are the result of an inductive process of reasoning based on a consideration of other rules existing in the law of the Union, in public international law, or in the national laws of Member States. While the Mangold Court performed this task in a rather superficial way, the Audiolux ruling can serve as a model. A generalization from the more specific sources of law requires, as a second step, a reasoned justification. An analysis of this nature only takes place in Audiolux. But in this judgment, it reflects a narrow conception of general principles which is ill-suited to private law. General principles of law are general neither on account of their foundational importance, nor of the very general subject matter dealt with, nor of their general scope of application. They are general in that they derive from other more specific legal rules. Thus, even a very specific subject may be governed by a general principle of law. Contrary to Audiolux, the concept of general principles of law cannot be limited to principles having a constitutional character. In the legislation of the European Union, the term ‘general principles of law’ is sometimes used with regard to principles enjoying precedence over secondary Community law; in other cases, the principle may have an equal or lower hierarchical rank. In private law, in particular, general principles serve as a vehicle for the conveyance of information on the subject matter, of the interpretation of legislation, and of the filling of gaps. The inductive derivation of a general principle of law from specific legal rules requires the Court to analyse the interests of the parties involved and to evaluate those interests in the light of the law of the Union.

Jürgen Basedow, ‘General Principles of European Private Law and Interest Analysis: Some Reflections in the Light of Mangold and Audiolux. European Review of Private Law Volume 24 (2016).

First posted 2016-06-15 06:13:39

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