Martijn Hesselink, ‘The Case for a Common European Sales Law in an Age of Rising Nationalism’

The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The reason is that it fails to address the widespread notion, underlying also many technical arguments, that Member States should remain sovereign in matters of general private law for the reason that private law is a matter of national identity. In this paper, I address that argument head on. I do this by first identifying the nationalist bias in many technical arguments raised against the Europeanisation of private law and then defending the CESL as an expression of another identity that many Europeans share, i.e. their European identity. I argue, in particular, that the proposed CESL should be welcomed as a common European model of justice between private parties. Since most people in Europe identify both with their nation state and Europe, albeit in different degrees, it makes sense to offer them the choices between national and European contract law. Although the question whether to opt into a CESL should be a matter of private autonomy, the question which legal options will be available is matter of the public autonomy of citizens and requires a full democratic legitimation. Therefore, Art 352 TFEU, the flexibility clause which bypasses the ordinary legislative procedure, is unacceptable as a legal basis.

Hesselink, Martijn W., The Case for a Common European Sales Law in an Age of Rising Nationalism (February 2, 2012). Amsterdam Law School Research Paper No. 2012-19; Centre for the Study of European Contract Law Working Paper Series No. 2012-01.

First posted 2012-02-17 10:42:06

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