Harmonisation through "directive-related" case law: The role of the ECJ in the development of European consumer law

The point in issue is where to set the standard for the ECJ in private law cases: should the Court be urged towards self-restraint, or should it be encouraged actively to contribute to the harmonisation of European private law through its case law? A two-way track is argued for in this paper. On the one hand, it is thought that in the general field of private law, the ECJ should take heed of its limitations and aim for a restrained approach towards the interpretation of substantive legal matters. A wider systemisation of concepts and doctrines is achieved better at the level of individual Member States by national judges familiar with the workings of private law in those systems. From another perspective, however, the ECJ may - and should even, it is submitted - take an active role in the interpretation of private law concepts. This second track focuses on the development of harmonising rules at European level. The ECJ may contribute to the consistency and clarity of concepts contained in European legislation by interpreting each instrument in light of the wider context of European rules. With the current focus of harmonisation being on a review of the consumer acquis, examples will be given of how the ECJ may aid the legislator, and has done so in some instances already, by creating a tighter framework of European consumer law through interpretation of directives in their wider legislative context, as well as through a comparative interpretation of similar concepts found in different directives, so-called 'cross-directive' interpretation. Suggestions are made, with this in mind, as to the ways in which the ECJ may contribute still further to the creation of a more coherent framework for consumer law in Europe.