Recent legislative initiatives from the European Commission, such as the Review of the Consumer Acquis, show an increasing tendency in favour of maximum harmonisation. This is a diversion from previous practice, where the general policy was one of minimum harmonisation, which allowed Member States to divert from the standard set by European legislation if in favour of the consumer. This article makes a critical assessment of the policy of maximum harmonisation and suggests a number of parameters that determine its chance of success. Important factors are the Community's limited legislative competence, restricted in essence to internal market policy, and the related question of where to strike the balance between business interests and consumer protection. The main concern, however, lies with the elusive nature of the concept of maximum harmonisation - the possibility of alternative legal bases for liability in European and national legislation may undermine the notion of a fully harmonised regime, as can be seen with regard to product liability law. In this light, it is suggested that the success of the current review programme may increase by a redefinition of its scope, taking account of the wider framework set by European and domestic rules of private law.
|Journal||European Review of Private Law|
|Publication status||Published - 2009|