The aim for complete uniformity in EU private law: An obstacle to further harmonization

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Abstract

The use of maximum harmonization directives in EU private law in combination with open legal concepts is controversial. Due to differing legal cultures, it is likely that open legal concepts will be interpreted differently in the Member States. This seems to conflict with the aim of maximum harmonization as put forward by the European Commission: reducing legal fragmentation and increasing legal certainty among consumers and businesses.

Although supporting the notion that national interpretations of open legal concepts are likely to differ, this article posits that this is not incompatible with the aim of maximum harmonization. It proposes a different understanding of the concept of maximum harmonization that allows for different national applications of the rules. This understanding is based on the distinction between harmonizing a legal framework (the written rules) and harmonizing the application of this legal framework. By acknowledging the importance of fully harmonizing the written rules without harmonizing the national applications of these rules, it demonstrates that maximum harmonization does not necessarily conflict with the use of open legal concepts.
Original languageEnglish
Pages (from-to)913-931
Number of pages19
JournalEuropean Review of Private Law
Volume20
Issue number4
Publication statusPublished - 2012

Keywords

  • private law
  • European Integration
  • maximum harmonisation
  • consumer law
  • general clauses
  • open norms
  • legal culture

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