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It is common ground that in the EU the role of adjudication has always been, and continues to be, more important than in the Member States as the degree of
political consensus is much more limited at European level. Therefore, issues which could be decided politically in the Member States had to be solved legally
in the European context. At the same time, the authority and legitimacy of European court decisions is more fragile than that of national ones – not only as the EU crucially depends on the collaboration of national administrations
and courts for the effective implementation and enforcement of its legal system, but also because the legitimacy of the EU itself as a political entity is
more fragile than that of European Nation States, most of which are firmly rooted in democratic traditions and enjoy a considerable degree of political stability.
These weaknesses notwithstanding, legal integration in the EC has been a long success story reconstructed by Joseph Weiler and others. Judicial activism led to important progress of the integration process not only in the foundationary period, but also in the years of political stagnation after the 1967 crisis and after the relance of the integration process following the Single Market project
1985. This kind of activism primarily relates to the constitutional foundations of the EC: the structural constitution (i.e. the relationship of European and national law including the famous doctrines of direct effect, supremacy, state liability), the substantive constitution (mainly composed of the basic market
freedoms, competition law, and the protection of human rights) and the institutional constitution (setting forth the competencies and the rules of interaction of the various European institutions). In these fields, the ECJ has successfully developed the treaties into a full and mostly coherent constitutional system. On the whole, these developments have met the acceptance of Member States and
enjoy a sufficient degree of legitimacy. This is probably so because they are primarily related to the initial project of market integration through the abolition
of national restrictions and the establishment of a system of undistorted competition – on which there was an initial consensus of all Member States
and which has in most cases led to economic benefits for a majority of them. In the case of human rights protection, this only replicated a more or less common standard reflecting common historical and cultural heritage and achievements.
Yet, in other areas – specifically in areas covered by European secondary legislation, which the ECJ is bound to administer so to speak as an ordinary court – European adjudication has proven to be far less successful. This is particularly true for the field of European private law which is a relative newcomer to legal harmonisation policy. European private law is characterised by selective European acts limited in scope which aim in most cases at consumer protection and which have to co-exist with a more or less coherent and encompassing body of national law (“islands and archipelagos in an ocean”). In this
constellation, numerous problems exist: First, one finds problems of access and effectiveness of justice, as the most frequent preliminary reference procedure usually lasts more than 2 years and only provides interpretations of European law, without resolving the case – which frequently leads to a “ping-pong” game between European and national courts to the detriment of the parties
which has lasted in some cases more than 10 years. Moreover, we are confronted with quality problems, as it becomes ever more apparent that the ECJ judges cannot deal convincingly, without a meaningful degree of specialisation, with all legal matters ranging from constitutional to company and tax law. More generally, the usual methodological style of the ECJ, a combination between legal formalism and effet utile-oriented interpretation, is not suited to private law, whose essential task is to balance opposed interests among the
parties in a just way. This is particularly so as the overall effects of the combined application of European and national law – which alone determines the outcome of a case – is almost never considered by the ECJ which limits itself to the interpretation of European law only. But there are more structural problems related to the specific characteristics of the field. Due to the fragmentation
of European sources, decisions on European acts in private law often concern their scope of applicability and do not lead, unlike in national law, to an ever more precise and coherent systematisation of the field. Specifically, the
ECJ is not well suited to decide on dispositive law issues, which typically do not reflect public policy matters, but consists of a balancing of party interests.
This requires significant knowledge of the social and economic context of specific types of transactions – knowledge which the ECJ frequently lacks. Taken
together, these problems render the effectiveness and legitimacy of European adjudication in private law thin in many instances.
A way out from this dilemma is not easy to design in general terms. However, basic provisos may still be formulated: The ECJ should handle private 3 law with caution and more often resort to judicial self restraint. It should be aware of the fact that it is not the suitable court to do the fine-tuning in private law systems and to deliver private law justice (mostly commutative and only
exceptionally distributive justice). Correspondingly, it should limit itself to implementing basic European principles such as market freedoms and human rights, and to instigating and monitoring learning and rationalisation processes in national law (a “procedural” function). Moreover, it should systematically reflect the consequences of its decisions resulting from the combined application of European and national law. In short, one might say that it is by behaving like a constitutional court for private law that the ECJ might replicate its
constitutional law success story there.
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