The Future of the European Union and of EU Private Law
The integration level needed for a political union must certainly include private law, not only contract, but also family law, company law, tort law, property law and succession.
On the front page of today’s (14 June 2012) European Voice Dave Keating writes on how the European Union is divided in the build-up to the upcoming summit. With reference to European Commission President Barosso’s speech to the European Parliament yesterday (13 June 2012), in which Barosso bravely pleads for the Member States to work on a closer and more integrated European (Monetary) Union, Keating quotes ALDE leader Guy Verhofstadt stating that we need a ‘banking union, a fiscal union and a political union to underpin the single currency and restore stability, confidence and growth.’ To this we can add Chancellor Merkel’s remarks today on the unavoidability of a political union.
The European Union’s political turmoil brings the focus very much in fiscal solidarity and financial stability and seems, to a considerable degree – at least in EU circles – to be focused on reforming the existing EU treaties or on creating a separate agreement (the treaty within a treaty-solution). Regardless of this he role of private law in the debate should be crucial: not only is private law needed to make things work (the stability fund is a private law institution under Luxemburg law and, as far as I am aware, subject to a framework agreement the fund needs to contract with borrowers and some property law issues apply to guarantees provided), but further integration of private law in the EU potentially provides a more stable internal market fostering cross-border trade.
The connection between private law and market building is far from new and much has been written on it already. More recently private law is sometimes brought into connection with the European Economic Constitution, the body of rules that govern the internal market. Here, fundamental principles of freedom of contract, freedom of ownership and free circulation of goods support the functioning of a market economy: these elements are needed to ensure a market on which there is free moment of goods, services, persons and capital.
From this perspective, are we not missing out on a wonderful opportunity to bring the importance of European (Union) private law forward? Isn’t Vice-President Reding missing out on an opportunity to make statements on this and perhaps push the development of the EU civil justice area forward? Not necessarily with harmonizing legislation, but certainly with more active policy.
I guess that in this respect the Commission is following the silent route and carefully implementing its Stockholm Programme. The adoption of the Succession Regulation could certainly be understood in this way. Last week also a much needed new e-signatures proposal was launched. Better regulation on e-identity is badly needed to increase consumer confidence in cross-border transactions, but certainly also to venture into new areas such as the EU-wide recognition of authentic deeds, bearing in mind that in many Member States these are now drawn up electronically, and the registration of authentic instruments into Land Registries across the EU, such as European Certificates of Succession or CROBECO deeds.
I understand we are not politicians, but – and I have written on this before – it would certainly help if we could speak the EU policy language so that we could participate in this debate. It would be a missed opportunity not to bring the importance of European private law and the need for more research (EU2020) into European private law forward in the debate on the future of the European Union. The integration level needed for a political union must certainly include private law, not only contract, but also family law, company law, tort law, property law and succession.