Sur la légitimité d'européaniser le droit privé.. Plaidoyer pour une approche procédurale

ON THE LEGITIMACY OF EUROPEANISING EUROPE?S PRIVATE LAW. CONSIDERATIONS ON A LAW OF JUSTI(CE)-FICATION (JUSTUM FACERE) FOR THE EU MULTI-LEVEL SYSTEM There are good reasons to expect that the process of European integration might bring about a renaissance of comparative law and private international law, the two disciplines, in which Herbert Bernstein had excelled in the New and the Old World. To be sure, Europe?s legal systems must respond to processes of economic and political integration. It seems nevertheless quite unrealistic to expect from the European Union any comprehensive harmonisation of private law. Europe?s systems of private law are deeply entwined in the economic and political histories of the polities which they order and to which they owe their legitimacy. Europe?s identity is defined by the diversity of its legal heritage. Should not deepened comparative studies prepare and accompany the search for a Europeanised private law system ; and is it not the very vocation of private international law to organise constructive responses to legal diversity ? Pertinent efforts have been undertaken and are under way. And yet, the Europeanisation process, so this essay argues, follows a logic of its own, which none of our inherited legal disciplines seems able to cope with. Three difficulties will be discussed. One is inherent in very general developments of « post-classical » private law, in particular its linkages with regulatory and distributive policies and its opening to social values and human rights. Comparative law has often furthered, private international law has adapted to this (in Germany) so-called materialisation process. Europeanisation, however, adds challenging new dimensions. They are inherent in the multi-level structures of the European polity and hence inevitable. The interventions of European law into general private law (the codified systems of continental Europe and the common law of the UK) have so far been quite marginal. But Europe has very intensively and quite comprehensively re-organised the regulatory frameworks of private transactions whereas the distributive welfare state institutions in which private relations are embedded remained national domains. The Europeanisation of Private law is therefore to a large degree about the restructuring of the linkages of private law with its (Europeanised) regulatory environment and its embeddedness in welfare state institutions. Europeanisation affects this dimension through the freedoms it grants to European citizens. European law is a transformative discipline. It requires respect for its principles and the regulatory prescription it imposes in the realms of the enumerated competences of the European legislature. It cannot provide comprehensive responses to its quests for change. Europeanisation affects national systems of private law only selectively. The process of change is incremental and the essay therefore does not to try to present Europeanisation of private law as the building of a new system of rules and principles. It rather presents and explores patterns of legal change in three cases of exemplary importance. As will become apparent, neither comparative law, nor private international law or European law can lay claim to exclusive leadership in the Europeanisation process. Europeanisation is generating a new legal discipline. The challenging task of this discipline is to provide normative guidance for the operation of private law within the multi-level system of governance that Europe has become.