IDEAS home Printed from
   My bibliography  Save this paper

Which Governance for European Private Law?


  • Fabrizio Cafaggi


The paper describes the necessity to consider the role of private rule making and the increasing importance of national regulatory agencies, in the process of European legal integration. It then focuses on the legislative design and process implementation of EPL. Its departing assumption is that EPL is and will remain a multilevel system where national implementation of European legislation generates intentional and unintentional spillover effects to be ‘governed’ through horizontal devices. The author underlines that the current legislative and judicial trend towards total harmonization is the wrong response to normative differentiation occurring in the process of national implementation. He analyses in particular the areas of unfair contract terms and commercial practices, providing examples of divergent implementation which can not be tackled only at legislative level, claiming that governance is a better response. He examines traditional modes of governance and then considers the applicability of new modes of governance to EPL. He makes several reform proposals; most of them do not require legislative intervention. At the legislative level, given that the competences are organised around policy areas while private law, following the national traditions, is conceptually organised around institutions, he proposes different ways to improve coordination at the Commission level, concerning legislative draft. Legislative drafting can also be improved by considering the different impacts of new legal categories in national legal systems, especially the general clauses. At the implementation level he emphasizes the role of judicial governance and the lack of coordination among national judiciaries proposing the establishment of a permanent judicial conference specialised in EPL to be coordinated with TFI and ECJ. He then proposes the institution of committees operating according to subjects ( contract, property, tort) that would cut across directorates competences and would analyse the impact of European legislation on private law national systems. Finally he proposes the use of OMC, adequately redefined to evaluate the policy effects of implementation especially when it involves national regulatory agencies.

Suggested Citation

  • Fabrizio Cafaggi, 2007. "Which Governance for European Private Law?," EUI-LAW Working Papers 26, European University Institute (EUI), Department of Law.
  • Handle: RePEc:erp:euilaw:p0089

    Download full text from publisher

    File URL:
    File Function: Full text
    Download Restriction: no

    References listed on IDEAS

    1. Follesdal, Andreas & Hix, Simon, 2005. "Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik," European Governance Papers (EUROGOV) 2, CONNEX and EUROGOV networks.
    2. Mario Savino, 2005. "The Constitutional Legitimacy of the EU Committees," Les Cahiers européens de Sciences Po 3, Centre d'études européennes (CEE) at Sciences Po, Paris.
    3. repec:cup:apsrev:v:99:y:2005:i:01:p:29-43_05 is not listed on IDEAS
    Full references (including those not matched with items on IDEAS)

    More about this item




    Access and download statistics


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:erp:euilaw:p0089. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Machteld Nijsten). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.