Edited by Roger Halson and David Campbell
Chapter 23: Those magnificent men in their unifying machines: exploring the wreckage of the unification initiative in European private law
The ever-increasing intervention of EU secondary law in national private law systems has led to the emergence of a new type of law: EU private law. Yet, given its divergent national transpositions, applications and interpretations, EU private law has proven unstable; an instability which has led to calls for measures of unification - whether for harmonisation, consolidation and/or codification. The 2001 Communication on European Contract law, for example, appeared to promote the idea of a new European ‘ius commune’. Meanwhile, in its 2004 Communication on European Contract law, the Commission announced its intention to develop a range of measures aimed at consolidation. Subsequently, the Draft Common Frame of Reference (DCFR) and the Common European Sales Law (CESL) emerged from these initiatives, the CESL eventually failing in 2014. In the wake of the CESL failure, a dual-track approach has emerged by default: improvement of the acquis through more ‘horizontal’ harmonisation (2011 Consumer Rights Directive), and more vertical/mandatory provisions (Digital Single Market (DSM) proposals). Thus, whilst the codification agenda crashed spectacularly, a range of (pragmatic?) measures emerged from the wreckage.
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