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In libreria

The Making of European Private Law. Changes and Challenges

edited by Luisa Antoniolli and Paola Iamiceli

23 febbraio 2024
Versione stampabile

The book, co-authored by nine European private law scholars from different EU Member States and universities, is located at the intersection of academic research and teaching, being based on a Roundtable Series hosted within two linked courses offered, respectively, in the first and second year of the "Comparative, European and International Legal Studies Bachelor Programme" of the Faculty of Law (University of Trento). The main objective pursued in the Roundtable Series, and now in this book, has been to provide students and scholars with an opportunity to discuss, from a comparative law perspective, current and future directions in European private law. Special attention has been given to major phenomena, such as the digital revolution, the health global crisis, climate change and sustainability. Their impact on the existing private law architecture within the European Union and on its constitutional foundations, including the protection of fundamental rights, is at the core of the authors' analysis. In fact, these revolutions and crises have led to major changes in private law taxonomies and concepts at the EU and national level, and they have posed new challenges for the protection of fundamental rights, while boosting innovation and economic development. The Authors have examined some of the major issues in current European private law, questioning whether and to what extent new paradigms are needed to reconcile innovation, economic growth and fundamental rights. Recent EU initiatives in the field of digitalisation of markets, goods, services, transactions, are the object of study of these analyses, covering some of the main challenges posed in the field of property, contract and tort law. Moreover, the extent to which European private law is embedding fundamental rights into its paradigms has been also examined in areas in which EU legal action has been limited, such as housing.

Luisa Antoniolli and Paola Iamiceli are professors at the Faculty of Law of the University of Trento

From Chapter The making of European Private Law: a View from the Classroom (pp. 1-7)

Teaching is a collective venture. It implies the establishment of a learning relationship in which knowledge and skills are built through experiences based on mutual learning. Such experiences involve students and professors, generating links well beyond the classroom, as this book will show.

Not only research feeds teaching, but teaching feeds research.[...]

Student engagement and multicultural pluralism are at the core of the CEILS Programme. Since the very beginning, students are made aware of the richness of legal culture based upon a multitude of legal traditions, often influencing each other. They are exposed to the complexity of a multilevel system of sources of law, in which the norm is more and more the result of a combined application of national, international and supra-national sources of law. [...]

Unlike in the conventional approach, where the comparative, transnational and international dimensions are added at a later stage upon the core layer of a nationally-driven education programme, CEILS students are from the start purposely guided across these dimensions in order to learn how they relate to each other and how the relevant norm may be designed, identified, interpreted in a world in which national and supranational norms co-exist. [...] As a transnational lawyer, he or she will be able to contextualise that system in a wider picture, building new links between the intra-systemic dimension and the supra-systemic one. Moreover, this student will be urged to compare national rules with those of other legal systems, to better understand the reasons behind policy choic-es and to exercise his or her critical thinking to look for alternatives to existing options.

Some methodological consequences stem from this approach to legal education. First, [...] a functional and problem-based approach is needed in order to provide students with the basic instruments to face legal issues within a multilevel system of sources of law. Second, general principles and foundational rules become particularly relevant, helping the students to interpret complexity and to learn how to search for more specific legal contents, when needed. Third, comparative methodology becomes an essential component of legal education. [...]

Moving from this perspective, this book aims to share with the academic community, including both scholars and students [...], the outcomes of an extremely insightful teaching experience, built through the involvement of legal scholars with different research and educational backgrounds. The «roundtable format» has in-spired vivid discussions about key issues in the field of European and comparative private law. This book is meant not only to reflect that richness, but also to ideally continue that dialogue involving new students and other scholars. 
In the current institutional context, dominated for centuries by national legal orders as the exclusive source of private law systems within Europe, the European dimension of private law today represents a reality that may no longer be ignored in legal education. This is due to both (i) the adoption by the European Union of regulatory instruments of hard and soft law in almost all areas of private law, and (ii) to the growth of European legal culture (even beyond the changing political boundaries of the EU) as reflected in the several bodies of general principles and reference frameworks developed by scholars and legal practitioners in different areas of European private law. This adds to the impact that, in different ways, the Charter of Fundamental Rights of the EU  [...] and the European Convention of Human Rights  [...] have progressively made upon national private law, especially through the general principles as interpreted and developed by the jurisprudence of the European courts.

Over the past decades, the European dimension has gained more and more relevance in private law and private law education. Not only entire areas of private law are dominated by EU hard law (e.g. data protection and consumer protection), but also those, for which the general frame of references continues to be based on national legal systems, are deeply affected by the European harmonisation processes, either directly or indirectly. 
The making of European private law is a dynamic process: private national law changes (often as a result of European harmoni-sation); European law changes, too. The expansion of the European mandate beyond the purely economic dimension of the single market and the recognition of the CFR as having the same legal force of the treaties, have opened up new spaces for European private law, particularly in the area of personal rights. The major role of the EU as rule-setter in the area of digital law has placed the definition of a legal frame of reference in this field beyond the boundaries of national private law. This frame has become crucial for the protection of fundamental rights, and for the allocation of contractual and property rights linked to the use of digital technologies, with liability regimes. The same move is more recently occurring in the field of sustainability, with an increasing attention to the role of contract law as a means for ensuring sustainability commitments along the supply chain, and the use of tort law as a means for collective redress in favour of workers, local communities and society at large. 

From Concluding Remarks (pp. 220)

The path of European private law highlighted by the contributions of this book is a long, winding and at times steep one. European private law has definitely enlarged its scope and variety, de-veloping new concepts, new categories and new principles. In this evolution, it has been influenced by the national legal systems of the Member States (and sometimes also by external legal systems), and in its turn it has influenced private law of the Member States. This is not a linear process: at the side of harmonisation and convergence there have been, and there are, gaps and frictions, and it is hard to foresee future developments. 

Yet, some trends seem to be firmly established. First, European private law (and EU in general) is expanding, covering new domains and introducing new legal instruments, principles and rules. Second, this new European private law is shifting the boundaries of legal areas: private law is less and less separated from regulatory/administrative law (as made clear in the term «European private regulatory law»), and from public/constitutional law, where fundamental rights protection is deeply influencing recent legal developments. Third, the blurring of the public/private divide leads to a stronger focus on the collective/general dimension of individual rights, which has significant effects both on the definition of subjective rights, and on the remedies and procedures for protecting them. Fourth, new concepts and categories of European private law are less focused on systematic coherence and on building a new system, and more aligned with a functional logic, which is meant to pursue certain goals irrespective of the variety of the national legal settings. This has been long visible for internal market issues, but is now expanding to new domains.

All these elements need to be taken into consideration by scholars of European private law, both in their research and teaching activities. 

Embedding these changes within legal education is imperative. The purpose is to make students aware about the complexity of private law construction within a multi-level system, in which na-tional legal traditions feed EU law and EU law integrates national private law. The result is not a homogeneous set of rules, as a plu-rality of legal traditions and approaches persists. Private lawyers need to cope with this complexity and be prepared for future changes and challenges.

This book aims to provide a small contribution to this enterprise.

 This book is published under a CC BY NC ND 3.0 Licence and can be downloaded from IRIS