The context for European private law – comparative law, legal transplants & mixed legal systems

Abstract

The creation of a European Private Law (EPL) is a process in which Member States’ reciprocal learning about different solutions is crucial. The development of EPL is not limited to legislative intervention only. The strengthening of judicial networks and the creation of new committees to improve coordination between the Member States can be suggested as a complementary strategy to be pursued with the traditional Community Method.1 Thus comparative law is an important aid to this development and so the use of Open Method Cooperation (OMC) methodology is most appropriate when the existing difference between the national legal orders or the legal families cannot and should not be harmonized through a legislative intervention but through a coordinated set of actions specifying goals and benchmarks. The traditional mode of governance may therefore be accompanied by innovative modes complementing one another. Thus comparative law can serve as a direct incentive for private parties to regulate matters that, for various reasons, are not dealt with by the European institutions and as an implementing device for European norms as well as helping the Member States look beyond the traditional way of creating EPL.2 Both modalities can make use of two models: purely private self-regulation or self-regulation having some public law status attached to it. Effective use of self-regulation at European level presupposes a thorough understanding of the way Member States distinguish between the two models, the differences among Member States within each model and the consequences they attach to them.