Autonomous harmonization: because the BW is worth it!
To reconcile the fragmentary nature of directives with the need of coherence of national private law codifications, a more conscious approach to the implementation of directives is necessary. This raises the issue of autonomous harmonization.
The growing number of EU directives in the field of private law has had an important impact on the national legal systems of its Member States. It has given rise to the emergence of a chaotic archipelago of European islands in the 27 seas of national private law. Because of the limited transfer of legislative competences to the EU and principles of proportionality and subsidiarity, directives are often limited in scope and fragmentary in nature. Furthermore, coherence between different directives is often lacking. These characteristics render the implementation of directives an even more horrendous task for the legislature.
One of the strategies that have been put forward to cope with this situation is autonomous harmonization (überschießende Umsetzung). This takes place where rules of a directive are implemented more broadly than required by the scope of a directive. This is in the first place a matter for the legislature, but the judiciary can play an important role as well. Although there is no EU law obligation to do so, the internal coherence of a national code can militate in favour of such an approach and encourage the national legislature to opt for a broader implementation which goes beyond the scope of the directive. The 2002 modernization of the German Bürgerliches Gesetzbuch, in which many directives were integrated, is a prime example of this. This kind of implementation is not, however without its problems and raises interesting and complicated issues of interpretation, influence of ECJ decisions, etc.
The German example can be contrasted with the situation of Belgium, where the legislature has a long tradition of segregation. Directives are mainly implemented outside the Burgerlijk Wetboek in separate acts and often in a minimalistic way. This fragmentation and de-codification of Belgian private law has not only blurred the relationship between the implemented acts and the Burgerlijk Wetboek, but more perniciously undermined its authority as cornerstone of national private law. However, sometimes the minimalistic approach is challenged on the grounds of the constitutional principle of equality and coherence is created by judicial intervention instead. With regards to the right of equitable compensation of lawyer’s fees, as provided for by the Late Payment Directive, the Belgian Constitutional Court held that the minimalistic implementation created an unconstitutional situation. This in turn has triggered legislative action to resolve the unconstitutionality by establishing a general legal framework on lawyer’s fees. The example demonstrates the problematic nature of the implementation of directives à la belge. From a strong comparative perspective, this paper therefore advocates a more conscious approach as to implementation and an integration of EU directives into a modern Burgerlijk Wetboek. Autonomous harmonization can play an important role in this, so the issues which it creates are addressed as well.