Last November, academics, legislative draftsmen and practising lawyers gathered to celebrate the 25th anniversary of the Dutch Civil Code. During a conference at the Ministry of Justice and Security they discussed important topics such as damages in mass litigation, digitisation and the introduction of Book 9 on intellectual property. In our opinion, another topic also deserves their attention: the harmonisation of private law through EU regulations.
The influence of EU law on Dutch private law is not a new phenomenon. The Union legislature has already been engaged in private law matters since the 1980s. It has introduced several directives to improve the functioning of the internal market. These directives regulate topics such as misleading advertising, unfair commercial practices, the liability for the infringement of competition law and the return of cultural property. The Dutch legislature has given these rules their own place in the system of the Dutch Civil Code.
Over the past ten years, the Union legislature has developed a preference for using regulations rather than directives. These regulations regularly contain rules of a private law nature. Consider for instance the different regulations about the rights and obligations of passengers and carriers. Such rules can also be found outside the area of transport, in regulations relating to financial law, the digital single market and judicial cooperation in civil matters. Consider for instance the liability of credit rating agencies, the contractual rules included in the Regulation on the cross-border portability of online content services and the liability of insolvency practitioners in cross-border insolvency proceedings.
Contrary to a directive, a regulation ‘shall have general application’ and ‘shall be binding in its entirety and directly applicable in all Member States’ (Art. 288 TFEU). This means that a regulation enters into force without transformation or adoption into national law. In many instances, Member States are not even allowed to implement the rules, because this could question the direct effect and could jeopardize the uniform application of regulations. This means that discussions on implementation and harmonious interpretation are largely avoided. But it also means that the rules no longer become part of the Dutch Civil Code. Instead, separate islands of EU private law arise outside the realms of the national codifications.
This development raises important questions. What does this increase in regulations entail for the future of the Dutch Civil Code? What impact does this development have on the clarity, accessibility and coherence of the system of private law, both on the EU level and within the Dutch legal order? How can national legislatures and courts deal with this development? How can academics pay attention to these regulations in their education and research activities? We think it is time to address these questions and discuss the answers.
Want to know more? Read our contribution (in Dutch) ‘Europese verordeningen en Nederlands vermogensrecht’ in the December issue of Ars Aequi Maandblad.