Introductory Observations

SUBJECT OF THIS BOOK: CURRENT EUROPEAN LAW AND PRIVATE LAW Any consideration of the influence of European law on national private law (which for the purposes of this book embraces property law and the law of obligations, including contract law and the law on unlawful acts and unjust enrichment, but excludes family law and the law of succession) will obviously focus primarily on the law currently in force, i.e. the treaties (the EU Treaty, the Treaty on the Functioning of the European Union and the EU Charter of Fundamental Rights), secondary legislation, and the case law of the European Court of Justice, which is based on the treaties and secondary legislation. Another important source is the European Convention on Human Rights (ECHR), because this Convention, too, influences matters governed by the general provisions of national private law. This segment of a national private law system – which is gaining in importance – could be referred to as ‘European private law’. THE CONCEPT OF EUROPEAN PRIVATE LAW In jurisprudence, the term ‘European private law’ does not have an established meaning. It is oft en used in a narrower sense than above, namely when it is taken to include the influence of the law of the European Union on private law but not the influence of the ECHR. Oft en, however, it is used in a wider sense, when it is understood to also include: (a) Rules adopted within the context of the European Union and relating to matters of international procedure and private international law. Such rules were originally adopted in the form of treaties and subsequently transformed into Regulations. See no. 193 below. This book, which is devoted to substantive (private) law, will not deal with the merits of these provisions. (b) Treaties in the field of private law concluded within a broader context than the ‘regional’ European context, where all or virtually all member states of the Union are signatories to such a treaty. The most important of these is the Vienna Sales Convention or CISG (UN Convention on Contracts for the International Sale of Goods, Vienna 1980). Such treaties fall outside the scope of this book, which is limited to private law based on the European Treaties mentioned in no. 1 above.