Hesselink on Private Law and the European Constitutionalization of Values

Martijn W. Hesselink, University of Amsterdam, Centre for the Study of European Contract Law (CSECL), has published Private Law and the European Constitutionalisation of Values as Amsterdam Law School Research Paper No. 2016-26 and Centre for the Study of European Contract Law Working Paper Series No,. 2016-07. Here is the abstract.

According to the CFREU, the EU is founded on the general values such as values of human dignity, freedom, equality and solidarity. In addition, the TEU refers to a more political set of foundational values, ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. These references could be understood as purely ornamental, or as irrelevant in any case for private law. Indeed, it is true that the Court of Justice so far has never made any references to these values in private law cases. Still, the Court already has shown boldness before in the context of the interpretation and review of secondary EU law in private law cases, when it discovered general principles of EU law and general principles of civil law. Therefore, it should not be excluded that the Court may be tempted one day to follow the example of the German constitutional court that famously understands its national constitution as expressing an objective system of constitutional values. This paper explores what such an understanding of private law as an instrument for furthering common European values would entail and examines whether such an ethical reading of European private law would be desirable. It argues that the promotion by the EU of a set of official values through its laws is not compatible we the respect we owe each other in a society characterised by reasonable pluralism. In addition, it points to further difficulties, both of a moral and a practical nature, of the idea of advancing ethical values through private law. It concludes that although it is very well thinkable that the values to which the TEU and the Charter refer will one day be interpreted as an objective value system with (indirect) horizontal effects, the Court of Justice nevertheless should refrain from going down that road.

Download the article from SSRN at the link.

Cohen on the Influence of the Choice of Official and Working Languages on the Workings of Courts

Mathilde Cohen, University of Connecticut School of Law, is publishing On the Linguistic Design of Multinational Courts — The French Capture in volume 14 of the International Journal of Constitutional Law (2016). Here is the abstract.

This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

Download the article from SSRN at the link.

The United Kingdom and the Protection of Human Rights

New from Hart Publishing: The UK and European Human Rights: A Strained Relationship? (Katja S. Ziegler, Elizabeth Wicks, and Loveday Hodson, Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The UK’s engagement with the legal protection of human rights at a European level has been, at varying stages, pioneering, sceptical and antagonistic. The UK government, media and public opinion have all at times expressed concerns about the growing influence of European human rights law, particularly in the controversial contexts of prisoner voting and deportation of suspected terrorists as well as in the context of British military action abroad. British politicians and judges have also, however, played important roles in drafting, implementing and interpreting the European Convention on Human Rights. Its incorporation into domestic law in the Human Rights Act 1998 intensified the ongoing debate about the UK’s international and regional human rights commitments. Furthermore, the increasing importance of the European Union in the human rights sphere has added another layer to the relationship and highlights the complex relationship(s) between the UK government, the Westminster Parliament and judges in the UK, Strasbourg and Luxembourg. The book analyses the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights from doctrinal, contextual and comparative perspectives and explores factors that influence the relationship of the UK and European human rights.

Law, Architecture, and the EU Preliminary Ruling Procedure

Marc de Werd, Professor of European law (Maastricht University) and judge in the Amsterdam Court of Appeal in the Netherlands, uses an architectural analogy to dissect the EU preliminary ruling procedure. Link here to the essay, published at 22 Maastricht Journal of European and Comparative Law 1 (2015), which is a must-read.