Fundamental Rights, Policy Issues and the Draft Common Frame of Reference for European Private Law

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In the recently published study of the constitutional aspects of the DCFR by Chantal Mak, it has been argued that fundamental rights should play a more prominent role in the DCFR. The main argument advanced in favour of such an approach is that fundamental rights bring to the fore policy questions in contractual matters. This article provides an alternative view concerning the relationship between fundamental rights and the DCFR, and, in particular, the link between fundamental rights and policy considerations in contract law. It is submitted that as a source of fundamental values for an emergent European civil society, fundamental rights may reinforce both traditional private law reasoning and policy dimension. As such, fundamental rights do not throw much light on the relationship between traditional private law and policy issues within a European private law discourse. Moreover, focusing on fundamental rights allows one to conceal the policy considerations under the cover of the fundamental rights interpretation. Therefore, the proposals in favour of intensifying the constitutionalisation of European contract law should be handled with a great deal of caution. Only a complementary relationship between fundamental rights and the DCFR can contribute to the creation of a well-balanced European contract law.
Original languageEnglish
Pages (from-to)39-65
JournalEuropean Review of Contract Law
Issue number1
Publication statusPublished - 2010
Externally publishedYes


  • DCFR, fundamental rights, European private law, European contract law, constitutionalisation of European contract law

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