The Relationship between European and National Private Law: Lessons for EU Law-Making and Enforcement

This chapter reconceives the relationship between European and national private law within a new theoretical framework, focusing on how traditional national private law today responds and should respond to EU private law norms and related findings in administrative proceedings. It first outlines a theoretical framework within which the analysis of this relationship will be conducted Subsequently, it draws on the case of Vereniging woekerpolis.nl v Nationale-Nederlanden to present three models of the relationship between European and national private law: separation, substitution, and complementarity. These models reflect elements of the current legislative and judicial practices in a variety of jurisdictions which are or were part of the EU, including Germany, the Netherlands, and the United Kingdom, as well as the EU law itself, across a wide range of areas. The areas under investigation have been subjected to cross-sectoral and/or sector-specific EU harmonisation regimes and include product safety and liability, antitrust, unfair trading, unfair contract terms, consumer sales, and financial services (specifically, payment, investment, and life insurance). Based on the representative examples from these areas, the models also provide an analytical framework for assessing the current practices in terms of their ability to reconcile EU and national private law rules across the entire field of European private law. The chapter concludes with the summary of the main findings and some lessons for EU law-making and enforcement in the field of private law.