General principles of EU civil law / Norbert Reich.
2014
KJE995 .R45 2014 (Map It)
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Details
Author
Title
General principles of EU civil law / Norbert Reich.
Published
Cambridge, United Kingdom : Intersentia, 2014.
Copyright
©2014
Call Number
KJE995 .R45 2014
ISBN
9781780681764 (pbk.)
1780681763 (pbk.)
1780681763 (pbk.)
Description
xxviii, 216 pages : illustrations ; 24 cm
System Control No.
(OCoLC)866584499
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Variant Title
General principles of European Union civil law
Table of Contents
Preface
v
Table of ECJ cases: alphabetical
xi
Table of ECJ cases: chronological
xvii
Table of EU legislation
xxiii
List of abbreviations
xxvii
Introduction. What are General Principles of EU Civil Law?
1
1.
An ongoing debate: "principles" vs. "rules"
2
2.
Some preliminary suggestions
6
3.
The express recognition of general principles by the Charter
8
4.
What do we mean by EU civil law: acquis communautaire vs. acquis commun
11
5.
The competence dilemma of EU civil law
14
6.
Why seven principles?
16
ch. 1
The Principle of "Framed" Autonomy
17
1.
Freedoms framed by law
18
2.
Fundamental freedoms, autonomy and public interest restrictions
21
3.
Freedom of contract as fundamental yet limited right and principle
28
4.
Competition law and autonomy
30
5.
Conclusion: framing of autonomy under welfarism aspects -- going beyond the traditional approach?
34
ch. 2
The Principle of Protection of the Weaker Party
37
1.
Elements of protection of the weaker party
38
2.
Minimum standards of working hours and paid annual leave
41
3.
EU consumer law: information vs. protection
47
4.
Conclusion: generalising the protection of weaker parties and its limits
56
ch. 3
The Principle of Non-Discrimination
59
1.
"Spill-over" effects of non-discrimination on civil law?
60
2.
Non-discrimination in employment law relations: overview
64
3.
Citizenship: extending the scope of the principle of non-discrimination by primary law
72
4.
Extension of the non-discrimination principle to business-consumer relations by EU secondary law
74
5.
A controversy: unisex tariffs in insurance and conflicts with private autonomy
76
6.
Non-discrimination in access to and treatment in services of general economic interest and in network services: framed autonomy
81
7.
Equal treatment beyond non-discrimination?
84
8.
Conclusion: the varied impact of the non-discrimination principle on civil law relations
87
ch. 4
The Principle of Effectiveness
89
1.
Article 47 of the Charter and Article 19 TEU: anything new?
90
2.
The "eliminatory" function of the effectiveness principle
91
3.
Effectiveness as a "hermeneutical" principle
95
4.
Effectiveness as a "remedial" principle: "upgrading" national remedies
97
5.
Some examples applying the effectiveness test in EU civil law
99
6.
Primary Union law: rules on competition
112
7.
Compensation for violations of directly applicable provisions of primary Union law
117
8.
The importance of Article 47 of the Charter and Article 19(1) TEU for EU civil law revisited
120
9.
Conclusion: how effective is the effectiveness principle?
129
ch. 5
The Principle of Balancing
131
1.
Introduction: a dialogue on balancing in EU civil law
132
2.
Balancing in unfair term jurisprudence: transparency, "core terms" and the unfairness test
134
3.
Balancing to avoid "over-protection"
141
4.
Role of Balancing in social conflicts: fundamental rights vs. fundamental freedoms?
146
5.
Conclusion
153
ch. 6
The Principle of Proportionality
155
1.
Importance of the principle of proportionality for EU civil law: some general remarks
157
2.
The Draft Common Frame of Reference
162
3.
The "feasibility study" and draft Common European Sales Law
169
4.
Open method of coordination, convergence and improved law-making in reflexive contract governance in the EU
180
5.
The "positive proportionality" principle in EU civil legislation: two examples
182
6.
Conclusions on the principle of proportionality as an instrument of legal control and support of EU measures
187
ch. 7
An Emerging Principle of Good Faith and of a Prohibition of Abuse of Rights?
189
1.
Some misunderstandings about good faith in contract law: elements of a duty of loyal cooperation in contracting
190
2.
Good faith in commercial law settings
193
3.
Directive 93/13 on unfair terms
195
4.
Absence of good faith obligations for the bank in B2C financial services
202
5.
"Co-responsibility" as an indirect good faith-obligation: some examples
203
6.
Elements of good faith in recent soft law initiatives
206
7.
Relevance of Article 54 of the Charter to an EU concept of abuse of rights?
208
8.
Conclusion: good faith on the move?
211
Summary. Seven Theses and a Conclusion
213
Index
215