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Methods for unifying private law in the EU

Private law regulates rela­tionships between private individuals, for example between a consumer and a business. The EU may legislate in this area only where specifically authorised by the Treaties, for instance to harmonise national private-law rules posing obstacles to the functioning of the internal market, or to promote judicial cooperation in civil matters.

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The two types of legal instruments used by the EU legislature in the area of private law are directives and regulations. Some directives are based on minimum harmonisation, meaning that they allow Member States (MS) to retain higher consumer protection standards. Other directives are based on full harmonisation, allowing no deviation from their standard of protection. Regulations, directly applicable in the MS are used mainly in the field of civil procedure, private international law and intellectual property law.

The Court of Justice of the EU has played an important role in the “Europeanisation” of private law, both when interpreting those provisions of the Treaties which have horizontal direct effect, as well as in interpreting EU private-law legislation.

Finally, academics have also greatly contributed to the unification of private law in the EU, proactively identifying the common core of private laws in the EU, preparing restatements, as well as drafting principles, definitions and model rules, in particular the Draft Common Frame of Reference. The Commission, in proposing the Common European Sales Law in 2011, drew on their long-term efforts in this area.

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