Promovendus: Mw. Dr. C. Goanta

Promotores: Prof.Dr. J.M. Smits, Mw. Dr. C. Cauffman

Duur: 1/9/2011 - 31/8/2015

Promotie: Maastricht, 4/10/2016

Abstract:

When harmonizing European contract and consumer law, the EU legislator frequently uses open ended concepts and norms such as good faith, reasonable instructions, a reasonable period, etc. Often these concepts are not defined within the EU framework. This raises important questions as to the leeway left to the national legislator when implementing these directives and to that of the national courts and tribunals when interpreting the implementation legislation and applying it to the facts of the cases brought before them and ultimately, to the practical effect of rules containing open ended concepts in terms of harmonization of European contract and consumer law. The following research is designed to depart from six already identified concepts: good faith, public policy, exceptional circumstances, fundamental rights, reasonableness and protective measures. In essence, the main research question could be given the following content: What open-ended concepts operate in European Private Law and how are they determined and applied at EU level compared to their national equivalent in five of the jurisdictions of the Member States (France, Romania, Germany, the Netherlands and the United Kingdom)? Since the dual aspect (national vs. European) of such legal norms must be reflected in the study, it is necessary to divide the research question into three additional remarks: (1) What is the role of the European Court of Justice in the interpretation and application of open-ended concepts existing in European Private Law? (2) What is the role of national courts in France, Romania, Germany, the Netherlands and the United Kingdom in the interpretation and application of open-ended concepts existing within the national jurisdiction? What is the content of such norms, how has it been determined and how has it evolved? (3) What is the relationship between these two different sets of legal concepts, and most importantly, is there any practical shift from a national interpretation to a European one? Can such concepts thus undergo an Europeanization process?