Wege zur Konkretisierung von Generalklauseln: Was leistet die deutsche Wissenschaft vom Europäischen Privatrecht? (Tagung am 29. April 2005)

In: European Review of Private Law, Band 13, Heft 6, S. 935-943

Abstract

Essentially, directives that base on detailed language as well as blanket clauses achieve the current progress in harmonization of Private Law. To the detriment of legal security, the enhanced vagueness of blanket clauses provides extensive flexibility to national courts for reaction to changing social needs. Indeed, their indefinite language facilitates the unification of the different European Private Law systems. Nonetheless, varied interpretation of blanket clauses ? although a unique chance ? may undermine the setting of a legal framework and entails the risk of unilateral reception of approaches of one favoured Private Law system. For that reason, it is necessary to find a way of application of blanket clauses without putting the harmonization of Private Law in Europe at risk. Facing this situation and subsequent to an inaugural lecture on methodology of EC Private Law, a conference in Heidelberg discussed about blanket clauses in the process of harmonization of European Private Law and the role of German jurisprudence therein.
Summarizing and taking into account the present shape of EC Private Law harmonization, the conference allowed to question the suitability of blanket clauses as an instrument of harmonization. However, deeming the EC ready, the autonomous development of case patterns was proposed as a methodically acceptable way to interpret blanket clauses.
Rejecting case patterns as too inflexible, guidelines for interpretation were alternatively suggested as an adequate way of interpretation. Moreover, German jurisprudence was criticized for its minor interest in the dialogue with other European Private Law systems.