Jurgen Basedow

Freedom of contract in EU

2011. No. 2. P. 88–107 [issue contents]
Jürgen Basedow -  Professor, University of Hamburg, Director of Max-Planck-Instituts für ausländisches und internationales Privatrecht, LLD
Adress: Mittelweg 187, 20148 Hamburg  

The article contains a complex discussion of a fundamental principle of European private law, i.e. freedom of contract. The objectives of the author are the analysis of special applications of the principle in the context of state regulation of economic relations and competition. The source of the research are acts of international law including the Treaty of Rome and Lisbon Treaty, directives of the Council of Europe, industry codes of EU member states, court decisions, works of experts in civil and international law. The author supports the limiting interpretation of state regulation of economy. He considers the freedom of contract principle from five aspects. He finds that within the EU, the legal regulation of the principle has soft spots though protected by international law. Legal regulation of European contract law is typical of formal approach which is accompanied by inconsistency in regulation and numerous acts adopted by EU institutions. These acts are of very loose and selective nature. This conflict may deepen when the Charter of Fundamental Rights comes into force. The Charter involves not only several aspects of the freedom of contract, but also an extensive anti-discrimination provisions. The Charter’s authors did not take into account previous collisions. Hence, a direct vertical application of the Charter in private law may pose a danger to the market economy as a basis of the EU. The article is concluded with an idea to return to the discrimination ban supported by the principle of direct and fair distribution of benefits. The principle of vertical effect may be applied only in the most challenging cases.
Citation: Basedow J. (2011) Svoboda dogovorov v Evropeiskom soiuze [Freedom of contract in EU] Pravo. Zhurnal Vysshei shkoly ekonomiki, 2, pp. 88-107 (in Russian)
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