The references made by the Court of Justice in a number of recent cases to ‘the general principles of civil law’ may have been accidental, but they may also represent a deliberate first step towards a new European legal category and a new approach towards European private law which should be welcomed.
Concerning the nature and roles of such principles, it does not seem very helpful to define one monolithic and static category of general principles of civil law have all necessarily the same status, characteristics and functions. Rather, the general principles of civil law could belong both to national and to EU law, and both to secondary and primary EU law. And they could have interpretative as well as gap-filling and corrective functions. Thus, the general principles of civil law could have an impact in a variety of different ways, direct and indirect, and with different degrees of intensity, on private law relationships and disputes.
Because of their flexible and chameleontical nature, the general principles of civil law could contribute to horizontal and vertical coherence of the developing system of European private law without imposing, in a top-down manner, new rules on Member States. They could even facilitate a Member-State-friendly interpretation of EU private law.
New general principles of civil law could be the outcome of a transnational dialogue between (and among) national and European lawmakers, informed by an equally transnational legal scholarship. However, it is important that such a European private law space be as open as possible, and be informed by arguments and reasons not merely from legal elites at the political and economic centre but also from ordinary citizens at the periphery.
Hesselink, Martijn W., The General Principles of Civil Law: Their Nature, Role and Legitimacy (September 22, 2011). Amsterdam Law School Research Paper No. 2011-35; Centre for the Study of European Contract Law Working Paper Series No. 2011-14.