INTRODUCTION

The question as to whether it is admissible or even just advisable that courts are involved in the creation of legal norms remains, to the present days, highly controversial. Indeed, much has changed from the times when Montesquieu developed his metaphor of the judge as ‘la bouche de la loi’’. With the emergence of new international actors, most notably of the EU, the Court of Justice has acquired a key role in ensuring the functioning of a system of multi-layered governance in general and of European contract law in particular.

As we all know, EU Directives have been of crucial importance for the harmonisation of private law in Europe. However, by their very nature, Directives lack the specificity which conversely characterises instruments that have direct application, leaving Member States a margin of discretion as to how to translate the aim of the Directive into national law. And it is precisely in relation to this margin of discretion that the ‘creative vocation’ of the Court of Justice case law manifests itself. Within this framework, the Court makes use of general principles of EU law – in particular the principles of effectiveness and proportionality – to pursue and establish legal policies through its case law.

For the purpose of this chapter, ‘the creation of norms’ will be understood as the contribution of the Court of Justice to the construction of European contract law. Three main areas of activity will be identified. Firstly, the Court contributes to the creation of European contract law by marking its outer limits, that is by defining the scope of application of each of the several instruments which compose this body of law (section 2). Secondly, even though the Court of Justice will never, by definition, interpret a private law contract, it may nonetheless guide national judges in assessing its compliance with domestic legislation, interpreted in the light of EU law (section 3). Finally, the most creative contribution of the Court of Justice in the field of European contract law arguably consists in setting up a procedural framework capable of ensuring the effectiveness of European contract law (section 4).

THE IDENTIFICATION OF THE PERSONAL SCOPE OF APPLICATION OF EU INSTRUMENTS OF EUROPEAN CONTRACT LAW

The delimitation of the personal scope of application of an instrument of European contract law entails a delicate balance between private autonomy and mandatory rules of European origin. I will focus my analysis on four of these instruments: Directive 2008/48/EC on consumer credit (CCD), Directive 93/13/ EEC on unfair terms in consumer contracts (UCTD), Directive 1999/44/EC on certain aspects of the sale of consumer goods, and, finally, the protective jurisdictional regimes set forth by Regulation (EU) 1215/2012.