Can the Charter of Fundamental Rights of the European Union (CFREU) provide a source of contract law and other rules of private law in the legal order of the European Union (EU)? Assuming that the Charter can perform that role of being a source of private law norms, we must ask whether it should it be used by the courts for such a purpose. In particular, under the competences or powers conferred by the Treaty of European Union (TEU), we need to question whether it is lawful for the courts to draw upon the CFREU as a source of private law rules or would it be contrary to the laws laid down by the Treaty? These are the three main questions considered in this chapter. My answer to those questions will be, respectively, yes, we can use the Charter as a source of contract law rules, though, secondly, we should only use this source with due caution; and yes, the CFREU is a legitimate source of private law in the EU, though its legitimacy depends on a fresh understanding of the meaning of the core value of the Rule of Law in the EU. Before explaining the reasoning behind those answers to my questions, however, it is helpful to explain the special context in which they arise in connection with the EU legal order and its private law.

GAP-FILLING IN EU PRIVATE LAW

Scholars of national systems of private law have frequently considered the extent to which constitutional bills of rights or binding international treaties such as the European Convention on Human Rights (ECHR) can be used to modify or develop private law. In national legal systems, there is considerable uncertainty about the justification and proper scope for this movement towards the ‘constitutionalisation of private law.’ While some would prefer to reject entirely the insertion of references to fundamental rights in private law disputes, the general view in European nation states appears to be that although private law claimants cannot rely upon such fundamental rights to create new claims or causes of action against other private parties (as opposed to the state), it is possible that fundamental rights may influence the interpretation of existing private law at least to the extent that interpretations of private law rules and principles should not contradict fundamental rights.