The development of EU private law has followed the conferral of responsibility for additional policy areas to the Union and the corresponding expansion of its legislative competence. Due to the gradual transformation of the Commission from an executive authority to a political institution, this development has been guided, in more recent years, by the changing policy priorities of the respective Commission; this will be shown below in Chapter VI. The harmonisation of private law is promoted in several ways. In numerous cases, the Court of Justice has set limits on the divergent evolution of national private law, thereby prompting a convergence of national laws; this has been characterised as negative harmonisation, see infra, Chapter VII. While negative harmonisation still leaves considerable leeway to Member State laws, positive harmonisation (put into eff ect by EU legislation) creates common legal rules at the level of the Union. How those rules are produced, their scope and the type of legal instrument chosen by the Union depend on the available legislative bases, see infra, Chapter VIII, while the degree of harmonisation achieved by those rules diff ers as between minimum, maximum and optional forms, see infra, Chapter IX. The resulting private law acquis can be assigned to several thematic clusters, see infra, Chapter X.

HISTORICAL SURVEY

THE FIRST PHASE (1958–1985)

The founding Treaties –ECSC and EEC

The founding treaties took hardly any note of private relations and private law. The only pertinent reference contained in the Coal and Steel Treaty was Article 65 § 4 ECSC, enunciating the nullity of agreements and decisions made in violation of the prohibition of cartels. This provision was transferred to Article 85(2) EEC, which is now Article 101(2) TFEU. From the very beginning, this rule made clear that the Treaty would become relevant for private relations; it was later declared to be directly applicable. Apart from this provision, the Coal and Steel Treaty did not deal with private relations and did not, in particular, enable the Coal and Steel Community to approximate national laws. This changed in the EEC Treaty.