دادگاه‌های مدنی و سیاست اروپایی: نقش قانونی قضاوت حقوق خصوصی در اروپا

The Chapters collected in this book explore the place and role of judge-made private law in an emerging European polity. Examining case-law from the perspective of different theories and viewpoints, scholars and judges assess and reflect on the role of judges in civil cases for polity-building in Europe. The Chapters thus present a kaleidoscopic view on the dynamics of private law adjudication against a European backdrop. The book aims to add a private legal perspective to existing discourses in European constitutional law on Europe’s political constellation. It aspires to enrich two debates – the first on the influence of fundamental rights in private legal relations, and the second on the constitutional dimension of European private law. The contributions are placed within a framework of five sub-categories or dimensions of judge-made European private law: politics of European private law adjudication, rights, remedies, representation and reflections of judges on specific cases. Acknowledgements Contents Contributors Table of Cases 1. Civil Courts and the European Polity: An Introduction I. Judges in Utopia II. Fundamental Rights and European Private Law III. Private Law and the European Polity IV. Five Dimensions PART I: THE POLITICS OF EUROPEAN PRIVATE LAW ADJUDICATION 2. Judge-Made European Private Law and European Polity-Building I. Two Worlds Apart II. The Body of CJEU Judgments III. Assessment of the CJEU Judgments IV. On the Way to a European Polity? 3. On the Doubly Constitutionalising Character of European Contract Law I. Introduction II. The Constitutional Dimensions of the Law of Contracts III. Implications for 'Constitutionalism' IV. An Alternative Response: Finding a New Forum for Addressing the Doubly Constitutionalising Character of Contract – The CJEU V. Political Europe's Contribution to Contract Law 4. Reimagining Europe Through Private Law Adjudication I. Private Law and a European Polity II. Utopian Thinking in European Private Law Adjudication III. Three Judicial Utopias IV. The Europe-Making Capacity of Adjudication 5. Deconstructing the CJEU's Jurisprudence to Enable Judicial Dialogue I. Introduction II. A Methodological Roadmap III. Effectiveness, Effective Judicial Protection and the Constitutionalisation of EPL IV. A Critical Analysis of Effectiveness and Effective Judicial Protection V. Measuring Effectiveness ... VI. ... And Choosing Among Different 'Causes of Action' VII. Unearthing the CJEU's Judicial Ideology VIII. The Way Forward? PART II: RIGHTS 6. The Societal Impact of EU Anti-discrimination Law: Widening and Deepening Equality in the Private Sphere I. Introduction II. Non-Discrimination in the Private Sphere III. Three Paradigmatic Case Studies: Feryn, Chez, Achbita and their Follow-Ups IV. Defining Private Duty-Bearers in EU Anti-Discrimination Law V. Conclusions 7. Freedom of Speech, Consumer Protection and the Duty to Contract I. A Missing Link: Consumer Protection and Freedom of Expression II. A Story in Three (and a Half) Pieces III. Strategies of Inclusion IV. The Obligation to Contract Through Freedom of Expression V. A Toolbox for EU Consumer Law PART III: REMEDIES 8. Article 47 of the Charter of Fundamental Rights in the Case Law of the CJEU: Between EU Constitutional Essentialism and the Enhancement of Justice in the Member States I. Introduction II. The Indirect Judicial Review of National Procedural Rules by the CJEU III. The Content of Article 47 of the Charter IV. The Impact of Article 47 on the National Procedural Systems: Between Procedural and Substantive Justice V. Conclusion 9. Justice in Times of Crisis: The Signalling Function of Article 47 of the Charter of Fundamental Rights in Consumer Debt Collection Cases I. Crisis as a Catalyst of Procedural Transformation II. Article 47 and Orders for Payment Issued Against Consumers in Spain III. A Signal of Unconstitutionality IV. Article 47 and Arbitration Clauses in the Netherlands V. A Call for 'Open Constitutionalisation' 10. Judicial and Administrative Protection Intertwined: The Right to an Effective, Proportionate and Dissuasive Remedy I. The Rise of Administrative Protection and the Transformation of Enforcement II. The Relationship Between Administrative and Judicial Protection and the Enforcement Triangle III. The Coordination and Complementarity of Enforcement Mechanisms IV. The Right to an Effective Remedy and the Coordination Between Administrative and Judicial Protection V. Conclusions PART IV: REPRESENTATION 11. Representing Future Generations Through European Private Law Climate Change Litigation I. Introduction II. Climate Change and Future Generations III. Political Theory Problematises the Representation of Future Generations IV. Future Generations in Three European Private Law Climate Cases V. Concluding Remarks 12. The Case of the Ilva Steel Plant: A Never-Ending Battle between Health, the Environment and Employment I. The Tragedy Behind Ilva II. Balancing the Rights at Stake III. The Anthropocentric Proceduralisation of the Environment IV. 'Reflected' Environmental Damages V. Liability Without Fault VI. Establishing the Causal Link VII. Some Policy Remarks 13. The Causal Link in Tort-Based Climate Change Litigation: A Challenge for the Courts I. Introduction II. The 'But For' Test and the Conditio Sine Qua Non Formula III. Specific Court Solutions for Complex Causality Constellations IV. Causation and Climate Change Damage V. Summary and Overall Conclusion PART V: REFLECTIONS 14. The Job of the Judge in the Supranational European Rule of Law I. Introduction II. The Job of the Judge in the Dutch Rule of Law III. Shaping the Job of the Judge in the European Rule of Law IV. Article 47 CFR: Ubi Ius, Ibi Remedium V. Towards Effective Judicial Protection under the Dutch Rule of Law VI. Conclusion 15. Lights and Shadows of the Aziz Case Index "Maybe not surprisingly, public law has always been seen as the vehicle for driving polity building in Europe. But what role might private law play? This collection argues that it plays a crucial one, as interactions in civil society, which it governs, are the bedrock of any shared identity. It take a four part approach when doing so; firstly it explores the theoretical questions at play before moving onto a discussion of judicial activity in European private law. Next it offers case studies to further support its position. Finally it offers a mosaic where expert practitioners articulate the role that European private law judges see for themselves in building common ground. This important book will be read with interest by all scholars of European law, both public and private."-- Provided by publisher