Judicial law-making and the principle of effectiveness in European Union (private) law

Abstract

This paper aims to analyze the role and legitimacy of the «principle of effectiveness» in private law adjudication at European and national level, by adressing two preliminary goals: a) defining the meaning and normative force of the «principle of effectiveness» in European Union (EU) law, and whether they differ from the national courts' understanding; b) analyzing the impact of the right to an effective remedy (art. 47 Charter of Fundamentals Rights of the European Union [EUCFR]) in horizontal disputes. By relying on the methodology offered by the philosophy of language, the paper analyzes the two major specifications of effectiveness in the Court of Justice of the European Union (CJEU) case law —«effectiveness of EU law» and «effectiveness of judicial protection »—, and critically assesses the coherence and institutional fit of each «Sprachgebrauch», as well as their interactions. It then re-conceptualizes effectiveness as an «argument» which, being essentially indeterminate, may be easily misused, to foster integration in constitutionally sensitive areas, also trough private law adjudication. The results are finally used to evaluate the impact of the principle of effectiveness on national private law, suggesting that judges shall play a strong and pro-active role in their dialogue with the CJEU, forcing the latter to second-guess and further weighting its decisions, to open up new deliberative spaces in the EU project.