Competence and Subsidiarity Principles in the Context of European Private Law Harmonization

The subject of sovereignty referred to the European Union shows up repeatedly to experts and politicians. There is even no lack of intellectuals who promoted a lasting shift of balance in favour of Europe, which would be better able to provide results to ensure reactivity in view of urgency and anticipation in duration. Others, on the contrary, think that the sovereign nature of States represents a boundary with respect to the role that the Union may cover. Others, eventually, argue that the logic of sovereignty is to be discarded by now as a past effect that slows down the capacity of European Institutions to meet the contemporaneous instances. The debate on sovereignty of the Union witnesses that to the sovereign nature of a system, still important consequences are connected from a legal standpoint. Shifting sovereignty from a subject to another derives from the need to identify government levels that can provide answers to be the most effective and most efficient for the contemporaneous challenges considering also the resources available to them. In this context, paradigmatic, is the process of progressive Europeanization of private law. In particular, in Europe, since decades it is discussed about the opportunity of a major harmonization of Contract Law. At the end of 2011, two important novelties were recorded in this respect: the issue after a long elaboration, of the Directive on Consumers Rights, preceded by the publication two weeks before, of the Proposal of European Parliament and Council Regulation relevant to a common European law on sales. In October 2008, the European Commission presented a Proposal of Directive of maximum harmonization with the aim to define a sort of European Statute of Consumer Rights. This choice raised the strongest resistances. In this prospect it was underlined how the hypothetical intervention of the Proposal of Directive was not justified according to the principles or proportionality and subsidiarity. In particular the Commission of the European Parliament observed that the proposed instrument of maximum harmonization would have acted as a regulation, thereby depriving the States of any margin of discretionary power on law in this respect. Clearly, the approach of maximum harmonization, especially if horizontal, implies to transfer completely the legislative competence to the European Union with reference to the sectors dealt. If not adequately justified, the question of constitutional legitimacy and compatibility arises in respect of the principles of proportionality and subsidiarity that should guide the harmonization interventions. The current Directive justifies the intervention adducing that the aim of contributing to the correct operation of the internal market by obtaining of a high level of Consumers protection cannot be achieved sufficiently by the States members, but can be better realized at Union level; for this reason, it could act according to the subsidiarity principle of art. 5 of the EU Treaty. The Directive specifies to limit to what is necessary to do to achieve this aim in compliance with the proportional principle. This justification did not fully convince the exponents. Criticisms addressed to the Proposal of Directive are the ground of the revirement to which the Commission gave life at a certain point deciding to limit the object of the Directive on Consumers Rights and the projected maximum harmonization to the revision of the Directive on Contracts negotiated outside the commercial premises and to distance contracts as well as to propose again the idea of an optional instrument. A solution, the latter, that has a minor impact on national rights due to the attraction of the consumer statute at communitarian level. The reaction of national Parliaments to the Proposal of Regulation for a common right on sales of 11th October, 2011 was negative due to the accusation against the communitarian legislator of invading excessively and unjustifiably a field that must be left instead to national systems. In fact, adopting an optional instrument as provided in the Proposal for Regulation of an European Common right on sales does not mean renunciation of asserting the supremacy of European contractual law with respect to the national laws, but simply the choice of another instrument in order to pursue, maybe with longer times, the same result of superseding the national disciplines. Unsolved is indeed the question on the legal base on which the Proposal for Regulation should be founded on, in the implementation of the attribution principle sanctioned by art. 5, par.2 of the Treaty of the European Union. In the introductory report to the Proposal, the Commission makes a precise choice, identifying in art. 114 of the TFEU the legal base of the regulation that introduces a uniform set of norms of contract law, including measures of protection of the consumer, to be considered as a second system of contracts law within the national system of each State member. The executive of EU claims that based on par.3 of the same article, the European common law on sales ensures a high level of protection to consumers thanks to a corpus of mandatory norms that will maintain or improve the protection degree already provided by the norms in force in the EU. The choice of situating the legal base in art. 114 TFEU has been criticized considering the case record analyzed by the Court of Law according to whom, due to the optional instrument, should instead be covered by art. 352 of the TFEU. This norm should authorize in fact the adoption of measures when the EU action results to be necessary for the achievement of the objectives determined by the Treaties which have not provided for the necessary authority. It is also to note that the concept of “reconciliation” present in art. 114 TFEU involves an action of the EU for the harmonization of the national legal regulations by means of a directive or by replacing them by a regulation, without however authorizing the EU in introducing a separate legal regime only destined to be placed beside the internal law without being harmonized or integrated. The law of the Court of Justice admitted that the authors of the Treaty wanted to assign the communitarian legislator, in function of the general context and of the specific circumstances of the subject to be harmonized, a margin of discretionary power regarding the technique of most appropriate reconciliation in order to obtain the desired result, in particular in sectors characterized by complex technical particularities, but remains to be verified if the optional nature of the common discipline is coherent with the objective of the reconciliation of the States members law, since reconciliation may be only potential if the parties of the cross-border sales contract do not choose the application of the discipline. Besides this first problematic aspect, that maybe could be got over in force of the subject a maiore ad minus and by adhering to a wide notion of reconciliation of laws that also includes the norms applicable only further to the parties choice, the main obstacle to the adoption of the regulation based on art. 114 TFEU is indeed the circumstance that the regulation, actually, does not modify the national laws on cross-border sales by bringing them together, but adds a new European discipline to the single national disciplines with the escamotage of the regulation instrument, so that the national disciplines will keep on being applied telles quelles if parties don’t opt for the European discipline. On the other hand, the discipline is not exhaustive for the cases it has to regulate, so in view of the thesis that the harmonization included in the TFEU can be performed without modifying the national organization, but integrating them with a second regime for some contracts, this would not be achieved because the regime of optional cross-border sales contract is not identical all over the Union, but should be integrated due to aspect, not necessarily secondary, by the national legal regimes. In the substantial prospect adopted by the Commission, instead, the legal fundament appropriated for an act is to be determined in relation to its contents, i.e. to the main subject, so while art. 352 should be used as a legal base of an act only when no other regulation of the Treaty assigns the communitarian Institutions the competences necessary to adopt it , art 114 TFEU would enable the communitarian legislator to adopt measures to improve the establishment and the functioning of the internal market if really these measures have such a target, by contributing to the elimination of obstacles to economical liberty ensured by the Treaty and to the trades due to a heterogeneous development of the national laws. It was also noted by the Commission that all the initiatives directed to create an European contract law may be founded on the competences provided by art. 114 TFEU, in favour of which are also argumentations of technical characters as a legal base of the optional instrument. At the moment the matter is still open. The job, by reconstructing the nature and the consequences of competence and subsidiarity/ proportionality principles, declined in the private law field, will face in detail the position of the Countries such as Austria, Belgium, Germany and United Kingdom that officially declared their contrariety to the approval of the Regulation Proposal, considering that it is in contrast with the subsidiarity and proportionality principles.