Preliminary remarks on substantive law and implementation

Books on private law are usually confined to the explanation and analysis of substantive precepts. They build on the assumption that the design of institutions, procedures and legal methods will follow the needs of substantive law and do not delve into the peculiar aspects of the implementation of the law in real life. That assumption is not justified in the case of EU private law, however. It develops in an environment that diff ers profoundly from that of any national legal system while its policy-driven nature requires –more than in any other private law regime –that its rules and principles are not just “law in the books” but mirror the “law in action”. In fact, they are intended to shape people‘s conduct and impact on social and economic relations in the sense of integration.

The latter objective clearly emerges from the recitals of many instruments of the Union which usually elucidate the underlying policy, oft en in combination with the general goal of integration. For example, the Sale of Goods Directive highlights the EU legislature’s intent “to unleash the full potential [of e-commerce] offered by the internal market.” This objective is not confined to a removal of legal barriers to the free movement of goods; such cross-border trade is intended to actually occur. The Union explicitly wants to “encourage” economic actors to engage in e-commerce. The rules of contract law are considered as instrumental to this objective. They are designated as “key factors shaping business decisions as to whether to off er goods cross-border. Those rules also infl uence consumers’ willingness to embrace and trust this type of purchase.”

On a similar note, the Regulation on air passenger rights points out that, despite a previous enactment, “the number of passengers denied boarding against their will remains too high …” and that the Union “should therefore raise the standard of protection … both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market.”