Autore: Alpa, Guido
Titolo: CESL, Fundamental Rights, General Principles, Rules of Contract Law
Periodico: Osservatorio del diritto civile e commerciale
Anno: 2013 - Fascicolo: 1 - Pagina iniziale: 105 - Pagina finale: 118

Divided into five sections, this paper depicts a fresco of the role of general principlesand fundamental rights in the EU legal system, specifically focusing on their applicationwithin the harmonization process of European private law and aiming to outline their relationwith the proposed Common European Sales Law (hereinafter CESL). The Author pointsout how, in the proposed draft of the CESL, any mention about fundamental rights is missingwhile general principles are recognized. Here lies the problem: how should we deal with alegal text that, on one hand, evades fundamental rights and, on the other hand, proposes itselfas a closed system (i.e. to be interpreted and developed autonomously)? The Author startshis argumentation by moving from the consciousness that principles is not a technical term,but a versatile one with an indistinct meaning thanks to which, as a matter of practice, theexpressions general principles, values, fundamental rights and human rights can be used interchangeably.Evidences of that are the Charter of Fundamental Rights of the EU, the EuropeanConvention on Human Rights and the case law of the European Court of Justice, which witnessthat assumption and prove that fundamental rights stand for general principles that today areofficially legally binding by means of the Consolidated version of the Treaty on EuropeanUnion. Concluded this reconstruction, the Author moves on and can eventually outline thedifferent ways to include the Charter principles among the CESL principles (consequentlymaking them directly applicable to the relationships between private parties); at the sametime the reader's attention is drawn to the ongoing discussion about which venue could bebetter.




SICI: 2281-2628(2013)1<105:CFRGPR>2.0.ZU;2-O
Testo completo: http://www.mulino.it/download/article/10.4478/74692
Testo completo alternativo: http://www.mulino.it/doi/10.4478/74692

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