Positive Integration: Harmonisation of National Law through Directives and Regulations

This chapter discusses ‘positive integration’ (i.e. the EU promulgating legislation in the form of directives and regulations to create a common market for its Member States) and its impact on the national private laws of EU Member States. The chapter discusses the differences between regulations and directives, highlighting advantages and disadvantages of both. Whilst regulations and so-called ‘maximum harmonisation’ directives seem to harmonise the laws of the Member States, they can be difficult to fit into the national legal system, threatening the latter’s coherence. Minimum harmonisation directives, on the other hand, seem easier to fit in, but in practice this is not always the case.

Furthermore, it is questioned whether positive integration is actually helping to create an internal market—other factors, such as language or physical distance might be bigger obstacles than different legal regimes. At the same time, an online market is emerging, and the EU has perhaps a better case for harmonisation of private law applying there. The chapter also touches upon other pressing questions, including: should only consumers be protected as weaker parties or should small business be regarded as in need of special protection as well? And should the EU maintain its focus on sales or also harmonise service contract law, especially in light of the call for a more sustainable private law and the upcoming servitisation?