Giving voice: a public sphere theory of European private law adjudication

Abstract

This Article addresses the question of how to explain and justify the allocation of politically sensitive legal questions to civil courts in the European Union. It proposes a pluralist theoretical view on interactions of private law adjudication with legislative initiatives in the process of building a European political community. This is elaborated on the basis of a reconstruction of the interaction between judicial and legislative processes in three high-profile cases (concerning non-discrimination, housing and climate change) in light of three theoretical perspectives: social justice, constitutionalism and public sphere theory. The first two perspectives shed light on the legal-political dimension of private legal questions in the European Union and manners in which to handle the plurality of sources and institutions in this field. They do, however, not fully clarify the distinction and relation between Habermasian discourses of justification and discourses of application of law in European Private Law adjudication. The Article suggests that public sphere theory, with a basis in Fraser’s work on transnationalisation, can complement the theoretical understanding of the role of judges in European Private Law. It is submitted that the interaction between national and European levels of adjudication helps maintain transnational deliberative spheres in which the legal-political stakes behind private law can be discussed. This opens up space for the inclusion of different voices in democratic deliberations on questions of social justice. Private law adjudication may thus be considered to contribute to the initiation of discourses of justification which serve the re-imagination of a European political community.

1. A judge-made Europe?

‘In the silence of politics, judges are making Europe,’ Stefano Rodotà once observed.¹ This assertion related to the judicial elaboration of fundamental rights protection under the European Union’s Charter of Fundamental Rights (EUCFR) in the early years of the millennium. It seems to ring equally true for current developments in case law on topical questions such as climate change, the housing crisis and inclusive labour markets. What is more, in many of these cases recourse is sought to classical doctrines of private law to address fundamental societal questions: employment contracts frame the debate on which restrictions may be placed on the manifestation of religious beliefs in the workplace, housing has become one of the main areas in which unfair contract terms control takes effect, and climate change is addressed through tort-based claims.² The old question on how legislative and judicial processes relate to one another, thus, requires renewed attention.

This Article aims to reconstruct the role of the judiciary in European Private Law in theoretical terms, in order to establish to what extent an expansion of political deliberation from legislative to judicial processes in Europe may be justified. Since reconstructions may never be deemed to be normatively innocent,³ it will first explain the background to this idea on the changing role of civil courts in Europe in some detail and specify the normative assumptions underlying this view, which rely on democratic ideals of inclusion and representation. It will do so on the basis of a demarcation of the field of European Private Law (EPL), illustrated by an elaboration of three cases that show how the role of judges in this area has evolved in recent years (Section 2). In the subsequent analysis, three theoretical frameworks for understanding EPL adjudication will be presented and explored. First, it will be investigated to what extent the influential literature on social justice and EPL can explain and guide adjudication in this area (Section 3). Second, the constitutional dimension of EPL adjudication will be examined (Section 4). Third, having found these two theories to be of value but not fully able to address questions of inclusion in transnationalised private legal settings, the analysis will move on to an elaboration of theories on the function of public spheres in contemporary democratic systems, relating them to developments in European private law. In particular, the work of Habermas, Fraser and Benhabib will form a foundation for the further development of a theory of European Private Law adjudication (Section 5). It will be submitted that this latter theoretical approach is necessary to complement insights that theories on social justice and constitutionalism have to offer on EPL adjudication, especially regarding the role of case law in maintaining spaces for public deliberation on desirable legal solutions for addressing societal problems. Throughout this theoretical analysis, the three aforementioned examples from case law will serve as touchstones to assess which aspects of EPL adjudication the different frameworks can and cannot grasp.

Methodologically, the analysis fits within a strand of New Private Law Theory (NPLT), as defined by Hans Micklitz, Stefan Grundmann and Moritz Renner in their recent book with the same title.⁴ NPLT’s core ideas are that theoretical work on private law should be (i) pluralistic, taking into account insights from different disciplines, (ii) comparative, looking into different legal systems and different legal theoretical approaches (including legal culture and legal history), (iii) application-oriented, (iv) not State-centred or exclusively national, and (v) reflecting critical approaches to private law.⁵ This view, thus, promotes a pluralist interdisciplinary openness of legal scholarship and practice as a normatively desirable way in which to consider questions of private law.⁶ This paper, in accordance with the premises of NPLT, combines a contextual analysis of representative cases in the field of EPL with a both critical and (re)constructive analysis of the role of the judiciary in this area, in particular in relation to national and European legislatures.

In conclusion, it will be submitted that the comparative strength of a public sphere theory of EPL adjudication lies in its capacity to explain and justify the manners in which judicial interactions contribute to the inclusion of underrepresented groups (Section 6). Not only do these interactions provide space for the voices of those who are not heard, or not recognised on par with others, in legislative processes. They also contribute to the prioritisation of issues and the development of new and more effective remedies to respond to the needs of these groups. As such, in conclusion, it is sustained that European Private Law adjudication, despite all its imperfections, makes a valuable contribution to deliberations on the legal–political background to rules of private law in Europe and, accordingly, the constitution of a European polity. A theory of judicial law-making in Europe, therefore, needs to incorporate insights from public sphere theory in order to explain and guide private law adjudication in this broader legal-political context.

2. Maps of a changing landscape: the evolving role of judges in European private law

A. Three examples from case law

As a contribution to scholarship that theorises what judges do and should do when assessing cases between private actors (individuals, companies),⁷ the following analysis aspires to map and critically analyse⁸ important changes in the role of civil courts in Europe. Three examples from recent case law may serve as an illustration and starting point.⁹

The first one concerns non-discrimination in employment relations. In October 2022, in a case referred to as L.F. v SCRL, the Court of Justice of the European Union (CJEU) ruled that company policies that prohibit employees from manifesting their religious beliefs through the wearing of visible signs, such as an Islamic headscarf, do not constitute direct discrimination as long as such policies are applied in a general and undifferentiated manner.¹⁰ Comments on the judgement were quick to point out that it sustains a line of case law of the CJEU that leaves considerable space to employers to impose ‘neutrality policies’ that are likely to discourage in particular Muslim women from participating in the labour force.¹¹ While some welcome the space given to companies’ economic interests in justifying such policies, many warn for negative effects that the Court’s balancing of the rights of employers and employees may have on Muslim women.¹² Rulings in the cases of Achbita,¹³ Bougnaoui ¹⁴ and Wabe & Müller,¹⁵ which preceded L.F. v SCRL, inspired a lively and critical debate not only in law journals, but also on blogs and other fora, engaging scholarship¹⁶ as well as civil society organisations.¹⁷ A contribution by former Advocate General Sharpston has been very influential in informing this discussion on diversity and inclusion. AG Sharpston had initially been assigned the case of Wabe & Müller before her departure from office following Brexit. The opinion that she prepared for this case was published as a ‘shadow opinion’ in the form of a blog post¹⁸ and provides important insights in the ways in which the construction of direct and indirect discrimination in EU law developed. In particular, she warned against the creation of a ‘kind of “black hole” between direct discrimination and indirect discrimination into which a number of questionable practices fall’.¹⁹ Considerations from Sharpston’s shadow opinion were widely picked up, not only in comments on the CJEU’s Wabe & Müller judgement,²⁰ but also in the adjudication of new cases such as L.F. v SCRL, in which Advocate General Medina’s opinion took into account several of these observations.²¹

Secondly, a line of case law from the CJEU that led to wide-ranging debates involving academic scholars as well as a broader audience concerned the fairness of contract terms relating to housing. Starting from the Aziz case in March 2013,²² the Court recognised the possibility to challenge terms in mortgage contracts under the EU Directive on Unfair Terms in Consumer Contracts. Spanish procedural law was found not to be in compliance with the Directive and was amended by the Spanish legislature following the CJEU’s judgment in the Aziz case. This case had arisen as a result of the economic crisis of 2008 that affected many homeowners in Spain, who were no longer able to pay the instalments of their mortgage loans and faced eviction proceedings initiated by the banks that had granted them these loans on terms that rather one-sidedly favoured these banks. The Aziz case was broadly discussed in Spanish societal debates²³ as well as internationally.²⁴ Although Mr Aziz and his family did eventually not benefit from the CJEU’s judgement themselves,²⁵ the importance of the adjudication of his case can hardly be overstated. Not only did the CJEU’s judgement in the case induce a reform of Spanish procedural law, it also formed the starting point for a further series of preliminary references to the Court concerning the assessment of standard terms in mortgage in loan contracts in Spain as well as in other EU Member States, including Poland²⁶ and Hungary.²⁷ Moreover, the societal debate surrounding these cases allowed for those affected by economic hardship following the crisis to be heard and for legal remedies to be developed for them.

A third example is found in national cases on climate change that rely on European and transnational sources and institutions. Perhaps more so than any other contemporary adjudication, climate change litigation has in recent years induced broad societal discussions that bridge national and transnational spheres. The claim of NGO Urgenda against The Netherlands attracted worldwide attention, being one of the first cases in which tort liability was successfully invoked to obtain an injunction, in this case against the Dutch government, to do more to reduce greenhouse gas emissions that contribute to dangerous climate change.²⁸ In a final judgement in the case in December 2019, the Dutch Supreme Court held that such a duty is substantiated by the State’s obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR), which safeguard the right to life and the right to protection against serious damage to one’s environment respectively.²⁹ The judgements in all three instances of the Urgenda case led to intense national and international debates, both in legal scholarship³⁰ and in the media.³¹ They, moreover, paved the way for further climate change litigation, providing a line of argumentation that was adopted in similar law suits in, for instance, Belgium³² and France.³³ A judgement of the district court of The Hague in the case of Milieudefensie v Shell in May 2021, furthermore, opened the discussion on the possibility to hold private actors liable in a similar manner as the State.³⁴ Imposing an injunction on oil company Shell to change its business model so as to reduce greenhouse gas emissions, the district court took into account the obligations that may arise for businesses on the basis of Articles 2 and 8 ECHR as well as the non-binding UN Guiding Principles on Business and Human Rights.³⁵ As the debate on these national cases with European and transnational elements continues, both the CJEU and the European Court of Human Rights (ECtHR) are also being addressed.³⁶ The developments in climate change litigation, thus, form another primary example of the changing role of courts in the interaction between national, European and transnational levels of governance. Importantly, this role is inspired, shaped and guided by the public debates in which climate change is put on the political agenda.³⁷

B. The development of European private law

The practice of judicial reasoning in private legal cases that we witness in the three case examples involves a combined application of rules and principles deriving from national, European and transnational levels of governance. These cases are representative of private legal disputes that arise and need to be resolved in the interplay of different levels of governance.³⁸ Mapping the changing landscape in which courts perform their roles, thus, requires for a meaningful account to be developed on the differences between such ‘Europeanised’ cases and ones that are adjudicated primarily on the basis of national sources of law. Whereas the latter cases may be understood in their national context, the legal landscape in which private legal relations with a European element are assessed becomes more complex, both substantively and institutionally. For instance, the substantive rules that determine the outcomes of cases on non-discrimination or housing derive from the implementation of EU Directives in national laws. If there are doubts on the interpretation of such Directives, national courts rely on guidance from the CJEU. In such Europeanised cases, accordingly, questions arise on the relation between rules of private law deriving from different levels of governance and the interaction between institutions that enact and interpret transnational and European private law.

‘European Private Law’ (EPL) as a field is defined here as comprising the compound³⁹ of national, European and international rules and principles that govern private legal relations in Europe. It should be admitted that the definition remains a tentative one. EPL has been a long time in the making⁴⁰ and as yet there is no unified instrument of private law at the European level, such as a Civil Code,⁴¹ which outlines the legal framework within which concerns of a private legal nature are dealt with in Europe. The relative vagueness of the definition has the advantage that it leaves space for a continuous reassessment of EPL’s goals and meaning.⁴² It does justice to the dynamic nature of the development of rules of private law in a transnational and European context.

For practical purposes, in the following analysis ‘Europe’ territorially is considered as encompassing the EU Member States and the United Kingdom (UK). A reason for the focus on the EU is that the case law of the CJEU has been very influential in shaping the rules that govern private legal relations on the interface of the national and European level. Although other relevant European legal instruments, such as the European Convention on Human Rights, involve more countries than the EU Member States, the study of the EU and its institutions, accordingly, is likely to provide meaningful insights into the role of courts in the development of private law in Europe. Keeping the UK within the selection, furthermore, may be justified on the basis of its long membership of the EU preceding Brexit and the continuing significance of the Common Law as one of the leading traditions of private law in the world.⁴³

Private law is understood here in a broad sense, including all rules and principles that govern relations between private actors. The analysis is, thus, not limited to economic transactions, but potentially captures all relations between private actors in which the law is of significance. While EU law does not make an explicit distinction between public and private law, the scope of the analysis may be considered to extend to questions that in national systems of private law would be deemed to be part of sub-fields of contract, tort, property, family and company law. Further distinctions might be made according to, for instance, specific types of contracts (tenancy, employment, consumer sales, etc.). Since it is not the purpose of this analysis to give a comprehensive account of private law in the EU, representative examples will be discussed in order to develop a theoretical account of the role of the judiciary in the development of the field of European Private Law.

C. The Changing Role of Civil Courts in Europe

When considering the work of courts in the area of EPL, one may wonder why such politically sensitive matters as those concerning non-discrimination, housing and climate change are made the topic of litigation at all. Would it not be rather for the political process to develop solutions for societal questions that concern communities at large? What is it that makes these questions emerge in case law rather than in legislative processes?⁴⁴

Rodotà’s observation on the role that judges claimed in the silence of politics comes to mind once more.⁴⁵ This assertion related to the application of the EUCFR in the time period between its official proclamation in December 2000 and the moment it became legally binding with the entry into force of the Lisbon Treaty in December 2009. While the Charter did not have a legal status during that time frame, national as well as supranational courts abundantly referred to its provisions and, thus, gave substance to the EU’s fundamental rights catalogue in the prelude to its formal enactment.⁴⁶ In doing so, the courts contributed to the development of a vision of Europe that looks beyond the rationales of economic collaboration in order to articulate an idea of political community with a basis in shared fundamental rights and principles.

As the Charter slowly but steadily found recognition in different fields governed by EU law after 2009,⁴⁷ Rodotà’s words gained further meaning and importance. Partly, this was due to changing political tides – while the early years of the new millennium were characterised by relative Euro-optimism, the economic and financial crises that unfolded after 2008 brought the EU in much more troubled waters. In the absence of political consensus on the handling of problems in, for instance, national housing markets, courts in different EU Member States were faced with an extensive number of cases in which they had to reconcile European and national rules and principles.⁴⁸

These developments challenge traditional distinctions between public law and private law. The extent to which access to adequate and affordable housing is realised for all members of a society, for instance, does not only depend on regulation by public authorities, but also on the terms set by private parties such as landlords and mortgage providers.⁴⁹ The series of preliminary references in Spanish mortgage cases, accordingly, questioned not only the procedural framework for mortgage enforcements set out by the Member State, but also addressed the substantive limits to the conditions that banks could impose on lenders under the Unfair Terms Directive.⁵⁰ In a similar vein, questions were raised on the obligations arising under the Charter for private employers: To what extent are they bound to the non-discrimination principle in a similar way as public entities?⁵¹ Can Charter provisions on, inter alia, the right to representation⁵² or the right to compensation in lieu of annual leave be directly invoked against private employers?⁵³ In answer to these questions, the Court of Justice of the EU gradually defined and extended the scope of application of the EUCFR, establishing that all Charter rights in principle have the potential to bind private actors as well as public entities, provided they are ‘mandatory and unconditional in nature’.⁵⁴ Although the number of Charter provisions that have been recognised to fall within this category so far remains limited,⁵⁵ the case law shows that the responsibility for safeguarding European fundamental rights is by no means limited to public authorities, but is shared with private actors.

Cases adjudicated in the interaction between national civil courts and the CJEU have, accordingly, become a point of reference for discussing solutions for societal questions that transcend individual disputes. Courts are regularly asked to determine which duties may exist for private actors under EU fundamental rights in private legal relationships. In addition to the above-mentioned examples, such cases often concern EU Directives in the field of consumer contract law.⁵⁶ Furthermore, in climate cases, non-discrimination law and other areas, the ECtHR is addressed as well.⁵⁷ Since European and national legislatures have often not fully clarified the relation between EU law and national private laws, or are not able to do so in the process of drafting or implementing EU legislation, courts in individual cases face fundamental questions on the legal and institutional framework within which they have to adjudicate these disputes.

D. First or second best

The evolving engagement of courts with the balancing of fundamental rights of private parties has met with considerable resistance in legal scholarship. A first line of critique questions the process of constitutionalisation of private law, that is, the extent to which courts assess private legal matters as constitutional questions, in particular through reference to fundamental rights.⁵⁸ A second objection concerns the division of competences between judiciary and legislature, expressing concern with judicial activism or even a judicial coup d’état.⁵⁹

The critique of private law adjudication that concerns its constitutionalisation may be considered to have at least two components: (i) private autonomy and (ii) the relation between private law and constitutional theory. Firstly, both in national jurisdictions and in relation to the case law of the CJEU and ECHR concerning private legal matters it has been suggested that the translation of such matters into a balancing of fundamental rights endangers the autonomy of private actors.⁶⁰ A famous example can be found in the German Bürgschaft case, in which the German Constitutional Court established that civil courts should have invalidated a suretyship contract concluded by the daughter of the principal, since she had not been able to fully assess the severe financial implications of a contract that she had mainly entered into to help her father.⁶¹ The Constitutional Court’s judgement relied on the consideration that private autonomy of both parties should not only be safeguarded in formal terms (eg the daughter having reached the age of majority), but also in terms of substantive equality: the one-sided stipulation of contract terms by the bank, which was in a much better position to understand the complex financial products it offered, had reduced the daughter’s autonomous decision-making to almost zero. Accordingly, the German Constitutional Court held that civil courts should consider suretyship contracts null and void in order to redress the balance between contracting parties in cases like these.⁶² It has been submitted that such far-reaching fundamental rights-based interventions in the interpretation of contract law imply an end to private autonomy.⁶³ Private actors’ freedom to decide on their contractual arrangements would be significantly restricted by considerations of a public nature.

Such a reading of the case law, however, seems to not fully consider the extent to which restrictions of private autonomy may be in line with a legal community’s view on why and how individual freedom should be limited. Maria Rosaria Marella, in this context, distinguishes limitations of freedom of contract based on models of paternalism, perfectionism and social justice.⁶⁴ In her view, one explanation of the Bürgschaft judgement is that it can be justified by the paternalistic view that family relations should not become part of the sphere of contract law, as family solidarity may be endangered by the market-oriented nature of contractual relations.⁶⁵ Another explanation, Marella submits, could be found in a model based on social justice, according to which freedom of contract should be limited to protect weaker parties.⁶⁶ Following Marella’s line of reasoning, therefore, the constitutionalisation of private law should not be dismissed beforehand. As also suggested by other authors who do not consider the limitation of autonomy to cause unsurmountable problems,⁶⁷ constitutionalisation deserves further scrutiny in light of the broader debate on social justice in EPL.

A second critique of constitutionalisation of private law submits that private law itself encompasses a detailed and sophisticated set of rules and principles, the logic and coherence of which might be disrupted if private legal questions are considered in terms of fundamental rights.⁶⁸ Through such processes of constitutionalisation, private law might become subordinated to constitutional law⁶⁹ and the type of judicial reasoning that is usually reserved to highest (constitutional) courts might be required from judges in civil courts.⁷⁰

This line of critique, like the first one, creates a contrast between private law and constitutional law that is not necessarily helpful for theorising the judicial role in contemporary EPL. The case law on employment, housing and climate change cannot fully be understood or guided if one only looks at it through the lens of private legal doctrines, such as those concerning enforcement of contracts or establishment of tort liability. Whereas a limited contractual perspective would not question the enforcement of companies’ neutrality policies towards employees who feel impelled to wear a symbol manifesting their religious beliefs, or the enforcement of mortgage contracts that homeowners freely entered into, these cases become highly problematic when considered from a fundamental rights perspective. The responsibility of governments and companies in regard to a big societal problem such as climate change, at the same time, becomes more tangible when addressed through duties of care in tort law. In the light of these developments, constitutionalised cases of private law seem to have become a part of the work of judges in courts of all instances.⁷¹

Besides these two objections against the process of constitutionalisation of private law, resistance against the growing influence of judicial interventions in EPL relates to a concern with the relation between branches of government. In particular constitutional scholars have critically scrutinised apparent movements towards a gouvernement des juges.⁷² Not surprisingly, climate change litigation is one of the areas in which such concerns regarding the judiciary taking up tasks of the legislature or executive power have prominently arisen. Cases like Urgenda have raised the question whether it is for courts to decide in individual cases that so clearly address a theme that requires a political debate and legislative intervention.⁷³ Similarly, the mortgage cases following the reference of Aziz to the CJEU raised many questions of a macro-economic nature that went beyond the individual disputes between homeowners and banks.⁷⁴ And in EU private law, non-discrimination in employment relations is an area that is as much subject to regulation and administrative enforcement as it is to case law.⁷⁵ From a theoretical perspective, EPL adjudication on such politically sensitive topics might, thus, seem to be a second-best solution.⁷⁶

E. Maps, milestones and compasses

In sum, the evolving role of judges in the field of EPL requires mapping of a dynamic rather than a static kind.⁷⁷ In order to understand and guide EPL adjudication, we need to draft maps of a changing landscape. High-profile cases such as the ones on non-discrimination, housing and climate change may be seen as milestones in this legal landscape, that provide points of reference for analysing the judicial role. Different theoretical perspectives, finally, may serve as compasses to guide our understanding and enrich the theoretical framework.

In the following, accordingly, the landscape of EPL adjudication will be assessed from three different theoretical perspectives: social justice, constitutionalism, and public sphere theory. Relating these perspectives to the three cases, it will be examined what they can teach us about EPL adjudication and what remains out of their reach. Adopting the pluralist normative premises of New Private Law Theory,⁷⁸ the analysis will seek to establish where theoretical views complement one another, rather than to determine the analytical or normative superiority of one theory.

3. Social Justice and EPL Adjudication

A. Private law and social justice

An influential strand of scholarship that has sought to deconstruct as well as reconstruct dynamics of European Private Law is one that considers the field in terms of social justice. Where private legal relations are often considered to primarily concern the relation between two private actors, the argument goes, the rules governing such relations have broader societal implications.⁷⁹

The distinctive approaches can be traced back to the Aristotelian concepts of corrective and distributive justice.⁸⁰ Corrective justice theories in private law explain parties’ legal obligations on the basis of their interpersonal relation, which, for instance, justifies a tortfeasor’s liability towards the person who incurred damage because of their actions.⁸¹ Concerns of a distributive nature, such as the financial situation of the tortfeasor, are in this view not of significance when establishing liability.⁸² Similarly, rules of contract law do not have to pay heed to differences in bargaining power between contracting parties. Theories of distributive justice in private law, in contrast, hold that the impact of private legal rules on the distribution of wealth and power in societies should be taken into account.⁸³ Under such theories, it may, for example, be justified to consider an oil company’s market position when assessing a tort-based climate change claim, or to redress the contractual balance between businesses and individuals by imposing rules on unfair terms assessment in consumer contracts.

In the field of European Private Law, the debate does currently not so much concern the question whether private law has distributive consequences,⁸⁴ but rather how to understand and address these.⁸⁵ Furthermore, in the layered legal order comprised of national, European and transnational rules of governance, the question arises as to the division of tasks among legislature and courts in deciding on private legal matters with a distributive dimension.

B. Social justice and the EU legislature

Daniela Caruso identifies the publication of a Social Justice Manifesto in 2004 as a defining moment of reflection on the direction that the EU legislature’s development of contract law could and should take.⁸⁶ The Manifesto, which was drafted by a group of leading scholars from different Member States,⁸⁷ submitted that the European Commission’s technocratic, market-oriented approach to the harmonisation of rules of contract law was too one-sided. It obscured the ‘real issues’ underlying a project of creating a shared contract law in Europe, in particular the discussion of ‘shared fundamental values concerning the social and economic relations between citizens’,that is, an idea of social justice.⁸⁸

While highlighting the success that the Manifesto has had in putting social justice on the European legislative agenda for contract law, Caruso mentions several points on which it has not fully lived up to its promise. A flaw, in her view, may be found in the Manifesto’s strong reliance on deliberative processes in order to find consensus on questions of justice and lack of a further elaboration of what ‘social justice’ meant – the Manifesto did not specify how weaker contracting parties should be recognised and what idea of distributive justice should prevail.⁸⁹

This critique, in my view, could possibly be countered in part by considering the ongoing elaboration of more comprehensive theories of justice for European private law as well as the increasing impact of the Charter of Fundamental Rights on the case law of the CJEU and national courts. First, while Caruso correctly pointed out that academic projects such as the Draft Common Frame of Reference (DCFR) understated the difficulty of reconciling different ideas of justice,⁹⁰ legal scholars have in recent years brought forward several theories of justice for European private law. The most influential so far is probably Micklitz’s concept of ‘access justice’ as a self-standing notion underlying EU law, compared to distinct ideas of social justice in the contract laws of the main European traditions.⁹¹ Hesselink, furthermore, is proposing a democratic theory of European private law, in which the deliberative process is fundamental but certainly not deprived of a conceptualisation of justice. Rather, in a Habermasian sense, justice would be served by a democratic process in which those addressed by rules of private law also have a say in the enactment of these rules.⁹² The present analysis equally seeks to contribute to the theoretical framework for justice in European private law, by assessing the role of judges in this field and the inclusion of different voices in the debate through the process of adjudication. Although such theoretical views are surely not uncontested, and they may not address all points of concern that Caruso identified,⁹³ they do meet her more general call for clarification of what ‘justice’ means.

Second, the increasing influence of the EUCFR on matters of private law has raised hope for a further development of the social side of private law in Europe. Although the prevailing market rationale is not absent from cases adjudicated under the Charter,⁹⁴ the recognition of a potentially broader impact of Charter provisions in private legal cases opens possibilities for strengthening social rights. In the case of Bauer and Broßonn, the CJEU determined that in principle the entire Charter, as a source of primary EU law, could have an impact on matters of private law.⁹⁵ It depends on each specific provision to what extent it may actually take such effect: the CJEU requires rights to be ‘mandatory and unconditional in nature’ for them to apply to private legal relationships.⁹⁶ It remains to be seen which Charter rights will be deemed to fulfil these criteria and to what extent they may serve to develop the social side of European private law. Still, in line with the reconstructive approach adopted in this analysis, it may be said that the CJEU has opened up possibilities for further addressing issues of social justice through EUCFR rights.

Further to her critique of the Manifesto, Caruso introduces several suggestions for furthering social justice through contract law. She proposes to focus more on consumer protection for those who are especially vulnerable because of illness or disability, to improve the methodology for gathering data on the manners in which EU contract law enhances people’s legal protection, to recognise and help ‘losers’ of market integration, and to broaden the scope from consumer sales contracts to contracts for employment, housing and access to credit.⁹⁷ Caruso’s suggestions resonate with other voices in today’s discourse on European contract law. Images of the ‘average’ or ‘vulnerable consumer’ in European contract law, for instance, are broadly being debated.⁹⁸ Moreover, the impact of harmonised rules on different people in the centre or the periphery of the EU has become the subject of debate, insofar as EU law may unequally distribute wealth among citizens in older, Western European Member States and younger, Central and Eastern European Member States.⁹⁹

A proposal for a rethinking of the Social Justice Manifesto has also been put forward by Muriel Fabre-Magnan. Reflecting on the relatively recent reform of the French law of obligations, she submits that contract lawyers in Europe should address several issues that could form part of a ‘New Manifesto for Social Justice in European Contract Law’.¹⁰⁰ Similarly to Caruso, she suggests that a new Manifesto should take into account those types of contracts that are ‘crucial’ to people’s access to essential goods and services, such as long-term or ‘life time’ contracts¹⁰¹ for employment, accommodation, health care, banking and insurance, and perhaps access to internet services.¹⁰² Furthermore, it should address how contract law may contribute to sustainability, eg by promoting the ‘right to a durable product’ to emphasise quality over quantity of consumer goods, and a ‘right to a sustainable contract’ to safeguard a fair production process.¹⁰³ Fabre-Magnan’s proposal adheres to a human rights approach: contract law should not only prevent parties from concluding contracts that infringe fundamental human rights, but should also guarantee that the performance of contracts does not violate such rights.¹⁰⁴

C. Rethinking justice through adjudication

What should be the role of judges in civil cases against the background of this debate on social justice in European Private Law? It is submitted here that at this stage of the debate, we should take a step back and reconsider the framing of ‘social justice’ itself. Most of the aforementioned suggestions focus very much on distributive issues – among businesses and consumers, among richer and poorer people, among Western and Eastern European countries, and among Europe and the world.¹⁰⁵ Europe’s justice deficit in the field of private law, however, cannot only be explained in the light of social justice understood as distributive justice. It also concerns questions of inclusion and representation. Consumers and consumer organisations, for instance, are known to have more difficulty in getting their views and interests taken into account than strong business lobbies.¹⁰⁶ Poorer consumers may benefit less from protective laws or may even bear the expenses for richer consumers’ legal protection,¹⁰⁷ without a strong say in the creation of rules that govern them or possibilities to challenge these rules.¹⁰⁸ Perspectives of Central and Eastern Europeans may be less well represented in ‘universal’ legal rules and principles enacted by the EU than those of Western Europeans.¹⁰⁹ And views on sustainability and global issues, such as climate change, do not have a clear place in European democratic processes.¹¹⁰ Europe’s justice deficit in the area of private law, when assessed in light of theories of democratic involvement, thus concerns not only the manner in which overarching political stakes, or matters of public policy, are reflected in individual private legal cases. It also regards the opportunities for participation in rule-making processes for those who are governed by the rules.

The three cases that form our main points of reference in this analysis illustrate this. First, the judicial evaluation of company policies that prohibit employees from manifesting their religious beliefs does not only concern the interpersonal relation between employer and employee (corrective justice), or the redressing of an imbalance in the process of negotiating the conditions for an employment contract (distributive or social justice). The legal framework for assessing such company policies affects the possibility for certain societal groups to actively participate in the labour market. Insofar as these company policies are allowed, for instance because of the company’s interest in satisfying customers that do not wish to be served by employees wearing a religious headscarf,¹¹¹ these policies impede the social inclusion of women of Islamic faith.¹¹² Second, the judicial assessment of unfair terms in mortgage contracts does not only concern the interpersonal relationship between homeowner and bank (corrective justice), or the protection of individuals against the one-sided determination of contract terms by banks (distributive or social justice). As became clear in the Spanish mortgage cases, the adjudication of specific contract terms formed an expression of societal tensions following the economic crisis of 2008. These concerned the stability of the financial system as well as questions on homeownership and the protection against evictions. Given the importance of people’s homes for their personal lives and social inclusion, more was at stake than the protection of weaker parties in contract negotiations.¹¹³ Third, tort-based climate change litigation explicitly looks beyond the private legal relation between a party responsible for emissions (State, company) and another party affected by climate change resulting from emissions (corrective justice). The fact that cases are often brought or supported by NGOs, who represent the collective, testify of this. Furthermore, climate change cases are not necessarily aimed at redistributing wealth or power (distributive or social justice), although claimants tend to point their arrows at those in a position to have an impact (States or powerful companies). A motivation for bringing climate cases to the judiciary rather seems to be to prioritise the topic of climate change on the political agenda and give voice to societal concerns on the slowness of the legislative process.¹¹⁴

In this light, it seems necessary to propose a rethinking of ‘justice’ in order to capture the role of the judiciary in the pluralistic and multi-level reality within which legal and political processes take shape. Theories of social justice shed light on one dimension of EPL and have been very influential in assessing the EU legislature’s agenda. Yet, a theory of adjudication for EPL also needs to consider the institutional setting and public spheres within which the case law develops.

4 The constitutional dimension of EPL adjudication

A. Private law and European constitutionalism

The theoretical and conceptual framework within which the role of civil courts in Europe is studied here connects established notions of European Private Law to ideas of European constitutionalism. European constitutionalism’s relation to private law is understood as encompassing questions on the division of competences among institutions as well as questions on the process of founding a European political community.¹¹⁵

In the first place, the question where the decision is made who has the ultimate authority to decide on a specific matter is inherent to Europe’s institutional constellation. In a public legal setting, prominent manifestations of this fundamental question of Kompetenz-Kompetenz have emerged in the debate on the interaction between national highest (constitutional) courts and the CJEU.¹¹⁶ The private legal pendant of such cases concerning the coordination of constitutional competences may be found in cases with a similar, though perhaps less visible,¹¹⁷ legal–political sensitivity. One may think of the aforementioned mortgage cases, which raised the question whether the CJEU’s intervention in Spanish procedural law should be praised for its social impact or rather critiqued for its apparent judicial activism.¹¹⁸ Older examples include the case law on the ex officio assessment of unfair terms in consumer contracts,¹¹⁹ on the private legal enforcement of EU competition law,¹²⁰ and on the reach of Charter rights in private legal relations.¹²¹ The constitutional question posed by these cases, ‘who decides who decides?’, is a first element that deserves consideration when understanding the role of civil courts in Europe in constitutional terms.

In the second place, a constitutional perspective on European private law raises the question what can and should be the contribution of private legal adjudication to the foundation of a European political community. Stefano Rodotà’s observation on the development of judge-made law when legislatures remain silent,¹²² when related to civil courts, suggests that the answer lies in the contribution of case law on private legal matters to the process of making Europe. In the absence of a full-fledged European Civil Code, the development of private law in the interaction between EU and Member States takes place through the enactment and interpretation of provisions of Union law that have a bearing on private legal relationships. These comprise both provisions of primary EU law (the Treaties¹²³ and Charter) and provisions of secondary law (in particular Regulations and Directives).¹²⁴ Often, these provisions cannot be applied directly to private legal relationships, such as consumer contracts, but have to be integrated in the interpretation of provisions of national private law (Civil Code, statutes).¹²⁵ Courts in civil cases, thus, face the Herculean task¹²⁶ of establishing the order among these instruments and defining answers for individual cases. It is this part of their work that may be deemed to be constitutional, insofar as it requires engagement with underlying values and principles that constitute the political community that is governed by European law, including private law.

To some extent, in this discourse private law may be seen to assume a constitutional role, defining the basic framework for interactions among private actors (individuals, companies) in a transnational setting.¹²⁷ The judicial interpretation of measures of European private law in individual cases not only concerns the individual case but also relates to the bigger question of which shared ideas form the basis of a European political community. A full-fledged polity may not be there at this moment. Yet, starting from the normative proposition that the further development of a European polity is something worth striving for, the question arises to what extent private law adjudication can and should contribute to the constitution of Europe.

B. Who gets the last word in EPL adjudication

Constitutional theorists have conceptualised the normativity of ‘European constitutionalism’ in different degrees. Tuori, for instance, defines constitutionalism in Europe in a ‘normatively more neutral sense’ compared to thicker notions of national constitutionalism.¹²⁸ Since European constitutionalism is dependent – or even ‘parasitic’¹²⁹ – on national constitutional law, democratic and constitutional legitimacy should be found in the interaction of the national and European levels of constitutionalism.¹³⁰ In order to develop a general theory of the European constitution, Tuori accordingly takes the perspective of European law, while remaining aware of the existence of Member States’ points of view. In this sense, he distinguishes his work from that of constitutional pluralists, who aim to rise above the perspectives of EU and Member States in order to theorise the relations between national and European constitutionalism.¹³¹

Proponents of constitutional pluralism, such as Walker, Kumm and Maduro, have proposed different models for conceptualising the interaction between the EU and the Member States’ legal orders, in particular through constitutional courts’ engagement with EU law.¹³² While it remains the subject of debate to what extent such theories present a descriptively convincing¹³³ and normatively desirable¹³⁴ approach to coordination among legal orders in the EU, most do seek a point of reference for defining which legal order, or which court, has the final say on a specific question. Overarching principles, on the meta-level that surveys national and European legal orders, determine how these orders should interact.¹³⁵ It has been observed that, as such, theories of constitutional pluralism seem to support a monist view on the European legal order.¹³⁶ Although they raise the question of internal coherence to an overarching level that encompasses both the EU and its Member States’ legal orders, in essence they are looking for consensus on guiding principles in a way that is not so different from what national legal systems purport.¹³⁷

While a pluralist account of European private law may be criticised on similar points as theories of constitutional pluralism, it may serve to obtain a better understanding of how institutional choices are made in the interaction of EU law and national private laws.¹³⁸ A model of ‘moderate pluralism’, for example, could guide the interpretation and application of contract law in the interaction of national courts with the CJEU.¹³⁹ Inspired by theories of constitutional pluralism, moderate contract legal pluralism would rely on meta-principles that determine which court should decide a dispute on the interface of EU and national law. In addition, these principles would take into account the substantive dimension of contract law. Private law, including contract law, does not only care about the institutional question of who decides, but also about the outcome of the legal assessment. Is the contract valid or not? Which remedies may be claimed in case of non-performance? So, a theory of moderate pluralism would indicate which legal order, or in fact, which court was in the best position to answer the substantive question.¹⁴⁰

Pluralist theories on the interaction of courts in EPL may, thus, be able to solve questions of Kompetenz-Kompetenz. Yet, these types of analysis do not seem to fully answer queries on whether certain cases should be the topic of case law at all or should instead be directed to the legislative process. When further considering the polity dimension of European constitutionalism, the relation between the judiciary and the legislature deserves attention.

C. Justification and application: horizontal effects of fundamental rights revisited

In scholarship that adopts a methodological approach that has affinity with NPLT,¹⁴¹ the roles of legislatures and judiciaries in a political community are regularly assessed on the basis of a framework inspired by Jürgen Habermas’s seminal book Between Facts and Norms.¹⁴² Burgers has, for instance, developed the view that climate change litigation in EPL is democratically legitimate, since the protection of the environment is a constitutional matter that should be protected by courts.¹⁴³ Hesselink’s democratic theory of EPL, furthermore, defines the roles of courts and legislatures on the basis of a Habermasian understanding of their interrelations.¹⁴⁴ Finally, insofar as NPLT incorporates other sub-disciplines, a deliberative theory such as the one proposed by Torres Pérez provides further insights into the way in which the interaction between courts in Europe can be understood.¹⁴⁵

This type of theoretical work usually distinguishes legislative and judicial processes according to the different logics of argumentation associated with these branches of government, which Habermas names ‘discourses of justification’ and ‘discourses of application’.¹⁴⁶ Discourses of justification refer to the democratic deliberative procedures in which, in Western democracies, parliamentary bodies justify and adopt laws.¹⁴⁷ Discourses of application concern decisions on which norms in existing law are appropriate in situations that have been defined as precisely as possible, normally in judicial proceedings.¹⁴⁸ Accordingly, Burgers argues, insofar as environmental protection is part of the preconditions of a democratic system,¹⁴⁹ judges in climate cases are applying existing law. They are not entering into discourses of justification on new measures against climate change that should be adopted, but are enforcing climate obligations to which public authorities, and in some cases private companies, have bound themselves. Moreover, when transposing the distinction to the development of EPL, a democratic process requires participation of European citizens through legislative discourses of justification. Democratic private law would then, as Hesselink proposes, require legislative initiatives, such as a European Civil Code.

The distinction between discourses of justification and discourses of application, however, becomes more complex when considering the pluralist dimension of adjudication in Europe. Concerning the interpretation of fundamental rights in EU law, Torres Pérez, for example, draws on Habermas’s discourse theory to find legitimacy in the assessment of such rights on the basis of a dialogue between the CJEU and national courts.¹⁵⁰ She does not challenge the idea that courts engage in discourses of application when interpreting fundamental rights. Her theory of supranational adjudication rather addresses another aspect of this interpretive process, namely the interaction among courts fulfilling this interpretative role in an institutional setting in which no clear hierarchy can be established among them.¹⁵¹ The dialogue among courts as interpretive institutions in this view contributes to the legitimacy of rights protection in the EU.

Theorising the role of courts in EPL in light of a Habermasian understanding of deliberative democracy, thus, requires further scrutiny of the manner in which discourses of application take shape in a multi-level system of governance, in which national courts in civil cases interact with each other and the CJEU. In particular, the relation of this judicial interaction to discourses of justification deserves closer attention. For climate change litigation, Burgers’ claim that environmental protection has become part of the preconditions of a democratic system elegantly seeks the democratic legitimacy of cases like Urgenda within a Habermasian understanding of discourses of justification that have taken place in legislative processes. In this view, courts do no more than apply existing law that safeguards environmental (human) rights. For other cases, however, it might not be possible to (re)construct the legitimacy of judicial law-making in EPL in a similar manner, in particular when it is not clear how the political community to which the law applies should be demarcated. Another avenue that might, therefore, be explored is one that further problematises the role of courts in a multi-level setting, in which the relation between legislatures and courts does not have to be the same as in nation-states.

5. Public sphere theory and EPL adjudication

A. Private law and democratic inclusion

What seems to be missing in social justice accounts and constitutional accounts of EPL adjudication is an answer to the question why and how certain topics – housing, non-discrimination in employment, climate change – are sometimes allocated to the judicial process rather than the political, legislative process. On the basis of the previous analysis, it may be submitted that more attention should be paid to the role of courts in discourses of justification. This is not to say that courts themselves provide a full justification of new legal rules or remedies, as this would primarily remain the role of legislatures. What courts add in politically charged cases could rather be theorised as a contribution to the deliberative processes that make possible such justificatory discourses.¹⁵²

In this final part of the analysis, it will be proposed that public sphere theory can provide clarity on this point. Building on Nancy Fraser’s political-theoretical views,¹⁵³ and taking a reconstructive approach inspired by Jürgen Habermas, it is submitted that through case law a space may be maintained for deliberation on different ideas of justice or world views. This third theoretical view, thus, elaborates on the idea of democracy and the nature of the emerging European polity according to which choices are made on the division of tasks between legislatures and judiciaries in the EU.¹⁵⁴

The principle of democratic inclusion that is advanced here has a basis in the idea of co-originality of public and private autonomy developed by Habermas. In Habermas’s reconstructive theory of democracy, public autonomy implies that those who are addressees of the law at the same time have a role as authors in the enactment of the law.¹⁵⁵ This idea of self-legislation by citizens does not so much concern the moral self-legislation of individual persons, but rather captures a more abstract notion of the institutional legislative process in which those governed by the law should have a say.¹⁵⁶ Public autonomy, in Habermas’s view, co-originates with private autonomy. Legal subjects are allowed a sphere of private autonomy in which they do not have to account to others for their action plans. Both elements are present in private law, since private law defines the boundaries to the autonomous development of action plans through legal rules enacted in law-making processes.

While this idea of democracy clearly aims at inclusion of those governed by the law in the process of developing new rules, it encounters at least two challenges in the European setting. In the first place, the theory of democracy presented in Habermas’s Between Facts and Norms mostly seems to reconstruct the constellations found within nation-states. It explains the system of rights on which a (Western) democracy may thought to be based and the institutional roles of the legislature and judiciary in this setting. A further elaboration of the theory is needed to grasp the dynamics of a post-national order, in which multiple legislatures and judiciaries interact, such as in Europe.¹⁵⁷ How can self-government by those addressed by laws deriving from different levels of government be realised? In later work, Habermas has relied on the idea of dual citizenship to meet this challenge.¹⁵⁸ Individuals, who are both citizens of their home Member State and of the EU, participate in legislative processes on both levels. In this way, they take part in the process of building a political community simultaneously in the roles of citizens of the Member States and (future) citizens of the emerging European polity.¹⁵⁹

In the second place, however, the focus on citizenship poses another challenge to the idea of democratic inclusion. While the duality of European citizenship that Habermas defines raises questions of both an empirical and a normative nature – how can individuals reconcile competing national and European interests within their choices, and should they strive for this? – it is the concept of citizenship itself that entails even more pressing concerns for inclusion in the process of law-making in the field of private law. If self-government requires the authorship of all addressees of the rules, citizenship in certain instances may be too restrictive to include them all. For example, individuals do not necessarily have to be citizens of a Member State and the EU to conclude mortgage contracts or sales and services contracts that are governed by European Private Law. Similarly, one does not have to be a citizen of an EU Member State to bring a non-discrimination claim under national laws implementing EU Directives. Furthermore, climate change claims are usually brought by an NGO on behalf of the residents or inhabitants of a certain territory, without distinguishing among those who have citizenship within that territory and those who do not.¹⁶⁰ The question then arises to what extent and how their interests can be taken into account in law-making processes in order to realise the democratic ideals of public and private autonomy.

B. A matter of principle: all affected or all subjected

A normative assumption underlying this view on the inclusive dimension of private law adjudication in Europe is that inclusion in the democratic process serves the ideal of a more just society. Both Habermas’s and Fraser’s views on justice emphasise the importance of inclusion in law-making processes of those who have a stake in the outcome. Inclusion, accordingly, becomes part of a reframed notion of justice, in which full participation in social life does not only depend on economic structures and cultural values but also on politics of inclusion and exclusion in decision-making processes.¹⁶¹ Insofar as private law adjudication may give voice to underrepresented groups in legislative processes, the question is to what extent and how judicial reasoning should strive for contributing to inclusiveness.

An assessment of the inclusiveness of decision-making processes in Europe requires a normative principle for evaluating the framework. As a most likely candidate, Fraser proposes the ‘all-subjected principle’, which holds that ‘all those who are subject to a given governance structure have moral standing as subjects of justice in relation to it’.¹⁶² She contrasts this principle with those of membership, humanism and affectedness, which she rejects in turn. Her criticism of the membership principle concerns its restrictiveness – this rings true for the European context, where the criterion of citizenship might not encompass all parties who have a stake in law-making processes. Fraser rightly points out that a humanist principle, as a criterion for demarcation, may have the opposite effect of being overly inclusive, as it abstracts from historical social relations and thus proposes a notion of personhood that may potentially give standing to everyone in respect to everything.¹⁶³ The principle of affectedness, finally, is at a similar risk of being overinclusive, as it is prone to the butterfly effect according to which everyone is affected by everything.¹⁶⁴ The all-subjected principle would not have these drawbacks and would allow us to identify the plurality of relevant frames of governance for specific issues.¹⁶⁵

The all-subjected principle fits the area of European private law, insofar as it allows for the distinction of different governance structures – national, European, hybrid – in which individuals may participate. What is more, such participation does not necessarily require citizenship, although this is encompassed in the notion of subjectedness.¹⁶⁶

Still, at least two reservations may be made. First, the all-subjected principle might not cover all concerns, since it presumes the existence of a governance structure and does, therefore, not apply in cases where such a structure is lacking.¹⁶⁷ In non-regulated areas, private powers cannot be held to account. Furthermore, persons who are affected by, but not directly subject to, certain rules would not have political standing under the all-subjected principle.¹⁶⁸ Fraser counters these objections by postulating the idea of an overarching regime of global governance to which everyone is subject and which provides a basis for a global public sphere.¹⁶⁹ Both participation on a lower level of governance and on the overarching level could then be justified on the basis of the all-subjected principle.¹⁷⁰ As elegant as this solution is, it raises the empirical question whether a global regime can be identified as well as the normative question how such a broad understanding of the principle will allow it to make more convincing distinctions than the ones of humanism and affectedness.

Despite these reservations, nevertheless, it seems that for private law adjudication in Europe the all-subjected principle could work quite well. At least within the spheres of EU law and the ECHR overarching governance regimes may be discerned. The principle could serve the assessment of the interaction of these frames with those of national private laws in the context of case law. From this normative perspective, it would then need to be evaluated to what extent judicial interaction can contribute to transnational public spheres. Which voices are included? Who are subjected to the governance structure in European private law and how is their equal participation secured?

C. Transnationalised public spheres and EPL adjudication

The beginning of an answer to these queries lies in the concept of the ‘public sphere’ that, in a Habermasian reconstruction, serves the deliberative processes in which law is developed. In this view, the public sphere is understood as a network for communicating information that yields public opinions on defined topics.¹⁷¹ It serves as a sounding board and amplifier for problems that must be solved by the political process.¹⁷² The informal flow of public opinions, as well as court decisions in politically sensitive cases, may influence democratic deliberations on solutions for the identified problems.¹⁷³ For courts in civil cases this implies that their reasoning on politically charged matters has a certain democratic dimension. It may give space to voices that would otherwise remain unheard in the legislative process, whether the affected parties are citizens or not. Moreover, it may serve to prioritise topics on the political agenda.

A complicating factor concerns the conceptualisation of a public sphere in the European multi-level constellation. Again, the question arises how to address Europe’s post-national¹⁷⁴ or transnational dimension. Nancy Fraser’s work on a critical theory for transnationalising public spheres offers guidance on this point. In particular, Fraser problematises the Westphalian framing of public spheres, which fails to account for communicative opinion forming that transcends the boundaries of nation-states.¹⁷⁵ She outlines the prerequisites for a meaningful discussion on the question to what extent transnationalised public spheres can perform the democratic political function that is ascribed to them in national settings.¹⁷⁶ An essential condition, which is of great relevance for the European situation, is that of inclusiveness to all who have a stake in the outcome of deliberative processes.¹⁷⁷ In particular, it has to be made sure that all in principle are given similar chances to participate in the deliberations.¹⁷⁸ The question of political representation of affected parties, thus, has to be addressed alongside questions of economic distribution and cultural recognition.¹⁷⁹ Bringing back the focus to the democratic role of courts in civil cases, it may therefore be inquired to what extent Habermas’s view on the contributions of case law to the public sphere can be translated to the interaction of national and European judiciaries in the field of private law. To what extent can courts in civil cases contribute to improving inclusion and equal participation in deliberative spheres?

Inclusion in the context of European Private Law is understood here in two distinct but related manners. In the first place, in line with Habermas’s theory, it regards the possibility for those governed by certain laws to participate in the deliberative processes that generate these laws. In the second place, following the social justice debate in European private law, the concern is with the substantive improvements that may be reached for underrepresented groups. The two are related insofar as inclusion in deliberative processes may serve substantive goals of social justice, such as the enactment of rules that protect weaker parties. The protection of mortgage holders in relation to banks in the Spanish mortgage saga illustrates this, in particular as it took shape in the debate surrounding the Aziz case. Mr Aziz did not have Spanish citizenship, and he had thus not been included in legislative processes concerning the laws governing his mortgage contract, as he could not vote in national elections. His case against the bank and its referral to the CJEU, however, did have an unmistakable impact on Spanish legislative processes, as the CJEU’s judgement inspired a reform of national procedural law. Although Mr Aziz and his family sadly did not benefit from this reform, with attempts to regain their home remaining unfruitful, the judgement in their case led to substantive improvements for economically vulnerable mortgage holders from a social justice perspective.¹⁸⁰ The Spanish mortgage cases like the ones of Aziz, thus, contributed to maintaining a space for deliberation on which legislative action was needed to redress imbalances between groups in society.

Fundamental rights reasoning once more contributes to building bridges between the national and transnational levels. The considerations of these rights can not only serve to make more explicit underlying legal–political stakes in private law, such as the need for effective remedies for homeowners confronted with detrimental terms and conditions that have one-sidedly been imposed by banks. With an eye on democratic will-formation, Seyla Benhabib has submitted that the debate on the interpretation of fundamental rights may give space to ‘democratic iterations’ across transnational legal sites.¹⁸¹ A dissenting opinion of an ECtHR judge, for instance, allows for debate on new elements in the transnational discussion.¹⁸² In a similar way, both the Advocate-General’s Opinion in the Aziz case and the CJEU’s judgement induced broad societal debates in Spain. Climate cases such as Urgenda, moreover, have given rise to national as well as transnational discussions and have inspired other tort claims with a basis in rights protected under the ECHR. Climate claims against companies, in this context, are likewise being perceived as providing more effective means to take action to reduce emissions.¹⁸³ Fundamental rights reasoning in civil cases, in these cases, connects national and European elements in transnationalised public spheres.¹⁸⁴

D. The Europe-making capacity of EPL adjudication

A presumption underlying this line of inquiry is that a system of private law in principle coincides with a community.¹⁸⁵ Rather than limiting this overlap to the territory and jurisdiction of the nation-state, the composite nature of a private law that is partly national and partly European necessitates a reimagination of the community that is governed by EPL.¹⁸⁶

The imagination of a European polity challenges understandings of democracy that are limited to the model of the nation-State. As Wilkinson has shown, for example, models of foundational constitutionalism that derive their authority from the people that it represents, a ‘demos’, are difficult to transpose to the EU in the absence of such a unified constituency.¹⁸⁷ Adaptations of the theory are necessary to capture the different manner in which a plurality of ‘demoi’ coexist and interact. With Nicolaïdis, one may even speak of a ‘demoicracy’.¹⁸⁸ What is more, it is unlikely that the imagination of a European political community can copy the nation-State model in which one theory of justice can explain and guide interactions in society.¹⁸⁹ Given the compound nature of the polity, democratic processes are shaped by a combination of national and supranational institutions and proceedings. Moreover, democratic processes in some Member States may adhere to different ideas of justice than those in other Member States and in EU institutions. A theory of EPL adjudication that acknowledges democracy as a premise of the European polity, thus, has to say something about the manner in which case law on private legal matters handles the plurality of decision-making structures and values within which specific private legal questions arise.

On the basis of the analysis made here, what emerges is a role for EPL adjudication in maintaining inclusive transnationalised public spheres that allow for deliberation on underlying legal–political questions. Such deliberative processes may serve for voices of groups that were underrepresented in earlier legislative processes to be heard. Urgent societal questions, such as those concerning non-discrimination, housing and climate change receive public attention and may, thus, be put on the political agenda for further legislative initiatives to be developed.¹⁹⁰ Legislative and judicial processes may, accordingly, be said to prevail over one another in cyclical patterns, in certain areas increasingly complemented by private regulation.¹⁹¹

This brings us back to the polity-building dimension of private law adjudication in Europe, or the Europe-making capacity of EPL adjudication.¹⁹² In light of the principle of democracy defined here, judicial interaction may be held to contribute to the maintenance of transnational public spheres for deliberation on the political stakes in private law. An essential feature of such spheres is that those with a stake in the debate can participate in an equal manner. Building on Fraser’s convincing plea for an inclusive principle of all-subjectedness that requires participation ‘as peers, regardless of political citizenship’,¹⁹³ a tentative conclusion that emerges from this exploration is that courts in civil cases, through their interaction with the European level, may to some extent mend the democratic deficit in European Private Law. Their role in the maintenance of national and transnational deliberative spaces allows for inclusion of those who are subjected to the relevant regimes but may not be heard in legislative processes. To the extent that case law may induce the development of new remedies, it can serve substantive inclusion, or solidarity, as well.¹⁹⁴ Ideally, developments in EPL adjudication, in this way, catalyse discourses of justification and, thus, contribute to the process of building a European political community.

6. Discourse, justification and EPL adjudication

Surveying the legal landscape shaped by legislation and adjudication in European Private Law, developments in case law raised the question if and how the allocation of politically sensitive legal questions to civil courts could be explained and justified. From three case examples selected for the analysis in this paper a changing role of the judiciary emerged: parties bring private legal claims on non-discrimination, housing and climate change to national courts in the EU, which in their turn seek guidance from the Court of Justice of the EU, and in some instances the European Court of Human Rights. With the aim of contributing to a theory of EPL adjudication, this paper combined three theoretical perspectives in order to obtain a better understanding of the dynamics of law-making between legislatures and judiciaries.

The three theoretical compasses each explain and guide aspects of the judicial role in EPL. First, a social justice perspective makes clear which legal–political stakes are at play in high-profile cases such as the ones on non-discrimination, housing and climate change. Although rules of private law may often seem to be of rather technical nature, the balancing of parties’ interests in cases between private actors is not neutral. Outcomes of such balancing processes may be considered to be reflective of the (re)distribution of wealth and power among groups in societies, which is of relevance for providing adequate legal protection to employees, tenants and mortgage holders, and those affected by greenhouse gas emissions. What a social justice perspective does, however, not fully clarify is why the judiciary may be called upon to strike a balance of broader societal interests that is usually entrusted to the legislature.

In the second place, a constitutional perspective offers further theoretical guidance on the interaction among institutions at different levels of governance, the national and the European. In particular, a constitutional-pluralist view, that seeks to define principles for the coordination of law-making among different legal orders, can serve the theorising of judicial conversations among national civil courts and the CJEU and ECtHR. When looking into reasons for institutional choices between legislative and judicial processes, however, constitutional theory does not provide full answers for EPL either. This seems due to the difficulty of establishing to which political community EPL pertains and, accordingly, where discourses of justification take place that legitimise rules of private law.

In the third place, transnational public sphere theory elucidates the democratic dimension of judicial law-making in EPL. It shows how even those who are not connected through citizenship to a jurisdiction in which a case arises may be engaged in deliberative processes on the legal–political dimension of the legal question through their participation in public debates that transcend the borders of nation-states. For instance, case law on companies’ dress codes may contribute to debates and legal choices on how to create inclusive working environments for people of all convictions. And case law on Spanish mortgages has had wide-ranging effects on the way that credit contracts are legally assessed and debated in EU Member States. National cases on climate change that are widely debated transnationally, finally, may contribute to public awareness and the start of similar cases elsewhere.

When combining the insights from these three theoretical perspectives, adjudication does not seem to be a second-best option in EPL when compared to legislative processes. Instead, it fulfils a role in cyclical processes in which politically sensitive topics are put on the legislative agenda. This is particularly important in a multi-level setting, where legislative change might be difficult to achieve and time-consuming. Adjudication may then serve to address and prioritise matters that cannot wait, thus contributing to the discourses needed to justify new legal solutions. In this way, judges in private legal cases may, indeed, be said to be making Europe – not by themselves, but by maintaining spaces for public deliberation on private legal questions.