Civil Courts as Constitutional Courts: Polity-building through private law in Europe

What can and should be the role of national civil courts in a European private legal order? This article explores the courts’ position against the backdrop of experiences in the ‘failed’ projects envisaging a European Civil Code and a European Constitution. It is held that rather than aspiring to find a lasting settlement in such static foundational texts, which courts should interpret and apply, the more dynamic interaction of national and European sources and institutions should be embraced. Descriptively, civil courts’ contributions can be accounted for in terms of ‘hybridization’, insofar as their judgments merge elements of EU law with rights and remedies under national private laws in a deliberative process that transcends national and European boundaries. Normatively, it is submitted that civil courts may be considered to perform a constitutional task insofar as they contribute to a dynamic process of polity-building in Europe.