The general principle of fairness, recently articulated by the Court of Justice of the European Union in the context of consumer law, is bound to prompt ambivalent scholarly reactions. Fairness in private law could be dismissed as hopelessly indeterminate: yet another venue of judicial balancing, a technique already seen ad nauseam in Luxembourg, whereby lip service is paid to conflicting considerations, but no real solace can be found against regressive outcomes of law and policy choices. At the same time, the judicial articulation of a general principle of fairness in private law could be seen as a prompt for domestic courts to entertain context-sensitive considerations, in such a way as to redress, within the boundaries of judicial discretion, the predicaments of situationally disadvantaged parties. A Rawlsian reading of fairness would point precisely in this direction. Particularized, policy-oriented inquiries into the distributive stakes of each dispute, such as the relative impact upon low-income subjects of (in)validating certain contract terms or (dis)allowing certain remedies, could ultimately raise the standards of substantive justice in the EU. These pages, based on the premise that distributive analysis in private law adjudication is desirable, set forth the argument that the CJEU has recently proven capable of identifying distributive trade-offs in the name of fairness, that such uses of judicial discretion do not exceed the scope of the court’s institutional competence, and that the Court should not retreat from this laudable path. To be sure, at times the Court has also misused the idea of fairness, reducing it to an empty representational device through which facile slogans could unduly displace serious distributive analysis. Nevertheless, the Court’s occasional embrace of the principle in substantive terms deserves attention and praise. In the midst of sobering reflections on law’s complicity in perpetuating Europe’s inequalities, it may be important to take stock of narrow, but clear, progress through law. As a result of fairness-driven holdings in Luxembourg, state legislators have already faced considerable pressure to control aggressive debt collection practices in austerity-ridden countries. Progress results as well from the inter-institutional dialogue increasingly triggered by the supranational regulation of private autonomy. The transmission belt that connects the Troika’s recipes for growth to the member state governments’ austerity reforms is notoriously rigid and leaves little room for textured accounts of its social consequences. It is in the context of contract law adjudication that, by contrast, such accounts find a stage. The post-crisis anecdotes of private misery that are found in the litigation of contract disputes acquire not just visibility, but also legal, justiciable form. Shoring up such hard-won expressive outlets in the face of countervailing messages is essential. The argument proceeds as follows. Section 2 outlines the CJEU’s ‘discovery’ of fairness as a general principle of civil law in the path breaking case E Friz. Section 3 equates the general principle of fairness with distribution-sensitive adjudication, and illustrates how the CJEU’s balancing of conflicting interests in its preliminary rulings could be regularly informed by lucid forms of distributive analysis. Section 4 posits that, given the conceptual and systemic autonomy of civil law principles, judicial fairness can radiate meaning beyond the confines of B2C disputes and onto broader inequality debates without any undue blurring of canonical partitions (private/constitutional, legal/political). By way of comparison, Section 5 identifies several functional equivalents of the general principle of fairness in U.S. contracts adjudication and recounts their rise and fall. Section 6 shows how the decline of judicial fairness has led U.S. progressive jurists to pursue the goal of fairer transactions outside of court, and points to the downsides of excising fairness from contracts adjudication. On the basis of this assessment, Section 7 affirms the usefulness of a judicial principle of fairness in supranational private law, but it cautions the CJEU against resorting to false or facile dichotomies in the balancing exercise that fairness requires. The essay concludes by joining an emerging strand in current legal scholarship. This strand remains critical of the shortcomings of the EU legal architecture from the perspective of distributive justice, and yet clings to law – as both process and substance – whenever law can effectively fence off two ongoing phenomena: the deployment of economic dogma as a conversation stopper in policy-making circles, discussed in Section 8, and the endless proliferation of ‘unweighted’ narratives in EU discourse, which are too often balanced against one another as if they all had equal importance and legitimacy (Section 9).
Fairness at a Time of Perplexity,
General Principles in EU and Comparative Law
Available at: https://scholarship.law.bu.edu/faculty_scholarship/150