“Federal Common Law” in the European Union: A Comparative Perspective from the United States

Abstract

In this Article, the authors present a comprehensive examination of the existence and development of “federal common law” in the European Union, drawing upon the extensive legal commentary and jurisprudence concerning this doctrine in the United States. They assert that a two-part framework governs the creation of European “federal common law,” which provides parameters for the lawmaking power of the Court of Justice and for the content of Union and Community judge-made rules. The fundamental tensions underlying European and American “federal common law” relating to federalism, the principle of institutional balance and the separation of powers are explored, with particular regard to the implications of this doctrine for the federalization of European and American private law and the current activities involving European contract law. This Article then provides specific reflection on European and American "federal common law" in the fields of tort and contract law, as they constitute important areas of judicial lawmaking that have served to enliven these fundamental tensions in both legal orders.