The constitutional momentum of European contract law: on the interpretation of the DCFR in light of fundamental rights

This paper presents a constitutional analysis of the Draft Common Frame of Reference (DCFR) that has been prepared by a network of European legal scholars. The central question is to what extent the DCFR reflects fundamental values shared by the Member States. In order to answer this question, this paper analyses the relevant DCFR provisions in the light of fundamental rights, such as those laid down in national Constitutions and international treaties. Comparative remarks are made on the effects of fundamental rights in the national contract laws of various Member States (the Netherlands, Germany, England, and Italy), since the DCFR provisions that refer to fundamental rights correspond to some typical cases (or Fallgruppen) of fundamental rights application that have arisen in these countries. The structure of the analysis accordingly follows three main categories: the interpretation of the rules of contract law, non-discrimination in contractual relationships, and the validity of the contract. Attention is paid to direct and indirect effects of fundamental rights in European contract law cases as well as to the legal-political implications of these effects. On the basis of the comparative analysis, finally, it is submitted that choices will have to be made regarding the extent to which legislators and judges have to take into account the values expressed in these rights and, importantly, which form should be given to the provisions of a Common Frame of Reference in order to reach the highest possible level of protection of these values in contract law throughout Europe. Only then will the further harmonisation of European contract law truly contribute to the establishment of a European Constitution