IECL Lunchtime Seminar - "Norm overlaps and norm conflicts in EU Private Law" and "Regularisation of Contracts : a Comparative Study between French and English Law"

Dr Christian Ruesling - University of Muenster

The sharp increase in the number of legal acts and provisions within single legal acts in EU Private Law has recently led to repeated discussions on whether one norm displaces or takes precedence over another. In particular, the concurrence of sector-specific and general Directives or Regulations can lead to conflicts and inconsistencies. Often, the question then is whether and under what conditions one provision can supersede or take precedence over another, even if this is not clearly provided for by the provisions of a legal act.

The CJEU does not yet seem to have developed a uniform method to deal with such norm-overlapping cases. German scholars, however, often criticise the CJEU for applying provisions too broadly cumulatively and for applying principles such as lex specialis derogat legi generali too rarely. In my post-doctoral ‘habilitation’ project, I therefore analyse, among other things, the understanding of this principle and the use of other arguments in national laws to decide whether one norm takes precedence over another, even without a clear provision to this effect.

This presentation will give an overview of current examples in EU Private Law and the methodology applied.

Celia Saidi - University of Paris 1 Panthéon-Sorbonne

Regularisation is commonly defined as the action of bringing an act or a situation in conformity with the rules.  Applied to contracts, regularisation ensures compliance of the contract with the rules governing its formation. The formation of contract is a supervised process which makes it possible to recognise its binding force to the contract. The non-compliance with the formation’s conditions vitiates the contract and exposes it to potential sanctions, such as nullity. Nullity is undoubtedly conceived by French lawyers as the usual sanction (la sanction normale) of contract invalidity. However, legal doctrine is well aware of the undesirable effects of the retroactive annulation of the contract. Therefore, recent literatures in this area have tended towards a search for techniques to “rescue the contrat”, such as regularisation. The study of the regularisation of contracts suggests challenging the concept of contract in the legal system by proposing a new balance between the will of the parties and the legality of the contract.