The Old and the New Limits to Freedom of Contract in Europe

ERCL 2/2006 The Old and the New Limits to Freedom of Contract in Europe
259
Now, on the one hand, the phenomenon of an increasing contractualization
of social life makes the definition of limits of freedom of contract urgent, as
new spheres of social life, traditionally imagined as external to the market
realm, are progressively ‘corrupted’ by a market rationale. Undoubtedly the
definition of limits to freedom of contract is an issue at stake in the harmonisation
process. Some provisions of the European Charter of Fundamental
Rights clearly show that this problem has already been perceived and confronted
at the European level. By introducing a market-inalienability rule for
body parts, Article 3 of the Charter aims to ban the very idea of exchange
from this area, notwithstanding the increasing impact of biotechnologies on
society both from a cultural and an economic point of view. Article 8 restricts
the viability of market transactions concerning personal data by imposing
special requirements for their circulation. The general principle of human
dignity sanctioned by Article 1 is a potential source of new limits on freedom
of contract in European law. 3
On the other hand, the peculiarity of the topic makes its harmonisation quite
problematic. Unlike most topics in contract law, the question of limits of freedom
of contract is widely perceived as a not a –merely technical question; on
the contrary it is regarded as a matter of highly political choices, the harmonisation
of which involves an intrusion into the intangible sphere of national
sovereignty. For this reason the harmonisation projects have been so far very
cautious or even laconic in this respect. Article 2 of the Pavia project of a
Code Européen des Contrats mentions mandatory rules, bonus mores and ordre
public provided by the Code itself, by EC law and by the laws of Member
States as general limits of freedom of contract. The implementation of such a
provision presupposes a body of common background rules, both of judicial
and legislative origin (criminal law rules, administrative pronouncements etc)
and a uniform interpretation of general clauses, whose vagueness makes the
harmonisation on this specific point infeasible.
The Principles of European Contract Law (PECL) came late to this point.
The first move was to leave the question aside given the great variety among
the legal systems of Member States. Later the solution was found in the following
(and predictable) formula: ‘A contract is of no effect to the extent that it is
contrary to principles recognised as fundamental in the laws of Member States
of the European Union’ (Article 15: 101). The provision implies a conver-
3 For this schematization of the limits to freedom of contract set by the EU Charter see
G. Resta, ‘Diritti della personalità e limiti della libertà contrattuale nell’evoluzione del
diritto europeo’, paper presented at the conference ‘Diritti fondamentali e formazione
del diritto privato europeo’, Università di Roma Tre, 28 June 2002, on file with author.