Private Law Rights and Remedies Under the Free Movement of Goods and Services

The free movement of goods and services are central to the functioning of the Internal Market of the European Union (‘EU’). While many scholars have devoted their attention to analysing those circumstances and the way in which they have been articulated in the case law of the Court of Justice of the EU (‘Court of Justice’), considerably less attention has been paid to the exact consequences in private law of the application of the free movement of goods and services. Does such application to private law relationships create, modify or extinguish rights and obligations, does it affect existing private law remedies, and if so, how? If we remember that trade in goods and services typically takes place based on private law arrangements, namely contracts, we must admit that the decisions rendered by the Court of Justice will also have an impact on underlying contracts and related private law rights and obligations of individuals. It means that all judgements of the Court of Justice in the area of goods and services (may) have implications on pre-existing private law rights or have created new rights for private parties wanting to contract with others in the Internal Market. Taking this fact as the point of departure, this Chapter provides a systematic analysis of private law implications of the application of the freedom of goods and services. It is argued in this Chapter that the impact of these freedoms on private law rights and remedies, and the underlying relationships that are governed by them, is pervasive and multi-faceted, yet not well understood in legal scholarship and practice. The Chapter assesses via which doctrines these freedoms create, modify or extinguish rights and obligations in ‘horizontal’ relations (ie, relations governed by private law) and whether and how private law remedies are affected in that process as well. Anticipating those consequences is important for legal practice as they may offer genuine and powerful arguments to solve the underlying private law dispute.

Paul Verbruggen is an Assistant Professor of Private Law at the Business and Law Research Centre of Radboud University, Nijmegen, the Netherlands, and a guest contributor to the Oxford Business Law Blog.