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Additional info for The Europeanisation of Contract Law (Current Controversies in Law)
49 Art 153(1) and (3)–(5) will become Art 169 TFEU once the Lisbon Treaty comes into force, but no substantive changes are made to the scope of this provision. 50 This will become Art 12 TFEU. 34 The Europeanisation of contract law protective measures’ (Art 153(5)) which must be compatible with the Treaty. 2 A limited competence for Europeanisation? The threshold for using the most popular basis to date, Art 95, has been raised in the wake of Tobacco Advertising, although there has not yet been a challenge to a contract law directive on this basis.
69 62 63 64 65 66 67 68 69 Ibid. Case C-58/02 Commission v Spain  ECR I-621. Eg case C-70/03 Commission v Spain  ECR I-7999. See, in particular, C-300/95 Commission v UK  ECR I-2649. Case C-372/99 Commission v Italy  ECR I-819. Case C-144/99,  ECR I-3541. Directive 93/13/EEC. Case C-144/99, para 21. 70 Consequently, legislation would be required to enshrine the relevant rules of law in statute. 71 Nevertheless, whilst the full implications of this judgment remain uncertain, it does point in the direction of codifying even well-established domestic case law in order to meet the demands of legal certainty.
That may be true as a matter of legal principle, but in practice, it may often be very diﬃcult for one contracting party to agree with the other on the appropriate law to govern that contract. Moreover, this analysis only works to the extent that the national rules are regarded as non-mandatory. 10 It remains to be seen if such rules (many of which are found in consumer law) would be caught by Art 28. Of course, if that were the case, the consequence would be that the rule challenged would be struck down.