The Transformation of European Private Law

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Administrative Contact Serena Scarselli Mrs. Project information ERPL.

About The Foundations of European Private Law

Status Closed project. Start date 1 September End date 31 August Final Report Summary - ERPL European Regulatory Private Law In the shadow of the failure of the European civil code project, as a transplant to the EU level of national conceptions and instruments of private law, the EU has been actively implementing regulation public, private and co-regulation that blurs the boundaries between national and EU law, public law and private law, or even binding rules and recommendations or standards. Such interventions often have a sectoral character in fields such as electronic communications, postal services, energy, transport, financial services, consumer law and Internet regulation.

EU objective international private law: it's like dating

They are typically justified as measures to create and govern the EU internal market, but also have a strong if not always immediately visible impact on private law. While in both political and academic discourse, the distinctiveness of national systems and legal categories in private law is emphasized, the research highlights that the EU is gradually establishing rules and institutions which are self-standing so that it is possible to speak of a self-sufficient "European Regulatory Private Law": a private legal order with a strong regulatory character.

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Theoretically, the EU serves as a laboratory for the development of a post-nation state private legal order, tentatively called post-classical private law. The incomplete architecture of the European legal order should be understood as an advantage allowing us to study the ongoing transformations of nation states through the prism of the emerging European regulatory private law. One might ask whether such European advantage is a current reality or a promising potential.

Its potential lies in the disclosure of the post classical private law, but this requires a different view on Europe, one which changes perspective. Such a perspective has to focus on the achievements of the EU as a unique construct, which is not a state and which more than likely will never be a state or a federation of states in the Westphalian sense, but which is at the same time much more than an international organisation.

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ERPL crystallizes and gives shape to a European advantage in legalizing transnational spaces by contrast to the often claimed American advantage in transnational lawyering e. Reimann Conceptually, differences in the values embodied in the various sets of rules become apparent: if national private law rules are said to be inspired by the categories of private autonomy, distributive or corrective justice, ERPL on the contrary enshrines functional ideas of regulated autonomy and access justice which both underscore and support the laboratory character of the European legal order.

Access justice materializes the theoretical chance into a realistic opportunity, lays down procedural requirements for proper law enforcement and provides for an institutional design that allows for participation of civil society. In ERPL autonomy is more strongly linked with all various forms of regulation and competition, which both extend and constrain it. Thus, autonomy is less wedded to the idea of personal freedom and is instead the result of a functional design that turns the market into a platform for simultaneously promoting substantive autonomy and social problem-solving.

This creates the potential for conflict between rules and their underlying values, but also possibilities for dialogic interaction through institutional innovation at both EU and national level. But realising such possibilities often requires abandoning time-honoured rules, institutions and habits of thought. Institutionally, while traditional private law is mostly legislative or judge-made, regulatory and standardization bodies decisively contribute to both the shaping and enforcement of ERPL.

The process of "agencification" has proceeded in various sectors under an EU mandate with the creation of independent national agencies and their networking at EU — as well as transnational — level. This process can lead to 'self-sufficiency' in two dimensions: i the proliferation of private law rules with specialized sectoral focus as opposed to general and transversal ones ii agency and standardization networks as alternative, less formal and less scrutable settings for the creation, diffusion and even enforcement of specialized norms.

Self-sufficiency need not imply full isolation of ERPL, which would likely be both impossible and dystopic.


  • The Transformation of European Private Law: Consolidation, Codification or Chaos?;
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  • Author notes?

Quite to the contrary, different normative regimes under the ERPL umbrella interact in different ways with national and general legal categories. The interaction is captured by the parameters of conflict and resistance, intrusion and substitution, convergence, and hybridization examined in sub-projects on telecommunication, energy, financial services, health care and standardization as well as legal remedies.

An example helps to understand the interaction between theories, concepts and institutions.

The electronic communications regulatory framework specifies both substantive law provisions and procedural rules that introduce EU mechanisms into the national context. The completion of the internal telecoms market proceeded via the establishment of a "multilayered institutional structure" the network approach and norm enforcement often relies on sector-specific alternative dispute resolution bodies in preference to generalist courts. In the energy sector, private law relationships are being reshaped not always through special rules, but via direct interventions by authorities into such relationships through negotiating "commitment remedies" with specific undertakings.

This practice at the EU level is largely beyond court control, while national practice is more mixed. In the area of standardization of services, the legal and empirical research revealed difficulties in the process of European standardization and the application of standards in private law.

While few EU standards have been adopted and applied in the services sectors studied, there has been considerable recent activity in areas where service provision interacts with product standardization that may produce convergence pressures. In collective remedies, EU law can be used strategically by national private or public actors to remove national barriers obstructing protection of the collective interest.

This phenomenon has produced hybrid remedies extraneous to the tradition of certain Member States. The research suggests that the CJEU may be fashioning a type of liability for regulatory failure out of the Francovich precedent, although the extent to which such liability is re-embedded in national law and practice is as yet unclear.

In all the foregoing contexts, we detect an evolution not only of substantive private law, but also in the procedures through which it is enforced, i. Deliverables Deliverables not available. Publications Publications via OpenAire. European integration through standardization: How judicial review is breaking down the club house of Private Standardisation Bodies Author s : R. Micklitz Permanent ID: doi From the Nation State to the market : the evolution of EU private law as regulation of the economy beyond the boundaries of the Union?

Access to, and exclusion of, european Consumers from financial Markets after the Global financial.. The transformation of enforcement : European economic law in a global perspective Author s :.

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The Foundations of European Private Law

Bottom up or rock bottom harmonization? The expulsion of the concept of protection from the consumer law and the return of social elements I Author s : Hans-W. European regulatory private law : the paradigms tested Author s :. The future of the consumer law — plea for a movable system Author s : Hans-W. European regulatory private law : autonomy, competition and regulation in European private law Author s :.

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Author notes

Managed by the EU Publications Office. Occasionally, however, the Commission engages in indirect forms of recruitment. For instance, it promotes with rather generous funding comparative research projects on given subjects, harmonization of which seems technically difficult or politically controversial. Such projects are indeed welcome in legal academia, and even more so in traditionally marginal areas.

They revive intellectual debate, sharpen the competitive edge of once-peripheral subjects and allow academia to participate, more or less directly, in the task of drafting European legislation. Most importantly, such projects are not result-oriented: scholars of the utmost integrity are asked to search for the differences, as much as for the similarities, of the various European systems on given legal topics, and they do so with truth-seeking, insightful methods.

Member States' resistance to private-law harmonization does not mobilise en bloc all components of each legal system courts, legislators and legal scholars. Rather, it takes unpredictable, uneven forms and is, therefore, much harder to detect. Resistance is, moreover, often bypassed or neutralised by the strategic choices of EU lawmakers, who engage in direct harmonization of private law only after taking measures to win the hearts and minds of the Member States. What resistance remains is, however, sufficient and sufficiently consistent to signal some national discomfort with any European attack on the "internal coherence" of the civil-code structure or of its equivalents in non-codified systems.

This Part shows how Member State resistance may materialize into instances of national lawmaking and civil adjudication intended to preempt interference from the center. The following paragraphs provide three different examples of private-law integration. The first one concerns the harmonization of the product liability regime throughout the EU and focuses, in particular, on France's failure to implement the Product Liability Directive of This is an instance of legislative resistance to harmonization.

Judicial resistance is, instead, the focus of the second example in this Part. We shall observe how and why national courts have mostly resisted, in fact if not in principle, the European urge for a private enforcement of antitrust claims. The third example looks at the impact of EU directives on the adjudication of contract controversies.

Encompassing both judicial and legislative resistance, it explores, on one hand, how the process of harmonization requires legislators to rediscuss the often unspoken value choices underlying national private-law rules. For this reason, harmonization often faces one form or another of passive resistance by national lawmakers. On the other hand, the subject of contract-law harmonization shows how the celebrated compliance of national courts with the cause of European integration may fade when control over private law adjudication is at stake. As observed, EC directives are tools particularly well-suited to the task of harmonization.

Although directives provide a legislative framework and mandate a basic core of uniformity in a given sphere, they leave the details, and the choice of means to achieve the stated objectives, to Member State lawmakers to flesh out in ways compatible with each of the fifteen legal systems. In , the Community enacted a product liability directive with the stated goals of providing consumers with a uniform degree of protection and of creating a level playing field for consumers and producers.

The directive constituted Brussels' first serious attempt to wrest from the Member States a measure of their previously undivided control over their respective tort law. Perhaps the States might have been expected to balk at Brussels' move; but by the mid-eighties, all Members had already developed some sensitivity towards the problem of product liability and determined individually to provide accident victims with strengthened legal protection.

The directive was able, therefore, to obtain unanimous approval in the Council. Implementation of the directive, however, proved rather a more difficult task. In both the civil and the common law, tort liability was, as a general principle, fault-based, and plaintiffs bore the burden of proof. To be sure, the judiciaries of the different nations had found one way or another, within their respective private law systems, to mitigate the harsh traditional rules and impose somewhat stricter standards of liability for defective products. Such judicial solutions, however, were often incoherent, rooted as they were in a variety of doctrines, and bore the stigma of case-law fragmentation.

Implementation of the product liability directive required an enormous effort to rationalize this disaggregated body of national private laws, and Member States' governments had to summon well-known scholars to perform it. It is now more than ten years since the EC Council enacted the products liability directive; in that time, every nation in the Union has implemented it save France. When the Commission first sued France before the ECJ for failure to implement the product liability directive, the French tried --if only feebly-- to justify the delay.