The Chameleon State: EU Law and the Blurring of the Private/Public Distinction in the Market

Abstract

The rethinking of the traditional role of the State in the market has brought with it a variety of new forms of exercise of public power and an increased blurring of the private/public distinction in the market. It is now common, for example, for the State to intervene in the market not through the traditional mechanisms of regulation or public ownership but in a private legal form, as another market participant. In some instances it is the State that grants private operators the shield of a public legal form. There are also instances where the state imposes on private entities the pursuit of actions that it itself may not be legally authorised to undertake. In all these cases, it becomes increasingly difficult to distinguish between private and public participation in the market and between the pursuit of traditional public goals and the pursuit of private interests whose protection the State deems in the public interest. This difficulty does not simply represent a conceptual challenge for the law. It also blurs the traditional distinction between the market and the State as alternative modes of decision-making subject to different mechanisms of accountability.

Keywords: EU Law, Internal Market, Public/Private Regulation