The Public-Private Divide in European Union Law or an Overkill of Functionalism

Abstract

From its inception, (economic) integration has been the guiding paradigm underpinning EU law. The distinction between public and private law, a dichotomy common to many civil law countries, has never been a characterising feature of EU law. In the absence of such a divide in EU law, the public and the private sphere interact differently. First, the attempt to strike a balance between the market and the public interest mirrors the struggle to draw a line between public and private power. Secondly, European law increasingly involves private parties on both sides of a legal relationship which encourages the refinement of a distinction between the horizontal direct effect and the personal scope of EU law. Thirdly, the emergence of a European contract law has led to a conceptional confrontation between the international trade law paradigm and the public-private distinction prevalent in the tradition of civil law countries. It will be argued that EU law scholarship and legal practice will have to re-conceptualise the status of the individual and of private parties to reflect their roles as subjects of the law, bearers of rights, addressees of obligations and rule-makers, in order to reflect and flesh out the private law element and to distinguish it from its public law counterpart.

Keywords: public-private distinction, evolution of European Union law, private parties, self-interest v common good, subjects of the law, functionalism, instrumentality of the law, competence, private rule-making, rights and obligations, direct effect, horizontal application, freedom v solidarity