The Public-Private Divide in European Union Law or an Overkill of Functionalism
EUROPEAN LEGAL METHOD(S) IN A MULTILAYERED LEGAL ORDER V. MULTI-LEVEL GOVERNANCE: DIFFERENT THEORETICAL AND METHODOLOGICAL APPROACHES TO THE STUDY OF EU LAW, Ulla Neergaard & Ruth Nielsen, eds., Djof, 2012, Forthcoming
35 Pages Posted: 11 May 2012
Date Written: May 11, 2012
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
Suggested Citation: Suggested Citation