European Regulatory and Private Law - between Neoclassical Elegance and Postmodern Pastiche

Abstract

European Regulatory Private Law is a composite legal order, not a legal system comparable to national private law systems. The different layers are to be understood not as a component of one legal order, but as variations of European Regulatory Private law. Today it consists of: Constitutionalized private law – Primary EU law, the Charter of Fundamental Rights and the European Convention of Human Rights in their impact on private law, with the CJEU and the ECtHR as the key actors, European International Private Law – the Brussels I Regulation on Jurisdiction and Enforcement, the Rome I and II Regulations on Contracts and Torts, Draft Common Frame of Reference – a fully fledged European Civil Code not in the form of binding law, but as point of reference for interpretation, Harmonised horizontal Employment, Consumer and Non-Discrimination Law, concretised through more than 100 judgments of the CJEU, Harmonised horizontal law on universal service obligations (in the making), and Harmonised vertical law of Regulated Markets – telecommunication, energy, transport, financial services, by and large in the hands of sector-specific independent regulatory agencies and relying chiefly upon out of court dispute settlement procedures. Does it make sense to discuss these varieties of European Private Law as an attempt to establish ‘uniform rules’ for ‘a heterogeneous society’, balanced out through ‘differentiated rules’? Or is it time to think about whether the idea of a uniform approach has turned out to be untenable in our modern society? The focus of the paper on the analytical side of the varieties of European Regulatory Private Law. Such a stock taking is a necessary prerequisite to finding a tentative answer to a whole series of questions: to what extent has European integration transformed national private law orders, whether the EU is about to develop ‒ or has already developed ‒ its own European private law order, what is the interaction between the variations of the European private law order, and how is that European private law order related to national private law orders? Is, could, or should coherence be a necessary condition for building a European society, or can a European society be built through fragmentation?

Keywords: European private law, European regulatory private law, uniformity, fragmentation, differentiation, European society, heterogeneity

JEL Classification: N/A