The privatisation of European law and the constitutionalisation of Private Law : Two sides of the same coin

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Journal Article

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Death and times are not the only certainty in life: nowadays. the European citizen must. in his private sphere, add to this the omnipresence of EU law.’ The wide array of directives aimed at protecting consumers' interests2 attests to this. let alone other instruments of European origin (such as those implementing EU equality law) directly regulating private actors‘ hehaviouri| In this way, EU law imposes yet another layer of regulation. together with fields traditionally associated with the private sphere. like that of national private law.While EU law and national private law have different institutional characteristics and histories. their ultimate goals may either he complementary or in tension. Thus where positive and negative harmonization are aimed at establishing the internal market and deepening economic integration. such measures can also be understood as strengthening private autonomy - allowing private actors the freedom to choose how and where to perform an economic activity.‘ At the same time. positive and negative harmonization function as a constraint on private autonomy. The four freedoms. thus. prevent private actors from discriminating on grounds of nationality. In similar fashion. directives or regulations may mandate that firms comply with specific standards before being allowed to trade across the internal market.EU law was initially crafted to regulate inter-state relationships. That much is trite and explains why it beats characteristics that at the national level would be considered public law. Yet. what implications are there for EU law. if arty. of its increasing regulation of the private sphere? Clearly. from the previously mentioned examples. EU law is now saddled with values and functions of private relationships different than what it may hitherto be used to dealing with.


Constitutional Law | European Law

Research Areas

Asian and Comparative Legal Systems


European Review of Private Law





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Kluwer Law International

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