Public Policy through Private Law: Introduction to a debate on European Regulatory Private Law

Published date01 September 2016
Date01 September 2016
Public Policy through Private Law:
Introduction to a debate on European
Regulatory Private Law*
Guido Comparato**
At the onset of Europeanisation, the discussion on private law followed two main paths.
The rst one was initially carved by a comparative law exer cise devoted to studyin g
how different European legal system s resolved analogous soci al problems, so as to
demonstratethe existence of value convergence andof a common core of generalcontract
law in Europe.
The second path was forged by legal scholars analysing the positive law
produced by the European Union with the most direct impact on na tional private law
When the EuropeanUnion project was seen tobe at the height of both its success
and its ambition, these two paths were merged to explore the possibility of codifying a
common set of rules on cont ract law,
leading to another acad emic exercise, which
received political attention.
More recently, following the denitive shelving of European codication projects and
given the challengesto EU integration posed by the nancial and politicalcrisis (of which
the Brexit referendum is a most notable outcome), European legal scholarship has grown
increasinglysceptical towards the structureof the EU and critical of its failedaspiration to
In this disenchanted context, an innovat ive project for the study of
European private law has taken off in F lorence. Directed by Hans Mickli tz and titled
European Regulatory Private Law(ERPL), this project steps away fro m traditional
accountsof private law at both national and EU level.It focuses, instead, on the regulation
of economic activities th at, despite their commer cial importance, have of ten been
* The ERPL project has received funding from the European Research Council under the European Unions
Seventh Framework Programme (FP/20072013)/ERC Grant Agreement n. 269722.I would like to thank
Hans Micklitzand Yane Svetiev for their valuable comments.
**ResearchAssociate, European University Institute, Florence, Italy
See the numerouspublicationsstemming from the CommonCore of European PrivateLaw project initiatedin
Trento; among many: M. Bussani and U. M attei (eds.), The CommonCore of European ContractLaw. Essays
on the Project(Kluwer Law International,2002).
This has mostlyinterested the area of EUconsumer law. See e.g. H. Schulte-Nölke, C. Twigg-Flesner and M.
Ebers (eds.),EC Consumer Law Compendium. The ConsumerAcquis and its transposition in the MemberStates
The academicdebate on the DraftCommon Frame of Referencehas generated a vastamount of literature.See
among others H. Eidenmüller, F. Faust, H.C. Grigoleit, N. Jansen, G. Wagnerand R. Zimmermann, The
Common Frame of Reference for European PrivateLaw. Policy Choices and CodicationProblems,(2008)
28 Oxford Journal of Legal Studies, 659708; A. Somma (ed.), The Politics of the Draft Common Frame of
Reference (Wolters Kluwer,2009); P. Larouche andF. Chirico (eds.), EconomicAnalysis of the DCFR (Sellier,
2010); V. Sagaert, M. Storme and E. Terryn (eds.), The Draft Comm on Frame of Reference: National and
ComparativePerspectives (Intersentia, 2012).
See notably A. Somek, Europe: Political,Not Cosmopolitan,(2014) 20 European Law Journal,142163. For a
discussionof that context, see alsoY. Svetiev, Regulationor Competition? EuropeanRegulatory PrivateLaw
as a Platform f or Transnational Mar ket-Making, in this issue.
European LawJournal, Vol. 22, No. 5, September 2016, pp.621626.
© 2017 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK
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