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

• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/eulj.12199
• Date: 01 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 first 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.

1

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

systems.

2

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,

3

leading to another acad emic exercise, which

received political attention.

More recently, following the definitive shelving of European codification projects and

given the challengesto EU integration posed by the financial 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

cosmopolitanism.

4

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 Union’s

Seventh Framework Programme (FP/2007–2013)/ERC Grant Agreement n. 269722.I would like to thank

Hans Micklitzand Yane Svetiev for their valuable comments.

**ResearchAssociate, European University Institute, Florence, Italy

1

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).

2

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

(Sellier,2008).

3

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 CodificationProblems’,(2008)

28 Oxford Journal of Legal Studies, 659–708; 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).

4

See notably A. Somek, ‘Europe: Political,Not Cosmopolitan’,(2014) 20 European Law Journal,142–163. 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.621–626.

© 2017 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK

and 350 Main Street,Malden, MA 02148, USA