private law being traditionally enforced by the judiciary at the initiative of a private party and with public law being
the province of competent public authorities. Particularly in the last 60 years or so, however, the public/private
divide in this orthodox sense has been challenged by many authors
and has probably been most debated in the
context of EU law.
Dorota Leczykiewicz and Stephen Weatherill, for example, aptly point to the “calculatedly ambig-
uous character”of EU law and explain it as follows: “It is not ‘public law’in the orthodox sense(s) understood at
national level, nor is it private law. It is both and it is neither. In fact, EU operates without any such anchor, which
makes it fluid and which makes it at the same time unstable. EU challenges and sometimes transforms orthodox
categorisations within national legal orders.”
This is particularly true if we take a closer look at EU private law.
EU private law can be understood in a broad sense as the body of EU secondary law as interpreted by the Court
of Justice of the European Union (CJEU) which affects the relationships between private parties, regardless of the
nature of the law—public or private—in which it has been transposed into the national legal order of a particular
Member State. EU private law thus covers many areas which, to a greater or lesser extent, have been harmonised by
the EU in the pursuit of the internal market project, such as consumer law, unfair trading law, financial services law
and environmental liability law, and includes various EU measures, such as the Unfair Contract Terms Directive
the Unfair Commercial Practices Directive,
the Product Liability Directive
and the Environmental Liability
the Payment Services Directive II
and the Markets in Financial Instruments Directive II,
to name but a
The bulk of what is known as EU private law today has developed in three major phases.
During the first
phase, the European Economic Community had very limited possibilities to harmonise private law, but nevertheless
managed to adopt some measures in this area, notably the Product Liability Directive (1957–1986). The second,
much more intense, phase of harmonisation gained momentum after the adoption of the Single European Act 1986,
which recognised the need for a high level of consumer protection and introduced majority voting in the Council of
Ministers (1985–2000). This period saw the introduction of minimum standards of protection for consumers and
other weaker parties through EU secondary law, while leaving the Member States considerable room for manoeuvre
See, e.g., L. Green, ‘Tort Law: Public Law in Disguise’(1959) 38 Texas Law Review, 1; M.J. Horwitz, ‘The History of the Public/Private Distinction’(1982)
130 University of Pennsylvania Law Review, 1423; D. Kennedy, ‘The Stages of the Decline of the Public/Private Distinction’(1982) 130 University of
Pennsylvania Law Review, 1349; H. Collins, Regulating Contracts (Oxford University Press, 1999); A. Harel, ‘Public and Private Law’,in M. Dubber and T.
Hörnle (eds.), Handbook on Criminal Law (Oxford University Press, 2014), 1040.
See, e.g., N. Reich, ‘The Public/Private Divide in European Law’,in H.-W. Micklitz and F. Cafaggi (eds.), European Private Law after the Common Frame of
Reference (Edward Elgar, 2010), 56; H.-W. Micklitz, ‘Rethinking the Public/Private Divide’,in M. Maduro et al. (eds.), Transnational Law: Rethinking European
Law and Legal Thinking (Cambridge University Press, 2014), 271; H. Collins, ‘Governance Implications for the European Union of the Changing Character of
Private Law’,in F. Cafaggi and H. Muir-Watt (eds.), Making of European Private Law: Governance Design (Edward Elgar, 2009), 269; D. Leczykiewicz and S.
Weatherill, ‘Private Law Relationships and EU Law’,in D. Leczykiewicz and S. Weatherill (eds.), The Involvement of EU Law in Private Law Relationships (Hart
Publishing, 2013), 1; H. Dagan, ‘Between Regulatory and Autonomy-Based Private Law’(2016) 22 European Law Journal, 644; M.W. Hesselink, ‘Private
Law, Regulation, and Justice’(2016) 22 European Law Journal, 681.
Leczykiewicz and Weatherill, above, n. 3, at 2.
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95/29, 21.4.1993.
of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in
the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC
and 2002/65/EC of the European Parliament and of the
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States
concerning liability for defective products, OJ L 210/29, 7.8.1985.
Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and
remedying of environmental damage, OJ L 143/56, 30.4.2004.
Directive (EU) 2015/2366
of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending
of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive
See the definition of “European regulatory private law”provided in H.-W. Micklitz, ‘The Visible Hand of European Regulatory Private Law’(2009) 28
Yearbook of European Law,3.
On the historical dynamics of European integration in European private law, see H.-W. Micklitz, The Politics of Justice in European Private Law: Social
Justice, Access Justice, Societal Justice (Cambridge University Press, 2018), 164 et seq.