Rediscovering the public/private divide in EU private law

Author:Olha O. Cherednychenko
DOI:http://doi.org/10.1111/eulj.12351
Publication Date:01 Mar 2020
VARIETY
Rediscovering the public/private divide in EU
private law
Olha O. Cherednychenko
*
Abstract
This article explores the role of the public/private divide within EU private law. It shows that
although EU private law cuts across the boundaries of public and private law, the conceptual distinc-
tion between these well-established categories does matter within it and may lead to better law-
making in the EU more generally. The legal grammar of a particular EU harmonisation measure
which can be more publicor private”—may have important implications for the position of private
parties at national level, for the CJEU's likely activism in this context, and ultimately for the mea-
sure's ability to realise its policy goals. Therefore, instead of ignoring the existing differences
between public and private law, EU law should explicitly adopt the public/private law language in its
discourse, without, however, introducing any sharp divide between these two areas.
1|INTRODUCTION
This article revisits the controversy surrounding the public/private divide in EU law, with a particular focus on the
inner dynamics of private law making. The aim is to demonstrate that although EU private law cuts across the bound-
aries of public and private law in national legal systems, the conceptual distinction between these well-established
categories does matter within the EU private law itself and may lead to better law-making in the EU more generally.
The public/private divide forms, first and foremost, part of the legal traditions of the Member States. Private law
has traditionally been conceived as that part of law which secures a sphere of positive freedom for private parties
and is concerned with corrective justice between the parties.
2
In contrast, public law has been commonly associated
with regulation of a mandatory nature adopted in the pursuit of the public interest and distributive justice. The sepa-
ration of the public and private realms along these lines has also been reflected in the domain of enforcement, with
May Joana Mendes and Harm Schepel, the former Editors-in-Chief who accepted these manuscripts for publication, be thanked for their work and
contribution to the European Law Journal.
*Professor of European Private Law and Comparative Law at theUniversity of Groningen and Director of the Groningen Centre for European Financial
Services Law, The Netherlands (o.o.cherednychenko@rug.nl). I am grateful to three anonymous reviewers for their helpful comments on an earlier draft.
2
See, e.g., E.J. Weinrib, The Idea of Private Law (Harvard University Press, 1995); F. Bydlinki, System und Prinzipien des Privatrechts (Springer, 1996).
Received: 25 March 2019 Revised: 21 October 2019 Accepted: 21 October 2019
DOI: 10.1111/eulj.12351
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, provided the original work is properly cited.
© 2019 The Author. European Law Journal published by John Wiley & Sons Ltd
Eur Law J. 2020;26:2747. wileyonlinelibrary.com/journal/eulj 27
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
3
and has probably been most debated in the
context of EU law.
4
Dorota Leczykiewicz and Stephen Weatherill, for example, aptly point to the calculatedly ambig-
uous characterof EU law and explain it as follows: It is not public lawin 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.
5
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 lawpublic or privatein 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
6
and
the Unfair Commercial Practices Directive,
7
the Product Liability Directive
8
and the Environmental Liability
Directive,
9
the Payment Services Directive II
10
and the Markets in Financial Instruments Directive II,
11
to name but a
few.
12
The bulk of what is known as EU private law today has developed in three major phases.
13
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 (19571986). 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 (19852000). 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
3
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.
4
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.
5
Leczykiewicz and Weatherill, above, n. 3, at 2.
6
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95/29, 21.4.1993.
7
Directive 2005/29/EC 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, 98/27/EC and 2002/65/EC of the European Parliament and of the
Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council, OJ L149/22, 11.6.2005.
8
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.
9
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.
10
Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending
Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, OJ L 337/35,
23.12.1015.
11
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive
2002/92/EC and Directive 2011/61/EU, OJ L 173/349, 12.6.2014.
12
See the definition of European regulatory private lawprovided in H.-W. Micklitz, The Visible Hand of European Regulatory Private Law(2009) 28
Yearbook of European Law,3.
13
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.
28 CHEREDNYCHENKO

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