interrelateddrivers behind the transformation of both the stateand private law are: (1) the
internationalisation of the economy together with its ﬁnancialisation;
in digital technologies;
and (3) the borderless society in which therights, duties and even
identities of citizens are no longer bound and shaped by the nation state alone.
Private law is understoodas being an integral part of economiclaw.
In this perspective,
traditional private law (the grand codiﬁcations and the common law) and regulatory pri-
vate law have to be kept distinct. Regulatory private law in Europe has emerged from
three waves of regulation: the regulatory state in the late 19th to early 20th centuries,
the welfare state in the second half of the 20th century, and the third wave triggered by
the Single EuropeanAct, which submitted private lawto the project of completing the In-
The Internal Market project paved the way for adopting consumer con-
tract law directives and gave rise to the antidiscrimination principle.
It also promoted
the liberalisation and privatisation of former public services, an area now understood as
the ﬁeld of regulatedmarkets, including telecommunication, postal services, energy (elec-
tricity and gas), transport (airlines, railways, ships, and buses) and health care—here re-
ferred to as the ‘silos’. Financial services have to be added to the regulated markets,
although due to the ﬁnancialisation of the economy, they enjoy a particularstatus, which
heavily impacts the other regulated markets.
The third clariﬁcation refers to the use of ‘competition’in relation to private law. Here,
the inﬂuences of ordoliberalism have left their imprint on the EU until today.
(or ‘private law society’) can only unfold within a competi-
tive environment that has to be shaped via public law (competition law) and compliance
guaranteed by national competition authorities to tame private power. The EU operates
via regulation, and the EU’s regulatory private law creates frictions in both directions,
both toward competition law and traditional private law. It might be used to promote
competition or to restrict competition. In this article, I aim to demonstrate how the
EU’s grip on competition and private law varies among three projects: the Internal
Market (where competition is promoted), the Banking Union (where competit ion is
R. J. Shiller,The New Financial Order,Risk inthe 21st Century (Princeton,2003). For a forceful critiquesee J.
Vogl, Das Gespenstdes Kapitals (Diaphanes, 2010/2011).
See the Communicationfrom the Commission to the European Parliament,the Council, the European Eco-
nomic and Social Committee and the Committee of the Regions, ‘A Digital Sing le Market Strategy for
Europe’, COM (2015) 192 ﬁnal, availableat http://ec.europa.eu/priorities/digital-single-market/docs/dsm-
H.-W. Micklitz and Y. Svetiev, ‘The transformation of private law’, in H.-W. Micklitz, Y. Svetiev and G.
Comparato(eds.), ‘European Regulatory Private Law—The Paradigm Tested’,(2014)4EUI Working Paper
Series, 69-97, available at http://cadmus.e ui.eu/bitstream/handle/1814/ 31137/LAW_2014_04_ERPL_
L. Raiser, Funktionswandel des Privatrechts (Mohr Siebeck, 1 971); Funktionswandel der
Privatrechtsinstitutionen :Festschrift f. Ludwig Raiser zu m 70.Geburtstag (Mohr Siebeck, 1974). F. Baur,
H.-D. Assmann, G. Brüggemeier, D. Hart and Ch . Joerges (eds.), Wirtschaftsrecht als Kritik des
Privatrechtrechts, (Äthenäum, 1980).
H.-W. Micklitz‚‘The visible hand of European priva tel aw’,(2009)28Cambridge Yearbook of European Law,
R. Münch,European Governmentality:TheLiberal Drift of MultilevelGovernance (Routledge, 2010);N. Reich,
General Principles of EU Civil Law (Intersentia, 2013).
D. J. Gerber,‘Constitutionalizingthe economy: Germanneo liberals, competitionlaw and the “new”Europe’,
(1994) 42 AmericanJournal of ComparativeLaw,25-84.
Usefulfor non-German readers,St. Grundmann, ‘Regulatorycompetitionin European companylaw —some
differentgenius?’, in G. Ferrarini,K. Hopt, E. Wymmeersch(eds.), Capital Marketsin the Age of the Euro —
Cross-BorderTransactions, ListedCompanies and Regulation (Kluwer, 2002), at 561-595.
The Transformation of Private LawSeptember 2016
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