Private law and the visible hand of EU regulation
Title: Private law and the visible hand of EU regulation
Author: SVETIEV, Yane
Series/Number: EUI MWP; 2013/01
A question that is central to current debates about the Europeanisation of private law is that of how to conceptualise the relationship between European law and national private law. And a key aspect of that question is the impact on national private law and institutions of the growing corpus of EU regulation of important service sectors of the economy. In that context, are national regulatory authorities, now increasingly networked in EU regulatory networks, an interface between the European and the local, or are they co-opted as arms of European regulatory law? In that context, are their growing interventions in private law relationships a further distancing of law from the control of domestic democratic institutions? In this paper, I begin with the observation that the sidelining of traditional private law together with adjudication and courts, as its principal institutions, has been a longer-term process, resulting from transformations of society and its knowledge base and the inability of traditional institutions to cope with those transformations. In the post-industrial society of networks, some prominent commentators have foreseen a role for the re-emergence of private law as the institution that mediates or translates various fragmented social rationalities. In this paper, I argue that private law has not risen to this task of orchestrating various stakeholders because, even if such a task of translation were possible, private law institutions are not well-adapted to perform it with traditional tools. By reference to examples from the regulated network sectors, I argue that conceptions of European law as hierarchical “intrusions” into national space may be oversimplified. At the EU level we witness attempts to overcome the limitations of standard interventions through proceduralized mechanisms for joint learning: both between administrators at different levels and between administrators and private actors (both regulated entities and other social stakeholders). The advantage of EU-level interventions is that they are not as steeped in tradition and habitual patterns as national private or public law institutions, so they are more open to experimentation with heterodox approaches. The disadvantage is that EU interventions can self-consciously define their mandate as narrow or their objectives as limited. In such cases, those whose perspectives are excluded by the narrow mandate may, in the absence of other ways of redefining that mandate, seek redress through the national courts. The local and generalist nature of national courts can be their advantage in providing a venue that amplifies the voice of small-scale communities and their apparently small-scale problems.
Subject: Private law; Regulatory regimes; European Union
Type of Access: openAccess; openAccess