The Visible Hand of European Regulatory Private Law

Abstract

The title “The Visible Hand of European Regulatory Private Law” should make clear what I identify to be the major gap not only in political discourse but also in legal doctrine and in legal theory concerning European private law and where I hope to bring additional expertise which is so far missing. My hypothesis is that the “modernisation” of (or more cautiously changes to) private law derives from those subject matters which are at the boundaries of traditional private law. So what I will try to develop is some sort of a counter-project to the acquis principles and the Draft Common Frame of Reference (understood as a coherent body of European private law rules), a model which leaves room for national private legal orders, but takes into consideration the ongoing process of Europeanisation, be it via academia in the study group and the acquis group, via the European legislator or via soft-law building. The multi-level structure of the European Community calls for a concept that allows one to determine which norms shall be elaborated and enforced at what level and by whom. What I have in mind is a structural new-orientation of (European) private law, which takes into account the transformation of European private law from autonomy to functionalism in competition and regulation.