The transformation of private law
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Luis Miguel POIARES PESSOA MADURO and Marlene WIND (eds), The transformation of Europe : twenty-five years, Cambridge : Cambridge University Press, 2017, pp. 289-302
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MICKLITZ, Hans-Wolfgang, The transformation of private law, in Luis Miguel POIARES PESSOA MADURO and Marlene WIND (eds), The transformation of Europe : twenty-five years, Cambridge : Cambridge University Press, 2017, pp. 289-302 - https://hdl.handle.net/1814/51470
Abstract
In looking into private law I will distinguish between the traditional private law enshrined in national codifications (the French Code Civil, the German BGB, the Italian Codice Civile) or in the common law system and the regulatory private law which became visible first in the regulatory state of the early twentieth century and later in the welfare state of the second half of the twentieth century through an assemblage of particular laws and regulations dealing either with horizontal status–related issues such as the rights of workers, tenants, or consumers and vertical topic or sector-related issues in the field of regulated markets, such as telecom, energy, postal services, transport, financial services, health care, and education, just to name the most important ones. My hypothesis is the following: Member States are ready in their overwhelming majority to promote European integration in the Council of Ministers through the development of European regulatory private law aimed at laying down ground rules for contract-making and product liability to the benefit of particular right holders as well as to shape sectorial markets. However, the very same Member States voice critique and resistance whenever the EU via law-making or via judicial interference tends to Europeanise traditional private law, thereby touching on the national ‘identity’ of the Member States (Art. 4 TEU). The distinction between the two areas of private law and their linkage to the exit/voice paradigm explains why the process of European integration through regulatory private law continues smoothly, steadily, and overall rather quietly whereas the political project of a European Civil Code seems to lead to deadlock.
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Online publication date: October 2017