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This book resulted from the rising need to provide complementary insights about the institutional framework in which the European private law (EPL) has been established. Although constitutional lawyers may have already addressed this task, it is also important that private lawyers participate in related efforts so that the relation between the content of the EPL and the nature of rule-making may be further reinforced. While this said framework is comprised with European and national level institutions that influence the processes involved in establishing private law, and since law-making is perceived to be a dynamic process, it is important to note that the substantive rules and the production process are may be connected in several different integral ways since the quality and content may easily be affected.

This chapter demonstrates that the existing EU law, primary Community law as well as the numerous pieces of secondary Community law, meant to privatize former state monopolies, produces elements of a new European private law, which is designed to protect the economically and socially disadvantaged citizen. Understood in this way, universal services may be seen to form an integral part of the European Social Model. The argument is developed in three steps. Part 2 analyzes legal distinctions as conceptual differences. Translated into a private law perspective, this part deals with the possible scope of the law on universal services. Part 3 examines the hybridization of the public/private law divide in universal services. The traditional bilateral concept of private law relations does not work in universal services. It is much more a triangular relationship, where national and European regulatory agencies/networks intervene as intermediaries in the former citizen–state relationship and yield the citizen-consumer as a new social actor. Part 4 looks at the constitutionalization process of universal rights via the economic freedoms and fundamental basic rights enshrined in the Treaty. It suggests that constitutionalization allows for the development of constitutive principles of the law on universal services. Part 5 formulates possible perspectives on the law on universal services, the possibility of its generalization in the field of regulated markets as well as in the non-economic sector of public services where the impact of privatization is still strongly felt.

This chapter first discusses regulatory private law in general and European regulatory private law in particular. It then uses three parameters — ‘scope’, ‘limits’, and ‘intensity’ — to examine the relationship between the two legal orders as it stands today with the possible impact of the Lisbon Treaty on the competence order. It considers the issue of ‘intensity’; that the EU has intensified its grip on national law by shifting the focus from minimum to maximum harmonization. It discusses whether the maximum harmonization of private law matters affects ‘essential state functions’ and infringes the Member States' ‘national identities’.

Several questions arise that concern the scope of available competence that is covered by European private law. While it is specified in Article 5(1) EC that the EC functions only within the bounds that are set by the founding Treaties, there is no legislative competence that addresses the issues in the particular field of private law. The constitutional landscape is said to be enriched in practice by the competence given by the EC Treaty to impose harmonization. However, certain issues have to be addressed that would not just assess legislative practices imposed in the past, but contemplate what may be adopted in the future of European contract law as well. This chapter attempts to examine the constitutional aspects of European private law, while drawing attention specifically to patterns of legislative harmonization.

This chapter examines the further contours of an instrumental-normative approach, focusing on how the question ‘who does what, and at what level of regulation’ is answered by existing theories of legal pluralism in European private law. It has been said that most theories of legal pluralism in European private law, even if they proclaim to adopt a strong legal pluralist perspective, still fall back on an ordering of some sort. The chapter tests this assumption by analysing how the market rationality of EU law interacts with the juridical rationality of national private laws in relation to three aspects of lawmaking: actors, norms, and processes. It concludes that many theories of legal pluralism in European private law lean towards an ordering of some kind. Yet, at the same time the chapter reveals several instances in which inroads are made on the ordered conception of legal pluralism, which could provide the premises for the further development of a strong legal pluralist theory for European private law.

This chapter demonstrates how the European Union, being understood as a market state, affects the private legal orders of the Member States and the design of the emerging European private legal order; first within the EU (the inner space of EU Statecraft) and second in the relations of the EU to the outside world (the outer space of European Statecraft or global governance). The national private legal orders may be equated with the pre-modern state nation and later the nation state of the twentieth century, whereas the emerging European private law may be equated with the EU market state. In the inner space of the internal market, the EU is smoothly but steadily building a genuine private law that must be kept distinct from nation state codifications. In the outer space the EU market state — and the Member States nation states — are engaged in using private law as a means to influence global governance processes. The chapter begins by clarifying the notion and concept of the market state in its relation to the EU. It then sketches out the concept of European private law as economic law within the EU and outside the EU. Finally it looks into the role of the EU market state in global governance through private law means.

This chapter first examines the extent to which the treatment of non-discrimination in European private law represents a ‘constitutionalization of contract law’, and tries to make that assessment by reference to the approaches of English and German law to that set of issues. It then discusses whether the prohibition of discrimination is an instrument of contract law, tort law, or general private law; the interaction of non-discrimination rules in European contract law with national law; and the interaction of non-discrimination rules in a European contract law instrument with rules for specific areas.

Although it seems to be undisputed today that the harmonization of private law in the EU cannot take place without due regard for fundamental rights, many questions remain as to how and to what extent European private law can and should be influenced by fundamental rights. This chapter aims to explore these issues in the context of financial services and consists of two major parts. The first part discusses legal constructs which may serve as gateways to the impact of EU fundamental rights on European private law in the light of the constitutional limits to such impact. Drawing upon this analysis, the second part of the contribution examines the actual and potential impact of EU fundamental rights on European financial services law, with emphasis on three major issues arising in this field: (1) consumer access to financial services; (2) substantive consumer protection in financial services; and (3) procedural consumer protection in financial services.

This chapter discusses the internal and external dimensions of EU law, by first drawing distinctions between the two. The internal dimension refers to the scope of EU law, which is restricted to the number of Member States which have joined the EU. The external dimension is outward-looking, the attempt to analyse and define the reach and effect of European private law outside the territory of the EU. ‘Europeanizing’ private international law necessarily entails difficult distinctions between what is inside and what is outside. One possible solution to the problems of making this distinction and permit Euoprean private law to become and remain truly international would be to adopt a European private international law which is universally applicable. This would imply that the same rules apply to trans-border conflicts between Member States and to trans-border conflicts between Member States and non-Member States.

This chapter begins with a discussion of the different forms and shapes of suretyships, and the diverse legal responses to them. It then addresses the question of whose interests should prevail. This is followed by discussions covering information disclosure and form-based requirements, intervention in the terms of the suretyship contract, legal rules affecting the context in which suretyships are agreed and enforced, and the constitutional dimension to the control exercised over private relationships, including contracts.

In examining European private law, this chapter concentrates on the transformation of contract law through discussing the three fundamental functions of modern European contract law — autonomy, regulation, and information. Autonomy refers to how the subjects of private law, particularly business entities, consumers, and other such actors, are able to proceed with efficient and secure economic transactions despite having to face certain restrictions. Looking into regulatory function entails how certain restrictions and contracts have become incorporated within consumer law. Lastly, the chapter investigates on how information may be viewed with certain ambiguities since such is already found in traditional rules. For this analysis, however, the author focuses more on the subtle and differentiated rules on the provision of information and how such may be required by law since information is relevant for rational decision-making.

This chapter makes an analysis of the theoretical foundations of lawmaking in European private law. It shows that they can be traced to transnational and constitutional pluralist theories. The main question is in which respects legal pluralism should replace the monist, state-centred perspective on lawmaking that prevailed in Western Europe since the creation of the Westphalian nation state. It is argued that, even though the state remains the primary locus for lawmaking in private law in the EU, the rise of private regulation and the interaction between courts through judicial dialogues plead in favour of adopting a strong legal pluralist perspective. ‘Strong’ or ‘radical’ legal pluralism, other than monism or ‘ordered’ legal pluralism, holds that norms can co-exist without a formal hierarchy. Both a descriptive and a normative case are put forward in support of adopting this perspective.

This chapter explores the place of Article 47 of the EU Charter of Fundamental Rights (right to an effective remedy) in European private law and assesses whether this provision could form the basis of a judge-made European law on remedies. In order to make this assessment, first, the development of the right to effective judicial protection in EU law is sketched and the relationship of EU fundamental rights to European private law is explained. Subsequently, instances of the application of Article 47 of the EU Charter of Fundamental Rights in the case law of the Court of Justice of the EU are examined (including Alassini, Kadi, Otis, and Fuß/Stadt Halle). In light of the contemplation of the influence of the right to effective judicial protection in European private law, finally, the thesis is elaborated that, within certain boundaries, Article 47 can indeed support the further judicial development of effective remedies in European private law.

This chapter traces the historical process that led to the rise of one of the specific features of the Western legal tradition, the emphasis on private law and the reliance on adjudication disputes. It examines a parallel historical process of fragmented power structures in Japan that partly accounted for the emergence of a similar Japanese legal tradition of adjudication as the primary means of formal law enforcement. However, in comparison with Western legal tradition, there is a distinct absence of a conceptual system of law or legal rights that could enable recognition of substantive rules and analogous principles of private or public laws. Still, this chapter notes that this historical background of political fragmentation and reliance on adjudication laid the foundation for the successful reception of European private law during the late nineteenth century.

This concluding chapter asserts that a case can be made for a strong legal pluralist theory of lawmaking in European private law. It takes a discursive approach, focusing on some aspects that require further consideration. The chapter considers how, and to what extent, the regulation of offline transactions is affected by the perceived shift towards legal pluralism. In addition, the chapter assesses which risks are posed to the instrumental-normative framework by political, economic, and social divides in the EU. Finally, the chapter closes with a reflection on the connections that could be made between certain fields such as citizens' rights as workers or in relation to environmental protection, opening up vistas for further research on lawmaking in European private law.