The Involvement of EU Law in Private Law Relationships – Where private law is a teenager and EU law acts like Arnold Schwarzenegger

Last week – 28/29 September 2011 – I attended a conference at the beautiful St Anne’s College, Oxford, on The Involvement of EU Law in Private Law Relationships, organised by the Institute of European and Comparative Law. In his words  of welcome, Stefan Vogenauer spoke about the fact that EU law sometimes comes in as an irritant and ‘messes up our beautiful private relationships’. The presentations and discussion mainly revolved around two questions: whether public law and private law can and should be strictly separated; and whether involvement of EU law in private law relationships really is a problem. In that context, Stephen Weatherill remarked that EU law has a structural tendency to spread. Perhaps that spread has gone too far into the private sphere. Question is, whether it has been noticed as a problem by those doing the spreading? Case law from the CJEU does not provide a clear picture here. One line of case law (including cases such as C-144/04 Mangold and C-453/99 Courage v Crehan) is built around the effective achievement of the objectives of the Treaty – they show a tendency to extend into the private sphere. A second group of cases (including cases such as C-67/96 Albany International and those barring directives from having horizontal direct effect) reflects a degree of respect for private autonomy.

Monica Claes – a public lawyer herself – challenged the private lawyers in the audience by venturing that perhaps private law is nothing special and that public and private law have much more in common than the emphasis on their separateness would suggest. True, it is the area of law made for private citizens, relating to horizontal relationships, while public law covers vertical relationships, but in the end both areas of law are created and enforced by the state, so in that sense there is no difference. She then posed the question, why EU law should not be involved in private law relationships? Why is additional justification necessary for involvement in private law, which is not necessary for involvement in public law? Where does the resistance of private lawyers against involvement of EU law come from? What must be born in mind is that the division between public law and private law is not part of the grammar of EU law. EU law will simply refer to the concept of horizontal relationships. It does not separate different areas of law in the same way that Member States do. Private law is also nothing special in the sense that the ‘infection’ by EU law is felt in other areas besides private law as well. There is no area of law that has remained unaffected by EU law. While that may be true, I must say that here I felt I was possibly the only person in the room thinking that there is not enough involvement by EU law in their particular field. As someone who is investigating the EU’s involvement in property law I can say that, while the EU is sporadically involved in property law – consciously or otherwise – it shows a hesitance to get too much involved, which it does not show in many other areas of law. I find this a pity, given that there are some real problems in the internal market, particularly with regard to cross-border trade involving security rights, that stand to benefit from EU involvement.

All in all, this extremely interesting discussion led to a bit of a divide in the room. In Gareth Davies’s opinion it is implausible to think that you won’t have to change fundamental structures when you enter into a cooperation of a nature as the EU. It is implicit in the ‘deal’ struck between the Member States and the EU that EU law will invade all kinds of areas of law. Mark Freedland described the discussion as ‘intersecting sets of claims creating a complex normative soup in which this discussion is swimming’, those claims being a claim to private autonomy of economic actors and/or citizens, a claim to national particularity of each Member State’s legal system and a claim to subsidiarity in law-making, and claims regarding the specially authentic cultural expressiveness of national civil codes and other formulations of private law. Daniela Caruso stated that the resistance against involvement of EU law in private law relationships is ‘a ship that has sailed’ and that we can only ask ourselves, how to do it right in terms of internal coherence, doctrinal clarity, legitimacy etc.

Personally, I found myself sympathetic towards the argument put forth by the public lawyers that private law really isn’t all that different from public law. Perhaps this is a result of the fact that I am a bit of a hybrid lawyer – both private lawyer and European lawyer. But when it comes to property law, the line between public and private law is vague. Property law is characterised by its mandatory nature. It concerns the vertical relationship between the State and private persons, whereby the State determines, through mandatory legislation, what rights a person can have with regard to a particular object and how these rights can be created, transferred and extinguished. Of course, property law also concerns horizontal relationships, in the sense that private parties can make use of it to shape their proprietary relationships, but they cannot deviate from the mandatory property law provisions. In that sense, it could be argued that property law is always of a public law nature in that it is always generated by the State and not by individuals themselves.

The discussion is best summed up by two metaphors used by the participants: that private law is like an unruly teenager (Pavlos Eleftheriadis) who deems himself unique and utterly misunderstood by the world, but who really is an assembly of skin and bones just like any other human being; and that EU law sometimes acts in an Arnold Schwarzenegger-Terminator fashion when entering the sphere of horizontal relationships (Stephen Weatherill).

One Comment

  1. Stasys says:

    Feels like much awaited discussion. Thougths about divide(?) of private|public law were always on my mind as private lawyer.


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